
    Koch v. Hinkle, Appellant.
    
      Mortgage — Assignment—Warranty—Principal and agent — Estoppel.
    Where a mortgagee assigns a mortgage that had already been paid, to another, he becomes liable to the assignee for the amount of the mortgage on the legal principle that the vendor of a chattel impliedly warrants a title to it, and that it is in effect the thing it purports to be.
    Where the mortgagee delivers to another an assignment of the mortgage in blank together with the mortgage and the bond accompanying it, he constitutes such person his agent to fill in the name of the assignee in the assignment, and the assignment is just as effective to bind the assignor as if he had written into it with his own hands the name of the assignee and made personal delivery of the paper.
    The words “without recourse to the assignors” embraced in an assignment of a mortgage have no fixed legal significance. What the parties intended by the use of the words is to be determined by the jury from the consideration of all the circumstances surrounding the transaction.
    Where a mortgagee delivers to an agent an assignment of a mortgage in blank, together with the mortgage and bond, and it appears that such agent had already received payment of the mortgage from the mortgagor without the mortgagee’s knowledge, the assignee whose name is subsequently inserted in the assignment by the agent, may maintain an action against the mortgagee for the amount of the mortgage, and in such action the record of a judgment on a scire facias issued by the assignee against the mortgagor, relieving the latter from liability, is conclusive upon the mortgagee if the jury finds that the mortgagee was notified by the assignee to participate in the scire facias proceedings, and that he actually did participate and direct the course of the litigation.
    Argued November 11, 1907.
    Appeal, No. 231, Oct. T., 1906, by defendant, from judgment of C. P. Berks Co., Dec. T., 1902, No.. 44, on verdict for plaintiff in the case of Arlean Koch v. John A. Hinkle.
    Before Rice, P. J., Porter, Henderson, Morrison, Ordady, Head and Beaver, JJ.
    Affirmed.
    
