Little v. Thropp

Citations

• 245 Pa. 539
• 91 A. 924
• 1914 Pa. LEXIS 914

Syllabus

<p>Mortgages — Purchase money mortgage — Defenses—Affidavit of defense — Supplemental affidavit — Equitable' defenses — Insufficient averments — Fraud—Averment of title — Covenants.</p> <p>1. Although there is no rule that a supplemental affidavit of defense is to be confined to an explanation of the original and cannot set up a new and different defense, such a course is suspicious and requires that the new defense should be closely scrutinized.</p> <p>2. If fraud is relied upon as a defense, the affidavit of defense must state specifically and at length in what it consists; the facts constituting the defense must be stated; and must be positively averred to exist.</p> <p>3. Being “in possession” and “paying taxes” do not in themselves, without more, constitute title to land, or justify an inference of title.</p> <p>4. From fiduciary grantors the grantee is entitled to no covenants except that the grantor has done no act to encumber the estate. When used by trustees the words “gTant, bargain .and sell” imply no personal undertaking.</p> <p>5. While it is established that if consideration money for a purchase of real property has not been paid, the purchaser unless it plainly appear that he had agreed to run the risk of the title, may defend himself in an action for the. purchase money by showing that the title was defective, either in whole or in part, whether or not there was a covenant by the vendor of general warranty, or of the right to recover, or of quiet enjoyment, and it is not necessary in all instances that there be an actual eviction to entitle one to the defense referred to, yet where the defendant continues to hold pos- ■ session and this equitable defense is relied upon, he must show that tbe title he has accepted was positively bad, and that there was a superior and indisputable title in another person asserting such title.</p> <p>6. In a proceeding to recover the balance due upon a purchase money mortgage, an original and supplemental affidavit were