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CORN v. WILSON ET AL. (09/25/50)

September 25, 1950

CORN, APPELLANT,
v.
WILSON ET AL., TRUSTEES ET AL.



Appeal, No. 12, March T., 1950, from judgment of Court of Common Pleas of Somerset County, 1948, No. 552, in case of A. E. Corn, Assignee, etc., v. W. G. Wilson et al., Trustees, et al. Judgment affirmed.

COUNSEL

Archibald M. Matthews, with him A. H. Kaufman and Joseph N. Cascio, for appellant.

Frank R. Coder, with him Frank Coder, Jr., for appellees.

Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.

Author: Bell

[ 365 Pa. Page 356]

OPINION BY MR. JUSTICE BELL

A. E. Corn, who became the owner of a mortgage on certain coal land by assignment dated September 25, 1947, brought an action of scire facias sur mortgage on June 4, 1948. The mortgage was dated October 1, 1920. The defense was payment, which in turn was based upon a presumption of payment arising after the lapse of more than 20 years. The court entered a non-suit and Corn appealed from the court's order discharging a rule to take off the non-suit.

W. G. Wilson, J. D. Keiper, both long since dead, and Ira F. Link, Trustees for the Rowena Coal Company, executed and delivered their bond and accompanying

[ 365 Pa. Page 357]

    mortgage dated October 1, 1920, to David Ott in the amount of $93,333.36, conditioned for the payment of $46,666.68, with interest payable in annual installments of principal and interest from January 1, 1921 to October 1, 1926, with the proviso that in case of default of any installment of debt or interest the whole of said debt and interest shall, at the option of the mortgagee or assigns, become due and payable.

On March 10, 1925, Ott assigned said mortgage to the Johnstown Trust Company as collateral security for his note of $30,000., dated October 1, 1929, (evidently a renewal note), which note recited "Assignment of Mtg. of W. G. Wilson, I. F. Link, J. D. Keiper for $27,880.00 and int. from Oct. 1-1923". On the back of said note appeared the following endorsements: "Paid on interest Jan. 2, 1930 $450.00 to Jan. 1, 1930. Apr. 1, 1930 $450.00 to Apr. 1, 1930. July 3, 1930 $450.00 to July 1, 1930. May 23, 1931."

Liquidating Trustees apparently took possession of Johnstown Trust Company May 2, 1934 to September 25, 1947. The Liquidating Trustees, by Carl E. Resley, Attorney-in-fact, assigned said note of Ott and said mortgage to A. E. Corn on September 25, 1947.

There was no evidence of any demand for payment or of any effort to collect the mortgage by Ott, the original mortgagee, or by the Johnstown Trust Company or by the Liquidating Trustees of the Johnstown Trust Company; and there was no evidence of insolvency of the debtors. Plaintiff, in order to rebut the presumption of payment testified that no payment on said mortgage had been made to him since it was assigned ...


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