Hiyer v. Hayward , 1900 Pa. Super. LEXIS 7 ( 1900 )

Opinion by

Bbavek, J.,

Two questions of practice are presented by the specifications of error in this case.

1. Is it_necessary in a scire facias upon a mortgage which became a lien upon real estate in the lifetime of decedent to make his widow and heirs party thereto ? The 34th section of the act of February 24, 1834, provides that “ in all actions against the executors or administrators of a decedent who shall have left real estate where the plaintiff intends to charge such real estate with the payment of his debt, the widow and heirs or devisees and the guardians of such as are minors shall be made parties thereto,” etc. But a judgment or mortgage entered in the lifetime of the decedent was a charge upon the real estate when he died and the requirements of this act do not apply. This was expressly decided in Chambers v. Carson, 2 Wh. 365, and Taylor v. Young,71 Pa. 81.

2. Is the use plaintiff in a scire facias upon a mortgage where the mortgagee is upon the record as the legal plaintiff bound to prove the assignment under which he claims, in order to recover? The appellant refers to Berks Co. v. Levan, 86 Pa. 360, and seeks to avoid the decision of this question therein, because the action was upon an official bond. But the discussion is not limited to actions upon official bonds; it is general, Mr. Justice Sharswood remarking: “It was an error in the court below to suppose that an equitable plaintiff suing on a bond would be obliged to show his title to the obligation. It is never necessary, unless for the purpose of meeting arid answering some defense which though good against the legal plaintiff is not good as against him, as, for example, payment to the legal plaintiff after notice of the equity.”

It is true that, when plaintiff offered her assignment, which was merely entered upon the margin of the record of the mortgage and not regularly recorded and objection was made thereto, the court said, “ You will have to prove it, if called for,” but this was said in reference to the admissibility of the evidence contained in the offer and not as to the right of the plaintiff to maintain her suit. The entry upon the margin of the record of the mortgage did not entitle the assignment to be given in evidence, because it did not bring it within the provisions of the recording act and make it evidence of itself.

The defendant will have no difficulty in fully protecting the estate of the decedent, when he pays the judgment.

As to the motion for the imposition of the penalty, under the 21st section of the Act of May 19, 1897, P. L. 67, it is perhaps well to say that there is no evidence of bad faith in taking this appeal. Defendant is acting in a representative capacity and is, of course, desirous of doing his whole duty, and there is nothing apparent which indicates more than this.

Judgment affirmed.