Brumbach ex rel. Swavely v. McLean

Citations

• 187 Pa. 602
• 41 A. 480
• 1898 Pa. LEXIS 846

Syllabus

<p>Mortgage — Contested ownership of mortgage — Practice, C. P.</p> <p>Where two parties .under different assignments are claiming the ownership of a mortgage, and one of the parties has issued a scire facias, it is proper for the court to direct that the scire facias shall be proceeded in to judgment, and then to award an issue between the two equitable claimants, to determine the facts by a jury and the law by the court.</p> <p>In a contest as to the ownership of a mortgage, the evidence for the plaintiff tended to show that K., the original owner of the mortgage, made a parol assignment of it to W. on December 20, 1875. It also appeared ' from the evidence that W. subsequently made an assignment to creditors, and his assignee transferred the mortgage to plaintiff. The evidence for the defendant showed that on December 21, 1875, K. made a general assignment for creditors to A. Subsequently on March 19,1881, K. specifically assigned the mortgage to F. and L., who assigned it to plaintiff. Twenty years after the assignment for creditors of K., plaintiff secured a judgment in the name of the legal owner on the mortgage. During these years neither the assignee nor the creditors made any assertion of ownership, and the estate of the insolvent had been settled, and the assets distributed. Held, that the plaintiff had under the circumstances of the case a color of title sufficient to give him a right to demand of another claiming the mortgage that he should establish by competent evidence his right to it.</p> <p>Evidence — Competency of witness' — Party dead — Act of June 11, 1891.</p> <p>In a contest to determine the ownership of a mortgage between two parties claiming under an assignment from the original owner of the mortgage, the original owner is a competent witness under the Act of June 11, 1891, P. L. 287, to prove that he made a parol assignment to the person under whom plaintiff claimed, although such person is dead, if another witness has already testified to b