219 Pa. 649 | Pa. | 1908
Opinion by
The facts in this case are not in dispute and ho oral testimony was taken at the trial. Hence the rights of the parties must be determined by the facts as they appear in the recprd. The deed from Butterfield to Morozowics, while dated December 13, 1898, was not acknowledged until December 20, 1898, and was recorded March 9, 1899. This deed contained the following recital: “ Subject, however, to $594 of a certain mortgage given by Frank Butterfield with its interest from July 13, 1898.” The Butterfield mortgage to which this recital clearly refers was recorded August 18, 1898, and therefore gave record notice of its lien to subsequent purchasers. It was a purchase money mortgage, covering lots 193 to 228, inclusive, and 237 to 262, inclusive, in the south "Wilmerding plan of lots. The mortgage record shows that on December 19, 1898, lots from 247 to 262, inclusive, were released from this lien. The deed from Butterfield to Morozowics only conveyed lots 249 to 257, inclusive, but, all of these lots were included in the release of the lots 247 to 262, inclusive. The learned court below fell into error in saying : “ The title to all lots covered by the mortgage subsequently became vested in Johnson, who now appears and defends this action.” It clearly appears from the record that Johnson did not hold title to all the lots covered by the mortgage, that he did not take title to any lots through Dumbleton, and so far as we can see the reference to Dumbleton has no bearing in the case, and certainly cannot affect the rights of Johnson. It is true the deed from Butterfield to Morozowics bears date December 13, 1898, which was prior to the release of the mortgage, but it was not acknowledged until December 20, 1898, the day after which the release was made, and the presumption is that it was not delivered certainly until after its acknowledgment and perhaps until the date of its record. It seems clear, therefore, that in the absence of testimony showing anything to the contrary, the rights of the parties must be determined as of the date when the deed was delivered. At that time the records show that lots 249 to 257 were released from the
Judgment reversed and record remitted to the court below for the entry of judgment in accordance with this opinion.