Binney v. Brown

Opinion, Mr. Justice Gordon : We agree with the learned master that there is nothing in this case to support the plaintiff’s bill. There is neither evidence of actual fraud, nor are the circumstances attending the transaction such as to involve legal fraud. Horace Binney, Jr., together with the recorder, made a mistake for which he might have been held liable had suit been brought against him within the statutory period; but he was chargeable with nothiug but a mistake. Of this the face of the docket itself is indubitable evidence for it indicates precisely what mortgage he intended to satisfy, and from what there appears, no careful person ought to have been misled by the entry thereon made by way of satisfaction. The very first question that an inspection of the record gives rise to is: how comes it that Horace Binney, as administrator de bonis non of Wm. J. Bell, undertakes to satisfy a mortgage of which Joseph Swift is the mortgagee ? The answer is found on the same margin of the book on which the satisfaction is written: “ Asst. T. H. 20, 355. A. D. B. 12, 471.” That is to say: turn to the mortgage books as indicated, and you will there find the assignments which give Horace Binney, Jr., the power to satisfy this mortgage. But turning to. these books, as, if we are interested, we ought to do, we at once discover that a mistake has been made ; that the mortgage intended, the one Binney had power to satisfy, is to be found on page 544 of the mortgage book, and not that on page 543, and that, in fact, he could not satisfy the latter because he had no power so to do: Brown v. Henry, 106 Penn. St. 262. The mistake being thus apparent, •made apparent by the transaction itself, there is no room to [190] infer fraud either actual or constructive ; hence the plaintiff’s only remedy was an action on the case, a remedy long since barred by the statute of limitations: Owen v. The Savings Fund, 97 Penn. St. 47. The decree of the court below is now reversed and set aside, and the bill is dismissed at the costs of the appellee.