Keating v. Peddrick

Per Curiam, In the lucid opinion of the common pleas, rendered by Judge Magill, the refusal to stay the writ was put on two grounds, one of which was that the instrument in question is a mortgage within the meaning of the Act of’ June 8, 1893, P. L. 392. While the terms of the instrument and the action of the maker in procuring the recording of it show quite clearly an intent on his part to [137] incumber the specifically described land with a charge which should run with the land and continue during the lifetime of the annuitant, it must be conceded that the instrument is not in terms nor in legal effect a conveyance of land, and therefore lacks one distinguishing characteristic of a mortgage as understood in Pennsylvania. And if that word in the act of 1893 be taken in its “obvious technical sense,” which was said in Bindley’s App., 69 Pa. 295, to be the true rule for construing the similar provision of the Act of Feb. 24, 1834, P. L. 70, it is difficult to avoid the conclusion, for which appellants' counsel contends, that the. case is not strictly within the clause of the act excepting debts secured by mortgage or judgment from its operation. We are impressed with the force of the reasoning of the learned judge in support of the conclusion that the instrument is in substance and effect a mortgage, but for the reasons suggested we are not prepared at this time to go to that extent. Therefore, it is necessary to consider the other ground upon which the refusal to stay the writ was based, which is, that the testator having in his lifetime charged the land in question with the annuity, with the manifest intention that the charge should run with the land, and having further manifested his intention to perpetuate the charge beyond his life, if the annuitant should survive him, by devising his land to the defendants as executors and trustees, subject to the payment of annuities, the defendants took the land cum onere, and still hold it subject to the charge, notwithstanding the fact that the plaintiff, the annuitant, did not bring suit or file copy of the instrument in the prothonotary's office within two years after the death of the maker. This conclusion is well supported by the reasoning of the learned judge, and in our judgment is in accordance with principles enunciated in cases which are as applicable under the act of 1893 as they were under the act of 1834. We deem it unnecessary to add anything further to his opinion. The order is affirmed at the costs of the appellants.