77 Pa. 383 | Pa. | 1875
delivered the opinion of the court,
There can be no doubt that if John O’Byrne, the first assignee of the mortgage, had been the plaintiff in this action, the defendant would have had the right to prove the facts alleged in her affidavit. The mortgage, according to her statement, was executed at his instance. The defendant and her husband were confined in prison on a charge of crime, and Mr. O’Byrne undertook to provide and disburse the funds required to meet the expenses of their approaching trial. These funds were to be raised out of the defendant’s property, and the mortgage, which he agreed he would never part with, Avas .the means by which the control of the property was placed in his hands. He took possession, and collected the rents up to a time shortly before this suit Avas brought. Besides this, he procured the appointment of William Callahan as administrator of Mary E. Hill, the mother of the defendant, retaining the management of the estate entirely in himself, selling the personal property, collecting the credits in his own name, paying the debts of Mrs. Hill, and acting in all respects as if the administration had been committed to him and not to Callahan. The settlement of the estate is pending un the Orphans’ Court, and the defendant asserts her belief that a large portion of the assets has been unaccounted for, amounting to more than the principal of the mortgage. In the meantime, no statement has been made of the expenses of the trial of the defendant and her husband, and no account has been rendered of the management of the mortgaged premises, although such an account has been demanded. On the 8th of February 1869, in violation of his agreement that he would not part with the mortgage, he assigned it to the trustees represented by the plaintiff beloAV. The consideration stated in the assignment was one dollar.
Upon facts like these, it is clear that even an endorsee of a promissory note would be required, in an action against the maker, to prove that he had received it in the usual course of business, for a valuable consideration, and before it was due. A party may rest upon the presumptions of law in his favor in the first instance, but where circumstances are shown making out, primfi facie, a case of fraud upon the maker, the holder must establish his title to the note: Hutchinson v. Boggs and Kirk, 4 Casey 294. The assignee of a specialty is subject to a different and more stringent rule than
Notwithstanding the general facts set out in the affidavit of defence, the judgment is sought to be sustained on the ground that the defendant is estopped from denying her liability by the execution of the instrument filed with the praecipe for the scire facias, by which it was declared by her husband and herself, that they had no legal claim or set-off against the mortgage'; that it was about to be assigned to the trustees of H. W. and J. C. M. Halbach, with their full knowledge and consent; and that they acknowledged the principal sum of $10,000 to be due. It may well be doubted whether the effect contended for could be given to this certificate even if it were unaffected by any allegation in the affidavit. The mortgage was perfect in itself as a cause of action, and the suit was brought on that. The certificate would be evidence on a trial, undoubtedly. But it does not follow that it could be taken up either by the court below, or by this court, in order to control a decision against the defendant when an adequate defence had been made out on other grounds. The effect would be that the court, without an issue, would be engaged in trying the merits of the controversy with a sufficient affidavit of defence before them on one side, and part of the plaintiff’s documentary evidence before them on the other. It is not necessary, however, to express any opinion on this. The defendant has sworn that she never knowingly signed this paper, that no such paper was ever read over to her, and she was never made acquainted with its contents; and that she did not acknowledge it “ in the manner and form therein
The language already quoted from the cases of Michener v. Cavender and McCandless v. Engle, meets the remaining ground on which it is insisted the judgment should be supported. For some purposes a mortgage is something more than a mere security for a debt. It is a pledge of specific property. It gives to a creditor the exceptional remedy of ejectment. And, as suggested in Michener v. Cavender, a mortgagee may be treated as a purchaser for the purposes of the recording acts. But the parties to this record hold the relation of debtor and creditor. The action in form and object is to enforce the payment of a debt. Judge Thompson
Judgment reversed, and procedendo awarded.