Clymer v. Groff

Citations

• 220 Pa. 580
• 69 A. 1119
• 1908 Pa. LEXIS 820

Syllabus

<p>Mortgage — Deed—Consideration—Delivery—Presumption — Recording —Retention of possession by grantor.</p> <p>Want of consideration is not a valid defense to an action upon a sealed instrument.</p> <p>If a deed or mortgage be duly delivered in the first instance, it will operate though the grantee suffer it to remain in the custody of the grantor.</p> <p>The presumption in favor of the delivery of a deed in case of voluntary settlement is stronger than in ordinary bargain and sale, and the fact that such deed has been recorded is prima facie evidence of its delivery, although possession of it is retained by the grantor.</p> <p>Where a husband executes to his attorney a mortgage on his real estate, and the attorney immediately assigns the mortgage to the mortgagor’s wife, and the mortgage after being recorded is returned to the mortgagor, and is found together with the bond and assignment, after his death, in his safe deposit box to which his wife has access, the executors of the husband on a scire facias by the wife cannot set up; either that the marriage was invalid, or that there had been no delivery, or the presumption that the mortgage had been paid.</p> <p>In such a case the fact that the mortgage was found in a place to which both husband and wife had access showed at best that it was a common possession of both husband and wife; but even if it had not been shown that the wife had access to the box when the family relation existed, the fact of the wife’s mortgage being in the husband’s safe, would not raise -any presumption that the mortgage had been paid; nor would the mere fact of possession unaided go to the support of that proposition.</p> <p>In general it may be admitted that the production by the mortgagor, v or those claiming under him, of a note secured by mortgage, will raise a presumption, in the absence of all other proof, that it has been paid. But this is a presumption of fact, not of law, and will be rebutted by any other evidence. If the possess