Imágenes de páginas
PDF
EPUB

But the above-stated facts shown by plaintiff did not stand alone. On the contrary, they were accompanied by an array of others, undisputed, or so feebly contested as to be practically admitted, that deprived them of all real weight. It appeared that Turtle, during all the time he was nominally keeping the warehouse and issuing receipts for goods on storage there, was a clerk in the employ of the Keen-Sutterle Company, at a salary; that the rent of the socalled warehouse was not paid by Turtle, but by the Keen-Sutterle Company, or by F. W. Sutterle, one of the partners, and the rent due to Turtle from the subtenants of a part of the warehouse was not paid to him, but to the KeenSutterle Company or F. W. Sutterle, and the only explanation given was that there was some private arrangement, not disclosed, between Turtle and Sutterle, on this subject; that no storage charges were paid by the Keen-Sutterle Company to Turtle on account of this warehouse, nor any credit given him on their books; that no persons other than the Keen-Sutterle Company deposited any goods in the socalled warehouse, though a few receipts were issued in the name of J. B. Moors 565 & Co., under some arrangement with the Keen-Sutterle Company, which the learned judge declined to permit to be inquired into; and that Turtle had no sign on the warehouse to indicate his proprietorship, kept no books of the business except a book of blank receipts, had no office or even a desk in the warehouse, did not keep the key in his possession, was rarely there, and left the whole charge, including the depositing and removal of goods, to the employés of the Keen-Sutterle Company. On these facts it is perfectly clear that there was no real warehouse at all in the case, and that Turtle was a mere employé or man of straw used by the Keen-Sutterle Company to cover their own operations with their own goods.

The counsel for appellee have argued very strenuously the proposition that if Turtle held himself out to the world as a warehouseman, and plaintiff had no knowledge to the contrary, it would be sufficient to put plaintiff under the protection of the statute. And the learned court below seems to have fallen into the same view. But this is not enough. To defeat the title of defendants as a consignee without notice, for value, and in good faith, Turtle must have been a warehouseman in fact, and plaintiff's title derived through an actual valid warehouse receipt. It is not a question of good faith, or even of diligence, on plaintiff's part, but of the possession of a good title by means of a valid and genuine receipt. This the plaintiff had failed to prove.

The paper given to it was not such a receipt, but a fraudulent imitation, and the bank must, unfortunately for it, bear the loss. On the practically undisputed facts the verdict should have been directed for defendants.

Judgment reversed.

WAREHOUSEMAN-WHO IS WHO IS NOT.-A warehouseman is a person who receives goods and merchandise to be stored in a warehouse for hire. Therefore, a corporation which never operated a warehouse, nor, issued warehouse receipts, except upon its own property for the purpose of securing loans thereon, does not carry on the business of a warehouseman, either public or private: Franklin Nat. Bank v. Whitehead, 149 Ind. 560; 63 Am. St. Rep. 302, and note; Geilfuss v. Corrigan, 95 Wis. 651; 60 Am. St. Rep. 143, and note.

WAREHOUSEMAN-ASSIGNEES OF INVALID RECEIPTS.One who is not a warehouseman, but who issues what purports to be a warehouse receipt on his own property for the purpose of securing a creditor, is not estopped from proving that he was never a warehouseman, where the creditor had knowledge of the true state of facts, and was not deceived by any action of the debtor: Franklin Nat. Bank v. Whitehead, 149 Ind. 560; 63 Am. St. Rep. 302. See monographic note to Rice v. Cutler, 84 Am. Dec. 752-754.

MORRIS V. Campbell.

[186 PENNSYLVANIA STATE, 589.]

EXECUTION SALE-WHEN RELATES TO THE DATE OF A MORTGAGE.-If a judgment is recovered upon a bond secured by a mortgage, and a fieri facias is issued and a sale made thereunder of the mortgaged premises, the title relates to the date of the mortgage, and hence divests the title of grantees of the mortgagor subsequent to its execution, though such grantees were not parties to the action.

William W. Ker and S. Holmes, for the appellants.

C. W. Bull, for the appellee.

591 GREEN, J. The defendants took their title by a deed dated October 31, 1892, and in that deed it was expressly stated that the title 592 was subject to a mortgage to secure the pay

ment of three thousand six hundred dollars in favor of William R. Rinehart, given by William F. Brantley, dated January 6, 1891. As this mortgage was given less than two years before the conveyance to the defendants, it was a very recent transaction, all the particulars of which must necessarily have been known and considered by the defendants at the time they received their deed. They were, of course, legally bound to know everything that was contained in the mortgage as it appeared