      Assumpsit by an assignee against an assignor of a mortgage to recover on an implied warranty of title. Before Endlich, J.
    The court charged as follows:
    Early in the month of August, 1897, the plaintiff in this case, Arlean Koch, became the owner of a certain mortgage for $400 by virtue of an assignment executed by the former owner of that mortgage, the defendant in this case, in which assignment the plaintiff’s name appears as the assignee. Subsequently she undertook to collect this mortgage from the parties who had given it; she brought a suit on the mortgage against those parties, but she failed to recover on it on the ground that it had been paid before the date of the assignment that she held. Now she turns around and sues the defendant, the assignor of the mortgage, and asks you to give her a verdict against him for the sum of $400 which the mortgage calls for, together with interest and the court costs amounting to about $30.00 of the unsuccessful action that she brought against the mortgagors.
    You have heard, gentlemen, that when this assignment was executed by the defendant and passed out of his hands the name of the assignee was not in the assignment. In that particular the assignment was in blank.
    [When the defendant delivered the assignment in blank to Griesemer he made Griesemer his agent for the purpose of inserting the assignee’s name and delivering to that assignee the assignment and the mortgage and bonds assigned. Thereupon necessarily the contract became one between the defendant and the plaintiff.] [1]
    On the other hand, it is equally true that the insertion of the plaintiff’s name in this assignment, and her acceptance of the assignment require her to be treated as in every sense a party to the contract with the defendant. She is therefore to be held affecfed with all the terms and stipulations in the assignment according to their true meaning and effect.
    One who assigns a mortgage to another ordinarily warrants that it is a valid obligation for the amount appearing on its face to be due thereon unless he explains the contrary to the assignee, and it is upon the theory that that warranty is a salient part of this agreement that this action against the defendant is brought. You have heard that there is about this assignment peculiarity, viz.: that in its body it is declared to be made “without recourse to the assignors.” You have heard that the defendant asserts that the insertion of this stipulation in. the assignment relieves him of all liability, even though it turned out that the mortgage had been paid and was worthless. You have also heard that the plaintiff claims that this language in the assignment can have no such effect. Now what is the law upon that subject? Possibly you know that when added to an indorsement of negotiable paper, a promissory note, the words “without recourse” have a definite and well-understood meaning, viz.: that the indorser does not guarantee the collection of the paper as otherwise he would be held to do. In an assignment of a mortgage, however, no such promise is involved. Hence in such an instrument the use of the phrase “without recourse” has no such definite legal meaning. The meaning of a phrase or stipulation of that kind inserted in an assignment of a mortgage must depend upon the intention with which the language was used, the sense in which that language was understood by the parties. That meaning, that sense, is a question of fact to be gathered by the jury from all the circumstances surrounding the transaction and bearing upon the meaning of the language as used in the instrument. You will remember what the circumstances were under which this assignment was made. I think there are some undisputed facts about that which I may safely detail to you, but I don’t mean in doing so to say that that is all that the jury may fairly consider as bearing upon the subject. You recall that the defendant had, through his counsel, if I remember rightly, declared a desire that this mortgage should be repaid; that notice to that effect had been given to Griesemer, who had originally brought the application for this loan to the office of the defendant’s counsel, and who in the meanwhile if I remember the testimony rightly, had paid them the interest as it came due with more or less regularity. Then you will recall that it is testified — I know of no contradiction of that — that Griesemer suggested that this mortgage might be assigned, without, however, disclosing to whom, and it seems that the defendant agreed to assigning this mortgage. Then later on after the assignment had been drawn, Griesemer brought a check for the money, if I recall rightly, to the office of the defendant’s counsel and received in exchange for it the papers after having been interrogated, if I remember rightly, as to who the assignee was, and stating that he didn’t know what he was going to do about it, or something of that kind, and requesting that the paper should be given to him with that matter left blank. In the meanwhile the evidence is that Griesemer had received from the mortgagors the amount of $400, which is the sum for which this mortgage had been given. I don’t know whether there is any dispute about that; the jury will remember it, and if so, it will determine what the true fact is. The allegation on the part of the defendant is that he was entirely ignorant of any such transaction, of any payment having ever been made of the principal of this mortgage. I think that the testimony on the part of the defendant’s attorneys in this matter is that there had been some occasional delays about the payment of interest, and