225 Pa. 321 | Pa. | 1909
Opinion by
This was an action to recover upon a breach of a general covenant of warranty contained in the deed of conveyance from the appellees, Edward O’Donnell, George H. Higgins, and O. C. Allen, to one Frank W. Tarbox, dated April 17,1890. The covenant was in the usual form and need not be here recited. The deed contained also the customary words “grant, bargain and sell.” By certain intermediate conveyances the title to the property so conveyed became vested in the Fredonia National Bank, April 7, 1894. Prior to the conveyance from O'Donnell, Higgins and Allen, O’Donnell and Higgins, who were then sole owners of the land described in the deed, executed a mortgage to one Emerson in the sum of 83,000. This mortgage was upon record when Allen subsequently purchased an undivided interest in the land, and it remained unsatisfied when the conveyance was made by O’Donnell, Higgins and Allen to Tarbox. In August, 1905, a scire facias was sued out upon this mortgage against O'Donnell and Higgins. This was followed by an alias writ against the same parties including the Fredonia National Bank, the plaintiff in the present action, as terre-tenant. Upon this latter writ judgment was obtained in the sum of 81,955 with interest and costs. A levari facias was issued on this judgment and the mortgaged premises were sold thereunder by the sheriff for the sum of 84,000, December 2, 1907. After paying thereout the judgment and costs, a balance of 81,873.79 was paid over to the Fredonia Bank. The suit by the bank, through its receiver, is to recover the difference between the amount paid to the bank and the total proceeds of the sheriff's sale, as damages resulting from the alleged breach of the warranty, to-wit: the sum of 82,226.01, with interest. Plaintiff's state
The other matters set up by way of defense were adjudged insufficient, and in this conclusion we concur. The fact that Allen was not one of the mortgagors, and that he acquired his interest in the property after the mortgage had been given, is of no consequence. He was one of the grantors in the deed to Tarbox and united with the other grantors in the warranty. It was his warranty as well as theirs. Nor is it of any consequence that he had but an undivided fourth interest in the premises at the time of the conveyance. The averment that a large amount of oil sufficient to pay the unpaid balance of the mortgage had been produced from the mortgaged premises and delivered to the mortgagee, is too indefinite to warrant an arrest of judgment. It is lacking in so many obviously essential elements that this feature of the affidavit calls for no discussion. For the reason here stated the order discharging the motion for judgment for want of a sufficient affidavit of defense is reversed, and the record is remitted to the court below with directions to enter judgment for plaintiff, unless other legal or equitable cause be shown to the court below why such judgment should not be entered.