Cake v. Cake

Per Curiam:

There is no merit in the case of the defendants below (plaintiffs in error). The sale under the mortgage passed a good title to the plaintiffs for the premises in dispute. It is true there was an admitted error in the description of the property as contained in the mortgage. It describes the lots in question as part of block No. 17, when in point of fact they formed a portion of block No. 7. This error was not discovered until after a scire facias had been issued on the mortgage. A bill in equity was then filed to re-form that instrument. Notice of this proceeding was given to the administrator and heirs of the deceased mortgagor, and a decree was finally made re-forming the mortgage to the extent of altering the description contained therein, so far as the number of the block was concerned. It was changed from block No. 17 to block No. 7 to conform to the facts. Upon the mortgage so amended a sale was subseqirently made by the sheriff and the title thus acquired was held by the plaintiffs below at the time of trial.

Prior to the decree of re-formation, J. W. Cake, Jr., defendant below, became the owner of a judgment recovered against the mortgaged premises. He was also an heir and was a party to the bill. He now alleges that even if he was bound by the decree as an heir, he is not bound as a judgment creditor; that notice to him in the one capacity does not bind him in the other. This distinction is somewhat refined. We need not discuss it, however, as we regard the mortgage as perfectly good without any re-formation. The misdescription of the block could have misled no one. The property was described as lots 4, 5, 6, 7, 8 and 9 in block No. 17, fronting on Susquehanna avenue, each 25 feet in width, and extending west each of that width, 150 feet to Fort Augusta avenue, upon which said lots are erected twelve two and a half story frame dwelling houses, etc., etc. All of this description is accurate excepting the number of the block, which, as before stated, was No. 7 instead of 17. Lots Nos. 4, 5, 6, 7, 8 and 9 in block No. 17 iron t on Railroad avenue, and run back to an alley not named on the plan. How this error could have deceived any one, least of all, J. W. Cake, one of the heirs, who knew all about it, and. had resided within three squares of this block for years, passes comprehension. It is not necessary to consider the assignments in detail.

Judgment affirmed.

On October 14,1889, a motion for a re-argument was refused.