Chaffey v. Boggs , 179 Pa. 301 ( 1897 )

Opinion by

Mr. Justice McCollum,

This is an appeal from a judgment for want of a sufficient affidavit of defense. The judgment was entered in a suit upon a mortgage on land sold and conveyed by the mortgagee to the mortgagor with a warranty of title. The mortgage was given for the balance of the purchase money. The mortgagee is the plaintiff in the suit, and the mortgagor and his grantee are the defendants in it. The question presented by the appeal is whether the affidavits filed by the mortgagor were sufficient to prevent judgment. The affidavits may and should be considered together. It is distinctly averred in them that the Pennsylvania Railroad Company, lessee of the Western Pennsylvania Railroad Company, has taken, and now holds possession of a valuable part of said land under a title paramount to the title formerly held by the mortgagee, and which he undertook to convey by his deed to the mortgagor. It is also averred by the mortgagor that he did not know of the claim of the railroad company to a part of said land until about the time his grantee was ousted therefrom, and that “as at present advised and informed, and as he believes and expects to be able to prove on the trial of this cause, the averments hereinbefore contained are true.” It seems to us that these averments were sufficient to prevent judgment. The suit brought against the railroad company by the grantee of the mortgagor is not a bar to the defense presented by the affidavits, nor an impairment or qualification of it. The discovery of the existence of a paramount title in the railroad company appears to have been subsequent to the institution of that suit. The rule for judgment specified but one defect in the original affidavit of defense, and that was that it did not sufficiently allege the existence of paramount title in the railroad company. The rule was taken before the supplemental affidavit was filed, and this contained a plain averment which supplied the alleged defect in the first, The only specification of any defect in either affidavit was the one we have referred to. The single question, therefore, to which the attention of the court was directed, was whether the existence of paramount title in the railroad company was averred. As already indicated we think the court erred in holding that it was not. Briefly stated, the defense interposed by the mortgagor is that the railroad company has taken and now holds possession under paramount title of the most valuable part of the land the mortgagee sold, and bjr his deed undertook to convey to him. The averments in the affidavits sufficiently disclosed this defense, and he should be allowed an opportunity to establish it by evidence.

Judgment reversed and procedendo awarded.