Loverin, Hall & Co. ex rel. Gunnison v. Humboldt Safe Deposit & Trust Co. ex rel. Burton , 113 Pa. 6 ( 1886 )

Mr. Justice Paxson

delivered the of the Court,

This is a very plain case. To state it briefly, it was an attempt to keep alive a mortgage which had been paid by the mortgagors, against a subsequent unpaid mortgage given by the same mortgagors upon the same premises. The evidence is uncontradicted that it was the money of Mr. and Mrs. Thompson (the mortgagors) that paid the first mortgage. That the money actually came from Conrad Brown’s estate is of no consequence. It was paid by said estate at the request of Mr. Thompson, with the understanding that such payment would settle a claim which Mr. and Mrs. Thompson held against the estate of Conrad Brown’s father and mother. It was an indirect mode of doing it, but the result is the same. The money paid was in fact the money of the mortgagors. It is doutblessJruqjl)iy¡Jilre-.moidgag-o-rs.-did-®ot -intend to have Uiis'lnortgage satisfied. They may and probabty did intend 1Sdie'SpDT^rvn_for'the benefit of themselves or their children. We think the documentary evidence in the case shows this.

Where creditors are not concerned, there is perhaps no legal reason why it may not be done. Though actual payíñeñt discliarges a ju^menFor ^other incumbrance at law, it does not discharge it in equity if there are interests .which require it to be kept alive for their protection. Thus it may be kept on foot for the protection of a paying surety, and other cases which it is not necessary to name. And it was said by Sharswood, J. in Wilson v. Murphy, 1 Phila., 203, “ There is no doubt that a mortgage may be kept alive, even after payment in full, if such were the intention of the parties, and even though there be no actual assignment to a trustee.”

This results from the right which every man has to do what hé®\\urwithjxis own. Therule is different when he comes to SeMWvftiTthe property of other persons. The rights of the second”mortgagees are concerned, here. When the mortgagors procured the payment of the first mortgage with what was admittedly their own money, it extinguished, that mortgage at law and in equity as between it and the second mortgage, and the latter took its place. We do not deny the right of the mortgagors to have procured some friend to have bought the mortgage and taken an assignment of it. Such a transaction would have been legal and would have kept it alive. But when they procured it to be done with their own money, the assignment of the mortgage is of no validity as against the younger mortgage. This principle is too familiar to need the citation of authority.

Judgment affirmed.