DocketNumber: Appeal, 48
Judges: Keller, Bald-Rige, Stadtfeld, Rhodes, Hirt, Kenworthey, Reno
Filed Date: 4/30/1943
Status: Precedential
Modified Date: 10/19/2024
Argued April 30, 1943. Plaintiff entered judgment on a bond with warrant of attorney which accompanied a mortgage. Both were *Page 657 executed by Frank A. Lucas and Jane C. Lucas, his wife, and subsequently assigned, when they gave a certificate of no defense. Later plaintiff became the assignee of the bond and mortgage. A writ of fieri facias was issued thereon against the premises described in the mortgage. The premises were held by the entireties.
Jane C. Lucas petitioned the court below to grant a rule upon plaintiff to show cause why the judgment entered should not be opened and a defense interposed. Her contention was that as a married woman she was not liable on the bond because she signed it as surety or accommodation maker for a debt of her husband due to the mortgagee and from which she received no benefit. See Act of June 8, 1893, P.L. 344, § 2, 48 P. S. § 32; Commercial AcceptanceCorp. v. Ruppel et ux.,
Depositions were taken. Her contention was sustained by the court below and the rule was made absolute. Upon petition for reconsideration the court revoked its order, reinstated the judgment, but limited execution thereon as to Jane C. Lucas to the property described in the mortgage. An alias fieri facias was thereafter issued but proceedings were stayed pending appeal. Jane C. Lucas has appealed.
A married woman may mortgage her real estate as *Page 658
security for a debt of her husband. First National Bank ofEverett v. Hershberger et ux.,
Ordinarily, plaintiff could legally proceed to collect his mortgage either by scire facias on the mortgage or by entering judgment on the bond accompanying the mortgage and issuing a writ of fieri facias. Long v. Bowman,
The Act of May 6, 1929, P.L. 1557,
In West Arch Building Loan Ass'n v. Nichols,
The proceeding followed by plaintiff in this case was a proper method to sell the mortgaged premises. A reason for this view is that proceedings for enforcement of a mortgage debt are statutory, although it has long been recognized that the lien of a judgment on a bond accompanied by a mortgage, so far as the mortgaged premises are concerned, relates back to the date of the lien of the mortgage by which it is secured (Morris v. Campbellet al.,
Appellant is not prejudiced by the sale of the mortgaged premises on a fieri facias any more than she would have been on a scire facias and levari facias. They have the same effect. The proceeding on the fieri facias is none other than a remedy for the collection of the mortgage debt, and the judgment is not and cannot be made a lien upon any real or personal property owned by appellant excepting that covered by the mortgage.
The court below has refused to open the judgment as to appellant because the lien thereof and the liability of appellant thereon are limited and restricted to the mortgaged premises and to which bond and mortgage she executed a certificate of no defense.1 *Page 660
In passing upon the facts as disclosed by the record in this case we are of the opinion that the court below acted within its power, and its order refusing to open the judgment will be affirmed.
As said in Hastings Bank of Hastings v. Covitch, supra,
The scire facias sur mortgage is a proceeding in rem, and the Act of July 9, 1901, P.L. 614, as amended by the Act of April 23, 1903, P.L. 261, 12 Pa.C.S.A. § 309, did not widen the scope of the statutory proceedings. Excelsior Saving Fund v. Cochran,
Order is affirmed.
Frankford Trust Co. v. Wszolek ( 1936 )
Schuy'l T. Co. v. Sobolewski Et Ux. ( 1937 )
Commercial Acceptance Corp. v. Ruppel ( 1928 )
West Arch Building & Loan Ass'n v. Nichols ( 1931 )
First National Bank v. Hershberger ( 1942 )
Penna. Trust Co. v. Koller Et Ux. ( 1935 )
Archbald v. Hood Et Ux. ( 1936 )
Excelsior Saving Fund v. Cochran ( 1908 )
Yeany, ex rel. Gold Standard National Bank v. Shannon ( 1917 )
Hastings Bank of Hastings v. Covitch ( 1936 )
Hanover Trust Company v. Keagy ( 1939 )