that for that reason they were anxious to be relieved of this investment. Now, looking at all of these matters and at anything else that you may see in the evidence which suggests to you a proper bearing upon this question, and considering also the question whether Griesemer was the defendant’s agent or somebody else’s agent in the transaction about this mortgage, what do these facts show to you as to the meaning in which this language “ the assignment is without recourse to the assignors” was used and understood by the parties at the time? If all that was intended and understood was that Hinkle meant that he would not be responsible if the property turned out worth less than the mortgage, then that stipulation has no bearing on this case whatever. If what the defendant was after and what was understood was that he wanted to get rid of all responsibility in connection with the mortgage, every possible liability in respect to it, and if, under the circumstances, that was the meaning the phrase fairly conveyed to his assignee, then you notice that by the very terms of this assignment he would be relieved from the liability which in this case is sought to be fixed upon him, and in that event your verdict would be for the defendant.
    If, however, you do not find that that is the meaning and effect of the clause as it is to be understood under the circumstances of the case, then the important question that you will have to pass upon is, was this mortgage paid before the date of the assignment or was it not? That question has been, as the evidence in this case shows, tried once before, and the record of the case in which it was tried is here and is part of the evidence in this case. The plaintiff claims that that trial settled the question once for all so far as this defendant is concerned, and that the defendant here is bound by the verdict on that trial which declared that the mortgage had been paid before the assignment. The defense, however, says “No, this defendant is not bound by the record, though we admit that that record is prima facie evidence in this case, yet we contend that it is overcome by other evidence and testimony that we have submitted.”
    Now, gentlemen, the law on that question as applicable to the present case is this: The record of the former suit in which that question was tried and the fact that that suit was determined by a verdict which found that the mortgage was paid are at least prima facie evidence of payment of the mortgage against this defendant, if he had knowledge’ and notice of the suit — and that in this case is not denied. But the effect of the record may be very much more than that. If it appears not only that the defendant had knowledge of the pendency of the other action and of the nature of the defense alleged, but that he either actively participated in the management of the suit or of the trial, or had a timely invitation or requirement from the plaintiff to take part in it, or that some notice was given to him by the plaintiff in such manner and under such circumstances as would indicate a desire or willingness on her part that he should assume at least a share of the burden of the management of that suit or trial and would fairly enable him to do so, then the verdict in the other case would be not only prima facie evidence against the defendant, but would be conclusive against him, and would settle the question here in this case against him. You understand that the plaintiff had a perfect right to manage her suit on that mortgage alone without regard to the defendant, the assignor of the mortgage; and it would not be easy to see just how the defendant, without an invitation' from the assignee, suing in her own name, could make himself a participant in the trial with a view to protecting himself by evidence against further liability to the plaintiff, unless the way was open to him to do that, and unless an opportunity was afforded to him to do that in some clear and intelligible way. It is not sufficient, of course, that the defendant had knowledge of the suit, or that he was called as a witness, or even that he was told by Mrs. Koch’s attorneys that he would be held liable if the suit failed. It is not, of course, necessary that there should have been an invitation or a requirement or a request or a demand or a threat in express words insisting upon it that the defendant should come in and take a hand in the trial, either managing it or assisting in the management of it, or that he should employ counsel, and that the counsel should sit with the counsel for the plaintiff, or should take the lead or assist in the management of the trial, examine the witnesses, and so on — that is not absolutely necessary. But what must be shown on the part of the plaintiff in order to make that verdict in the other case settle the question against this defendant here is, taking everything together, considering all the circumstances, all that was said, all that was done — that all that was of such a character as not only to notify the defendant of the existence of the suit and the character and nature of the defense, but to afford him a reasonable and clear intimation that he would be looked to in case the suit might fail and that he was at liberty, had an opportunity, that the Way was open to him to come in and take a hand in conducting the suit against the mortgagors. [It will be for the jury to inquire, under all the facts of this ease — the defendant having admitted that as early as January, 1900, the plaintiff notified him of the pendency of her suit on the mortgage, and that the mortgagors were defending on the ground that they