McLaughlin v. Ihmsen
| Decision Date | 07 November 1877 |
| Citation | 85 Pa. 364 |
| Parties | McLaughlin <I>versus</I> Ihmsen. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ. SHARSWOOD, J., absent
Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 217 J. M. Kennedy and John Barton, for plaintiffs in error.—The 24th sect. of the Act of 1834, Bright. Purd. 422, provides, "No debts of a decedent, except they be secured by mortgage or judgment, shall remain a lien on the real estate of such decedent longer than five years after the decease of such debtor, unless an action for the recovery thereof be commenced and duly prosecuted against his heirs, executors or administrators, within the period of five years after his decease."
The exception as to mortgages, in this section, applies only to recorded mortgages, such as are liens at the time of the death of the debtor: Nice's Appeal, 4 P. F. Smith 200.
The bond given is the evidence of the debt. The mortgage is given to secure the payment of the bond. When the obligor in the bond is released from all liability upon the bond by payment, the running of the Statute of Limitations, or otherwise, is not the conditional conveyance of the title to the land, by the mortgagor, ended and annulled? and does not the title revert back to the mortgagor?
Then is it not in conflict with the true spirit and meaning of the statute, to say to these children of Charles T. Ihmsen, although they and the land inherited from their father are discharged and released from all liability for the debt secured by this bond, and the bond, as to them, is no longer a binding obligation, yet the mortgage given to secure that debt can be enforced. Scire facias is not the proper remedy upon an unrecorded mortgage.
M. W. Acheson, for defendant in error.—Nice's Appeal, supra, was a contest between creditors, and that case is itself authority for the position that an unrecorded mortgage binds the estate as against the mortgagor himself. Mellon's Appeal, 8 Casey 121, and Britton's Appeal, 9 Wright 172, are authority for the same principle. This case, however, is ruled by Tryon v. Munson, 27 P. F. Smith 250.
That a mortgage conveys an estate as a security for the payment of a debt is held in numerous cases. And even though unrecorded, it is good against the mortgagor himself or his alienee,...
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Bulger v. Wilderman
...a pledge of the land as security, and the effect of the conveyance as security cannot be brushed aside or overlooked: McLaughlin v. Ihmsen, 85 Pa. 364. The remains the owner of the land mortgaged, but the mortgagee, is entitled to its possession to be held as security until his debt is paid......
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Saunders v. Gould
... ... Will, 1 Dall. 430; Mellon's App., 32 Pa. 121; and ... against his heirs: M'Laughlin v. Ihmsen, 85 Pa ... 364; Tryon v. Munson, 77 Pa. 250, it will be ... postponed to a subsequent judgment, unless the creditor had ... notice of the ... ...
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Estate of Helfenstein
...Pearce v. Wilson, 111 Pa. 14; Mellon v. Lemmon, 111 Pa. 56. That the scire facias was sufficiently served on the administrator: McLaughlin v. Ihmsen, 85 Pa. 364; Taylor v. Young, 71 Pa. 81; Tryon Munson, 77 Pa. 250. That the judgment of the Northumberland county court could not be impeached......
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Lefever v. Armstrong
...23 Pa. 110; Manufacturers', etc., Bank v. Bank of Penna., 7 W. & S. 335; Britton's App., 45 Pa. 172; Nice's App., 54 Pa. 200; McLaughlin v. Ihmsen, 85 Pa. 364; Kinports v. Boynton, 120 Pa. The burden of proof rests upon the holder of an unrecorded mortgage to prove notice: Phillipsburg Savi......