Schaeffer v. Schaeffer

Opinion bt

Mr. Chief Justice Sterrett,

This scire facias is on a mortgage given by Edwin M. Schaeffer to Eliza Schaeffer, widow of Emanuel Schaeffer, deceased, to secure the payment of five obligations (one in favor of each of .saidmortgagees), viz: One in the penal sum of $1,000 conditioned for the payment of $240 annually to said widow, during her natural life, and the others each in the penal sum of $1,600 conditioned for the payment of $800 to each of said children, respectively, upon the decease of said widow. After specifically reciting the annuity of $240 to the widow and $800 to each of said four children, as the consideration of the mortgage, etc., that instrument contains the usual defeasance clause to the effect that, upon the payment of the sums thus secured, the said mortgage, as well “ as the said five recited obligations, shall become void and of no effect,” etc. The first mentioned obligation accordingly became “ void and of no effect ” by payment in full of said annuity to the widow to the date of her decease.

In their statements the plaintiffs aver among other things that the mortgage represents $4,000 of the estate of Emanuel Schaeffer which, by his will, he divided equally among his five children, of whom Edwin M., the mortgagor, was one, and that his interest is claimed by his assignee, Charles L. Schaeffer, one of the equitable plaintiffs; but this averment derives no support whatever from the mortgage in suit. It discloses no interest thereunder in either the mortgagor or his assignee. The only mortgage debt that remained, after payment in full of the annuity to the widow, was the $800 to each of said four children, aggregating the sum of $3,200, with interest from that date. These claims, as we understand, are not disputed by the terretenant, appellant, but that of Edwin M. Schaeffer is denied; and we fail to find in the instrument.sued on anything upon which he or his assignee can possibly base any claim against the terretenant, who became such by purchase of the mortgaged premises subject to the mortgage only, and so far as appears without notice of any other claim than those specified therein. In his affidavit of defense, the terre-tenant distinctly avers, “That Edwin M. Schaeffer never had any interest as a mortgagee in said mortgage, either in law or in fact, but, on the contrary, he was the mortgagor therein, that he neither created nor reserved for himself any interest or share therein at the time of the execution of said mortgage.” In the face of this averment, and in the absence of anything in the mortgage itself on which to base any claim in favor of Edwin M. Schaeffer, it is impossible to sustain the court below in holding that the affidavit of defense was not sufficient to prevent judgment for the full amount claimed by the plaintiffs.

The conveyances in the terre-tenant’s chain of title “ subject to the mortgage ” gave him no notice of anything not set forth in the mortgage. As we have seen, all that the latter — including the bonds therein recited — provided for was the payment of the annuity to the widow, and upon her decease, $800 to each of the four children. On the payment of these sums, the mortgage, as well as tbe obligations recited therein, were, in the language of the former, to become “ void and of no effect.” The claim set up by the plaintiffs for the additional sum of $800 is in conflict with the plain terms of the written instrument. As clearly appears, it contains no intimation of any such claim or interest in Edwin M. Schaeffer as is asserted in plaintiff’s statement; nor is it averred that the terre-tenant had any notice of such claim prior to his purchase of the mortgaged premises. It is not even suggested that any such provision in favor of the mortgagor was omitted from that instrument by accident or mistake, and hence no effort has been made to reform the instrument on which the scire facias was issued. Nothing can be recovered in this proceeding except so much of the several sums secured thereby as remains unpaid. The $800 sought to be recovered to the use of Edwin M. Shaeffer’s assignee is clearly not one of them. The court below therefore erred in embracing that sum with interest in the judgment.

Judgment reversed and procedendo awarded.