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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 4) online

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recollection of being present when the deed was executed. I don't
recollect of being present when the deed was delivered. I never
saw the deed and bonds and mortgage to examine them from that
day to this." The witness being re-examined again by the plain-
tiff's counsel, said : " I recollect telling Margaret Helmbold that
Captain Man would not execute a deed until the mortgage was safe.
She, Margaret, made no objection : she agreed of course. That
was before the execution of the deed."

The witness also stated, that no part of the bonds had been
paid ; and being again cross-examined, he said :

" I don't recollect informing her that if she took the deed for
the thirteen thousand dollars, she must pay this mortgage too. I
told her the mortgage would be a lien on the property. I did
not tell her that she must pay the mortgage and the thirteen
thousand. By the contract made by me as her agent, with Cap-
tain Man, she was only to pay thirteen thousand dollars for the

The court (after stating the facts) charged the jury as follows :

" The conditions of the sale to Elizabeth Helmbold were, that the

414 SUPREME COURT [March Term,

[Helmbold v. Man.]

*414"| *l an( ^ should be subject to the lien of whatever sum, if any,
J might be due, owing or payable upon the mortgage in ques-
tion in this issue.

" The first question that arises in this case is, what was the effect
of these conditions of sale upon the land in the hands of Elizabeth
Helmbold ? She agrees by signing these conditions, to take the
land subject to the lien of the mortgage if it existed at the time of
the sale.

" Then did the lien of the mortgage exist at the time of the

"It is contended by the defendant that the mortgage was
merged by the conveyance of the fee from Gilpin to the plaintiff.

" That conveyance did not operate as a merger of the mortgage

" 1. Because there was an intermediate interest in the land exist-
ing at the time in Elizabeth Hembold ; and

" 2. Because it was necessary for the lien to continue to protect
Man's estate from Helmbold's mortgage.

"It is also contended by the defendant, that the mortgage in
question was extinguished by the deed from Daniel Man to Margaret
Helmbold. Bnt if the witness, George Helmbold, is believed, she
took the land, expressly agreeing that the mortgage was not to be
affected by the conveyance.

" It is also contended by the defendant, that the judgment upon
the scire facias on the mortgage merged the mortgage, and that
the judgment on the mortgage not being revived from 1819 to 1836,
its lien is gone, and the land discharged from the lien both of the
judgment and mortgage.

" This is not correct. The judgment did not create the lien. The
mortgage was a specific lien and the judgment upon the scire facias
was but the pursuit of one remedy prescribed to obtain satisfaction.
There is no necessity to obtain a judgment, or to revive a judgment
upon a scire facias upon a mortgage, for the purpose of creating or
continuing the lien."

The jury found for the plaintiff, and the defendant took this writ
of error, and assigned for error the admission of the testimony
excepted to, and the charge of the court on the law.

Mr. Potts and Mr. Mallery, for the plaintiff in error.

The testimony admitted under the first and second bills of ex-
ceptions, was irrelevant. It tended to prove no part of the issue.
The third, fourth, fifth and sixth exceptions embrace the different
parts of the testimony of George Helmbold, who was admitted to
testify to the declarations of Daniel Man, and his counsel, not at
the time the deed and mortgage were executed, but sometime before ;
and by force of which declarations, the writings are altered, and a
different contract set up between the parties, aiid submitted by the


[Helmbold . Man.]

court to the jury, and that too, where there is neither fraud, trust,
nor mistake alleged: Cozens v. Stevenson, 5 S. & R. 421 ; r*A-ir
*Bertsch v. The Lehigh Canal & Navagation Co., 4 Rawle '
130. The evidence in this case, falls within no exception to the
rule excluding parol evidence to vary a written contract ; and Man,
who is a party to the deed, is bound by it, and cannot set up a parol
contract different from his deed : and the statement by the witness
of what the counsel of Man said to him, was hearsay evidence.