had paid the mortgage before the defendant’s assignment to the plaintiff — whether such notice of the suit emanated from the plaintiff to the defendant under such circumstances' as indicated a willingness on the part of the plaintiff that the defendant should assume at least a share of the burden of disproving payment, and .whether the defendant thereupon conferred with the plaintiff’s attorneys concerning the conduct of the case and attended, at it is unquestioned he did attend, the trial in April, 1900, and testified as a witness on the plaintiff’s behalf, and whether, after judgment for the mortgagors on the verdict, the plaintiff demanded payment from the defendant, and whether the defendant did not request an appeal which he might have insisted upon in that case — taking all those things together, inquiring into all those facts, seeing whether those things are true, and taking everything else together with those things, if you find them to be true, what was said and what was done, did it all fairly import to this defendant a desire on the part of the plaintiff and a willingness on her part that he should come in and take a part in the management of the trial, or did he actually, through himself and through his counsel, take a part in the management of the trial? If you find that to be the truth of the case, then the verdict in that other case would be conclusive against the defendant, and there would be nothing further on that subject for you to inquire into, and your verdict in that event, as a matter of law, would have to be against the defendant and in favor of the plaintiff.] [2] If, as I said before, this stipulation as to no recourse is not decided in the defendant’s ‘favor by you.
    If, however, you find that these things were not of such a character as claimed by the plaintiff here, if you find that there Was not what fairly and reasonably and clearly amounted to an invitation to the defendant to come in and take part in the trial, and if what he did there and what his counsel did there did not amount to a participation in the trial, if it was simply his appearance as a witness called in to testify as to the facts he knew, and if his counsel were there in that relation, then, as I said before, that verdict is simply prima.facie evidence, that is to say, a part of the evidence in this case which it will be necessary for you to consider together with all the other testimony in the case bearing upon the question of whether or not this mortgage was paid before it was assigned.
    Now, gentlemen, the Hinkles tell you that they never got anything in payment of that mortgage; their counsel tell you that they never got anything in payment of the mortgage for the Hinkles. But a party by the name of Griesemer has been mentioned in the evidence in this case as having had considerable connection with that transaction, and although the Hinkles may not have themselves gotten anything, if this mortgage was paid to Griesemer as their agent, if there was payment of this mortgage to Griesemer for the Hinkles and at the same time he was their agent to receive that payment, then it would amount to payment of the mortgage. Therefore the question whether this mortgage was paid will depend not only upon whether the Hinkles or their attorneys got the money for it, but it will depend also upon whether any one else got the money for this mortgage as their agent. You have heard the testimony on the part of the Hinkles themselves disclaiming that they ever employed this man Griesemer as their agent, and that testimony will have to be considered by the jury together with all the other facts that have been given in evidence upon this question. If you believe that Griesemer was the agent of Sheeder and Smith in the transactions between Sheeder and Smith and Jacob and John Hinkle, then the payment of the principal of the mortgage to Griesemer was not a payment to the Hinkles. If you believe that Sheeder and Smith employed Griesemer to procure them a loan and he did procure it from Jacob and John Hinkle, and that after the mortgage and bonds were executed Jacob and John retained the possession of the mortgage, and their attorneys, Rieser & Schaffer, retained the possession of the bonds, and if you further believe that Sheeder and Smith from time to time handed the interest to Griesemer for the purpose of paying it to the mortgagees, and if you further believe that Sheeder and Smith handed the principal of the mortgage to Griesemer that he might pay it to the mortgagees, then you will be warranted in finding that Griesemer was the agent of Sheeder and Smith, and in no proper sense the agent of Jacob and John Hinkle, and then the payment of the money by Sheeder and Smith would not in any proper sense be the payment of the money to Jacob and John Hinkle.
    Now, gentlemen, I have nothing further to say to you about this case except this, that [the question whether Griesemer was the agent of the Hinkles or the agent of Sheeder and Smith in this transaction is one which you will have to pass upon, if you are required to pass upon it at all, under all the facts and testimony in the case that bear upon this question, including the judgment in the suit of this plaintiff against Sheeder and Smith upon the mortgage. But if you find, as I said before, that these people were required and were afforded an opportunity to participate in the suit against Sheeder and Smith, or if they did actually participate in it, then that question would not arise, but that verdict would be binding upon the defendant in this action.] [3]
    Verdict and judgment for plaintiff for $615.82. Defendant appealed.
    
