Loverin, Hall & Co. v. Humboldt Safe Deposit & Trust Co.

• Decision Date: 17 May 1886
• Docket Number: 306
• Citation: 113 Pa. 6,4 A. 191
• Parties: Loverin, Hall & Co. to the use of Gunnison v. Humboldt Safe Deposit & Trust Co. to use of Burton et al
• Court: Pennsylvania Supreme Court

4 A. 191

113 Pa. 6

Loverin, Hall & Co. to the use of Gunnison v. Humboldt Safe Deposit & Trust Co. to use of Burton et al

No. 306

Supreme Court of Pennsylvania

May 17, 1886

Argued April 28, 1886

ERROR to the Court of Common Pleas of Erie county: Of January Term 1886, No. 306.

This was a feigned issue in which the Humboldt Safe Deposit &amp Trust Company to the use of John Burton, D. D. Barnes and E L. Sprague was plaintiff, and Loverin, Hall & Co. to the use of Noble and Hall, to the use of H. B. Plumer now for the use of Frank Gunnison were defendants, to try the validity of a judgment obtained upon a scire facias sur mortgage held by the defendants, and which they claimed was the first lien on certain real estate. This the plaintiff, who held a second mortgage on said real estate, denied, alleging that the first mortgage upon which said judgment had been obtained had been fully paid and discharged. The following facts appeared on the trial of the issue before CHURCH, P.J.

On September 9th, 1863, Rebecca Thompson, wife of V. M Thompson, became the owner of the land described in the mortgage, the alleged payment of which is the subject matter of the controversy in this issue. On March 9th, 1867, she joined her husband in executing the said mortgage to Loverin, Hall & Company, which was given to secure her husband's indebtedness to Loverin, Hall & Co. By a change in the firm the mortgage became the property of Noble & Hall, who brought suit upon it and recovered judgment. A writ of error was taken to the judgment, which was affirmed by the Supreme Court. Noble & Hall then brought suit against Conrad J. Brown and Joseph Eichenlaub, who were sureties in the recognizance in error, and recovered a judgment. Brown procured the money to pay the judgment from H. B. Plumer, and Eichenlaub being released, gave his judgment bond to Plumer, the original judgment on the mortgage being also assigned to Plumer.

The mortgage, of which the plaintiff claims to be the owner, was given by Rebecca Thompson and her husband, August 7th, 1871, to the Humboldt Safe Deposit and Trust Company, and, by various assignments became the property of Burton, Barnes and Mrs. Sprague.

On October 9th, 1871, V. M. Thompson, the husband of Rebecca Thompson, was discharged, in proceedings in bankruptcy, from the payment of his debts.

On March 15th, 1875, Rebecca Thompson and husband conveyed the land described in the mortgages, to Clarence Lloyd Thompson, Victor Park Thompson and Clara Rebecca Thompson. This conveyance was made for the consideration of $8,000, and "subject to subsisting liens," among which were the two mortgages referred to.

The above are the undisputed facts as they existed May 7th, 1879. Clarence Lloyd, Victor Park and Clara Rebecca Thompson were the owners of the real estate. H. B. Plumer was the owner of the first mortgage, and as further security for it had a judgment entered upon a bond against Conrad J. Brown. John Burton, D. D. Barnes and Mrs. Sprague owned the second mortgage.

On May 7th, 1879, a written agreement was made between Rebecca Thompson and Conrad J. Brown, administrator of Conrad Brown, deceased, by which, inter alia, in consideration of the satisfaction of all claims of Rebecca Thompson against the estate of Conrad Brown, deceased, and the conveyance of certain other real estate in the city of Erie, Conrad J. Brown, administrator, agreed to "purchase the Plumer judgment and mortgage" (the mortgage first named hereinbefore) "and to have the mortgage assigned to Mrs. Rebecca Thompson, or some one for her use." "Mrs. Rebecca Thompson having sold, conveyed and transferred the property on which this mortgage was given, to her children in the year 1875, it is not her intention that this paper, or anything done by virtue of it, should in any way work a conversion of said mortgage, but it is the design that said mortgage shall be and remain a subsisting lien against said property." This agreement was recorded in the Recorder's office of Erie county July 8th, 1879.

In pursuance of this agreement Conrad J. Brown, administrator, purchased the mortgage from Plumer, who assigned it to Frank Gunnison May 14th, 1879.

Execution was issued on the judgment obtained on the mortgage, and the property was sold November 13th, 1883, by the sheriff to Frank Gunnison for a sum not sufficient to pay his claim and costs. The sheriff made the special return provided by law in the case of the purchase of property by a lien creditor. The holders of the second mortgage, claiming that the first mortgage was paid, and was not therefore a lien on the land, asked for an issue to determine the validity of the lien, which issue was accordingly awarded. On the trial of the issue, the jury, under instructions of the court, rendered a verdict for the plaintiff.

The defendants thereupon took this writ, assigning for error, inter alia, the instructions of the court directing the jury to find a verdict for the plaintiff.

Judgment affirmed.

Frank Gunnison and J. Ross Thompson, for plaintiffs in error. -- Whether or not the lien of the first mortgage was discharged depends upon the intention of the parties. A mortgage may be kept alive even after payment in full if such were the intention of the parties: Kuhn v. North, 10 S. & R., 399; Croft v. Moore, 9 Watts, 451; Yard v. Patton, 13 Pa. St., 278; Wilson v. Murphey, 1 Phila., 203; Bryar's Appeal, 1 Am. 81; Brightly's Equity Jurisprudence, 293, et seq.; Huston v. Wickerham, 8 Watts, 523; Dougherty v. Jack, 5 Watts, 458; Moore v. Harrisburg Bank, 8 Watts, 138; Jones v. Johnson, 3 W. & S., 279.

There was no allegation or attempt to prove that the plaintiffs below parted with their money upon the faith of the extinguishment of the mortgage either by payment or merger. Such was not...