Guthrie v. Kahle

• Decision Date: 04 January 1864
• Citation: 46 Pa. 331
• Parties: Guthrie <I>versus</I> Kahle.
• Court: Pennsylvania Supreme Court

46 Pa. 331

Guthrie versus Kahle.

Supreme Court of Pennsylvania.

January 4, 1864.

ERROR to the Common Pleas of Jefferson county.

George A. Jenks, for plaintiff.

David Barcly, for defendants.

The opinion of the court was delivered, January 4th 1864, by THOMPSON, J.

It has been so often determined that a conveyance of land merely as a security for the loan of money, with a separate defeasance, is but a mortgage, that it ought now to be regarded as an elementary principle, which needs not the citation of authorities to support. Between the parties and everybody else with notice of the transaction, it is a mortgage.

Guthrie, the plaintiff, transferred his title to the land on which he charges the defendant with committing the trespass by an instrument under seal of the following tenor: —

"For value received, I transfer and assign the land within mentioned to Daniel Aaron. John J. Y. Thompson will please make a deed to the aforesaid Aaron for said land. Witness my hand and seal, &c." This assignment was endorsed on the article between Guthrie and Thompson. On the same day, Aaron executed and delivered to Guthrie an agreement to reassign the land to him or his order, at any time within five years, on payment of the judgment of one McCreight against him, which he was to procure the transfer of to himself, and further setting forth, that he held the title to the land as collateral security for the judgment. None of these papers between Guthrie and Aaron were ever recorded.

The trespass for which this suit was brought took place whil Aaron held the land under this arrangement, and it becomes important to see what effect this assignment, accompanied by the acts of the parties to it, had upon the land, so far as the possession was concerned.

At the time of the assignment, the land was wholly unimproved, and not in the actual occupancy of any one. True, Guthrie's equitable title, as a purchaser, drew the seisin to him, but when he transferred it as he did, without retaining the occupancy, his legal seisin passed with it; at least this was the effect of it as to all who had no notice of the transaction. But in addition to this, the assignee received the title-papers, a thing a mortgagee rarely if ever does, had the land assessed to himself, paid taxes on it, asserted his right to protect it against trespassers, compelling those who committed any, to pay damages to him by virtue of his title; whilst the plaintiff, so far as appears, exercised no acts of ownership until...