certificate defense in Pennsylvania

1958It is urged that the case is within the rule laid down in Robertson v. Hay, 91 Pa. 242 , and Hutchison v. Gill, Ibid 253, and followed by us in Fort Pitt Real Estate Co. v. Schaefer, 96 Pa. Superior Ct. 497 , that where a party executes a bond and mortgage and gives therewith a certificate of no defense and places these instruments in the hands of an agent for the purpose of raising money, he cannot defend against a purchaser of the mortgage for value without notice.

1931It is urged that the case is within the rule laid down in Robertson v. Hay, 91 Pa. 242 , and Hutchison v. Gill, Ibid 253, and followed by us in Fort Pitt Real Estate Co. v. Schaefer, 96 Pa. Superior Ct. 497 , that where a party executes a bond and mortgage and gives therewith a certificate of no defense and places these instruments in the hands of an agent for the purpose of raising money, he cannot defend against a purchaser of the mortgage for value without notice.

1958It is urged that the case is within the rule laid down in Robertson v. Hay, 91 Pa. 242 , and Hutchison v. Gill, Ibid 253, and followed by us in Fort Pitt Real Estate Co. v. Schaefer, 96 Pa. Superior Ct. 497 , that where a party executes a bond and mortgage and gives therewith a certificate of no defense and places these instruments in the hands of an agent for the purpose of raising money, he cannot defend against a purchaser of the mortgage for value without notice.

1931It is urged that the case is within the rule laid down in Robertson v. Hay, 91 Pa. 242 , and Hutchison v. Gill, Ibid 253, and followed by us in Fort Pitt Real Estate Co. v. Schaefer, 96 Pa. Superior Ct. 497 , that where a party executes a bond and mortgage and gives therewith a certificate of no defense and places these instruments in the hands of an agent for the purpose of raising money, he cannot defend against a purchaser of the mortgage for value without notice.

1942It would be a lamentable thing if it were found to be the law that a party to a contract may assign a portion of it, perhaps a beneficial portion, so that the assignee shall take the benefit, wholly discharged of any counterclaim by the other party in respect of the rest of the contract, which may be burdensome. . . .” Of course, “one having the right to a set-off may also estop himself from demanding that a credit be allowed, as by executing a certificate of no defense to one who acts on the strength thereof": Walker v. Emerich, 300 Pa. 9, 13 , 149 A. 881 .

1942It would be a lamentable thing if it were found to be the law that a party to a contract may assign a portion of it, perhaps a beneficial portion, so that the assignee shall take the benefit, wholly discharged of any counterclaim by the other party in respect of the rest of the contract, which may be burdensome. . . .” Of course, “one having the right to a set-off may also estop himself from demanding that a credit be allowed, as by executing a certificate of no defense to one who acts on the strength thereof": Walker v. Emerich, 300 Pa. 9, 13 , 149 A. 881 .

1933Although this paper in itself is not an agreement to assume the mortgage (Taylor v. Mayer, 93 Pa. 42 ) and creates no estoppel in appellee’s favor since it was unknown to him and not relied upon to his detriment by any change of position (Griffiths v. Sears, 112 Pa. 523 ), nevertheless it is evidence of the fact that appellant was put on warning of the mortgage obligation in time to protect himself had he acted promptly.

1901The mortgage being regular upon its face, and the plaintiff having solemnly declared that she had no defense thereto, — if upon the faith of that declaration, the money of the assignee was invested in the security, the investment is protected by the declaration of no set-off: Weaver v. Lynch, 25 Pa. 451 ; Hutchinson v. Gill, 91 Pa. 253 ; Griffiths v. Sears, 112 Pa. 523; Robertson v. Hay, 91 Pa. 242 ; Hayes’s Appeal 195 Pa. 177 .

1929It was decided in Hutchison v. Gill, 91 Pa. 253, 256 , that a certificate of no defense delivered by a mortgagor to a mortgagee at the time that he executes a mortgage “is in effect an agreement that the mortgagee shall negotiate the mortgage.

1929It was decided in Hutchison v. Gill, 91 Pa. 253, 256 , that a certificate of no defense delivered by a mortgagor to a mortgagee at the time that he executes a mortgage “is in effect an agreement that the mortgagee shall negotiate the mortgage.

1929It is undoubtedly well settled in this State that where a party executes a bond and mortgage and gives therewith a certificate of no defense and places these instruments in the hands of an agent for the purpose of raising money, he cannot defend against a purchaser of the mortgage for value without notice, on the ground that the agent misappropriated the money: Robertson v. Hay, 91 Pa. 242 ; Hayes’ Appeal, 195 Pa. 177 .

1929It is undoubtedly well settled in this State that where a party executes a bond and mortgage and gives therewith a certificate of no defense and places these instruments in the hands of an agent for the purpose of raising money, he cannot defend against a purchaser of the mortgage for value without notice, on the ground that the agent misappropriated the money: Robertson v. Hay, 91 Pa. 242 ; Hayes’ Appeal, 195 Pa. 177 .

2016Reese’s Pizza, 93 A.3d, at 918 ; accord Qwest Transmission; Marros.

