Waslee v. Rossman

• Decision Date: 10 April 1911
• Docket Number: 295
• Citation: 80 A. 643,231 Pa. 219
• Parties: Waslee, Appellant, v. Rossman
• Court: Pennsylvania Supreme Court

80 A. 643

231 Pa. 219

Waslee, Appellant, v. Rossman

No. 295

Supreme Court of Pennsylvania

April 10, 1911

Argued January 11, 1911

Appeal, No. 295, Jan. T., 1910, by plaintiff, from judgment of C.P. No. 3, Phila. Co., Sept. T., 1908, No. 2,700, on verdict for defendants in case of George W. Waslee, Assignee of G. Percy Lemont, Assignee of George W. Waslee, who was Assignee of the Continental Title & Trust Company, who was Assignee of George W. Waslee, the Mortgagee, v. Paul Rossman Mortgagor, and Lulu Waslee, real owner. Affirmed.

Scire facias sur mortgage. Before McMICHAEL, J.

The court charged in part as follows:

This suit is upon a mortgage for $4,250. The suit was brought in the name of G. Percy Lemont, assignee of George W. Waslee who was assignee of the Continental Title and Trust Company, who was assignee of George W. Waslee, the mortgagee, v. Paul Rossman, mortgagor, and Lulu Waslee, real owner. No interest was ever paid upon this mortgage, and the suit is to recover the principal sum and interest. The mortgage is secured upon the premises 1942 North Eleventh street, Philadelphia. It appears that George W. Waslee had agreed to purchase the property from Moses Hamburger and had paid $100 on account, and at or about May 8, 1905, he paid the balance of the purchase money for the property to Moses Hamburger. George W. Waslee, however, did not take the title in his own name, but on May 8, 1905, Moses Hamburger conveyed to Paul Rossman (who was a straw man), the consideration mentioned in the deed being $4,250. On the same day, Paul Rossman created a mortgage for $4,250, upon which the present suit has been brought; and upon the same day, May 8, 1905, Paul Rossman conveyed to George W. Waslee for a consideration mentioned in the deed of one dollar, subject to the mortgage of $4,250 from Rossman to Waslee. The deed from Hamburger to Rossman, and the mortgage from Rossman to Waslee was recorded May 8, 1905. The deed from Rossman to Waslee was not recorded until January 9, 1906. On January 9, 1906, George W. Waslee assigned to the Continental Title and Trust Company the mortgage for $4,250, and on the same day George W. Waslee created a mortgage in favor of the Continental Title and Trust Company for $2,500. The assignment and the mortgage for $2,500 were recorded on January 9, 1906. The transaction between George W. Waslee and the Continental Title and Trust Company was as follows: The Continental Title and Trust Company loaned to Waslee $2,500 upon his collateral note, with the mortgage for $4,250 as collateral security, and also took a mortgage from Waslee for $2,500 upon the same property. On January 12th, 1906, George W. Waslee, by deed recorded the same day, conveyed the premises in question to Paul Rossman for a consideration mentioned in the deed for $1.00, subject to a mortgage of $2,500 created in favor of the Continental Title and Trust Company. The deed from Waslee to Rossman of January 12, 1906, recited the deed from Rossman to Waslee of May 8, 1905, subject to the $4,250 mortgage, and then uses the following words: "which said mortgage debt is intended to be paid off and satisfied of record." On the same date, Paul Rossman conveyed the premises to Lulu Waslee, for a consideration mentioned in the deed of $1.00, subject to the $2,500 mortgage. On March 11, 1907, Lulu Waslee paid to the Continental Title and Trust Company $2,500, which George W. Waslee had borrowed, the $2,500 mortgage to the Continental Title and Trust Company was satisfied of record as of March 15, 1907, and the mortgage of $4,250 was assigned back to George W. Waslee. This assignment was recorded on March 12, 1907. On October 3, 1908, George W. Waslee assigned to G. Percy Lemont the $4,250 mortgage. This assignment was recorded January 7, 1909. G. Percy Lemont gave no consideration whatever for this assignment, but acted in the matter simply for Waslee, as what is called a "straw man." G. Percy Lemont brought suit upon the mortgage, and the praecipe for sci. fa. is marked filed October 22, 1908. On May 1, 1909, G. Percy Lemont reassigned to George W. Waslee the $4,250 mortgage, which assignment was recorded May 7, 1909.

As I have reached the conclusion that there is nothing to be submitted to the jury, and that it is the duty of the court to instruct the jury to find a verdict, I shall give my view briefly in order that my view as trial judge may be reviewed by the court in banc, or, if desired by the Supreme Court.

