Packer v. Owens

• Decision Date: 01 October 1894
• Docket Number: No. 37.,37.
• Parties: PACKER v. OWENS et al.
• Court: Pennsylvania Supreme Court

30 A. 314
164 Pa.St. 185

PACKER
v.
OWENS et al.

No. 37.

Supreme Court of Pennsylvania.

Oct. 1, 1894.

Appeal from court of common pleas, Union county; H. M. McClure, Judge.

Scire facias on a mortgage by John B. Packer and others, executors of William Cameron, deceased, against John A. Owens, executor of Adam Gundy, deceased, and others, terre-tenants. On the death of John B. Packer, James C. Packer was substituted. There was judgment for plaintiffs, and satisfaction was entered by F. C. Harrison, executor. From an order discharging a rule to strike off a levari facias, defendants appeal. Reversed.

Andrew A. Leiser, for appellants.

Wm. A. Sober, James Scarlet, E. M. Beale, J. M. & P. B. Linn, and J. C. Bucher, for appellee.

DEAN, J. On the 8th of November, 1866, Adam Gundy delivered to William Cameron a mortgage on a tract of improved land, containing about 92 acres, in East Buffalo township, Union county. The mortgage was to secure to Cameron a debt of $2,000, which Gundy owed to him. Both mortgagor and mortgagee died before payment, leaving last wills. Cameron appointed John D. Packer and F. C. Harrison executors of his will; and Gundy, John A. Owens executor of his,— and letters testamentary were duly issued to them. On September 5, 1888, Packer and Harrison, executors of Cameron, had sci. fa. issued on the mortgage, to which Owens, executor of Gundy, appeared, and confessed judgment to John B. Packer and F. C. Harrison, executors of William Cameron, in the sum of $2,882.30, debt and interest. On August 3, 1893, the death of John B. Packer, one of the executors of Cameron, was suggested; and James C. Packer, administrator, with the will of Cameron annexed, was substituted. The same day, James C. Packer, without being joined by Harrison, the surviving executor of Cameron, directed the issuing of lev. fa. on the mortgage. On September 4th, Abraham V. Gundy and Elizabeth V. Gundy, representing themselves as terre-tenants of the land bound by the mortgage, and that they had paid the full amount of the debt interest and costs of the judgment thereon, to F. C. Harrison, the surviving executor of Cameron, who had duly receipted to them for the same, and agreed to satisfy the mortgage of record, prayed the court to quash or set aside the writ of lev. fa. Thereupon, the court granted a rule on James C. Packer to show cause why decree should not be made as prayed for, returnable 18th September, 1893. On the 9th of September, F. C. Harrison, as surviving...