Fisler v. Reach

Citations

• 202 Pa. 74
• 51 A. 599
• 1902 Pa. LEXIS 466

Syllabus

<p>Mortgage — Conveyance under and subject to mortgage — Right of action for deficiency — Warrant of attorney.</p> <p>Where a mortgagor conveys mortgaged premises “under and subject to ” payment of the mortgage debt, and thereafter judgment is obtained on the mortgage, and the land is sold for a sum insufficient to pay the mortgage debt, and an action is then brought in the name of the mortgagor to the use of the mortgagee to recover the deficiency from the grantee, and it appears that after the action was brought the mortgagor parted with whatever interest he had in the action, the action cannot be continued by the mortgagee, although papers and affidavits in the case showed that it was brought with the knowledge and consent of the mortgagor. In such a case the papers and affidavits cannot be considered as equivalent to a warrant of attorney, and as the legal plaintiff is not in a position to give such a warrant, the court will order the proceedings to be stayed on a rule to file a warrant of attorney.</p> <p>Warrant of attorney — Action—Act of April 14, 1834, P. L. 354.</p> <p>The requirement of the Act of April 14, 1834, P. L. 354, that every attorney if called on to do so shall “ file his warrant of attorney in the office of the prothonotary, or clerk of the court in which such action shall be dependent,” is not met by proof that the action was originally brought with the consent of the plaintiff. The act requires a specific form of proof to be filed in order that the right may be clearly and indisputably shown, and this requirement cannot be dispensed with.</p>