Fleming v. Parry
| Decision Date | 01 December 1854 |
| Parties | Fleming versus Parry. |
| Court | Pennsylvania Supreme Court |
Shaler, Stanton, and Arthurs, for plaintiffs in error.
G. P. Hamilton, for defendant in error.
This is an action of debt on bond, and the question is, whether entry of satisfaction on the record of an accompanying mortgage, given for the same debt, was discharge of the bond.
It is material to observe that this question arises between the original parties, and involves the rights of no creditors, assignees, or third parties whatever. The general principles stated by the learned judge are incontrovertible; but the mistake consisted in supposing that they ruled the question. A bond and mortgage, taken for the same debt, though distinct securities, possessing dissimilar attributes, and subject to remedies which are as unlike as personal actions and proceedings in rem, are, nevertheless, so far one that payment of either discharges both, and a release or extinguishment of either, without actual payment, is a discharge of the other, unless otherwise intended by the parties. As it is competent for parties to adjust their securities in the first place to their mutual satisfaction, so they may alter and change them at pleasure — give up one and retain the other, or cancel all and substitute something new, provided no other interests have intervened to be affected by what they do. In very many ways, third parties may become interested in the relations established by mortgagor and mortgagee, and such interests are always protected against the acts of the original parties; but, where there is nothing of this sort to guard, we must concede to mortgagor and mortgagee the same right to modify and change their relation that they had to establish it. It was once doubted whether a mortgagee could release part of the mortgage premises, without losing his lien on the whole; but an Act of Assembly has long since dissipated that doubt. Can there be any doubt of the right of a mortgagee to give up his mortgage and retain his bond? Here was a father-in-law holding a bond and mortgage, partly paid, against the defendant, his son-in-law. Now, suppose the son-in-law wished to sell part or all of the mortgaged premises, or to procure a loan on the credit of them, is there any rule of law which would forbid the father-in-law to facilitate his purpose by going to the recorder's office and entering satisfaction on the mortgage, retaining the bond in his own hands, uncancelled, as evidence of the debt? A rule that shall punish him with forfeiture of his debt, because to oblige his debtor he gave up one of his securities? A rule that a debt once evidenced by two instruments, shall never be proved by one? I know of no such rule, and no word of authority has been avouched for it.
There was evidence in this case that Parry was endeavoring to effect a loan on the credit of his property; that this mortgage was spoken of as an encumbrance; that he said he thought he could have it removed, and that afterwards he exhibited the certificate of the recorder that the mortgage was satisfied. The defendant's ledger was also offered in evidence, showing charges for various sums of money paid to Fleming after satisfaction of the mortgage, which the plaintiff insists were applicable to the accruing interest on the bond. The Court overruled this evidence, and decided, as a conclusion of law, that the satisfaction of the mortgage was satisfaction of the bond. In this we think there was error. These facts, in connexion...
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Miners Sav. Bank of Pittston, Pa. v. United States
...of the debt, * * * extinguishment or satisfaction depends upon the agreement and intention of the parties * * *." Fleming v. Parry, 24 Pa. 47 at page 51. "* * If a note secured by a mortgage be renewed or otherwise changed, the lien continues until the debt is paid." See Appeal of Kimberly,......
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Pease v. Doane
...of the parties, the evidence as to which should be referred to the jury as a question of fact: Jones v. Johnson, 3 W. & S. 276; Fleming v. Parry, 24 Pa. 47; Oliphant Church, 19 Pa. 318; Germania Building Assn. v. Neill, 93 Pa. 322; Pennock v. Eagles, 102 Pa. 290; Meigs v. Bunting, 141 Pa. 2......
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Delco Ice Mfg. Co. v. Frick Co., Inc.
...where a record is made up by an officer of the court and under the eye of the court, after hearing the parties." In Fleming v. Parry, 24 Pa. 47, 52, it is stated: "A record it undoubtedly is, but not a record to which that maxim applies, the proper application of which is' to judicial recor......
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Meigs v. Bunting
...presumption may be overturned by other evidence. In other words, such marking is evidence of payment, but not conclusive evidence: Fleming v. Parry, 24 Pa. 50; Hughes Torrence, 111 Pa. 617; West's App., 88 Pa. 341. 2. Without commenting on what is well known, that in this city it is usual, ......