Daniel Man, while he was the holder of the mortgage, purchased
the equity of redemption, and thereby his mortgage became extin-
guished. He could not be at the same time both debtor and
creditor ; his right of action was suspended and gone : Thomas v.
Thompson, 2 Johns. Rep. 473. The mortgage was merged : Gard-
ner v. Astor, 3 John. Chan. 53 ; Starr v. Ellis, 6 Id. 393 ; James
v. Johnson, Id. 417. And it has been decided, that if the plaintiff
in a judgment become the owner of the land, upon which that
judgment is a lien, the lien thereby becomes extinct by operation
of law. Koons v. Hartman, 7 Watts 20. There can be no differ-
ence between the case of the holder of a judgment, and of a mort-
gage. Each one is only a security for the payment of money. The
mortgage of Elizabeth Helmbold was not an estate in the land ; it
was only a security for the payment of money, and that could not
prevent a merger upon the union of the interest of the mortgagee
and equity of redemption in Daniel Man : Judson v. Wass, 11
Johns. Rep. 524 ; Brinkeroff v. Marvin, 5 John. Chan. 320 ;
Reckert v Maderia, 1 Rawle 325 ; Corporation v. Wallace, 3 Id.
109. The intention of Daniel Man to prevent a merger, must have
been manifested at the time he purchased the equity of redemption.
That might have been done in various ways ; the deed might have
been taken to another person. Without such intention expressed at
any time, the mortgage became extinguished. There was no reason
operating in this case in favor of personal representatives and against
the heir, to prevent a merger, as in the case of Forbes v. Moffat,
18 Ves. 384.

The deed from Daniel Man to Margaret Helmbold, of all his
interest, &c., both in law and equity, with a covenant of warranty
against himself and all claiming under him, divested him of all
interest in the mortgage and he cannot recover. No language can
be more full, and more entirely divest Daniel Man of all interest
in the premises, than that used in the deed. And this deed is con-
clusive against the right of Daniel Man, unless the deed and all
its provisions are to be destroyed by the loose conversations of the
parties not had at the time the deed was executed. In Henry v.
Sims, 1 Whart. 187, it is decided that a judgment ort a scire facias
on a mortgage is a judgment within the fourteenth section of the
act of 13th April 1791, imposing a penalty for not entering satis-

415 SUPREME COURT [March Term,

[Helmbold v. Man.]

faction on judgments. If a judgment on a scire facias, is regarded
as a judgment under that act, it is clearly embraced under the
provisions of the acts of 26th March 1827, and 23d of March


C 1829, requiring all judgments to be revived within the

times stated in the act ; and the judgment upon the mort-
gage of Daniel Man, not having been so revived, the lien is gone.

Mr. Freedley (with whom was Mr. Wheeler), for the defendant
in error.

Daniel Man bought the mortgage, executed by George Helmbold
to Paul Jones, and the judgment entered upon the scire facias
sued out upon it, by paying every cent of the debt, interest and
costs ; for mortgage arid judgment were regarded as perfectly good.
The assignment of the mortgage was immediately recorded ; that
of the judgment, was made on the docket of the court. Man,
subsequently, for the consideration of two thousand dollars, pur-
chased the equity of redemption from Thomas Gilpin, the assignee
of George Helmbold, and took from Gilpin the transfer of it, by
deed of bargain and sale. This was an equity upon an equity, an
equity in the second degree. The mortgage of Paul Jones, then
Daniel Man's mortgage, was the first mortgage ; having been given
the 1st of April 1811. The mortgage of Elizabeth Helmbold,
was a second mortgage, having been given as such, and received as
such ; it was dated, executed and delivered the day following, viz.,
on 2d of April 1811. Now the pretension of Elizabeth Helmbold
is, that Daniel Man, by paying two thousand dollars additional,
has succeeded to the loss of the whole, viz., three thousand plus
two thousand dollars, besides interest ; and that by some technical
magic, her mortgage is made, both in law and equity for that is
the pretension the first and sole incumbrance. It is the law,
Warder v. Tainter, 4 Watts 286, that Man, as assignee of the
mortgage, and the money on it, being due and unpaid, had a right
to take the possession of the land, and having obtained it peaceably,
either with or without the assent of the mortgagor or his assigns,
had an undoubted right to hold it, until he was satisfied of the
mortgage debt. This was his right, and it is proper that it should
be so. The notion of our adversaries here, is, that Man by an
unfortunate effort, unfortunate for himself, viz., by taking a deed
in order to obtain possession peaceably, extinguished his mortgage.
Did the mortgage held by Man merge by his taking a convey-
ance of the equity of redemption ? There can be no merger where
there is an intervening estate. 2 Bl. Com. 177 ; 3 Pres. on Con.
107-9. A merger is not favored in equity, and is never allowed
against the intention of the party. Dougherty v. Jack, 5 Watts
458. It is only in those cases when it is perfectly indifferent to
the party, in whom the interests had united, whether the charge or