1973See Day v. Public Service Commission, 312 Pa. 381, 167 , A. 565 (1933); Snyder v. Pennsylvania Public Utility Commission, 187 Pa. Superior Ct. 147 , 144 A. 2d 468 (1958); Paradise v. Pennsylvania Public Utility Commission, 184 Pa. Superior Ct. 8 , 132 A. 2d 754 (1957).

1973See Day v. Public Service Commission, 312 Pa. 381, 167 , A. 565 (1933); Snyder v. Pennsylvania Public Utility Commission, 187 Pa. Superior Ct. 147 , 144 A. 2d 468 (1958); Paradise v. Pennsylvania Public Utility Commission, 184 Pa. Superior Ct. 8 , 132 A. 2d 754 (1957).

1973See Day v. Public Service Commission, 312 Pa. 381, 167 , A. 565 (1933); Snyder v. Pennsylvania Public Utility Commission, 187 Pa. Superior Ct. 147 , 144 A. 2d 468 (1958); Paradise v. Pennsylvania Public Utility Commission, 184 Pa. Superior Ct. 8 , 132 A. 2d 754 (1957).

1959To adopt appellant’s argument that conditions on variances are permissible (Nicholson v. Zoning Board of Adjustment, 392 Pa. 278 , 140 A. 2d 604 (1958)) but permission to condition does not extend to certificates, would render the code partially ineffective and impede its administration even though the public end to be achieved by the issuance of a variance or a certificate is similar.

1959To adopt appellant’s argument that conditions on variances are permissible (Nicholson v. Zoning Board of Adjustment, 392 Pa. 278 , 140 A. 2d 604 (1958)) but permission to condition does not extend to certificates, would render the code partially ineffective and impede its administration even though the public end to be achieved by the issuance of a variance or a certificate is similar.

1956Felin Co., 162 Pa. Superior Ct. 222 , 57 A. 2d 432 .

1956Felin Co., 162 Pa. Superior Ct. 222 , 57 A. 2d 432 .

1951They depend upon Krink’s Appeal, 332 Pa. 236 .

1950The zoning law has recently been favored by an excellent definitive opinion in In re Devereux Foundation, Inc., Zoning Case, 351 Pa. 478 .

1948The draughtsman of the ordinance doubtless had a reason for stating the provisions in the forms adopted, but they mean substantially the same thing as the much shorter provision contained in the ordinance considered in Haller Baking Company’s Appeal, 295 Pa. 257, 259-260 , 145 A. 77 , which provided, ‘The lawful use of land existing at the time of the adoption of this ordinance, although such use does not conform to the provisions hereof, may be continued, but, if such nonconforming use is discontinued, any future use of said land shall be in conformity with the provisions of this ordinance.’

1948The draughtsman of the ordinance doubtless had a reason for stating the provisions in the forms adopted, but they mean substantially the same thing as the much shorter provision contained in the ordinance considered in Haller Baking Company’s Appeal, 295 Pa. 257, 259-260 , 145 A. 77 , which provided, ‘The lawful use of land existing at the time of the adoption of this ordinance, although such use does not conform to the provisions hereof, may be continued, but, if such nonconforming use is discontinued, any future use of said land shall be in conformity with the provisions of this ordinance.’

1945In Ritter v. Thomasky, 70 Pa. Superior Ct. 615, 619 , it was said by Kephart, J.: “It is a general rule of law that the assignee of a mortgage takes it subject to all the equities and set-offs existing between the original parties, and it is customary in such assignments to secure from the mortgagor a certificate of no defense.

1943As said in Hastings Bank of Hastings v. Covitch, supra, 324 Pa. 171 , at page 172, 188 A. 129 : “The reason for distinguishing this right to pledge or mortgage her property from the right to act as a surety, guarantor or endorser for the payment of a husband’s obligations is obvious.

1943As said in Hastings Bank of Hastings v. Covitch, supra, 324 Pa. 171 , at page 172, 188 A. 129 : “The reason for distinguishing this right to pledge or mortgage her property from the right to act as a surety, guarantor or endorser for the payment of a husband’s obligations is obvious.

1939We have fully and carefully examined the entire record, as we must under the circumstances (Pilling v. Moore, 306 Pa. 406, 410 ) and are thoroughly convinced that the action of the court in banc was fully justified in amending the finding of the chancellor that the neighborhood was a “mixed commercial and residential district.” It cannot be disputed that the neighborhood in question is a “mixed commercial and residential district.” The findings are completely substantiated by numerous instances of commercial intrusions into the immediate vicinity of appellant’s apartment house.

1933It was neither a contract nor property, and its revocation deprived the petitioner of no vested rights.” See also Board of Public Utility Commissioners v. Sheldon (N. J.), 124 Atl. 65 .

1933Although this paper in itself is not an agreement to assume the mortgage (Taylor v. Mayer, 93 Pa. 42 ) and creates no estoppel in appellee’s favor since it was unknown to him and not relied upon to his detriment by any change of position (Griffiths v. Sears, 112 Pa. 523 ), nevertheless it is evidence of the fact that appellant was put on warning of the mortgage obligation in time to protect himself had he acted promptly.