Among other defenses set up by the defendant, is the equitable defense that George W. Waslee is stopped from enforcing the mortgage against Lulu Waslee, because in the deed of January 12, 1906, he conveyed the premises to Rossman subject to the $2,500 mortgage, and reciting the deed of Rossman to Waslee of May 8, 1905, subject to the $4,250 mortgage, used thereafter the following words: "Which said mortgage debt is intended to be paid off and satisfied of record," and the deed from Paul Rossman to Lulu Waslee, recites the consideration of $1.00, subject to the $2,500 mortgage. (The deed from Paul Rossman to Lulu Waslee, of January 12, 1906, is silent as to the $4,250 mortgage). If the present mortgage had been sold for value and the assignee of the mortgage were attempting to enforce the mortgage, the law might be different, but the trial judge is of opinion that the defense is a valid one against George W. Waslee, and as it arises from the deeds themselves, there is no question for a jury to consider; and that the present plaintiff, George W. Waslee, cannot enforce his mortgage against Lulu Waslee, because the words of his deed to Paul Rossman, of January 12, 1906, "which said mortgage debt is intended to be paid off and satisfied of record," estop him from enforcing the $4,250 mortgage.

For this reason the jury is instructed to find a verdict for the defendant. [3]

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (2) directing a verdict for defendant; (3) charge as above quoting it; (4) in refusing a motion for judgment for plaintiff n.o.v.; (5, 6) in rejecting offers of evidence as to a mistake of scrivener in inserting in the deed the covenant as to the satisfaction of the mortgage.

On the whole case, we conclude that the learned court below committed no error in giving binding instructions for the defendant. The assignments are overruled, and the judgment is affirmed.

Frederick A. Sobernheimer, with him Joesph W. Gross, for appellant. -- A mortgage does not necessarily merge or become extinct by being united in the same person with the fee: Girard Trust Co. v. Baird, 212 Pa. 41; Duncan v. Drury, 9 Pa. 332; Loverin, Hall & Co. v. Humboldt Safe Dep. & Tr. Co., 113 Pa. 6; Carrow v. Headley, 155 Pa. 96; Fenton v. Fenton, 208 Pa. 358.

The declaration in the present case was not made to the appellee, Lulu Waslee, but to Rossman, the grantor, while Lulu Waslee joined in the declaration, and she is the person setting up the estoppel: McCouch v. Loughery, 12 Phila. 416; Miles v. Miles, 8 W. & S. 135.

Where a party with full knowledge of all the facts creating the liability, acquiesces in what has been done, and silence in such a case, after a reasonable time, will amount to a ratification: 2 Herman on Estoppel and Res Judicata, sec. 769, p. 895; Susquehanna Mutual Fire Insurance Co. v. Swank, 102 Pa. 17.

The act of 1715 has no application: Whitehill v. Gotwalt, 3 P. & W. 313; Shaffer v. Greer, 87 Pa. 370; Ake v. Mason, 101 Pa. 17; Trotter v. Page, 7 W.N.C. 469; Gilham v. Real Estate Title Ins. & Trust Co., 203 Pa. 24.

Parol evidence is admissible to show that through a mistake of the scrivener more property was conveyed by a deed than was intended by the parties thereto: Chew v. Gillespie, 56 Pa. 308; Stamm v. Esterly, 8 Pa. D.R. 330; Lauchner v. Rex, 20 Pa. 464; Hamilton v. Asslin, 14 S. & R. 448; Middleton v. Thompson, 163 Pa. 112.

Stanley Folz, with him Leon H. Folz, for appellee. -- The mortgage was satisfied in point of law and the plaintiff was estopped from asserting the contrary by reason of the covenants and recital in the deed from Waslee to Rossman, dated January 12, 1906, upon the conveyance of the property to Mrs. Waslee: Campbell v. Shrum, 3 Watts 60; Taylor v. Preston, 79 Pa. 436; Penn v. Preston, 2 Rawle 14; Tyron v. Munson, 77 Pa. 250; Sergeant v. Ingersoll, 7 Pa. 340; Muntz v. Whitcomb, 40 Pa.Super. 553; Mickles v. Dillaye, 15 Hun, 296; George v. Brandon, 214 Pa. 623; Hutchinson v. Barnes, 34 Pa. C.C.R. 451; Shaw v. Galbraith, 7 Pa. 111; McWilliams v. Nisly, 2 S. & R. 507; Brown v. McCormick, 6 Watts 60.

The covenant arising from the words "grant, bargain and sell" amounts to a covenant that the grantor has not done any act or created any incumbrance, whereby the estate granted by him might be defeated: Gratz v. Ewalt, 2 Binn. 95; Funk v. Voneida, 11 S. & R. 109; Seitzinger v. Weaver, 1 Rawle, 377; Knepper v. Kurtz, 58 Pa. 480; Vetter v. Vetter, 13 Pa.Super. 584.

The mortgage was without consideration: Carothers v. Sims, 194 Pa. 386.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

Prior to the beginning of the transactions which we are about to state, George W. Waslee, the plaintiff, had lived for several years with Lulu Waslee, the defendant, whom he called his wife, although they had not been formally married. In May 1905, the plaintiff purchased a piece of real estate, 1942 N. 11th street, Philadelphia, for $4,250. At his direction the title was conveyed to one Rossman, who, on the same day, May 8, 1905, executed a mortgage to Waslee for the amount of the purchase money, and forthwith deeded to him the property, subject to the mortgage. This deed, although delivered on its date,...