Horner v. Warfield

Citations

• 180 Pa. 103
• 36 A. 418
• 1897 Pa. LEXIS 882

Syllabus

<p>Mortgage — Affidavit of defense — Scire facias.</p> <p>On a scire facias sur mortgage, it appeared that the mortgage was dated and recorded on August 18, 1894. The affidavit ol defense filed by terretenants who had been contractors and material men for the mortgagor in building the houses covered by the mortgage averred that on December 26, 1898, the mortgagor and the terre-tenants entered into an agreement by which the latter agreed to finish a large number of houses and take payment by conveyances of some of the houses to them; that the mortgagee had notice of this agreement; that he had been furnishing money to the mortgagor on the operation, and had agreed to continue to do so as shown by a letter annexed to the affidavit of defense. The letter showed that the mortgagee had agreed to furnish the money, and to release an existing mortgage on condition that all of the houses were finished in good and workmanlike manner within a certain period. The affidavit of defense did not aver that the conditions of the agreement or of the letter had been performed, or that the conveyances to the terre-tenants had been made in pursuance of the agreement. Held, that the affidavit of defense was insufficient.</p>