      Errors assigned among others were (1-3) above instructions, quoting them.
    
      Jefferson Snyder, of Snyder and Zieber with him Rieser and Schaffer, for appellant.
    — There Was no evidence in the case that would warrant them in finding the appellant concluded by the judgment in Koch’s suit against Sheeder and Smith: Fowler v. Jersey Shore Borough, 17 Pa. Superior Ct. 366; Ayres v. Findley, 1 Pa. 501; Barber v. Wolcott, 15 Pa. 57; Paul v. Whitman, 3 W. & S. 407; Rawle, Covenants for Title (2d ed.), 242; 1 Greenleaf on Evidence, sec. 535; Walker v. City of Phila., 195 Pa. 168.
    A man who purchases and takes an assignment of a mortgage is bound to make inquiry of the mortgagor before purchasing, and is chargeable with notice of any defense by way of payment or growing out of the original equities which inquiry would have brought to his notice: Morgan’s Appeal, 126 Pa. 500.
    
      
      Isaac Hiester, with him William M. Goodman, for appellee.—
    Knowledge of a fraud by an agent-is not notice to the principal where the agent is himself the author of the fraud and even if Griesomer had been the plaintiff’s agent the plaintiff was, not chargeable with Griesemer’s knowledge that the mortgage had been paid by means of money embezzled by him: Gunster v. Scranton Illuminating Heat & Power Co., 181 Pa. 327; United Security Life, etc., Co. v. Central Nat. Bank, 185 Pa. 586; Sproul v. Standard Plate Glass Co., 201 Pa. 103.
    The delivery of a promissory note signed in blank constitutes the person to whom it is delivered the agent of the maker to fill in the blanks: Simpson v. Bovard, 74 Pa. 351; Howie v. Lewis, 14 Pa. Superior Ct. 232.
    The general rule is that one who assigns a mortgage to another for a valuable consideration warrants that it is a valid obligation for the amount appearing .on its face to be due thereon unless he explains the contrary to the assignee: Stroh v. Hess, 1 W. & S. 147; Kauffelt v. Leber, 9 W. & S. 93; Flynn v. Allen, 57 Pa. 482; Hossler v. Hartman, 82 Pa. 56; Blattenberger v. Holman, 103 Pa. 555; Moore v. Adams, 29 Pa. Superior Ct. 239.
    These assignments raise the question of the effect of the judgment in the suit of the foreclosure of the mortgage on the liability of the defendant. It seems to be well settled that a judgment in such case is prima facie evidence of the fact established thereby against one secondarily liable whether he had notice of it or not: Ayres v. Findley, 1 Pa. 501; Barney v. Dewey, 13 Johns. 224; Holbrook v. Holbrook, 15 Maine, 9; Robbins v. Chicago, 4 Wallace, 657; Carman v. Noble, 9 Pa. 366; Northumberland County Bank v. Eyer, 58 Pa. 97; Heiser v. Hatch, 86 N. Y. 614; Oceanic Steam Navigation Co. v. Compañía Transatlántica Española, 144 N. Y. 663 (39 N. E. Repr. 360); Somers v. Schmidt, 24 Wise. 417; Missouri Pacific Ry. Co. v. Twiss, 35 Neb. 267 (53 N. W. Repr. 76).
    The liability of the assignor of a mortgage to his assignee arises upon an implied warranty that the mortgage is a valid and subsisting claim against the mortgagor: Stroh v. Hess, 1 W. & S. 147; Flynn v. Allen, 57 Pa. 482.
    
      February 28, 1908:
   Opinion by

Head, J.,

The plaintiff is the assignee of a mortgage, the title to which she acquired by a formal assignment in writing executed and delivered by the defendant. That she paid a full and valuable consideration therefor is not a matter in dispute. The defendant was one of two mortgagees, but purchased the one-half interest of his brother, the other mortgagee, and thus became, prior to the date of the assignment, the sole owner of the mortgage. At the time of' the assignment the mortgage, with the bonds secured thereby, was in the possession of the defendant, and this possession was transferred with the written assignment to the plaintiff. The record of the mortgage disclosed no evidence whatever of any payment on account thereof. In a word, the mortgage appeared to be a valid and subsisting obligation. Some time later, the plaintiff brought an action of scire facias sur mortgage to recover from the mortgagors the debt evidenced by the mortgage. To this action they took defense on the ground that the mortgage had been paid to the present defendant, then the mortgagee, at a date prior to the assignment. As the plaintiff had not demanded nor received a certificate of-no defense, her action was, of course, liable to be defeated if the mortgagors could establish by evidence their allegation of payment. That case went to trial and resulted in a verdict for the defendants therein, the mortgagors. A motion for a new trial having been refúsed, judgment Was entered on that verdict and no appeal has been taken therefrom.