1931Humphrey v. Tozier, 154 Pa. 410 , relied on by appellant, in which the judgment was entered on a judgment note, is readily distinguishable from the present case on the ground that no certificate of no defense was given with the note and the estoppel arose against the defendant from tbe fact that the plaintiff, before he took the note from the payee, was assured by the defendant maker that the note was good and would be paid.

1927The learned counsel for the defendant concede that the bank could not get a certificate for its claim in the present suit, but they state their position as follows: “We can use our set-off and counterclaim in order to extinguish the claim of the plaintiff, if he has any.” They have cited Harper et al. v. Kean, 11 S. & R. 280; Shaw v. Badger, 12 S. & R. 275; Bayne v. Gaylord, 3 Watts, 301 ; Humphreys et al. v. Reed, 6 Wharton, 435 ; Price v. Lewis, 17 Pa. 51 , and Lehr v. Taylor, 90 Pa. 381 .

1927The learned counsel for the defendant concede that the bank could not get a certificate for its claim in the present suit, but they state their position as follows: “We can use our set-off and counterclaim in order to extinguish the claim of the plaintiff, if he has any.” They have cited Harper et al. v. Kean, 11 S. & R. 280; Shaw v. Badger, 12 S. & R. 275; Bayne v. Gaylord, 3 Watts, 301 ; Humphreys et al. v. Reed, 6 Wharton, 435 ; Price v. Lewis, 17 Pa. 51 , and Lehr v. Taylor, 90 Pa. 381 .

1927The learned counsel for the defendant concede that the bank could not get a certificate for its claim in the present suit, but they state their position as follows: “We can use our set-off and counterclaim in order to extinguish the claim of the plaintiff, if he has any.” They have cited Harper et al. v. Kean, 11 S. & R. 280; Shaw v. Badger, 12 S. & R. 275; Bayne v. Gaylord, 3 Watts, 301 ; Humphreys et al. v. Reed, 6 Wharton, 435 ; Price v. Lewis, 17 Pa. 51 , and Lehr v. Taylor, 90 Pa. 381 .

1927The learned counsel for the defendant concede that the bank could not get a certificate for its claim in the present suit, but they state their position as follows: “We can use our set-off and counterclaim in order to extinguish the claim of the plaintiff, if he has any.” They have cited Harper et al. v. Kean, 11 S. & R. 280; Shaw v. Badger, 12 S. & R. 275; Bayne v. Gaylord, 3 Watts, 301 ; Humphreys et al. v. Reed, 6 Wharton, 435 ; Price v. Lewis, 17 Pa. 51 , and Lehr v. Taylor, 90 Pa. 381 .

1911This is the doctrine of: Myers v. Insurance Co., 27 Pa. 268 ; Hamilton v. Lycoming Insurance Co., 5 Pa. 339 ; Mutual Life Insurance Co. v. Cohen, 179 U. S. 262 ; Equitable Life Assurance Society v. Clements, 140 U. S. 226 ; Supreme Lodge K. of P. v. Meyer, 198 U. S. 508 ; Expressman’s Mutual Benefit Asso. v. Hurlock, 91 Md. 585 ; Born v. Home Insurance Co., 120 Ia. 299 ; Mock v. Supreme Council Royal Arcanun, 106 N. Y.

1911This is the doctrine of: Myers v. Insurance Co., 27 Pa. 268 ; Hamilton v. Lycoming Insurance Co., 5 Pa. 339 ; Mutual Life Insurance Co. v. Cohen, 179 U. S. 262 ; Equitable Life Assurance Society v. Clements, 140 U. S. 226 ; Supreme Lodge K. of P. v. Meyer, 198 U. S. 508 ; Expressman’s Mutual Benefit Asso. v. Hurlock, 91 Md. 585 ; Born v. Home Insurance Co., 120 Ia. 299 ; Mock v. Supreme Council Royal Arcanun, 106 N. Y.

1911This is the doctrine of: Myers v. Insurance Co., 27 Pa. 268 ; Hamilton v. Lycoming Insurance Co., 5 Pa. 339 ; Mutual Life Insurance Co. v. Cohen, 179 U. S. 262 ; Equitable Life Assurance Society v. Clements, 140 U. S. 226 ; Supreme Lodge K. of P. v. Meyer, 198 U. S. 508 ; Expressman’s Mutual Benefit Asso. v. Hurlock, 91 Md. 585 ; Born v. Home Insurance Co., 120 Ia. 299 ; Mock v. Supreme Council Royal Arcanun, 106 N. Y.

1911This is the doctrine of: Myers v. Insurance Co., 27 Pa. 268 ; Hamilton v. Lycoming Insurance Co., 5 Pa. 339 ; Mutual Life Insurance Co. v. Cohen, 179 U. S. 262 ; Equitable Life Assurance Society v. Clements, 140 U. S. 226 ; Supreme Lodge K. of P. v. Meyer, 198 U. S. 508 ; Expressman’s Mutual Benefit Asso. v. Hurlock, 91 Md. 585 ; Born v. Home Insurance Co., 120 Ia. 299 ; Mock v. Supreme Council Royal Arcanun, 106 N. Y.