Hexter v. Bast

Citations

• 125 Pa. 52
• 17 A. 252
• 1889 Pa. LEXIS 692

Syllabus

<p>(а) The holder of a mortgage securing certain notes assigned the mortgage and notes, without recourse, and at the same time executed a written certificate that he had not received any payment on any of the notes described in the mortgage, except what had been realized upon a sheriff’s sale.</p> <p>(б) The assignee issued a scire facias upon the • mortgage wherein a judgment was rendered against him, the findings of fact by the court without a jury, upon testimony in part that of the assignor, showing that in effect the notes were all paid and that the mortgage itself was invalid.</p> <p>(c) In an action for deceit subsequently brought by the assignee against the assignor, the plaintiff offered to read in evidence the record of the scire facias, including the testimony, the findings of fact and the conclusions of law. by the court, and the judgment entered thereon:</p> <p>1. In such case, as matter of construction, the certificate was the positive statement of a fact peculiarly within the defendant’s knowledge, and the statement one upon which the plaintiff had a right to rely: that it was intended as a warranty was not to be questioned.</p> <p>2. But the effect of the certificate was to be confined to the particular matters specified therein, as it had no reference and contained no statement as to the execution of the mortgage in respect of a matter which rendered it invalid.</p> <p>3. The effect of the clause in the assignment — without recourse to the assignor, could not be extended to prevent his liability lor the contemporaneous and positive, though fraudulent, representation and warranty that nothing had been paid upon the notes except as stated.</p> <p>4. If a person is thrown off Ms guard by a false and fraudulent warranty, it is sufficient to prove the warranty broken to establish the deceit; for one will be presumed to know of the existence or non-existence of a fact which he undertakes to warrant.</p> <p>5. While the testimony of the living witnesses up