The plaintiff brings this action then to recover from the defendant the purchase money she paid, together with the necessary expenses she has incurred, by reason of the fact that the thing she purchased was not in fact a mortgage, but only a worthless piece of paper, and her action is grounded on the legal principle that the vendor of a chattel impliedly warrants the title to it and that it is in fact the thing it purports to be. It needs no argument to sustain the proposition that the principle relied on is well established and generally recognized: Flynn v. Allen, 57 Pa. 482; Moore v. Adams, 29 Pa. Superior Ct. 239. If as a fact, the mortgage had been paid to the defendant before he undertook to assign it, the debt secured thereby was extinguished, and the instrument was of no more value than if the names of the mortgagors had originally been forged.

The written assignment, as executed by the defendant, was in blank so far as the name of the assignee is concerned. It was thus executed at the request of one Griesemer, who had been the middle man through whom the original mortgage loan was negotiated, and through whom all subsequent transactions between the mortgagees and the mortgagors had been conducted. It appears that the mortgagees had concluded to take up the money secured by the mortgage. Notice of this fact was communicated to Griesemer for the mortgagors. He produced the money, but requested that the mortgage be assigned, to such person as he would find, instead of being satisfied according to the original desire of the mortgagees. He further suggested, that, as he had not yet arranged with any particuar person to take up the loan, an assignment in blank be drawn up and executed, so that the name of the assignee could be thereafter inserted when the person willing to advance the money should have been found. The defendant Hinkle, the mortgagee, agreed to this request and adopted this suggestion and had his counsel draw up a formal assignment of the mortgage and the bonds secured thereby, which was signed by the defendant and his brother, the other original mortgagee, and duly acknowledged by both. This assignment was by the mortgagee delivered to Griesemer, together with the possession of the original mortgage and bonds. He succeeded in inducing the plaintiff to take the assignment, and after inserting her name in the blanks left for that purpose, he handed to her the assignment together with the original mortgage and bonds.

That in such a transaction the defendant made Griesemer his agent for the delivery of the formal assignment, the mortgage and the bonds, and thus authorized him to insert the name of the plaintiff or other person in the assignment, cannot, we think, be controverted: Simpson v. Bovard, 74 Pa. 351; Howie v. Lewis, 14 Pa. Superior Ct. 232. The assignment, therefore, was just as effective to bind the assignor as if he had written into it with his own hands the name of the plaintiff and personally delivered it to her.

The assignment contains a clause that it' “is without recourse to the assignors.” It is contended that the presence of this clause in the assignment should have the effect of relieving the defendant assignor from any liability of any kind, resulting from the fact that he undertook to sell and transfer a mortgage which had in fact been paid. To this we cannot assent. An examination of the authorities reveals that such words, embraced in an assignment of a nonnegotiable instrument, have no fixed legal significance: Charnley v. Dulles, 8 W. & S. 353; Frazer v. D'Invilliers, 2 Pa. 200; Hexter v. Bast, 125 Pa. 52. As was said in the last cited case, “They are important only as they may indicate the understanding of the parties that the plaintiff should take the mortgage subject to every risk, as well the insolvency of the parties, as the validity of the mortgage itself.” Following precisely in the path marked out by these decisions, the learned trial judge instructed the jury to determine, from all the facts and circumstances in evidence, whether or not, by the presence of these words, the parties at the time intended it to be understood that the assignee was to take the risk of the validity of the mortgage, as well as of the ability of the property pledged to produce the amount of the debt. As the case was submitted, the verdict established that these words were not thus' intended and understood by the parties.

At the trial the record of the judgment in the action of scire facias sur mortgage was offered in evidence. Its admissibility as pertinent testimony is not, as we understand it, questioned. The learned counsel for the appellant, however, insists that the trial court fell into error in his instructions to the jury as to the legal effect of that evidence. The court instructed the jury, that in the first instance such a record was prima facie evidence that the mortgage had been in fact paid. Thus far it is agreed the instruction was right.

