Neale v. Dempster , 184 Pa. 482 ( 1898 )

Opinion by

Mb. Justice McCollum,

The first judgment entered in this case was in conformity with the claim of the plaintiffs that the land released from the lien of the mortgage was subject to the lien of and liable to seizure and sale upon a judgment obtained on the bond. It was founded upon the construction of the agreement and the mortgage, bond and release, provided for therein. The plaintiffs, in their reply to the affidavit of defense and the rule to restrict execution on the judgment to the land bound by the mortgage, distinctly affirmed that these instruments fully and correctly expressed the intention, understanding and agreements of the parties, and positively denied that there was any agreement or understanding between the said parties different from that contained in them. The defendant’s averments in his affidavit of defense respecting the release and the effect of it as understood and intended by the parties were properly considered by the court as of no avail against the written instruments. It was undoubtedly the province of the court to construe these instruments and to enter judgment in accordance with its construction of them. Tins as we have seen the learned court below did, and on an appeal from its judgment to this court it was determined that the lien of the judgment obtained on the bond should be restricted to the land bound by the mortgage. This determination was based upon a construction of the writings opposed to the construction put upon them by the court below. The judgment was accordingly reversed and the record remitted with instructions to enter a judgment in accordance with the opinion of this court: Neale et al. v. Dempster, 179 Pa. 569. The court below promptly complied with the instructions and entered a judgment in accordance with them, and from the judgment so entered the appeal now before us was taken.

We have carefully considered the argument made and the cases cited in support of tbe plaintiffs’ contention on this appeal, and we are satisfied that there are no substantial grounds for it. We need not repeat or qualify any part of the opinion filed in the first appeal. The controlling question then was whether the release freed the land included in it from further liability for the purchase money. The solution of it depended upon the construction of the writings we have referred to. Our construction of them was in accord with the defendant’s contention, and our reasons for it were plainly stated. To these we may add another fact or circumstance not heretofore specifically mentioned: There was no warrant of attorney contained in or attached to the bond authorizing a confession of judgment upon it, and no suit could be maintained thereon until the defendant defaulted in the payment of the purchase money. When the release was executed the defendant was not in default, and it was two years and eight months after that before any suit was brought on the bond. The only lien upon the land for purchase money prior to May 13, 1896, was created by the mortgage. If before that time and after the release was made the defendant had conveyed the land included in the release to a bona fide purchaser of it the latter would have taken it freed from any claim of the plaintiffs for purchase money. The tendency of these facts is to confirm the defendant’s contention that the release was intended by the parties to free the land included in it from liability for any part of the debt secured by the mortgage.

The plaintiffs evidently misapprehended the grounds of the decision of this court when the case was here on the defendant’s appeal. It was not made on the ground that there were averments in the affidavit of defense which created an issue of fact to be determined by a jury. It was distinctly based on the construction of the agreement, mortgage, bond and release, and this, it is conceded, was a matter exclusively for the court. The suggestion, therefore, that the plaintiffs by the entry of the judgment now appealed from are deprived of the “ constitutional right to trial by jury ” has nothing whatever to rest upon. If the court below had in the first place entered judgment in conformity with the defendant’s contention, and the plaintiffs had appealed from it there would have been no irregularity in an affirmance of it. A judicial ascertainment of tbeir right cannot be considered as in derogation of it. The plaintiffs have not alleged heretofore, and they do not allege now, the existence of any oral agreement or understanding between them and the defendant in conflict with or in any degree qualifying the writings on which they rely for a judgment in accordance with their contention. On the contrary, they have positively denied the existence of any such agreement or understanding, and that the affidavit of defense raised any issue of fact. Why then should the judgment entered in the court below be reversed or modified? We confess our inability to discover any valid reason for such action. It was clearly competent for this court to direct the court below to enter the judgment it should have entered when the case was first before it, and as it appears on the plaintiffs’ own showing that the judgment must depend on the construction of the writings, and they have not convinced us that we erred in our construction of them in defendant’s appeal, we overrule the assignments.

Judgment affirmed.