
    Brown et al. v. Wagner.
    In an action of scire facias sur mortgage, judgment cannot be entered against the heirs and personal representatives of the deceased mortgagor, unless they have been served with process or have come in voluntarily as parties to the suit.
    
      It seems that, where the terre tenant of mortgaged premises is being pressed by the mortgagee for payment, and a third party, at the request of the terre tenant, ■pays the balance due upon the mortgage and takes an assignment from the mortgagee, such fact is sufficient to rebut the presumption of payment arising from the lapse of twenty years since the last payment of principal or interest by the mortgagor himself or by the terre tenant.
    Oct. 26, 1888.
    Error, No. 156, Oct. T. 1888, to C. P. No. 1, Allegheny Co., to review a judgment on a verdict for the plaintiff upon a scire facias sur mortgage, at June T. 1886, No. 114.
    The evidence produced at the trial, before Collier, J., was to the following effect:
    The mortgage sued upon was for $1600, to be paid on or before July 1, 1865, with interest, and was given October 12, 1864, by Robert Brown to John Wagner. On Jan. 8, 1865, the mortgagor paid $200, and, on July 8,1865, $1000, on account of the mortgage. On June 30, 1866, he died intestate, being still seized of the mortgaged premises and leaving to survive him a widow, Jane Brown, and five children, who remained in possession up to the time of this suit. No further payments were made upon the mortgage.
    
      On April 3, 1861, William Green, a brother of Jane Brown, the widow, paid the mortgagee the amount of the balance then due, with interest, and took an assignment of the mortgage. This was done at the request of the widow, through her son, William Brown, who was administrator of the mortgagor.
    The scire facias was issued by William Green, the assignee, in March, 1886, more than twenty years after the last payment made upon the mortgage, against Robert Brown, with notice to Jane Brown, terre tenant. It was returned served upon the latter and mortuus est as to the former. Jane Brown filed an affidavit of defense, in which she recited herself as terre tenant, alleging payment in April, 1861. The case was put at issue upon the plea of payment and the statute of limitations. In the pleas, the widow recites herself as terre tenant. Subsequently, on motion of the plaintiff, the court twice amended the record, first by adding the heirs and widow of the mortgagor, and afterwards by adding the administrator. No notice of these amendments was given to anyone, except the widow, no process was issued to bring in the new parties as defendants, nor did any of them appear upon the record. It is stated in the paper book of defendant in error that Brown, the mortgagor, had conveyed to a third party who conveyed to Brown’s wife, but that it was discovered after suit brought that the wife had afterward reconveyed. Hence, the amendments.
    Upon the trial, the plaintiff suggested the death of Jane Brown, originally sued as terre-tenant, whereupon the defendants’ counsel moved for a continuance, which was refused [4].
    The plaintiff then offered in evidence the mortgage and assignment, with the receipts for the payments made on account by the original mortgagor, and rested. A non-suit having been refused [5], the defendants called the plaintiff for cross-examination. He testified that no payment had been made or demanded upon either the principal or interest of the mortgage, that the widow and heirs of Robert Brown had been in possession of the mortgaged premises for twenty-three years;' that he had made no demand because he knew that it was not in the power of the widow to pay him, and that he had originally purchased the mortgage, at her request, made through her son, the administrator of the mortgagor.
    The defendants’ counsel submitted the following points :
    “1. Under all the evidence, the plaintiff cannot recover against the defendants in this case, being the administrator and children and heirs-at-law of Robert Brown, deceased.” Refused. [1.]
    “ 2. Under all the evidence in this case, the talk of "William Brown, administrator of Robert Brown, deceased, with William Green, the plaintiff, will not bind all the defendants in this case and arrest the running of the statute of limitation.”
    
      Ans. “This is true; but, if the assignee plaintiff paid, as alleged, to the original mortgagee, as claimed, the payment being within 20 years from the date of the bringing of this suit, the plaintiff may recover.” [2.]
    
      
      “ 3. Under all the evidence in this ease, the plaintiff is not entitled to recover $424.00, with interest from October, 1864.” Refused. [3.]
    The court charged, inter alia, as follows :
    “So, I say to you, if Mr. Green paid to Mr. Wagner in April, 1866, this $400, that was then due and pressing, it was a payment to the man who held the mortgage, and if Green brought suit within 20 years from that date, it is the same as if Wagner had sued, and in that case the mortgage has never been paid. It is not shown that it has never been paid but is still due, but the presumption of law that it is paid would not arise, and the suit having been brought within 20 years from the time of the payment by Green to Wagner, Green would have a right, in Wagner’s name, to recover the amount due, with interest, to that date.” [7.]
    The jury found a verdict for the plaintiff for $1169.29,.
    