[Helmbold . Man.]

term should subsist or not, that in equity it will be merged. In
the present case it was for the interest of Man, that his mortgage
should subsist on his own estate, otherwise the second incumbrance
would obtain a priority. The sale under the mortgage of Eliza-
beth Helmbold, *destroyed the conveyance by G. Helm- r*ji>T
bold to Gilpin, and all subsequent conveyances founded ^
thereon, together with the securities given for purchase-money ;
shall it also destroy the mortgage of D. Man, which was a prior
lien ? This would be against equity. " A person becoming enti-
tled to an estate subject to a charge for his own benefit, may, if he
chooses, at once take the estate and keep up the charge." It is
more beneficial for the person entitled to the charge, to let the
estate stand with the incumbrances upon it, than to take it dis-
charged from the incumbrance and give a priority to the second
incumbrancer. Forbes v. Moifat, 18 Ves. 394. Where the two
estates unite in the same person, without any intervening estate or
incumbrance, so that it is immaterial to the party whether the les-
ser estate merges or not, there equity holds that the lesser estate is
merged in the greater, unless the party at the time manifests an
intention to hold the estates separate ; but where it is for the inter-
est of the party that the two estates should be kept separate, as in
this case, there will be no merger, unless the party declare une-
quivocally that he does not intend to keep alive the charge : For-
bes v. Moffat, 18 Ves. 394 ; Starr v. Ellis, 6 Johns. Chan. 393 ;
Gardner v. Astor, 3 Id. 53 ; 3 Pres. on Con. 557-8. A mortgage
will not merge by a purchase of the equity of redemption, where
there is an intervening incumbrance. The mortgage being the
legal, may be considered the greater estate, and by purchase of the
equity of redemption, the title may be considered complete under
the mortgage : 2 Mason 531.

If then the mortgage of D. Man, did not merge when he took
a conveyance from Gilpin, did his transfer of the fee to Margaret
Helmbold cause it to merge ? The consideration of that convey-
ance was thirteen thousand dollars, for which he took a mortgage on
the premises, no part of the purchase-money being paid. So far as
the original mortgage assigned by Jones to Man, is concerned, the
plaintiff below then held two securities for the same money. This
a man may lawfully do. If Margaret Helmbold had paid the con-
sideration money, then both mortgages would have been satisfied.
As she never paid, and as the deed to her, together with the mort-
gage given by her, were cut out by the sale under the mortgage of
E. Helmbold, the prior mortgage of D. Man is good for the amount
secured by it, on the principle, that " an estoppel determines by
cesser of the act, deed, &c., which made the estoppel :" Co. Litt.
47, b. ; Com. Dig. 208.

As to the exceptions to the parol evidence we contend that it

417 SUPREME COURT [Marcfr Term,

[Ilelinbold v. Man.]

was not to contradict but to strengthen the presumption of law ;
and if our view of the case be correct, the parol testimony was
totally immaterial.

The court declined hearing Mr. Wheeler.

*4181 *The opinion of the court was delivered by

KENNEDY, J. George Helmbold being the owner in fee
of a tract or parcel of land, situate in Montgomery county, on the
first day of April, A. D. 1811, mortgaged the same to Paul Jones,
in fee, to secure the payment of a debt of three thousand dollars,
owing by him to Jones ; and on the following day mortgaged the
same land again to Elizabeth Helmbold, the plaintiff in error, who
was the defendant below, in like manner to secure the payment of
a debt owing to her. The debt owing to Paul Jones, not being
paid, he sued a scire facias upon his mortgage, out of the Common
Pleas of Montgomery county, to May term, 1819, in which he
obtained judgment, the nineteenth day of July, in the same year ;
awarding execution in his favor for the amount of his debt against
the land. Accordingly a writ of levari facias was issued thereon,
returnable to the following November term, which was returned by
the sheriff tarde venit. No further proceeding being had therein,
Paul Jones, on the 16th of February 1820, assigned his mortgage
and the judgment had thereon, to Daniel Man, the defendant in
error, and plaintiff below ; who, subsequently, on the 30th of
August 1823, became the purchaser of the equity of redemption in
the land, from Thomas Gilpin, who had acquired it by an assign-
ment from George Helmbold and his wife, made to him on the 16th
of October 1818, in trust for the benefit of the creditors of the said
George. On the 18th of November 1823, Daniel Man (having
then, as stated above, become the owner of the mortgage to Paul
Jones, and the equity of redemption, which remained in George
Helmbold, after giving the two mortgages, the second to the plain-
tiff in error, still remaining unpaid and in full force), sold, and by
his deed conveyed the land, embraced by the mortgages, in fee,
with covenant of special warranty to Margaret Helmbold, for the
consideration of thirteen thousand dollars, therein mentioned ;
which was secured to be paid by mortgage upon the land and thirteen
bonds, making the amount payable by annual instalments of one
thousand dollars each, all bearing date the same day. In connec-
tion with the deed conveying the land by Man to Margaret Helm-
bold, the parol evidence of George Helmbold, was given on the
part of the plaintiff below. George Helmbold testified that he as
the agent of Margaret Helmbold, made the agreement on her behalf,
for the purchase of the land ; that Man refused to sell unless the
mortgage assigned to him by Jones, were permitted to remain a lien


