Borland v. Meurer
| Decision Date | 26 January 1891 |
| Docket Number | 295 |
| Citation | 139 Pa. 513,21 A. 86 |
| Parties | CATH. BORLAND v. C. A. MEURER ET AL |
| Court | Pennsylvania Supreme Court |
Argued January 6, 1891 [Copyrighted Material Omitted]
APPEAL BY ELLIS STOKES ET AL. FROM THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY.
No. 295 January Term 1890, Sup. Ct.; court below, No. 312 June Term 1888, C.P. No. 1.
On June 28, 1888, a scire facias sur mortgage was issued at the suit of Catharine Borland, against Charles A. Meurer, executor of the will of Anthony Elton, deceased, with notice to Ellis Stokes and Rebecca B. Stokes, terre-tenants. Issue.
At the trial, on October 24, 1889, there was put in evidence, on behalf of the plaintiff, a mortgage executed by Anthony Elton to Catharine Borland, dated February 27, 1880, and recorded. The plaintiff then rested. The terre-tenants, defending called Catharine Borland, the plaintiff on the record, who testified that she was satisfied of every demand against the defendants, and that she did not institute the suit, or direct it to be brought. "The settlement was made to me," she testified, The defendants then rested.
Each party requesting that a verdict be directed, but neither yielding, the plaintiff's counsel moved to amend the record by adding, after the name of Catharine Borland, the words, "to the use of C. A. Meurer."
The plaintiff then called Mr. S. Davis Page, for the purpose of proving that the money paid to Miss Borland by the witness was received by him, as her attorney, from Charles A. Meurer to whom he assigned "the judgment upon which the levy was made." The defendants objected, that Catharine Borland, the plaintiff, was the only person they had to meet. The court replied that the record was amended. The defendant then pleaded surprise and asked for a continuance. Then the plaintiff withdrew the amendment of record, and renewed the offer with the record as it stood. Objected to.
By the court: Objection overruled; exception.
The witness then testified, in substance, that at a prior date he represented Catharine Borland, in a judgment entered on the mortgage bond, and had issued an execution and attachments thereon; that on March 28, 1884, Charles A. Meurer, pending the writs, tendered the amount of the judgment and costs, $23,061.25, which the witness accepted, giving an order as the plaintiff's attorney for the marking of the judgment to the use of Mr. Meurer, and a receipt stating: "In consideration of said payment, this judgment and the mortgage securing a bond on which it is entered are to be assigned without recourse to said Meurer." Mr. Page testified, further, that when his client called a few days thereafter, she objected to the assignment to Mr. Meurer and referred to instructions she had given witness's law-partner; that, thereupon, the witness took a rule to strike off the marking to use, which was argued before Judges MITCHELL and HARE upon depositions taken, and after consideration it was decided by the court that the assignment was valid, and the rule discharged; and that the money was then paid over to Miss Borland.
Charles A. Meurer, called by the defendants, testified in reply to a question by the court, that at the time of the entry of the judgment referred to, he and Elton, the mortgagor and judgment defendant, were engaged in business as partners; that everything they had in their business was levied upon or attached under the judgment; that the witness raised the money by giving his own judgment note for the amount necessary, and paid it over to Mr. Page. Facts were disclosed, however, from which it was claimed by the use plaintiff, that the legal title to the premises mortgaged was then held by Elton in trust for the terre-tenants, and by the terre-tenants, that Meurer's notes were protected and afterwards paid, in part at least, by securities belonging to Elton. Other facts in evidence appear in the charge of the court below.
At the close of the testimony, the court, ALLISON, P.J., charged the jury in part as follows:
The contention, upon the part of the plaintiff, is that this mortgage is still a lien on this property. The mortgage, as appears from the evidence, was placed upon the property by Mr. Elton in whose name at least the title to the property stood, in this sum of $20,000, to clear off two other encumbrances which aggregated this sum. It seems that there was a prior mortgage and ground-rent, and that the prior mortgage and ground-rent together amounted to about or just the sum of $20,000. It became necessary to clear off those two encumbrances, and therefore this present mortgage of $20,000 was put upon the property. The money was borrowed from Miss Borland by Mr. Elton, who held the title to the property, and it remained in that way. The mortgage was accompanied by the bond, as is usually the case. . . .
The contention on the part of the plaintiff is, that, although the money passed from Mr. Meurer to Miss Borland in satisfaction of that judgment, that is, the satisfaction of her right to proceed any further upon the judgment, yet that the passage was not intended to extinguish the debt, and, as the evidence shows, that the intention was to keep the judgment alive by marking it to use; that the debt was not extinguished at all, it was simply the lifting of the hand of the plaintiff in that judgment, who issued the execution and who issued the attachments, off the property and she transfering all her right and her power under that judgment to the person who had paid her the money for it. Of course, getting her money, she had no further control of the judgment except that she could have declined originally to have marked it to use. A plaintiff is not bound, when the money is tendered upon a judgment, to mark that judgment to the use of any person; but if she does mark it to use, or her attorney, acting for her, acting within the scope of his lawful authority, does mark it to use, then her power is entirely gone, because her claim is satisfied, she has got the money, and by the act of her attorney, all her rights ceased against the property as if that money had been paid to her, and passed over to the party to whose use the judgment stands.
That is the condition in which this case seems to have stood until the death of Mr. Elton, when Mr. Meurer, under the will of Mr. Elton, being appointed his executor, and the contention all around, upon the part of Mr. Elton, whatever was the controversy between Elton and Stokes, in regard to the ownership of the property during the lifetime of Mr. Elton, and the intention of Mr. Elton, according to the evidence in the case, was that he being the owner, so far as the possession of title was concerned, was to keep that judgment alive against that property.
Under the will of Mr. Elton there was a division of his estate among his heirs. He had four daughters, one of whom is the wife of Mr. Stokes. In the will, he makes certain provisions in regard to this property, treating the mortgage against this property as a valid claim against it, as a subsisting claim against it. Under that will, the wife of Mr. Stokes takes an interest in the estate of Mr. Elton. It seems, according to the testimony in the cause, that even after Mr. Elton's death when the question came up as to distribution of property among these four heirs, under the will of Mr. Elton, there was still contention in regard to the distribution of that estate, and then, according to the evidence in the cause, the parties came together and made what was called a family settlement, in which family settlement Mr. Stokes and his wife and the other three daughters of Mr. Elton all came to an agreement, touching this Broad street property, and there was an agreement that the other three heirs of Mr. Elton should convey their interest in this property to Mrs. Stokes, subject to the mortgage which then existed upon it. By that agreement they all treated that as a valid, live, subsisting mortgage and judgment binding that property upon North Broad street, in regard to which this contention is now waged, and the wife of Mr. Stokes had conveyed to her all the interests of the three sisters in the property, charged with this mortgage and judgment-debt of $20,000, taking up any settlement of the interest of Mr. Stokes' wife or Mr. Stokes through his wife, in this estate of Mr. Elton, at least so far as this property is concerned.
Whether there were some other portions of the estate of Mr. Elton that went to Mrs. Stokes I do not know, it does not appear or is not material. The question is as to whether the parties themselves,...
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