Koch v. Hinkle

Citations

• 35 Pa. Super. 421
• 1908 Pa. Super. LEXIS 56

Syllabus

<p>Mortgage — Assignment—Warranty—Principal and agent — Estoppel.</p> <p>Where a mortgagee assigns a mortgage that had already been paid, to another, he becomes liable to the assignee for the amount of the mortgage on the legal principle that the vendor of a chattel impliedly warrants a title to it, and that it is in effect the thing it purports to be.</p> <p>Where the mortgagee delivers to another an assignment of the mortgage in blank together with the mortgage and the bond accompanying it, he constitutes such person his agent to fill in the name of the assignee in the assignment, and the assignment is just as effective to bind the assignor as if he had written into it with his own hands the name of the assignee and made personal delivery of the paper.</p> <p>The words “without recourse to the assignors” embraced in an assignment of a mortgage have no fixed legal significance. What the parties intended by the use of the words is to be determined by the jury from the consideration of all the circumstances surrounding the transaction.</p> <p>Where a mortgagee delivers to an agent an assignment of a mortgage in blank, together with the mortgage and bond, and it appears that such agent had already received payment of the mortgage from the mortgagor without the mortgagee’s knowledge, the assignee whose name is subsequently inserted in the assignment by the agent, may maintain an action against the mortgagee for the amount of the mortgage, and in such action the record of a judgment on a scire facias issued by the assignee against the mortgagor, relieving the latter from liability, is conclusive upon the mortgagee if the jury finds that the mortgagee was notified by the assignee to participate in the scire facias proceedings, and that he actually did participate and direct the course of the litigation.</p>