[Helmbold v. Man.]

upon the land ; that the advice of a professional gentleman was
taken, in order to know the effect of Man's selling and conveying
the land in fee to Margaret Helmbold, would be upon his mortgage
whether it would extinguish or discharge the lien of it from the
land ; that they were advised, it would not destroy or affect it in
any way ; that it would notwithstanding still continue to bind the
land ; that thereupon the contract for the purchase was *con- r**-, q
eluded ; and for the purpose of having it carried into exe- ^
cution, the same professional gentleman was employed to draw the
deed of conveyance, transferring the land, as also the mortgage and
bonds, for securing the payment of the purchase- money ; and that
he accordingly did so. That the three thousand dollars in the
Jones mortgage were included in the thirteen thousand dollars, as
forming part of the consideration to be paid by Margaret Helm-
bold to Daniel Man for the land. That Margaret Helmbold was
informed by the witness, that Man would not sell the land to her
unless the mortgage assigned to him by Jones, were permitted to
remain a lien upon it ; and if she took the land she would have to
take it subject to such lien. To this she made no objection ; nor
did she ever pay any part of the mortgage or consideration money
for the land.

After this, under a judicial proceeding had upon the mortgage
of the plaintiff in error, the land .was sold in January 1830, by the
sheriff to her, for the sum of twenty-six hundred dollars, subject,
however, to whatever the land might be then bound for, by the
mortgage given to Paul Jones. Parol evidence was also given by
the plaintiff below, showing that the laud, at the time of this sale
to the defendant below, was worth between six and seven thousand
dollars. The conditions of the sheriff's sale were also given in
evidence, and the agreement of the purchaser, to take the land under
it, subject to the Jones mortgage, in case it should be a lien thereon,
and to whatever sum of money might be due upon it. The defend-
ant below, by her counsel, objected to the parol evidence on the
part of the plaintiff there being received ; and after it was ruled
admissible by the court, excepted to the opinion of the court in
this respect, as also the charge of the court delivered to the jury.

The questions raised by the errors assigned, are, 1st. Was the
parol evidence, and the mortgage and bonds, which were also read
in evidence, after being objected to, from Margaret Helmbold to
the defendant in error admissible ? 2d, Did the deed of convey-
ance from Thomas Gilpin to Daniel Man, under the particular
circumstances attending the case, merge or extinguish the mortgage,
which the latter held at that time, by assignment from Paul Jones ?
3d, Did the deed of conveyance from Daniel Man to Margaret
Helmbold, discharge the lien of said mortgage upon the land ; or
show that he did not intend to keep it on foot when he became the

419 SUPREME COURT [March Term,

[Helmbold v. Man.]

owner of the land, or estop him from claiming under it ? And 4th,
Supposing the court below to have answered these three questions
correctly, by responding to the first in the affirmative, and the two
last in the negative, did the lien of the mortgage expire, because it
was not revived by scire facias, within five years from July term
1819, when the judgment was first obtained upon it, authorizing
the issuing of a writ of levari facias, to sell the land for the purpose
of obtaining the mortgage debt ?

