Hosie v. Gray

The opinion of the court was delivered, by

Williams, J.

There was no error in sustaining the demurrer to the special plea. It was expressly agreed by the parties to the mortgage, and made part thereof, that whenever and so often as there should occur any failure to pay any instalment of principal, for a period of thirty days after the same fell due, the whole amount of principal secured thereby, with all interest accrued thereon, should thereupon, for the purposes of suit, become forthwith due and collectable, and that a scire facias might thereupon forthwith issue, to have the same force and effect as though the W'hole amount of said principal and interest had been due for a year and a day. Even if the defendants were not estopped from denying the right of the plaintiffs to issue the writ, the Act of 3d April 1868, Pamph. L. 57, provides that in all cases of mortgages upon leasehold estates, the mortgagee shall have the same remedies for collection thereof which mortgagees of real estate have under the laws of this Commonwealth for the collection of such mortgages ; and all proceedings heretofore instituted for the recovery of moneys secured by mortgages upon leasehold estates, in the manner provided by law for the recovery of moneys secured by mortgage upon real estate be and the same are hereby declared valid. This act clearly embraces the mortgage in controversy, and there can be no doubt of the power of the legislature to provide the remedy, and to validate all proceedings by scire facias upon such mortgages pending at the date of its passage.

Nor was there any error in allowing the mortgage to be given in evidence. If it would not have been good and available as against subsequent purchasers, or execution-creditors, because it was not recorded until seven days after its execution," instead of being recorded within five days thereafter, as required by the Act of 5th of April 1853, Pamph. L. 295, it does not follow that it was void as between the mortgagors and mortgagees. An unrecorded mortgage is good between the parties, and. a scire facias may issue on it. If the writ was defective in not reciting the provision in the mortgage, that upon the failure of payment of any instalment of principal, the whole debt secured thereby should forthwith become due and collectable, and that a scire facias might thereupon forthwith issue, it was a clerical error, amendable by the prsecipe, which recited the provision in totidem verbis, and the court, therefore, properly allowed the amendment to be made on the trial. It did not change the cause of action, and it could not have operated as a surprise on the defendants.

The defendants’ offer to prove the award made by Dr. Hutchinson between the parties was properly rejected, for the reasons given by the learned judge in overruling it. Even if the matter submitted to him was a proper subject of reference at common law, the defendants did not offer to perform the award on their part, nor demand its performance by the plaintiffs. It is clear, then, that they could not set up the alleged award as a bar to the action on the mortgage.

Nor was there any substantial error in overruling the defendants’ offer to prove that A. Gray, Sr., proposed, as an inducement for the defendants to purchase the plaintiffs’ interest in the coal-leases at the amounts of the mortgage respectively, and as a part of the bargain, that he would advance or loan to them $20,000, to be repaid out of the profits; and that after the execution of the mortgages he refused to make any part of said loan or advance. If the defendants had to make up that amount, and more too, as alleged, to place the mines under the leases in a working condition, they did not offer to show that they had incurred any expense in raising the money, or that they had borrowed it on less favorable terms, and if not, the refusal of the plaintiffs to advance the money did them no harm. The allegation that in consequence of this refusal the defendants -were subject to great delays and losses, is too vague and indefinite to support the offer. If the defendants actually sustained delays and losses by the plaintiffs’ refusal to make the loan, they should have been specified; without any specification of their nature and extent, the court was justified in treating the allegation as a mere make-weight, and rejecting the offer, if insufficient in other respects. If it had been proved precisely as made, the jury would not have been warranted in giving more than nominal damages for the plaintiffs’ refusal to loan the money, and therefore its rejection did the defendants no suoh injury as calls for a reversal of the. judgment.

There is nothing in the other offers of evidence made by the defendants that requires discussion or notice. It is enough to say that the court was clearly right in rejecting them.

Nor was there any error in the charge of the court. As the defendants failed to show any defence to the mortgage, the plaintiffs were entitled to recover.

Judgmént affirmed.