229 Pa. 407 | Pa. | 1911
Opinion by
This appeal is from the refusal of the court below to open a judgment, entered by confession upon a bond conditioned for the payment of the sum of $3,500 and interest. The bond was dated August 22, 1908, payable in three years. Judgment was entered June 19, 1909, and execution issued the same day. Upon the petition of the defendants, the court below stayed the writ, and granted a rule to show cause why the judgment should not be opened. Depositions upon both sides were taken; and, after a hearing, the court below discharged the rule. It appears from the petition of the defendants, and from the depositions taken in support thereof, that Jane V.
In the answer filed by David Pierce it is stated that he afterwards agreed with Repper to pay $1,920 for the bond and mortgage, and that he actually paid that sum. In his deposition W. R. Shoemaker testified that he never authorized Volk or Repper, or any one else, to dispose of the bond and mortgage for anything less than its face value. It is admitted by all parties that Volk, the mortgagee, advanced no money, and had no real interest in the transaction. His name was used merely to facilitate the matter. While the transaction was in form a purchase of a bond and mortgage, yet in substance, and as a matter of fact, it was a loan by Pierce of the sum of $1,920, directly to the mortgagors. The money was paid to Repper, the agent of the mortgagors. There is but little if any dispute as to the material facts, and if the evidence, as set forth in the depositions is to be credited, the plaintiff is not entitled to recover on his judgment more than the amount he loaned, or paid out, for the bond and mortgage, with interest and costs. No copy
The admitted facts of the present case seem to bring it within the principle laid down in Huckenstein v. Love, 98 Pa. 518. In that case a scire facias was issued by C. H. Love, for use of W. C. Comingo, against John Huekenstein upon a mortgage executed by defendant to the legal plaintiff. The defendant pleaded usury as to a part of the mortgage. Subsequently, Thomas McKee intervened as terre-tenant, and on the trial the jury was sworn against John Huckenstein, with notice to Thomas McKee, terre-tenant. The defendants offered to prove (p. 520) that “Love, the mortgagee, had no interest in the mortgage, and that the money was advanced directly by Mrs. Comingo (the use plaintiff) at a heavy discount.” Also that McKee, the terre-tenant, had no beneficial interest or title in the mortgaged premises, but that he merely held the legal title as a trustee for Huckenstein. These offers were rejected, and the court directed a verdict for the plaintiff for the full amount of the mortgage, with interest. On writ of error the rejection of the offers was assigned for error. Mr. Justice Trtjnkey said (p. 521): “At the trial Huckenstein proposed to prove that Love, the assignor of the mortgage, was merely the broker, and that Mrs. Comingo, the assignee, was the real lender of the money. This offer was overruled for the reason that Huckenstein’s title to the premises had been vested in
In the present case, the position of Volk corresponds to that of Love in the case just cited; and the place occupied by Pierce is similar to that of Mrs. Comingo. There is no intervening terre-tenant here, so in that respect the defendants are in a better position than was the defendant below in Huckenstein v. Love; and upon the authority of that case, the judgment now under consideration should have been opened, to permit the facts to be shown.
The evidence in this case, upon the part of the defendants, impresses us as going far beyond the point of producing a mere conflict of testimony. We think the defendants have shown by a preponderance of the evidence sufficient to sustain a verdict in their favor, that they had a just defense to a large part of the sum claimed under the judgment. Under such circumstances the defendants should be allowed a trial: Kaier v. O’Brien, 202 Pa. 153; Earley’s App., 90 Pa. 321; Jenkintown National Bank v. Fulmor, 124 Pa. 337.
The order of the court below, discharging the rule to open the judgment, and to let the defendants into a defense, is reversed and set aside; and the rule is now made absolute.