Orient Building & Loan Ass'n v. Gould
| Decision Date | 24 February 1913 |
| Docket Number | 349 |
| Citation | 86 A. 863,239 Pa. 335 |
| Parties | Orient B. & L. Association v. Gould, et al., Appellants |
| Court | Pennsylvania Supreme Court |
Argued January 10, 1913
Appeal, No. 349, Jan. T., 1912, by Harry L. Randal and Brinah Rheinstrom, defendants, from judgment of C.P. No. 5 Philadelphia Co., June T., 1909, No. 3457, on verdict in favor of plaintiff in case of Orient Building and Loan Association v. Isador M. Gould, Mortgagor, Harry L. Randal Isador M. Gould and Brinah Rheinstrom, Real Owners Affirmed.
Proceeding on scire facias sur mortgage against mortgagor and appellants, as real owners. Before MARTIN, P.J.
The facts are stated in the opinion of the Supreme Court.
The jury rendered a verdict in favor of the plaintiff for $1,629.00 against the mortgagor and appellants, as real owners, upon which judgment was subsequently entered, from which judgment the appeal was taken.
Error assigned was the action of the court in directing a verdict in favor of the plaintiff against appellants, and in refusing appellants' offer of testimony to prove that their title was superior to that of the mortgagor.
The judgment is affirmed.
Stanley Folz, with him Leon H. Folz, for appellants.
Harvey Gourley, with him Alex. Simpson, Jr., for appellee.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, STEWART and MOSCHZISKER, JJ.
This case repeats, without material variation, the conditions presented in Excelsior Saving Fund v. Cochran, 220 Pa. 634, and that case governs this. In the case referred to following the earlier case of Park Bros. & Co. v. Oil City Boiler Works, 204 Pa. 453, we held that the Act of July 9, 1901, P.L. 614, as its title indicates, is an act regulating the service of process merely, and that it in no way changes the jurisdiction of the courts. In the tenth section of the act, amended by Act of April 23, 1903, P.L. 261, it is provided, that the plaintiff in any writ of sci. fa. sur mortgage shall file with his praecipe an affidavit setting forth to the best of his knowledge, information and belief, who are real owners of the land charged, and that all such persons shall be made parties to the writ, and served according to its provisions. In the Excelsior Saving Fund case, supra, just as here, a party who as matter of fact was the real owner of the property, but who stood in no privity of title with the mortgagor, was made a party defendant. She appeared and pleaded to the issue. On the trial it was proposed to show on her behalf as matter of defense, that her title was superior to that of the mortgagor. The several offers of evidence to this end were rejected, the court holding that the proceeding was simply for the collection of a debt; that a judgment, if recovered, could not be made a lien on any land not owned by the mortgagor, and that therefore the defendant, there the real owner, had no standing to assert her title in the trial of the issue joined. Exception was taken to this ruling, and on the appeal it was urged that the requirements of the Act of 1901, including as a party defendant the real owner, would be without purpose except as it was contemplated that such party upon the trial could have opportunity to assert his superiority of title over that of the mortgagor in defeat of the action as against him. In affirming the action of the court below we used this language: "All that we here decide is that the Act of July 9, 1901, as amended, does not so widen the scope of the statutory proceeding by scire facias for the enforcement of a mortgage debt that it may now be applied to determine questions of title to real estate." This followed an expression in the opinion to the effect that the real purpose in bringing in the real owner as a party defendant was not readily apparent. What then seemed somewhat obscure, only however because the case did not call for other examination of the act than to satisfy ourselves that its purpose was not to...
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