Scott v. Fritz

The opinion of the court was delivered, by Agnew, J. Fritz^ the plaintiff, was the owner of a mortgage given to him by Haars, of whom Scott, the defendant, is executor. Haars’s real estate having been sold by order of the Orphans’ Court, the lot in question, subject to the mortgage, vested by the sale in Dr. Elkinton, who sold it to Mrs. Urusta, the mother of Mrs. Scott, to' whom she devised it. After Mrs. Hrusta’s purchase she leased the lot to Fritz, the mortgagee, who at her decease owed her for several years’ rent. He owed rent also to Mrs. Scott, under whom he continued as a tenant. Fritz, after the expiration of his tenancy, having sued out this scire facias sur mortgage, Mrs. Scott came in and asked to defend, but afterwards suffered her rule to be discharged. The case came on for trial, therefore, between Fritz, the mortgagee, and Scott, the .executor of Haars, the mortgagor, on the plea of payment with leave ; but without notice of any set-off as required under the rules of the District Court. The only question, therefore, was whether these facts operated to extinguish the mortgage. Of themselves, they were neither payment nor set-off between the parties litigating. . [420] Fritz clearly owed the estate of Ilaars nothing. He was debtor to Mrs. Urusta for rent reserved upon his lease. But though she held subject to the mortgage, and if she had been party to the action possibly might, to prevent circuity, have set off her debt against the mortgage-debt encumbering her property, she was not bound to do so, but could have sued Fritz for the rent. It was therefore no payment. Nor was it an extinguishment in law. Fritz did not enter under his mortgage, but under his lease. Then as the rent upon the lease accrued to Mrs. Urusta under a different right and was subject to her suit, it was no perception of profits under the mortgage. Besides, though rent is, generally speaking, the legal measure of profits, it is not necessarily so, and the profits arising from actual possession might have been greatly more or less than the sum agreed upon by the parties as rent, for the sum may be fixed to suit other terms of the contract of lease. As between the parties to the scire facias, the rent was res inter alios acta. The evidence therefore did not prove payment or legal satisfaction, and was clearly not admissible as a set-off. The offer founded on the testimony of Mr. Perkins did not help the case. It proved only a reference to him and Mr. Baker to examine the rent and amount of bond, and decide which wray the balance was. There had been several rents and replevins, and they were to settle the whole matter. But he proved no agreement that the rent should be accepted in satisfaction of the mortgage or bond debt. Without this a settlement of the amounts was but a settlement to ascertain how the balance would stand, in a reference between persons one of whom is no party to the cause. It failed to show, therefore, a defence of which Scott, as executor of Haars, the mortgagor, could avail himself. As to him the only available defence was actual satisfaction in fact or in law. Judgment is affirmed.