Lancaster v. Smith
Supreme Court of Pennsylvania
Error to the District Court of Philadelphia: No. 164, to July Term 1870. This was a scire facias sur mortgage, issued August 81st 1867, by James B. Smith and Josephine C., his wife, late Josephine C. Malony, in her right, against Samuel A. Cornman and John Lancaster terre-tenant.
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Error to the District Court of Philadelphia: No. 164, to July Term 1870. This was a scire facias sur mortgage, issued August 81st 1867, by James B. Smith and Josephine C., his wife, late Josephine C. Malony, in her right, against Samuel A. Cornman and John Lancaster terre-tenant. The mortgage as set out in the scire facias was dated May 27th 1863, from Samuel A. Cornman, attorney at law, to Josephine C. Malony, to secure the payment of $2600 with interest in three years, and was on a lot of ground on Tasker street in Philadelphia, near Sixth street, being 125 feet in front by 100 feet in…
1Opinion of the Court
The opinion of the court was delivered,
by Agnew, J.
The first and fourth assignments of error may be considered together. Both relate to the right of the plaintiff to sue upon a mortgage not in actual custody, and the effect of the registry of the instrument. There is no doubt that the scire facias on a mortgage is founded on the instrument itself, and not upon the record made of it. Such is the necessary effect of it as a mere deed and of the proceeding upon it authorized by the Act of 1705, § 6. Hence the proper plea in denial of the instrument is nonest faetum and not nultiel record:…
2Cases cited1 opinion
- Musser v. HydeSupreme Court of Pennsylvania · 1841
3Cited by4 opinions
- Grakelow v. NashSuperior Court of Pennsylvania · 1929
- Cary ex el. Ullom v. CarySupreme Court of Pennsylvania · 1899
- Barnhart v. BrownSuperior Court of Pennsylvania · 1925
- Prouty v. MarshallSuperior Court of Pennsylvania · 1908