Jeffers v. Gill ex rel. Lewis , 1879 Pa. LEXIS 339 ( 1879 )

Mr. Justice Gordon

delivered the opinion of the court,

“ Where one of two innocent persons must suffer, he must bear the loss whose act or neglect has been the occasion of the suffering:” Wethrill’s Appeal, 3 Grant 281. Judged by this rule, McCain’s defence fails. He it was who put it into Gill’s power to commit the fraud which has produced the result complained of; from first to last he has been grossly negligent. He gave his note for the balance due fipon the mortgage, when it was yet in the hands of McCullough, and when it did come into Gill’s possession he took no steps to have the arrangement endorsed either upon the papers or upon the record. The mortgage, bond and certificate of no defence were left in Gill’s possession as security for the note; in other words, they were to be of full force until the note was paid. Thus was Gill left with power to dispose of the mortgage as he might see proper, and he, having exercised this power, by assigning to Mrs. Lewis, at the same time keeping secret the collateral arrangement involving the note, I cannot see how, in justice, she is to be made to suffer. But the carelessness of McCain is further manifested in this: when the note was renewed, in August 1876, he neglected to examine the record, or to demand sight of the papers, by either of which he might have informed himself of the assignment, and in this manner he let slip the opportunity to secure himself Furthermore, he renewed this paper from time to time until Gill ran off and left him to pay it to his endorsee. McCain having thus neglected to exercise the most ordinary prudence, having, though it may be, inadvertently, helped a rogue' to set a trap for the unwary and innocent, he cannot be heard to complain if he himself has experienced the misfortune to be caught -in it.

It has been urged that the duty of inquiry rested upon Mrs. Lewis; that she ought to have gone to McCain, the vendee of Jeffers, and ascertained if he had any defence. Saying nothing about her want of knowledge of the transfer of the mortgaged premises to McCain, or of the effect of the certificate of no defence executed by Jeffers, this might be true had McCain exercised a reasonable degree of prudence, but as the want of such prudence was the cause of the imposition upon Mrs. Lewis, she owed him no duty of any kind. Had he not been negligent, she would not have paid her money, and he cannot now impose the fruits of that negligence upon her, by insisting upon a duty which was due him only when acting in an ordinarily prudent and careful manner.

Judgment affirmed.