Appeal of Bonnell v. Smith
Supreme Court of Pennsylvania
October Term, 1886, No. 198, W. D., before Gordon, Trunkey, Sterrett, and Green, JJ. Appeal from a decree of the Common Pleas of Butler County discharging a rule to show Cause, etc., in an action of sci. fa. sur mortgage. The action was brought by the Mutual Life Insurance Company of New York for the use of William G. Smith, against John Smith. The writ was duly served on the defendant.
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October Term, 1886, No. 198, W. D., before Gordon, Trunkey, Sterrett, and Green, JJ. Appeal from a decree of the Common Pleas of Butler County discharging a rule to show Cause, etc., in an action of sci. fa. sur mortgage. The action was brought by the Mutual Life Insurance Company of New York for the use of William G. Smith, against John Smith. The writ was duly served on the defendant. Shortly thereafter a petition was presented to the court by Henry O. Bonnell, of Youngstown, Ohio, trustee for the Mahoning Valley Iron Company of the same place, which set forth: • That on April 13, 1882,…
1Opinion of the Court
Opinion by
Mr. Justice Green:
We are unable to discover in the appellant’s affidavit any defense of which he can avail himself. He sets up nothing but usury paid by the mortgagor, but he does not aver that-the mortgagor desires to defend on that ground. The mortgagor is the defendant in the scire facias, and if he desires to make the defense of usury, he can do so. But in the present state of the law that defense is personal, and if the debtor does not choose to make it, one who is a stranger to the contract cannot. When the appellant bought the land of the mortgagor the mortgage in *10question…
2Cases cited1 opinion
- Miners' Trust Company Bank v. RoseberrySupreme Court of Pennsylvania · 1876