Carothers v. Sims

• Decision Date: 02 January 1900
• Docket Number: 177
• Citation: 194 Pa. 386,45 A. 47
• Parties: R. T. Carothers and Daniel Stratton, Appellants, v. Harriet B. Sims and William H. Sims
• Court: Pennsylvania Supreme Court

45 A. 47

194 Pa. 386

R. T. Carothers and Daniel Stratton, Appellants, v. Harriet B. Sims and William H. Sims

No. 177

Supreme Court of Pennsylvania

January 2, 1900

Argued November 2, 1899

Appeal, No. 177, Oct. T., 1899, by plaintiffs, from judgment of C.P. No. 2, Allegheny Co., Oct. T., 1897, No. 1016, on verdict for defendants. Affirmed.

Scire facias sur mortgage. Before FRAZER, J.

The facts appear by the opinion of the Supreme Court.

The court gave binding instructions for defendants.

Verdict and judgment for defendants. Plaintiffs appealed.

Error assigned among others was in giving binding instructions for defendants.

Judgment affirmed.

D. F Patterson, for appellants, cited Juniata Building & Loan Assn. v. Mixell, 84 Pa. 313, and Bank v. Kuntz, 175 Pa. 432.

W. B. Rodgers, with him John S. Robb, for appellee, cited Ashton's App., 73 Pa. 162.

Before GREEN, McCOLLUM, MITCHELL, FELL and BROWN, JJ.

OPINION

MR. JUSTICE GREEN:

This proceeding is a scire facias upon a mortgage given by Harriet B. Sims and her husband, William H. Sims, to Andrew Sims, to secure the payment of a bond conditioned for the payment of $4,000. The property described in the mortgage was the separate estate of the wife. Andrew Sims was the father of William. The mortgage was dated August 29, 1891, and recorded March 15, 1895. The mortgagee assigned the mortgage to the plaintiffs, Carothers and Stratton, on September 14, 1895, nearly thirteen months after its execution. It was established by the uncontradicted evidence in the case that no money or property, nor anything of value, was given by Andrew Sims to his daughter-in-law Harriet B. Sims, either on the execution of the mortgage or at any other time. About two weeks after the execution of the mortgage the mortgagor, Harriet B. Sims, gave a written notice to Andrew Sims, the mortgagee, in which she declared that the mortgage was null and void because it had been obtained from her by her husband, William H. Sims, by coercion and compulsion, and that it was executed by reason of fraud, deceit and misrepresentation practiced upon her by both her husband and his father. And she further notified him not to pay out any money or enter into any obligations in relation to the mortgage or to negotiate, sell or dispose of the mortgage, or to place it on record, or to institute any suit on the bond or mortgage, and she further required him to cancel and deliver up the bond and mortgage. The mortgagee did not borrow any money on the bond or mortgage, nor did he at any time furnish any money or other thing of value to the mortgagor until September 14, 1895, when he assigned it to the plaintiffs. The assignees paid no money or other thing of value to the assignor for the bond and mortgage, but held it, and finally brought the present action of scire facias upon it.

It was proved on the trial that the husband...