Stephens v. Weldon

• Decision Date: 03 October 1892
• Docket Number: 48
• Citation: 151 Pa. 520,25 A. 28
• Parties: Stephens v. Weldon, Appellant
• Court: Pennsylvania Supreme Court

25 A. 28

151 Pa. 520

Stephens v. Weldon, Appellant

No. 48

Supreme Court of Pennsylvania

October 3, 1892

Argued February 17, 1892

Appeal, No. 48, Jan. T., 1892, by defendants, Christopher Weldon and wife, in right of wife, from judgment of C.P Schuylkill Co., May T., 1888, No. 327, on verdict for plaintiff, Samuel Stephens.

Ejectment. The facts appear by opinion of Supreme Court.

The court below, GREEN, J., charged that "Stephens was an innocent purchaser of the mortgage, knowing nothing at all of the fact that the judgment was a lien upon the property." [1]

Plaintiff presented the following point:

"1. Plaintiff, as the representative of Hapgood, Hay & Co., as the assignee of their judgment against Boas, is not affected by any payments made by the defendants to Boas on the mortgage subsequent to the entry of the judgment or by any payments made to the plaintiff as the assignee of the mortgage, but the judgment of Hapgood, Hay & Co. bound all of the interest of Boas as the vendor of the real estate in question at the time of the entry, to wit, the balance of purchase money unpaid at the date of the entry of the judgment, being the sum of $578, and the verdict of the jury should be in favor of the plaintiff for that sum with interest from August 1, 1882, to the date of the sheriff's sale. Answer: For the present we will affirm that point and as we have already said we propose to take the correctness of that answer into future consideration; we are not satisfied thoroughly of its correctness." [3]

Defendant presented this point, among others:

"6. Being the holder of both rights he can only claim the balance of the purchase money unpaid because this proceeding is an equitable one, and as he received all the payments after the assignment it would be against equity to compel the defendants to pay a second time, money which the plaintiff now has made to him as the holder of the mortgage." Refused. [4]

Under instructions the jury returned the following verdict October 4, 1890: "The jury find in favor of the plaintiff and against the defendants for the property described in the writ with six cents costs and six cents damages. This verdict to be taken off on the payment of the sum of $762.37 within six months from this day with interest from October 4 1890." [2]

Judgment upon verdict. Defendants appealed.

Errors assigned were (1-4) instructions, as above, quoting them.

Judgment reversed and a venire facias de novo awarded.

J. Lineaweaver, Jas. Ryon with him, for appellants. -- A vendee who has paid a judgment against a vendor is entitled to set off such payment against a purchase-money mortgage: McGill's Case, 6 Pa. 504; Dunn v. Onley, 14 Pa. 223. The assignee of the mortgage stands in the position of his assignor and is subject to the same defences: Rider v. Johnson, 20 Pa. 190. The plaintiff was not an innocent purchaser: Leonard's Ap., 94 Pa. 168.

H. B. Graeff, for appellee. -- In Pennsylvania all the real estate of a debtor, whether legal or equitable, is bound by a judgment against him, and may be taken in execution and sold for the debt, and the sale of the legal estate under a judgment mesne between the time of making the articles of agreement and the execution of the deed would transfer as a necessary incident the money remaining unpaid: McMullen v. Wenner, 16 S. & R. 21; Chahoon v. Hollenback, 16 S. & R. 431; Garrand v. Lantz, 12 Pa. 193; Patterson's Est., 25 Pa. 71; Siter, James & Co.'s Ap., 26 Pa. 178.

Before PAXSON, C.J., STERRETT, GREEN, WILLIAMS and HEYDRICK, JJ.

OPINION

Mr. JUSTICE STERRETT:

This action of ejectment resulted in a verdict, by direction of the court, in favor of the plaintiff, for the land described in the writ with six cents damages and the costs; said verdict to be set aside upon payment of $762.27 within six months from date thereof, with interest from October 4, 1890.

It is claimed by defendants that the sum named in the conditional verdict is too great; that they were entitled to further credits which would have reduced the balance to $328.89 with interest from April, 1886, the date of last payment.

In April, 1882, Mrs. Weldon, one of the defendants, agreed with Mr. Boas, the then owner of the property, to purchase the same for $850, and pursuant thereto the defendants went into possession in May or June following and immediately made valuable improvements. Payments were made by Mrs. Weldon from time to time on account of the purchase money until August 22, 1882, when Boas conveyed the premises to her, and took a mortgage for $555, residue of purchase money, which was recorded on the following day. Further payments were thereafter made to him until April 27, 1883, when he assigned the mortgage to Samuel Stephens, the plaintiff. The balance due at that time appears to have been $445.75. After notice of the assignment, payments were made by Mrs. Weldon to Stephens, the assignee, aggregating, to April, 1888, $140. An entry made by him in Mrs. Weldon's book, April 30, 1885, shows $359.10 balance then due. Subsequent payments reduced the amount to $309.10, plus accrued interest.

Nearly all of the foregoing...