Haughey v. Dillon

• Decision Date: 27 September 1954
• Citation: 379 Pa. 1,108 A.2d 69
• Parties: John B. HAUGHEY and Marle V. Haughey, v. John J. DILLON, Appellant.
• Court: Pennsylvania Supreme Court

108 A.2d 69

379 Pa. 1

John B. HAUGHEY and Marle V. Haughey, v. John J. DILLON, Appellant.

Supreme Court of Pennsylvania.

September 27, 1954

Action to quiet title. The Common Pleas Court No. 1 of Philadelphia County as of March Term 1952, No. 658, James C. Crumlish, J refused defendant's motions for new trial and for judgment n. o. v., and defendant appealed. The Supreme Court Arnold, J., held that where defendant was assignee of a mortgage by assignment subsequent to tax sale of mortgaged premises, and owner's right of redemption had not been assigned to him, he did not have a right of redemption within contemplation of redemption statute.

Judgment affirmed.

Grover C. Ladner, P. Nicholson Wood, Herbert G. Schick, Clark, Ladner, Fortenbaugh & Young, Philadelphia, for appellant.

Lester S. Hecht, C. Russell Phillips, Montgomery, McCracken, Walker & Rhoads, Philadelphia, for appellees.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

ARNOLD, Justice.

In this action to quiet title, tried by a jury, defendant appeals from the court's refusal of his motions for new trial and for judgment n.o.v. The appeal poses two questions: (1) Was the presumption of payment of a mortgage upon the premises rebutted as a matter of law? (2) Does the assignee of a mortgage, by assignment subsequent to a tax sale of the mortgaged premises, have a right to redeem within the contemplation of Section 32 of the Act of 1923, P.L. 207, 53 P.S. § 2052?

As admitted in the pleadings and a stipulation of the parties, the facts are: On October 9, 1922, one Hayden, then owner of the three lots involved, executed three mortgages thereon, each in the sum of $4,000 and payable within three years. On the same day the mortgagee, Boylan, assigned the mortgages to the Market Street Title & Trust Company. Also on the same day Hayden conveyed the lots to Boylan, subject to the mortgages, and Boylan then executed three mortgages in the sum of $2,000 each to a Loan Association.

On September 14, 1925, Boylan entered into agreements postponing payment of the original mortgages for three years from that date. On September 23, 1926, the Loan Association entered judgment on the bonds accompanying its mortgages, caused a vend. ex. to issue thereon, and upon sale thereof on March 5, 1928, purchased the premises subject to the lien of the assigned original mortgages.

Thereafter, in 1931, the then assignee of the original mortgages issued scire facias sur mortgage, and on November 15, 1933, entered judgments thereon. On December 26, 1933, the Loan Association conveyed the premises to one McMurray, subject to the original mortgages, without consideration and solely to avoid future liability for real estate taxes. However, neither this deed of conveyance nor possession of the premises was ever delivered to McMurray. Nor did he know anything about it.

On February 5, 1951, the lots were sold to plaintiffs by the City of Philadelphia for unpaid taxes from 1933 to 1951, the deeds being acknowledged by the sheriff on April 9, 1951. Shortly thereafter plaintiffs began construction of a building on the premises, of a value of some $35,000.

On December 8, 1951, defendant obtained assignment of the original mortgages for the sum of $500, and on December 10, 1951, sent a notice to plaintiffs of his desire to redeem. It will be noted that defendant did not purchase the owner's right of redemption, but only an assignment of the mortgages, nor was he given the original bonds and mortgages. Neither the Loan Association nor McMurray appeared in the proceedings in any manner as witness or otherwise. Defendant filed petitions for redemption on January 4, 1952. This action was commenced on March 10, 1952.

‘ There is a long established presumption that a mortgage, as well as all evidences of debt excepted out of the Statute of Limitations, unclaimed and unrecognized for 20 years, has been paid. * * * This presumption of payment after a lapse of 20 years is a strong one and is favored in law as tending to the repose of society, the protection of the debtor, and the discouragement of stale claims. * * * The presumption of payment may be rebutted only by clear, satisfactory and convincing evidence beyond that furnished by the specialty itself, that the debt has not been paid, or by proof of circumstances tending to negative the likelihood of payment and sufficiently accounting for the delay of the creditor. * * * Moreover, whether the facts and evidence relied upon to rebut the presumption of payment are true is a question of fact for the jury; but whether, if true, they are sufficient to rebut the presumption, is a question of law for the court.’ Corn v. Wilson, 365 Pa. 355, 358, 359, 75 A.2d 530, 532.

Applying the foregoing principles to the instant case, we cannot but hold that the presumption of payment was not rebutted by defendant. Merely because the unsatisfied judgments on the mortgages and the ‘ straw-man’ conveyance were both made subject to the mortgages does not, as contended by the defendant, rebut the presumption. The judgments were entered on scire facias sur mortgage, a proceeding in rem; and the conveyance was admittedly made solely to avoid future liability for real estate taxes, with the grantee having no knowledge of the conveyance and never having been given possession. Furthermore, no foreclosure proceeding followed the entry of the judgments on the scire facias. There is nothing to show that the mortgagor knew of either; nor can either be transformed into an admission by the owner of the premises that the debt was not paid. Aside from these, there is nothing else to overcome the presumption. Defendant's case is without proof that payment...