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SANDMANN ET UX. v. OLD DELANCEY BUILDING & LOAN ASSOCIATION. (11/12/57)

November 12, 1957

SANDMANN ET UX., APPELLANTS,
v.
OLD DELANCEY BUILDING & LOAN ASSOCIATION.



Appeals, Nos. 272 and 273, Oct. T., 1957, from orders of Court of Common Pleas No. 7 of Philadelphia County, March T., 1956, No. 10799, and Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1956, No. 4339, in case of George W. Sandmann et ux. v. Old Delancey Building & Loan Association. Orders affirmed.

COUNSEL

Herman P. Weinberg, for appellants.

Leo T. Connor, attorney for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 184 Pa. Super. Page 471]

OPINION BY ERVIN, J.

The orders (1) dismissing the complaint in the action to quiet title and (2) directing that judgment be entered for plaintiff in the mortgage foreclosure proceeding are affirmed on the following excerpts from the adjudication of President Judge OLIVER for the court below: "These two actions were consolidated for trial without a jury. The first action was instituted by George W. Sandmann against the Old Delancey Building and Loan Association to remove a mortgage as a cloud on his title to premises, 1528 South 4th Street. The complaint in that action was filed on June 1, 1956. Subsequently, on October 23, 1956, Old Delancey filed a complaint to foreclose this mortgage.

"The mortgage was obtained in 1935 by George Sandmann, the father of the present mortgagor [sic - present owner], George W. Sandmann. The father died in 1940 and, in 1954, the mother transferred title to George W. Sandmann. During the period involved in this action, George W. Sandmann lived with his parents. He contends that the mortgage should be stricken as there has been no payment, or demand for payment, for more than twenty years.

"'The presumption of payment may be rebutted only by clear, satisfactory and convincing evidence beyond that furnished by the specialty itself, that the debt has not been paid, or by proof of circumstances tending to negative the likelihood of payment and sufficiently accounting for the delay of the creditors.' Corn v. Wilson, 365 Pa. 355, 358 (1950); See also Osborne Estate, 382 Pa. 306 (1955); Haughy v. Dillon, 379 Pa. 1 (1954); Jones v. Steinberg, 178 Pa. Super. 517 (1955).

"The mortgage in question, created in 1935, was in the amount of $600.00 and was junior to an HOLC first

[ 184 Pa. Super. Page 472]

    mortgage of $3200. There was a clause in the second mortgage that it could not be enforced for five years.

"To rebut the presumption of payment of this mortgage, there must be 'proof of circumstances tending to negative the likelihood of payment and sufficiently ...


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