Shannon v. McHenry ( 1908 )

Opinion by

Mr. Justice Fell,

The main ground of the appellant’s contention is that judgment was improperly entered for the plaintiff non obstante veredicto, because the material facts were in dispute and involved the consideration of oral testimony and the credibility of witnesses. If this was the case the judgment is erroneous. It is not the intent of the Act of April 22, 1905, P. L. 286, to disturb the line of distinction between the province of the court and that of the jury, and no judgment can be entered under the act against the verdict except where binding directions would have been proper at the close of the trial: Dalmas v. Kemble, 215 Pa. 410; Bond v. Penna. Railroad Co., 218 Pa. 34.

The mortgage in suit was a purchase money mortgage given by Conlon to Eshelman on August 6, 1901, recorded the same month, and transferred to the plaintiff by assignment dated October 25,1901, and recorded September 29,1905. McHenry, the terre-tenant, who alone made defense, purchased the property from Conlon in June, 1903. The ground of her defense was that before paying the purchase money, her counsel, representing her in the purchase, was told by Eshelman that the mortgage was given for the same debt that was secured by two judgments which were prior liens on the property, and that acting on the belief that this was the case, a settlement was made with Conlon.

There was no attempt at the trial to prove that the mortgage and the judgments were for the same debt. The whole controversy was whether the terre-tenant had acted on a statement in relation to them made by Eshleman to anyone representing her in the matter. The issue of fact was submitted to jury, and the finding was in favor of the defendant.

If the question answered by the verdict were decisive of the plaintiff’s right to recover, a judgment non obstante could not properly have been entered, because there was a dispute as to the facts which it was the province of the jury to decide. Eut there was no dispute that Eshelman had parted with all interest in the mortgage by assignment and delivery of it, and the bond it was given to secure before the terre-tenant took title. The record does not fully sustain the statement made in the opinion of the court that the undisputed testimony showed this. There was no direct testimony on this subject, but it was not in dispute that an assignment had been made October 25, 1901, as recited in the writ of scire facias, although a later assignment was executed in 1905. The trial was apparently proceeded with on the assumption, the correctness of which has not at any time been questioned, that the mortgage was assigned in 1901 by an indorsement on the back thereof, and that a second assignment bearing the same date as the first was executed in 1905, because the first had not been acknowledged and could not be recorded. The case having been tried on this assumption, it should bo considered on review as if the proofs had been made. It would be idle to send it back in order that proof should be made of facts not really in dispute.

The first assignment of the mortgage operated as a valid transfer. Eshelman had delivered the bond and mortgage with the assignment, and had parted with all interest as well as the indicia of ownership, and he was not even asked, in the conversation alleged to have taken place, whether he then owned the mortgage. Under these circumstances the statement imputed to him could not in any manner affect his assignee.

A finding of all the disputed facts against the plaintiff did not defeat his right to recover; judgment was properly entered for him, and it is now affirmed.