Duncan v. Drury
Supreme Court of Pennsylvania
In error from the Common Pleas of Erie. Case stated. Hart purchased certain land from the administrators of Rogers, and assigned a moiety of his interest to Duncan. A deed was then made by the administrators to Hart & Duncan, who executed a mortgage for the purchase-money. Hart from time to time paid off part of the debt thus secured, and on paying the .last instalment, being $50, took an assignment of the mortgage.
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In error from the Common Pleas of Erie. Case stated. Hart purchased certain land from the administrators of Rogers, and assigned a moiety of his interest to Duncan. A deed was then made by the administrators to Hart & Duncan, who executed a mortgage for the purchase-money. Hart from time to time paid off part of the debt thus secured, and on paying the .last instalment, being $50, took an assignment of the mortgage. Whether he could sue out the mortgage, and have judgment de terns, as against a subsequent judgment-creditor of Duncan, was the question, it being admitted that Duncan had made no…
1Opinion of the CourtCoulter, J.
A mortgage is not of course merged by
coming into possession of the owner in fee: Moore v. Harrisburg Bank, 8 Watts, 138. It depends generally upon the intention of the parties to the arrangement accompanying the operation, either of assignment or payment. An intent to prevent the merger will be presumed, whenever it is the interest of the party that the encumbrance should not be sunk in the inheritance: Richards v. Ayres, 1 W. & S. 485. Here, the intent of the mortgagor and mortgagee was quite apparent, that the security or encumbrance should be kept on foot, because the mortgagee assigned it…
2Cases cited2 opinions
- Moore v. Harrisburg BankSupreme Court of Pennsylvania · 1839
- Richards v. AyresSupreme Court of Pennsylvania · 1841
3Cited by7 opinions
- Fair Oaks Building & Loan Ass'n v. KahlerSupreme Court of Pennsylvania · 1935
- Moats v. Thompson, Exrs.Supreme Court of Pennsylvania · 1925
- Hessel v. JohnsonSupreme Court of Pennsylvania · 1889
- Vetter v. VetterSuperior Court of Pennsylvania · 1900
- Fair & Square Building & Loan Ass'n v. Trustees Presbyterian Board of Publication & Sabbath School WorkSuperior Court of Pennsylvania · 1930
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