Strieker v. McDonnell

213 Pa. 108 | Pa. | 1905

Per Curiam,

A bond and mortgage are separate obligations though for the payment of the same debt. The mortgage though in fact usually the more important item in the transaction is in form and legal effect only collateral security for the bond, and suit, judgment and satisfaction upon it, is not a discharge of the obligation of the bond unless the debt itself is satisfied: Ayres v. Wattson, 57 Pa. 360.

Tlie mortgage in the present case, which was for part of the purchase money of the same land conveyed by plaintiff’s testator to defendant, after reciting the bond, continued : “Now this indenture witnesseth that the said party of the first part, as well for and in consideration of the premises as of the aforesaid debt .... and for the better securing the payment thereof unto the said party of the second part, executors, administrators and assigns in discharge of the said obligation above recited .... hath granted,” etc. The appellant claims that the effect of the words “ in discharge of the said obligation above recited,” i. e., the bond, is that a sale under the mortgage is a satisfaction of the bond. But there is nothing in the language to sustain such a departure from the presumed purpose in giving the double obligation, nor is any such intention of the parties set forth in the affidavit of defense, which rests the satisfaction on the claim as a conclusion of law that the sale under the mortgage “ operates as a legal and just extinguishment and payment of the said indebtedness.” But this is not the legal and usual operation of such a sale, nor as already said is the language such as to imply an intention of the parties to that effect. On the contrary, the words as already quoted are “ in consideration of the premises (the recital of the debt and the bond) as of the aforesaid debt .... and for the better securing the payment thereof.” It is the payment of the debt which is to discharge the other obligation, to wit: the bond, to which the mortgage is legally only a collateral security. Though the wording is a little different the purpose is the same that is expressed in the more common form.

Judgment affirmed.