Kenton v. Vandergrift , 42 Pa. 339 ( 1862 )

The opinion of the court was delivered, April 21st 1862, by

Woodward, J.

As a general rule, a mortgagor is not entitled to a bill in equity to compel the mortgagee to satisfy and release the mortgage, for he has ample remedy at law under our recording acts : Purdon 233. But where the conveyance is absolute on its face, and is claimed by the grantee to be absolute in fact as well as form, and the defeasance is not only unrecorded, but rests in parol, there is great need of a reconveyance, to dissipate the cloud upon the title, after the mortgage character of the original instrument has been established, and the mortgage-debt has been fully paid. Such a deed of reconveyance ought to have been provided for by the conditional verdict that was rendered in the ejectment between these parties in the District Court; but seeing that it was not, the bill in equity,, and the decree of the Common Pleas thereupon, were most necessary and proper; Vandergrift’s title could be rendered marketable by no other means. And surely Kenton has no legal or equitable right to retain an apparent title after he had been repaid the money, for security of which the title was conveyed to him. Wholly worthless to him, it was capable of being used as an annoyance to Vandergrift. After the ejectment suit, and the receipt of his money, he ought to have released it to Vandergrift, on the principle of good neighbourhood and fair dealing between man and man; but when a man will not do equity, it is the appropriate duty of a court to compel him.

The decree is affirmed.