The court further declared that if the jury found, from the evidence.. before them in the present case, that Hinkle, this .defendant, had been advised of the bringing of the former suit; of the nature of the defense that-had. been made to.it, had been given an opportunity to resist, by any means in his power and by any evidence he could furnish, the defense of payment advanced by the mortgagors; and if further he was in fact present in court at the trial with his counsel; if he and his counsel conferred with the plaintiff in that case and her counsel as .to the manner in which -it would be tried; then they might go farther and determine that the record of that former trial would be conclusive on the present defendant as to the question- of payment. If, on the other hand, they were satisfied, as the defendant contended, that he and his counsel were present in court only as witnesses; that they had never been called upon nor notified to participate in the trial of that action, and had no responsibility for its conduct or management, then the record would not be conclusive, and in that event the jury might then determine, under the. evidence before them, whether or not the mortgage had been in fact paid before the assignment, without regard to the finding of the former jury on that question.

We • have not been referred to any case in Pennsylvania which can be fairly said to be exactly decisive of the question here raised-. It is, of course, a well-recognized general principle that no person can be bound by a judgment to which he was- not either party or privy. On the other hand, it is equally clear that where one occupies a position <of ultimate legal responsibility for the result of an action pending between two other parties, if he be formally notified to come in and participate in the trial of such action, under penalty of being concluded by the’judgment that may be rendered, such a judgment will be conclusive against him. No particular kind or form of notice to thus affect -a third person has been prescribed. The- reason underlying the principle points .plainly to the fact, that knowledge of the situation brought home to the party ultimately to be,affected and a proper .opportunity-to participate in the action, for the results of which he is to be held responsible, are the essential elements which, if present, will and of right ought to make the judgment conclusive.

We think the correct principle-is well set out by the supreme court of Maine in Holbrook v. Holbrook, 15 Maine, 9, in the following language: “It'cannot be material to the person agreeing to indemnify that he should have a formal notice served upon him. The law requires that he should have notice, before the judgment can be used against him because he is the real party in interest, but any notice which .will enable him to present any .defense which he may have, either in law or fact, is all that can be useful to him, and the law requires no vain or useless ceremony in such cases.”

It is stoutly contended by the appellant that the present record discloses no facts from which a jury should have been permitted to find that any such notice was given to him, or any such opportunity was afforded. If this were, the fact, of course such a question should not have been submitted; but after a careful reading of the testimony, we are driven to the conclusion, reached by the learned court below, that there was evidence upon which such' a finding might fairly rest. That the defendant was fully advised of the nature of .the defense made to the action of scire facias there can be no doubt; that he and his counsel conferred with the plaintiff’s counsel on that subject, discussed the evidence that could be produced pro and con, and the effect of an adverse verdict, is equally clear. That all-were present during the trial of the cause is not disputed. There is evidence the defendant was told by plaintiff’s counsel that “they expected him to stand-by us in this suit; . . . : that it might become necessary, for us to look to them for this money in the event that we would fail to-recover against Sheeder and Smith (the mortgagors).” There was evidence that the plaintiff and her counsel had agreed' with the defendant and his counsel upon the line of procedure to be adopted: That, at least one of the counsej.of the defendant assisted in outlining the method of presenting the .case for trial; that during the trial conferences.were had with the defendant and his counsel) and that after verdict and judgment, the defendant was formally notified. that the plaintiff would look to him for payment of this mortgage, but that he determined to do nothing, although there was still time to take an appeal to correct any errors that might -have existed in the' record of the trial. We think, therefore, there was evidence from which the jury might be permitted to find that the present defendant had all the necessary knowledge of the nature and possible effect of the former case, and every reasonable opportunity to participate in the management and trial of that case, and that he did in fact so participate, and if this be true, then the instructions of the learned trial judge were correct.

It may be true, as the learned counsel for the appellant earnestly argues, that a serious mistake was made in the earlier trial, but if so, the record of that case is not now before us, and we are as powerless as the defendant to correct any such error.

The learned trial court in a most careful and painstaking charge went over each one of the various legal aspects of the case as it was presented by the record, and his reasoning, to ■our minds, so completely vindicates the conclusions he reached, that the judgment might be affirmed on that charge.

The assignments of error are all dismissed and judgment affirmed.  