As to the first question, the parol evidence first objected to, was


*offered for the purpose of showing that the value of the land,

at the time it was sold by the sheriff to the plaintiff in error,
by virtue of a writ of levari facias, sued out by her upon a judg-
ment, which she had obtained in a scire facias upon her mortgage
from George Helmbold, was worth the amount of the debts men-
tioned in both mortgages given by him. This evidence cannot well
be considered altogether irrelevant, as has been contended by the
plaintiff in error, nor yet going to vary, contradict or alter any
written evidence on the subject concluding the parties. It was
perfectly consistent with the conditions of the sheriff's sale of the
land, and with the deed of conveyance made in pursuance thereof.
By them it appears that the plaintiff in error expressly agreed to
take the land at the price bidden for it by her agent, subject to the
payment of whatever might be due upon the Jones mortgage, if it
were then a lien upon the land ; and as the parol evidence tended
to prove that the land was equal in value to the amount of the
moneys claimed on both mortgages, it went not only to corroborate
and sustain the agreement made by the plaintiff in error, for the
purchase of the land, but also to affect her conscience, and to show
that she ought not, either in law or equity, to be permitted to hold
the land discharged from the payment of the money due on the
Jones mortgage, if it were a lien upon the land at the time she

The next parol evidence received, that was objected to by the
plaintiff in error, was the testimony of George Helmbold. Accord-
ing to it, he as the agent of Margaret Helmbold, contracted with
Daniel Man for the purchase of the land ; that Daniel Man refused
to sell, when in treaty for the sale, unless the Jones mortgage were
secured, or permitted to remain a lien upon the land. That advice
was taken of a professional gentleman, to know whether Man's sell-
ing and conveying the land to Margaret Helmbold, would have the
effect of discharging the lien of that mortgage, who said it would
not ; and upon this the agreement for the purchase was concluded ;
and the same professional gentleman was employed to draw the
deed of conveyance transferring the land ; and the mortgage and
bonds securing the payment of the purchase-money, which he
accordingly did. They were all executed afterwards, when the


[Helmbold . Man.]

witness was not present. But Margaret Helmbold was fully apprised
before this execution, that the Jones mortgage was to remain a lien
upon the land, until the purchase-money should be paid by her to
Man, which would have satisfied it too, as it was understood to be
included in the thirteen thousand dollars, the amount of the consid-
eration money agreed to be paid by her. It is contended that this
evidence ought not to have been received, because it was inconsis-
tent with the import and effect of the deed of conveyance from Man
to Margaret Helmbold. But certainly it is not more so than the
deed of a grantor, who to secure the repayment of money borrowed
by him, conveys his land by deed absolutely in fee, *sub- I-JMQ-I
ject, however, to a parol agreement, that he shall retain '
in himself the equity of redemption. This he may do accord-
ing to the decision of this court in Kunkle v. Wolfersberger, 6
Watts 126. l Here the grantor conveyed the land subject to the
right, which he clafmedUo have, of using his mortgage thereafter,
if it should become necessary in order to protect him against the
claim of the plaintiff in error, under her mortgage. Or if this view
of the matter should seem to be repugnant to the analogy of the law
in any respect, Daniel Man, in order to give effect to the agreement
and intention of the parties, may be considered as having conveyed
his right to the Jones mortgage, and the equity of redemption to
Margaret Helmbold, to hold them in the same manner as he held
them himself, and she, by the execution of the mortgage to him, as
having reconveyed the right to the Jones mortgage, so that the right
to this mortgage, and the lien of it should still continue to exist and
be used by him, whenever it might be for his advantage to do so.
Under this view the objection that the parol evidence admitted, had
a tendency to change or alter the import and legal effect of the deed
of conveyance from Man to Margaret Helmbold, is completely re-
moved ; and the mutual deeds executed by the parties respectively,
forming constituent parts of one and the same arrangement between
them, may be regarded as sufficient in law as well as in equity, to
have this operation and effect, without uniting the two interests, so
as to merge the one in the other and render them forever thereafter
inseparable for any purpose whatever, contrary to the agreement
of the parties. The rule of law in this respect, comports with equity
and the plain principles of common sense, that all instruments of
writing shall be so construed, if susceptible of it, as best to effectuate
the intention of the parties, and not to overturn or defeat it.

The second question presents itself next ; did the deed of con-
veyance, from Thomas Gilpin to Daniel Man, under the particular
circumstances attending the case, merge or extinguish the mortgage,
which the latter held at that time, by assignment from Paul Jones ?

1 See also 3 W. & S. 388 ; 6 Id. 284 ; 1 Grant 306 ; 8 Casey 251 ; 5 P. F.
Smith 316. || But see now Act June 8th 1881, P. L. 84.||


Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 4) → online text (page 48 of 74)