Citation Numbers: 54 Pa. 386
Judges: Agnew, Read, Strong, Thompson, Woodward
Filed Date: 4/1/1867
Status: Precedential
Modified Date: 2/17/2022
The opinion of the court was delivered, by
The defendant, a single woman, on the 7th August 1851, executed a bond to Sarah Kean, a single woman, in the penal sum of $1600, conditioned for the payment of $800 in ten years from date, with interest payable half-yearly, the first payment to be made on the 7th February 1852, if default for thirty days in payment of interest, the whole principal sum to be due at the option of the obligee.
This debt was also secured by a mortgage reciting said bond, and bearing even date therewith, and recorded on the 26th September 1851, in Mortgage Book G. W. C., No. 44, page 80, &c., executed by the said defendant to the said decedent, of a two-story brick house and lot of ground, west side of Logan street, 79 feet 3-J inches south of Green street, 15 feet front by 50 feet deep, in the district of Spring Garden, now in the city of Philadelphia, being the same premises which Curwen Stoddart and wife, by indenture bearing date the 25th day of April, A. D. 1851, intended to be recorded with the mortgage, granted and conveyed to the said Ellen H. Stoddart in fee, subject to a mortgage-debt of $750, with interest, to John J. Smith.
Sarah Kean, the mortgagee, died in October 1855, and the principal fell due on the 7th August 1861, at a time of great depression. The interest was regularly paid both before and after the death of the mortgagee, the last half-yearly payment being made on the 7th February 1866.
On the 3d August 1866 this scire facias on the mortgage was issued, returnable the 1st Monday of August, and service accepted, and the 24th August an affidavit of defence was filed by Benjamin Ripperger, for defendant, and on the 8th September a rule was entered for judgment for want of a sufficient affidavit, and on the 17th an affidavit of defence by the defendant was filed, and on the same day the rule was made absolute and judgment for the plaintiff, and on the next day a lev. fa. was issued.
The affidavit of the defendant states that her father, for whom she alleges this bond and mortgage was given, died on the 23d January 1857, more than four years before the principal became due.
“ That her father told her he wanted to give Sarah Kean a mortgage on my house in Logan street. That something might be coming to her from the estate of Mary Harman; that she might have left her something; that he was anxious to secure her in getting it if such was the case; and he wanted me to give the mortgage for that purpose and for nothing else. I gave it to him without'hesitation in pursuance of his request without questioning him about it, and entirely and solely on the information he thus gave me, and without any consideration whatever than his mere request. I did not receive a particle of value or benefit or forbearance for myself or for any other person from any person for the said mortgage. Her father took the mortgage, she did not deliver it to Sarah Kean, he may have done so. She never had a word with deceased upon the subject, nor was she present at any time with us. I did not know her in the matter.”
Mary Harman died intestate in this county in 1849 ; the affirm-ant is informed and believes that Mary Harman left no property in which Sarah Kean had any interest, and that she was neither her next of kin or creditor of Mary Harman; and that during the seventeen years since her death, neither Sarah Kean nor her legal representatives have taken any proceeding to ascertain whether the said Sarah Kean had any interest in her estate, and this seems to be accounted for by the fact stated by the defendant that she never had any.
From this statement it is perfectly clear that this bond and mortgage were executed in due form by the defendant freely and voluntarily and handed to her father, who must have delivered them to the decedent, as the mortgage was recorded and both instruments were found amongst the papers of the decedent by her legal representatives. Besides, the interest was regularly paid to her in her lifetime, and after her decease to her legal representatives, by the defendant, whether in person or not we are not informed; but the money, must clearly have been furnished by the defendant after her father’s death for a period of nine years. We are not informed that the father was not a debtor to the decedent, and that the securities were not used by him to pay or secure her. All that we are told is that the defendant gave this bond to her father upon representations which turned out to be without foundation. No knowledge of them is traced to Sarah Kean, nor is it alleged that she ever heard of them, they are entirely confined to the father and daughter. During the life of the father it was acted upon by him and his daughter as a valid
It would be a dangerous doctrine to hold that such loose allegations should he considered a defence to this suit. The court below were, therefore, right in entering judgment for want of a sufficient affidavit of defence.
Judgment affirmed.