Fisler v. Reach

Opinion by Mr. Justice Fell, Fisler mortgaged a tract of land to Leech, the appellant, and afterwards conveyed the land to Reach, the appellee, “ under and subject to ” the payment of the mortgage debt. Judgment was obtained on the mortgage, and the iand was sold by the sheriff for a sum insufficient to pay the mortgage debt. This action was brought in the name of Fisler to the use of Leech to recover the deficiency from the grantee, Reach. It was brought with the knowledge and consent of Fisler, who after-wards parted with whatever interest he had in the action. The plaintiff’s attorney was ruled to file a warrant of attorney, but was unable to obtain one as Fisler had sold his interest. He filed letters and affidavits which showed that he had been authorized by Fisler to bring the action. The court held that the papers filed were insufficient and ordered a stay of proceedings. The questions raised by the appeal are: first, whether the use plaintiff could use the name of the legal plaintiff without his consent; second, if a warrant of attorney from the legal plaintiff were necessary to a continuance of the action, were the papers filed sufficient to constitute such a warrant ? The action was to enforce a contract between the legal plain [77] tiff and his grantee, alleged to arise from a conveyance of land under and subject to the payment of a mortgage given by the former. The contract, if any, was in relief of the grantor, because of his obligation as mortgagor, and it enured to the benefit of no other person. He was the party with whom it was made, and he alone could maintain an action on it. The Act of June 12, 1878, P. L. 205, provides that the grantee of real estate subject to a ground rent, mortgage, or other incumbrance, shall not be personally liable for the payment of such ground rent, mortgage or other incumbrance, unless by agreement in writing he shall have expressly assurped a personal liability therefor; that the words “underand subject to the payment of such ground rent, mortgage, or other incumbrance ” shall not alone be construed to make such grantee liable; and that the right to enforce such a liability shall not enure to any one other than the person with whom such an agreement was made. That an action may be maintained by a mortgagee in his own right is in direct contradiction of the act. It is equally clear that he has no right to sue in the name of the grantor without his consent. In Blood to use v. Crew-Levick Co., 177 Pa. 606, and Old Colony Trust Co. v. Allentown, etc., Rapid Transit Co., 192 Pa. 596, the actions were prosecuted in the name of the legal plaintiffs, and no question of the authority to do so was raised, and in both there was an express agreement in addition to the “ under and subject to” clause in the deed. The letters and affidavits filed do not constitute a sufficient warrant of attorney. They show only that the action was commenced with the consent of the legal plaintiff, and that when called on to give a warrant of attorney he was unable to do so for the reason that he had assigned his claim to another, who alone had the right to continue the action. The Act of April 14, 1884, P. L. 354, requires every attorney, if called on to do so, to “ file his warrant of attorney in the office of the prothonotary or clerk of the court in which such action shall be depending.” This statutory requirement is not met by proof that the action was originally brought with the consent of the plaintiff. The act requires a specific form of proof to be filed in order that the right may be clearly and indisputably shown, and this requirement cannot be dispensed with. The judgment is affirmed.