Wunderlich ex rel. Wunderlich v. Sadler

Citations

• 189 Pa. 469
• 42 A. 109
• 1899 Pa. LEXIS 670

Syllabus

<p>Mortgage—Assumption of payment of mortgage—Affidavit of defense— Act of June 12, 1878.</p> <p>In an action upon an alleged assumption and agreement of defendants to pay a mortgage, the statement alleged that the plaintiff had granted and conveyed the mortgaged premises to defendant for a certain consideration “and, in payment of the said consideration money; among other mortgages, .... said defendants did assume the aforesaid mortgage of seven thousand dollars, .... and did expressly agree to pay and assume the said mortgage as a part of the consideration named in the said recited deed, in the following language to ynt: ‘ Subject also to the mortgage, [then follows description and record of mortgage] all of the above mortgages being assumed by the said parties of the second part hereto, as a part of the consideration herein named.’ ” The statement did not state whether the assumption was a clause in the deed, or was an oral agreement, or was contained in the collateral written agreement. The record of the deed was referred to in the statement, and made part thereof. The affidavit of defense denied the making of any promise or agreement to assume liability for the mortgage. Held, (1) that if it was an oral agreement it was void under the Act of June 12, 1878, P. L. 205; (2) if it was a collateral written agreement it was necessary to attach a copy, under the rules of court; (3) a rule for judgment for want of a sufficient affidavit of defense was properly discharged.</p>