Ritter v. Thomasky

Citations

• 70 Pa. Super. 615
• 1918 Pa. Super. LEXIS 309

Syllabus

<p>Mortgage — Assignment of mortgage — Equities between original gar-ties — Duties of assignee to inquire.</p> <p>It is a general rule of law that the assignee of a mortgage takes it subject to all the equities and set-offs existing between the original parties, and it is customary in such assignments to secure from the mortgagor a certificate of no defense. To bring a case within an exception to this general rule, viz: the assignee does not take it subject to equities or set-offs that arise from or grow out of an agreement or contract that is merely collateral to the mortgage, 'it must be made to appear that such agreement is in addition to the mortgage contract, and in no wise a part of the undertaking expressed in the mortgage. If it appears that this agreement forms a part of the consideration that was the foundation of the mortgage, it would not come within the exception.</p> <p>The assignee of a mortgage takes the same subject to a parol agreement on the part of the mortgagee to deliver certain personal property, and make repairs upon buildings on a farm covered by the mortgage, where such agreement, though to be executed in part after the date of the mortgage, was a part of the mortgage consideration.</p> <p>On a scire facias on such a mortgage, the mortgagor may set up against the assignee the failure of the mortgagee, to perform the parol agreement, and this is the ease although the scire facias was not issued for three or four years after failure of performance on the part of the mortgagee.</p>