      The assignments of ermr specified, 1-3, the answers to defendants’ points, quoting them ; 4, the refusal of a continuance ; 5, the denial of the motion for a non-suit; 6, allowing the case to proceed, when the record showed that the defendants had never been served nor had their day in court; and, 7, the portion of the charge above set forth, quoting it.
    
      C. S. Fetterman, with him Whitesell & Sons, for plaintiff in error.
    The action was to recover a balance of $400, with twenty-three years’ interest, while the verdict allowed over twenty-nine years’ interest. A mortgagee, in a suit to foreclose, can recover arrears of interest only for six years next preceding suit. Round v. Bell, 30 Bevan, 121.
    The case was not at issue, when it was tried, there being no service on the defendants and no affidavit of defense and plea. Act of Feb. 24, 1834, § 27, Purd. 528, pi. 105; and § 34, Purd. 530, pi. 112.
    The proper representative should have been brought into court by scire facias. Atherton v. Atherton, 2 Pa. 112.
    Continued possession of mortgaged premises by the mortgagor and his heirs for twenty years after the mortgaged debt is payable, without any entry or claim by the mortgagee, constitutes a presumption in fact that such debt is paid. Howland v. Shurtleff, 2 Metc. 26; Jarvis v. Albro, 67 Me. 310; N. Y. Ins. Co. v. Covert, 29 Barb. 435; Hubbard v. Missouri Co., 25 Kan. 172; 2 Jones on Mortgages, 1195
    The rights of the assignee can rise no higher than those of the mortgagee, and the payment by the assignee will not defeat the presumption of payment nor arrest the running of the statute. 2 Jones on Mortgages, 1210.
    
      Ramsey & Large, who were not heard, for defendant in error.
    —The interest allowed by the jury was less than the amount actually due.
    At the trial, counsel appeared in open court for the administrator, and it cannot now be claimed that the administrator had no-notice.
    The payment made by the assignee, to the original mortgagee,, at the request of the widow and administrator of the mortgagor, was sufficient to avoid the presumption of payment.
    Jan. 7, 1889.
   Hand, J.,

This case must necessarily go back for re-trial on account of the confused and improper state of the-record. It is hardly possible for us-to pass upon the merits of the case as raised in the 7th assignment of error. We only remark that, as the case now appears, the following facts would seem to give support to the view taken by the court below upon the merits.

The mortgage was given by Robert Brown. Scire facias went out against him and Jane Brown as terre tenant. Jane was his widow. In her affidavit and plea she admits that she was terre tenant. On the trial, the history of the case of the defendant in error states that it appeared that she had reconveyed the premises. It also appears-that William Brown was administrator of Robert, and he, as administrator, at the request of his mother, Jane Brown, procured William Green, the plaintiff and assignee of the moitgage and the brother of Jane Brown, to lift this mortgage, which was being pressed for collection. Green, the plaintiff, did lift the mortgage within twenty years of the time of issuing the scire facias. He swears positively that the mortgage was not paid and that the reason he did not press-for payment was because, to use his own language : “ I knew it wasn’t in her power to pay it at all. I never asked her for a cent of the interest or principal. I concluded she has enough to do to weather it along, being a widow, and I never asked her.” Under these facts, the court left it to the jury to determine whether the presumption of payment was rebutted. In Reed v. Reed, 46 Pa. 242, Strong, J., says: “ The presumption is rebutted, or, to speak more accurately, does not arise, when there is affirmative proof beyond that furnished by the specialty itself, that the debt has not been paid,, or where there are circumstances that sufficiently account for the delay of the creditor.” Under these circumstances, we cannot say that there was error on the legal question which covers the merits of this case. Nevertheless, as we have already intimated, the record, in this case is in wretched shape. If there had been proper notice or service upon the heirs and the administrator, or they had come in to defend and had presented no facts other than what appear on this record, their silence would have given much greater force to the evidence. Presumption of payment from lapse of time may be rebutted by competent and sufficient evidence. What is sufficient, often depends upon the attendant circumstances. In this view of the case, the proper and legal service upon all the defendants would have been an important fact and might touch upon the merits.

The court below allowed the plaintiff to amend the record by adding the names of the heirs, and the administrator, and forced the parties to trial without any service upon or notice to the defendants not served in the original scire facias, and judgment is entered •against all. It is clear, under our decisions, that, if the plaintiff undertakes to secure a judgment against the heirs and personal representatives of a decedent, he must make service .upon them. This is the mode laid down in the Acts of Assembly. See sections 27 and 28 of the Act of February 24, 1834. Numerous decisions may be cited to show that service is compulsory where defendants do not come in voluntarily.

The judgment in this case is reversed and a venire facias de novo awarded. . J. C. S.  