Purman v. Smith

• Decision Date: 16 March 1937
• Docket Number: 50-1937
• Citation: 126 Pa.Super. 234,191 A. 65
• Parties: Purman, Appellant, v. Smith
• Court: Pennsylvania Superior Court

191 A. 65

126 Pa.Super. 234

Purman, Appellant, v. Smith

No. 50-1937

Superior Court of Pennsylvania

March 16, 1937

January 28, 1937, Submitted

Appeal from decree of C. P. Chester Co., 1934, No. 863, in case of Thomas R. Purman v. Alice A. Smith.

Bill in equity. Before Windle, P. J.

The facts are stated in the opinion of the Superior Court.

Decree entered dismissing bill. Plaintiff appealed.

Error assigned, among others, were various findings of fact and conclusions of law of chancellor.

Decree affirmed.

Thomas R. Purman, propria persona, appellant.

Isabel Darlington, for appellee, filed no brief.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ. Opinion by Keller, P. J.

OPINION

Keller, P. J.

This was a bill in equity to restrain the foreclosure of a mortgage.

Sometime prior to September, 1932, the plaintiff Purman, orally agreed with one Moore, a real estate agent acting for the executors of the will of Frank J. Elston, deceased, to buy from them a farm in Chester County. The price to be paid was $ 5,500, and Purman paid $ 1,500 on account of it, in installments, to Moore, who embezzled it.

The sale was put through on September 21, 1932. The executors conveyed the premises to Purman by deed duly executed and recorded, and Purman paid $ 4000 cash and executed and delivered a bond and mortgage to Ella Elston Balson, one of the executors, for $ 1200, the remaining $ 300 representing commissions, etc. due Moore. The chancellor found, as a fact that this bond and mortgage were given by plaintiff gratuitously, voluntarily and of his own accord, in order to make good to the Elston Estate the defalcation of their real estate agent, Moore; that they were in the nature of a gift but no conditions affecting their payment were attached to or agreed to by the parties or the Executors of Frank J. Elston.

By deed of special warranty, dated March 7 1933, Purman conveyed the real estate to Mildred E Underwood, "under and subject to the payment of the principal sum of $ 1200 and interest thereon secured by mortgage given by Thomas R. Purman to Ella Elston Balson, dated September 21, 1932 and recorded in Mortgage Book K-11, page 209."

On April 19, 1933 Ella Elston Balson assigned the said mortgage and bond to Charles H. Elston by assignment duly recorded, and on August 26, 1933 Charles H. Elston assigned the mortgage and bond to Alice A. Smith, the defendant, by assignment duly recorded. Previous to taking her assignment Mrs. Smith received from Purman a declaration of no set off, declaring that the principal of said mortgage, with interest at six per cent from March 21, 1933, was owing, and that he had no charge, claim, demand, or set off against the same. This declaration erroneously recited that Purman was then the owner of the premises.

Mrs Smith having threatened to foreclose the mortgage for default in payment of interest, the plaintiff, Purman, on January 15, 1934 filed this bill to enjoin foreclosure or any proceeding on the bond or mortgage, and to require the mortgage to be satisfied and the bond delivered up for cancellation. No injunction affidavits were filed or bond given. The defendant accepted service of the bill and entered her appearance, and the next day issued a writ of scire facias on the mortgage, which was duly...