Lohrer v. Russell

56 A. 333, 207 Pa. 105, 1903 Pa. LEXIS 451

• Court: Supreme Court of Pennsylvania
• Decided: October 12, 1903
• Docket: Appeal, No. 265
• Status: Published

Opinion

Opinion by

Mr. Justice Potter,

The testimony of the defendant in this case shows that she and her husband borrowed $700 from the plaintiff, for which they gave him a deed for the land, and that he then at the same time and place executed and gave to them an article of agreement to reconvey.

There was but one transaction. The deed and the article of agreement were made in the office of the justice of the peace at the same time and between the same parties. Clearly the agreement was a defeasance.

Thé deed is absolute on its face, and it was duly executed and delivered. Under the act of June 8, 1881, the defeasance, although in writing and made at the time the deed was made, could not have the effect of reducing it to a mortgage, unless the defeasance was also acknowledged and recorded in the office for the recording of deeds and mortgages in the county wherein the land was situated, within sixty days from the execution thereof. This admittedly was not done. “ Since the act of June 8,1881, a written defeasance, signed by the grantee, but unacknowledged and unrecorded, though contemporaneous with the execution and delivery of a deed absolute on its face, will not be admitted to convert such deed into a mortgage: ” Sankey v. Hawley, 118 Pa. 30. See also Molly v. Ulrich, 133 Pa. 41; Grove v. Kase, 195 Pa. 325, and Crotzer v. Bittenbender, 199 Pa. 504.

The trial court was therefore entirely right in holding that the defeasance was invalid and in directing a verdict for the plaintiff.

The assignments of error are. overruled and the judgment is affirmed.