Brewer's Appeal , 1884 Pa. LEXIS 21 ( 1883 )

Mr. Justice Trunkey

delivered the opinion of the court, January 7th 1884.

The findings of facts by the Master are warranted by the testimony of three witnesses, corroborated by the circumstances.

Pennock testifies that he sold the mortgage to Toomey as the first lien; that at the time of closing the arrangenient before the money was paid, the distinct understanding of all parties was, that Brewer was to satisfy or postpone" all the mortgages then existing prior to the Pennock mortgage, but does not remember which he was to satisfy and which postpone; that he, with Brewer, Robinson, Montooth and Stewart, -who represented Toomey, went to the recorder’s office, where he saw Brewer receive from Stewart five thousand, six hundred and fifty dollars, and satisfy or postpone one or more of the mortgages ; and that he left, supposing the arrangement had been carried out. Robinson states the terms of the agreement more specifically, and says that the McNish mortgage was to be sat- j isfied upon the payment to Brewer of five thousand, six hun-, dred and fifty dollars. Stewart’s testimony shows that he understood that Brewer agreed to satisfy the McNish mortgage, and that he paid the money believing it had been satisfied. The written postponements of the three mortgages recite that' it was the intention to make the mortgage assigned to Toomey' the first lien on the property therein described. This glance at the testimony is not for vindication of the Master’s conclusions of fact, but for ascertainment whether Toomey was privy to the contract and paid out his money in consideration of the satisfaction and postponement of the prior mortgages. Unless Brewer alone remembers the truth upon the controlling points in the case, Toomey paid his money for the mortgage npon Brewer’s agreement to make it the first lien. The testimony against him is too strong to be discarded. He claims there was no privity between himself and Toomey. But Toomey’s attorney was present at the making of the contract that the Pennock mortgage should be made the first lien, and paid the money for it (Brewer receiving part), when he thought that contract had been accomplished.

By mistake; satisfaction of the McHish mortgage was not entered, and Brewer now refuses to enter satisfaction and denies the agreement. It matters not, that afterwards, he and Robinson.made a different application of the money, for they had no right to make a new arrangement to the prejudice of Toomey. Brewer, claiming that the McHish mortgage is unpaid and in force, it is within the province of a Court of Equity to compel him to perform his undertaking, which induced Toomey to pay his money.

Ho question arises whether the appellant had power to release or postpone the lien of a mortgage in favor of the estate of Ebenezer Brewer, deceased, for he was executor and actually-received the money on the mortgage to an amount exceeding the sum owing to the estate.

The appellant denies jurisdiction in equity on the ground that the plaintiff had an adequate remedy under the Act of March 31st 1823, P. L. 216, which provides that where the legal holder of a mortgage has removed, or shall be out of the state, and payment being made of all the money or amount due, or to become due thereon, and shall so continue for two years, the mortgagor^ or the owner of the mortgaged premises, may petition the court of Common Pleas for a decree of satisfaction of the mortgage. It does not appear when Brewer became a resident of Ohio. He resided there at the time he testified, but he nowhere avers that he was a non resident of Pennsylvania when the action was begun. Toomey was neither the mortgagor nor owner of the mortgaged- premises when he brought suit. Without further note, it is plain that this case is not within the terms of the Act of 1823, and it is unnecessary to determine whether, if the plaintiff could have relief under that Act, his,bill in equity could be sustained.

Decree affirmed and appeal dismissed at the cost of ., the appellant.