at the time it was placed upon record, which was January 9, 1891. On the face of the mortgage as recorded was a full recital of the bond which the mortgage was given to secure, and, as there recited, the bond was a bond given by William F. Brantley to William R. Rinehart in the penal sum of seven thousand two hundred dollars conditioned for the payment of three thousand six hundred dollars five years after the date thereof, with interest thereon payable annually, with a condition that if default was made in the payment of interest for sixty days after any payment of interest should fall due, the principal sum should thereupon become due and payable. When they bought the property, the defendants knew that they were to pay the interest as it became due on this mortgage and the time at which it fell due, and they also knew that if they failed to pay it for sixty days after it fell due they would be in default, and the whole principal sum would thereupon become due and payable. It was clearly their duty, therefore to pay the interest on this bond within sixty days after it matured, or to take the consequences of a failure to pay. While it is not a matter of any consequence, so far as their legal duties and responsibilities are concerned, whether they were specially called upon for the payment of the interest due on January 6, 1894, it is alleged in the counter-statement, and not denied by the defendants, that they were notified by mail on March 1, 1894, that payment of the overdue interest was required to be made, and that they replied by letter promising to pay it not later than the 15th of the same month. As they did not keep the promise, judgment was entered on the bond, execution issued, and the property was sold, but not until May 25, 1894, almost five months after the interest payment fell due. It is also alleged in the counter-statement, and not denied, that the defendants knew of the sale before it took place and wrote a letter to Mr. Rinehart's attorney on April 30, 1894, inquiring for particulars 593 as to the sale, and the information was promptly given. It is also alleged in the counter-statement, and not denied, that James A. Campbell, one of the defendants, was represented at the sale by an attorney from Philadelphia, and at his request the sale was adjourned for an hour to enable him to communicate by telegraph with his client, and that the attorney bid at the sale of the property, but the property, after several bids were made, was struck off to Rinehart, he being the highest bidder.

The question whether the bond upon which the judgment was entered was the same bond which the mortgage was given

AM. ST. REP. VOL. LXV.-58

to secure was carefully and correctly submitted to the jury, who found that it was, and it is plain upon the least examination of the testimony of identification that they could not possibly have found any other verdict on that question. The only remaining question in the cause is, whether the lien of the judgment related back to the date of the lien of the mortgage, so that a sheriff's sale under the judgment divested the lien of the mortgage. Upon this question there can be no doubt, under all our decisions. As long ago as McCall v. Lenox, 9 Serg. & R. 302, it was held that if a bond and warrant of attorney are given accompanying a mortgage, a sale of the land under a fieri facias and venditioni exponas issued on the judgment entered up under the warrant avoids a lease made by the mortgagor, after the mortgage, but before the entry of the judgment on the warrant. The ruling in this case has been followed ever since. In Hartz v. Woods, 8 Pa. St. 471, it was decided that a sheriff's sale under a judgment confessed for the interest accruing on a bond secured by mortgage, discharges the lien of the mortgage, although the defendant had previously to the judgment aliened the land, for it relates back to the lien of the mortgage; and this, though the mortgage is conditioned for the payment of the amount mentioned in the bond, and there is no express stipulation with respect to the interest in the mortgage. Coulter, J., delivering the opinion, said: "If the debt on which the land was sold was also a debt secured by the mortgage, then it was a matter of no consequence when Hassinger sold to Singer, because the lien of the judgment would run back to the lien of the mortgage, and, of course, carry the land with the sale, free from the lien of the mortgage." In this case a small judgment for some 594 interest only had been confessed many years previously, before a justice, a transcript was taken to the common pleas and a sheriff's sale made of the land to one from whom the defendant (terre-tenant) had title. A scire facias on the mortgage was, long after the prior sale under the judgment, brought against one who had title under the purchaser at the sale under the judgment, and he made defense that he had a good title divested of the mortgage, and it was in reference to that defense that the above-quoted comment was made.

A single further reference will be sufficient: West Branch Bank v. Chester, 11 Pa. St. 282; 51 Am. Dec. 547. A sheriff's sale of mortgaged premises upon a judgment obtained for the interest due upon the mortgage debt, which debt was payable in futuro, effects a virtual foreclosure of the mortgage, extinguishes

the equity of redemption in the mortgagor, transfers the legal estate still in him, and divests the lien of the mortgage. The money raised by a sale on such judgment is brought into court attended by the lien of the mortgage, and the mortgagee will be entitled to it in preference to creditors whose liens intervene between the mortgage and the judgment for interest thereon. The interest is part of the substance of the mortgage debt, it belongs not to it by tacking, it is not an incident of the debt, but pro tanto it is the debt itself. A very elaborate opinion was prepared and filed in the court below, in which the whole subject. was discussed in the most exhaustive manner. The question was new and of very grave importance in view of the peculiar circumstances in which it arose, and the opinion of the lower court, holding that the whole title passed under the sale on the judgment, was fully approved and adopted.

The foregoing decisions have been selected out of many be cause they are much stronger illustrations of the doctrine in question than are required by the facts of the present case. In those cases the judgments were recovered for arrears of interest only, while here the judgment was for the full amount of the debt, principal and interest, and, therefore, the very identical debt in its entirety which was secured by the mortgage was included in the judgment. Further argument is unnecessary. Although there are numerous assignments of error, they are all controlled by the question already considered. The assignments of error are all dismissed.

Judgment affirmed.

MORTGAGE-FORECLOSURE — PURCHASER'S TITLE RELATES TO DATE OF MORTGAGE.—A purchaser at a foreclosure sale is only concerned with the state of the title at the date of the mortgage, and the existence of liens affecting the rights of the mortgagee. The mortgage ripens into a perfect title through the process of foreclosure: Hokanson v. Gunderson, 54 Minn. 499; 40 Am. St. Rep. 354, and note. Upon a foreclosure sale, the purchaser takes the title of the mortgagor as of the time when the mortgage lien was created: Batterman v. Albright, 122 N. Y. 484; 19 Am. St. Rep. 510, and note.

STAHR V. BREWER.

[186 PENNSYLVANIA STATE, 623.]

A JUDGMENT CONFESSED BY A MARRIED WOMAN is presumptively valid.

A MARRIED WOMAN SEEKING TO AVOID A JUDGMENT by confession must show not only the fact of her marriage, but also all other circumstances necessary to relieve her from liability.

« AnteriorContinuar »