Cummings v. Horter

• Decision Date: 10 December 1900
• Docket Number: 175-1900
• Citation: 15 Pa.Super. 458
• Parties: Cummings v. Horter
• Court: Pennsylvania Superior Court

15 Pa.Super. 458

Cummings v. Horter

No. 175-1900

Superior Court of Pennsylvania

December 10, 1900

Argued October 19, 1900

Appeal by plaintiff, in suit of Henry M. Cummings, assignee, etc against Jacob W. Horter and Edward Twaddell, terre-tenant from judgment of C.P. No. 1, Phila. Co.-1900, No. 1110 refusing judgment for want of a sufficient affidavit of defense.

Rule for judgment for want of a sufficient affidavit of defense.

It appears from the record that suit was brought on a sci. fa sur mortgage by Henry M. Cummings who was assignee of Edward Twaddell, who in succession was an assignee of Charles H. Shoemaker, against Jacob W. Horter and Edward Twaddell, terre-tenant. Judgment was entered as to the mortgagor defendant on two returns of nihil. Edward Twaddell, terre-tenant, appeared and filed an affidavit of defense. This affidavit set out, inter alia, that the property mentioned in the mortgage is owned by the estate of Jacob W. Horter in which the affiant, terre-tenant, was one of the parties in interest and therefore one of the owners thereof; that he is also the owner of the said mortgage; that said mortgage does not belong to Henry M. Cummings, plaintiff in the above case, but on the contrary belongs to the affiant and was obtained from him by fraud. The affidavit then proceeded to set out the circumstances on which the allegation of fraud was based.

The court below discharged the rule for judgment against the terre-tenant for want of a sufficient affidavit of defense. Plaintiff appealed.

Error assigned was in discharging the rule for judgment for want of a sufficient affidavit of defense.

Affirmed.

Reynolds D. Brown, with him Malcolm Lloyd, Jr., and Charles H. Burr, Jr., for appellant. -- It is respectfully submitted that, as assignor, he has no standing whatever in this suit to foreclose the mortgage, and that as terre-tenant he is restricted to those defenses which the mortgagor could have set up. It is difficult to find authority for such a simple proposition of law, but in Hulett v. Mutual Life Insurance Company, 114 Pa. 142, the Supreme Court intimated that this is a correct statement of a terre-tenant's position. If Twaddell can prove such a state of facts as he alleges to exist in his affidavit of defense, his obvious remedy is by a bill in equity to set aside the legal conveyance to Cummings.

Frank P. Prichard, for appellee. -- The defendant was one of the legal owners of the ground, and was necessarily a party defendant. If he won his case, on the ground that the assignment was fraudulent, the plaintiffs had no right to collect the mortgage as against any one. In fact, they had no right to hold it. If, on the other hand, it was decided that the assignment was not obtained by fraud, but was valid, then plaintiffs had a right to collect it out of the ground as against every one. The parties to this issue were necessarily and properly parties plaintiff and defendant in the case. It could therefore be legally tried between them. When tried, a verdict either way would settle the rights of the plaintiffs to the mortgage, and would involve no complications of or interference with any one else's rights. It would be most absurd to say to the defendant: true it is that you are properly defendant in a suit on the mortgage, but notwithstanding that you are properly ...