Lewis v. Nenzel , 1861 Pa. LEXIS 94 ( 1861 )

Tbe opinion of the court was delivered,

by Woodward, J.

— The single error assigned is in the rejection of the offer to prove that the bond and mortgage under which the defendant obtained title to .the land in question, were procured through false and fraudulent misrepresentations. What the false and fraudulent representations were that induced Mrs. Lewis and her four children to sign the bond and mortgage, were not suggested in the offer; and this was enough to condemn it. But there was a more substantial reason for rejecting it.

The assignee of the mortgage issued a scire facias upon it to June Term 1849, which was returned ii service accepted.” An affidavit of defence was filed, a plea of non est factum, put in, and a jury trial had which resulted in a verdict and judgment for the plaintiff. Pending that suit, judgment was entered on the bond which accompanied the mortgage, and, on a rule to show cause why the judgment should not be opened, and the defendants let into a defence, the court passed again, or might have passed, on the merits of the case. The rule was discharged. Mrs. Lewis and her four children, the obligors and mortgagors, were the defendants in those proceedings, and if the bond and mortgage had been fraudulently obtained, they surely had ample opportunity to show it. Then was their time, their day in court; and if they did not improve it, the legal effect of the proceedings is none the less conclusive: Kelheffer v. Herr, 17 S. & R. 319.

After sale of the mortgaged premises, the attempt was idle to resist the title by reopening and agitating anew the very questions which had been tried, or might have been, in the former suits. Res adjudicóla was an all-sufficient answer to the plaintiff’s offer, and therefore it was properly rejected.

The judgment is affirmed.