Steckel v. Desh

— The opinion of the Court was delivered by

Trunkey, J.

In proceedings for partition of the real estate of Henry Y. Hottel, deceased, Desh was appointed trustee to make the sale. He accepted the trust, executed the order for sale, Steckel purchased, and on September 9th, 1868, a deed for the land and mortgage for the purchase-money were executed. At the foot of Steekel’s deed is the following: “ Received on the day of the date of the above written indenture, the sum of $16,500, by bond and mortgage, bearing even date herewith, in full of the consideration-money within mentioned. Daniel Desh.” The mortgage was recorded on January 22d, 1869. Steckel sold and conveyed part of the mortgaged premises to Fenner, on September 19th, 1868. The learned judge of the Common Pleas rightly ruled that notice to a purchaser, of an unrecorded mortgage, is sufficient to continue its lien on the land, and that the receipt in Steckel’s deed was notice of the mortgage to all who held under him.

The defendant’s second point was, “ That if the jury are satisfied from all the evidence in the case that the mortgage in suit was paid, the verdict must be for the defendants.” And its answer, “ Affirmed, if the jury find that Daniel Desh was actually paid the whole amount of the mortgage-money.” This is the subject of the sixth assignment, but it can hardly be error to affirm and substantially repeat the point. Possibly the counsel had endeavored to persuade the jury that payment to somebody else than the mortgagee would be satisfaction, and if so, it was well for the Court, in affirming the point, to say it meant payment to Desh.

The mortgagee was not a party to the agreement between the heirs and Steckel, and nothing in that agreement relieved him in any degree from liability to account, as trustee, for the proceeds of sale. It was made after the sale and just as if the trustee had already received the purchase-money. The defendants could show that Steckel had satisfied the mortgage, either in money or otherwise, if such was the fact, and that the court allowed; but the agreement was neither a bar nor evidence of satisfaction. Nor was the agreement between TIottel and Steckel evidence for any purpose. It matters not whether it vested in Steckel a power to sell coupled with an interest in the land, for if it did, Steckel purchased the land, sold at Orphans’ Court sale as the property of the deceased, and he has no defence, on the ground that he had an interest in the land acquired from Hot-tel in his lifetime. Clearly, there was no error in the rulings complained of in the first three assignments.

In 1872, Desh filed his account, and among other charges against himself is this: “September 9th, 1868, Received from Solomon A. Steckel, purchase-money of farm in Bethlehem Township, sold subject to a mortgage of $3400, $16,600.”

The defendants offered tjiis account as an admission that the mortgage was paid. To persons of any experience in settling estates, it would probably be very slight evidence of payment, but it was before the jury for the purpose of showing payment. The account was prepared by counsel, and the ■ Court admitted testimony in rebuttal, that at the time, Desh said he had not received the money, and charged himself with it because of advice that he was liable to account for it. And tbe auditor’s report was received in connection with the account, that it might appear how the money and mortgage were treated in the entire proceeding. If the act of a party, or a portion of his words, be proved against him, he may show in rebuttal the words accompanying and relating to said act, or the other words uttered in connection with those already proved, when necessary to arrive at a correct understanding of the transaction. When a trustee files his account and charges himself with money owing to him, which he ought to have ready for the person entitled, the debtor cannot avail himself of the charge as an admission of his payment, and shut out the accompanying words at the time of filing, or other matter in the account, tending to show the real cause for accounting for the money as if it had been received.

Judgment affirmed.