Davis v. Malone , 250 Pa. 557 ( 1915 )

Opinion by

Mr. Justice Potter,

This tnll in equity was filed hy plaintiff to restrain the defendant from prosecuting a writ of scire facias upon a mortgage on certain real estate, the title to which had become vested in appellant, subject to the said mortgage. The writ of scire facias was issued September 20, 1913, an affidavit of defense was filed, and it was not until July 14, 1914, that this bill was filed tO' restrain further proceedings. The court below sustained a demurrer to the bill, and dismissed it, on the ground that the remedy of plaintiff in the action at law, was adequate and complete. It is difficult to see why this is not the case. The real issue to be determined is, whether anything is due upon the mortgage, and if so, how much. This can certainly be ascertained in the suit at law. The jurisdiction of equity to restrain actions at law in any proper case, is unquestionable, but in this instance we can see no reason to invoke its exercise. Every defense alleged in the bill may be presented in the action upon the scire facias. Plaintiff in that action must show title to the mortgage. Want of consideration when the mortgage was given, or its subsequent assignment as collateral, and the payment of the debt to secure which it was assigned, may be shown by proper evidence on the part of the defendant in the pending suit at law. There is no allegation in the bill, of fraud, accident or mistake. In so far as anything is disclosed by the record, the court below was entirely right in holding that the case is not one for equitable interference.

The assignments of error are overruled, the decree of the court below, dismissing the bill, is affirmed, and this appeal is dismissed at the cost of appellant.