Opinion,
Mr. Justice Green:In the case of Fleming v. Parry, 24 Pa. 47, we said: “ A bond and mortgage taken for the same debt, though distinct securities, possessing dissimilar attributes and subject to remedies which are as unlike as personal actions and proceedings in rem, are, nevertheless, so far one that payment of either discharges both, and a release or extinguishment of either, without actual payment, is a discharge of the other, unless otherwise intended by the parties.” We said, also: “ The court relied much on the words used in satisf3ring the mortgage.' They were substantially, but not exactly, the words prescribed by act of assembly, but neither the debt nor the bond are mentioned: ‘ I, Andrew Fleming, do hereby acknowledge to have received satisfaction in full of this mortgage.’ These words, signed and sealed by the mortgagee, were all-sufficient to put the mortgage out of existence, and sufficient, too, to satisfy the debt, if so intended. Prima facie, they would, indeed, import 'extinguishment of the debt as well as *471the mortgage, and the burden of showing they were not so intended was on the creditor.”
In the present case, all the facts are derived from a case stated. It is a perfectly well-established rule of practice that, “in a case stated, whatever is not distinctly and expressly-agreed upon and set forth as admitted, must be taken not to exist: ” Berks Co. v. Pile, 18 Pa. 493. And, again: “A ease stated, when well drawn, is like an issue developed by special pleading, and presents in a single point, or in a series of points, the very matter that is up for judgment. The court cannot go beyond the issue that is thus brought upon the record, however manifest the justice that might be reached by going further. The duty of the court is to decide the case that is stated, and to presume that what is not included was kept out for sufficient reason: ” Phil. etc. R. Co. v. Waterman, 54 Pa. 337. In Diehl v. Ihrie, 3 Wh. 143, we held that a presumption of one fact from others is an inference of fact, and, although, according to the rule of law, the jury may be bound to make the presumption, yet the court cannot make it without them. Mr. Justice Sergeant said, in delivering the opinion: “ Where, according' to the rule of law, the jury are bound to make that presumption, it still remains an inference of fact. The circumstance that the jury are bound to make it does not render it matter of law, so that the court can draw the presumption. From evidence of any fact which in law is deemed conclusive, the jury-are bound to infer the fact, and the court would so instruct them, and would grant a new trial if they refused. That would not authorize the court, in a common-law suit, to usurp the province of the jury, and adjudge, on a special verdict or demurrer, that the statement of the evidence proving a fact was equivalent to stating the fact thus proved.”
The fund in controversy is a part of the estate of Martin Seiple, deceased, to which Amandus Seiple, one of his sons, was entitled on the settlement of the final account of the executors. The fund was claimed by the wife of Amandus Seiple, the use plaintiff in the present proceeding, by virtue of a voluntary assignment made to her by her husband, on January 14, 1878, of his interest in his father’s estate; and, on the other hand, it was claimed by the administrators of Cornelius Seiple, a brother of Amandus, who had recovered a judgment for *472$3,718.92 on March 25, 1878, against Amandus, on a bond for $2,497.96 given for owelty of partition by Amandus to Cornelius, and secured by a mortgage on certain real estate taken by Amandus in the partition of their father’s real estate. The case stated declares that this mortgage was satisfied in 1886 or 1887 by the administrators of Cornelius, at the request of the purchaser of the real estate of Cornelius, which was originally taken in partition by Amandus and upon which the mortgage was a lien, but which had subsequently been bought by Cornelius upon foreclosure proceedings. The administrators of Cornelius claimed the fund by virtue of an attachment in execution issued on the judgment against Amandus on March 27, 1878. These administrators claimed that the assignment by Amandus to his wife, although made prior both to the judgment and attachment, was fraudulent and void against Cornelius, as being without consideration and intended to hinder, delay, and defraud creditors. The case stated simply sets forth the facts, but entirely omits to state that there was any intent to defraud creditors. The learned court below held that they could not infer such intent as against subsequent creditors, but that such an inference was not essential to defeat the assignment as against persons who were creditors of Amandus prior to and at the time of the assignment, and accordingly entered judgment for the administrators of Cornelius, who were defendants in the case stated, on the ground that Cornelius was a prior creditor.
Supposing this to be correct, the further difficulty with the case of the defendants, as it seems to us, lies in the fact of the satisfaction of the mortgage held by Cornelius for the security of the bond on which the judgment was obtained. The legal presumption is that the satisfaction of the mortgage works an extinguishment of the debt, and the burden of removing that presumption is thrown upon the creditor: Fleming v. Parry, supra. This is a presumption of law which necessarily flows from the fact of satisfaction set forth in the case stated, and, unless facts are averred in the case stated which rebut the presumption of extinguishment of the debt, the court cannot infer them. Now, upon an inspection of the case stated, we are unable to find any such facts. It is not averred that the debt was not, in point of fact, paid, nor that it was the intention of *473tlie parties that the debt should remain, although the mortgage was satisfied. It is alleged that the mortgage was satisfied at the request of the purchaser of the land, but, as such a request would be entirely consistent with the fact of actual payment, we can make no inference of non-payment on that account. It is not even alleged in the case stated that the administrators of Cornelius still hold the bond of Amandus, or that Cornelius held it at the time of his death; but it is alleged that no further proceedings were ever had on the attachment after the service of the writ, which took place in 1878, eight or nine years before the mortgage was satisfied. In order to sustain the attachment and its claim upon the present fund, we would be obliged to infer, without any averment to that effect in the case stated, that the debt still exists, notwithstanding the entry of satisfaction on the mortgage given to secure that same debt. Had the judgment been obtained after the entry of satisfaction was made, it might have rebutted the presumption of payment growing out of the satisfaction; but the facts are precisely-the other way, and the satisfaction, occurring long after the judgment, presumably extinguishes it, as well as the mortgage. We are not at liberty to make an inference of non-payment to defeat the effect of the satisfaction, and must therefore render judgment in favor of the plaintiff.
The judgment of the court below is reversed; and judgment is now entered on the case stated in favor of the plaintiff, and against the defendants, for the sum of $1,880.50, with interest from October 9,1878, amounting, in the whole, to $2,245.31, with costs; and the record is remitted for further proceedings.
May 5, 1890, motion for re-argument refused.