
    Haspel v. Martin, Appellant.
    
      Mortgage — Building and loan association — ■Fraud—Evidence.
    A mortgage given to a building and loan association in which' the amount stated is larger than the amount actually loaned, is not wholly void, where it appears that although the financial secretary of the asso-. ciation either drew the mortgage or knew its contents, it is not shown that he made any representations respecting the same to the mortgagor, or that he did or said anything to induce the latter to refrain from reading the paper, or asking to have it read. In such a case the association may recover the amount actually loaned.
    Argued Oct. 11, 1907.
    Appeal, No. 129, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1905, No. 3,555, on verdict for plaintiff in case of Lewis A. Haspel,’ Receiver, v. Thomas Martin.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mortgage.
    At the trial the court gave binding instructions for plaintiff for the amount admitted to be due, i. e., $657.06.
    On a motion for a new trial and for judgment non obstante veredicto, Audenried, L, filed the following opinion:
    This action is brought by the receiver of the United Building and Loan Association upon a mortgage found by him among the assets of that society.
    The mortgage in suit (which is duly recorded) was given by the defendant in 1893 to secure his bond to the building association conditioned for the payment of $1,600, together with interest, the premium on his loan and the dues and fines on his eight shares of stock in the association. The defendant pleaded “Non assumpsit, non est factum, payment, payment with leave, etc.” No notice of special matter was given.
    At the trial the mortgage was offered in evidence by the plaintiff, and, not being objected to, was admitted.
    The defendant thereupon testified in substance as follows: About nine years prior to 1893 he had borrowed $1,000 from the association, giving a mortgage to secure it on his property, No. 2030 Wilder street. Half of this money was spent in extinguishing a ground rent charged on the mortgaged premises; and with the other half he started in business. To secure repayment of that loan he had pledged five shares of stock that he was carrying in the association. In the summer of 1893 the defendant became involved in financial difficulties and an execution was levied upon him for $119, under a judgment obtained by one of his creditors. He thereupon applied to the association for a loan of $600, which he was informed by one Carroll, the financial secretary of the association, was the sum required to pay the difference between the withdrawal value of his stock and the amount of his existing mortgage debt, satisfy the judgment against him and pay the dues on the eight shares of new stock that he must subscribe for in order to obtain the loan, that stock belonging to a series which had been running for a year. Carroll prepared the new bond and mortgage and attended to the application of the money advanced by the society, procuring the satisfaction of the old mortgage and paying the debt for which execution had been levied on the defendant’s effects. For some- unexplained reason, the amount of the defendant’s indebtedness to the association was mentioned in these papers as $1,600 instead of $600. Martin signed them without reading them or asking to have them read to him. He did not say that Carroll misstated their contents to him. Carroll is now a fugitive from justice.
    It was admitted on behalf of the defendant that his indebtedness to the association amounted, on the day of the trial to $657.06. 'Being unable to produce any evidence to throw further light upon the transaction in question, - the plaintiff consented that the verdict should be limited to that amount. The defendant, however, asked for binding instructions in his favor, on the ground that the insertion in the bond and mortgage of an amount of indebtedness exceeding by $1,000 the sum that he had actually borrowed from the mortgagee was a fraud that vitiated the mortgage and operated to prevent the enforcement of the mortgage debt as a lien on his property. This request was refused, and by direction of the trial judge the jury rendered a verdict for the plaintiff for $657.06.
    The defendant now moves for judgment non obstante veredicto, or for a new trial, if that judgment be refused. We are of opinion that both motions should be dismissed and that judgment should be entered in favor of the plaintiff on the verdict. Our reasons are as follows:
    In Sheppard’s Touchstone, page 56, it is said: “If the party that is to seal the deed can read himself and doth not, or being illiterate or blind, doth not require to hear the deed read or the contents thereof declared, in these cases, albeit the deed is contrary to his mind, yet it is good and unavoidable.” This principle was stated by Gibson, C. J., sitting at nisi prius, in Greenfield’s Est., 14 Pa. 489, as follows: “If a party who can read will not read a deed put before him for execution, or, if being unable to read will not demand to have it read or explained to him, he is guilty of supine negligence, which, I take it, is not the subject of protection either in equity or at law.” On the appeal of that cause, it was intimated by the Supreme Court that equity will interfere in a clear case to correct a mistake even where a grantor has failed to read the deed that he signed; and we have no doubt that to-day in such a case relief may be had against fraud and accident upon equitable principles.
    At law, in the trial of an issue under the plea of non est factum, when the plaintiff puts in evidence the mortgage under which he claims, that being duly acknowledged and recorded and presenting no signs of alteration or erasure, the burden of proof shifts and it becomes incumbent on the defendant to offer evidence to show that the instrument before the jury is' not his deed. If no such evidence is forthcoming, the plaintiff is entitled to a verdict. Testimony that the mortgage does not correctly state the debt, but that, although he could read, the defendant neglected to read the paper before he signed it, nothing being said as to misrepresentations to him of its contents, falls far short of what is requisite to sustain the burden on him. Such a defense, whether it shows fraud or mistake, is purely equitable, and, while recognized in Pennsylvania, is governed by equitable principles. Since, then, he that would have equity must do equity, it follows that, at the most, such evidence amounts to a defense only to the extent that the debt named in the mortgage exceeds the real debt.
    There was no evidence in this case to take to the jury the question whether or not the mortgage in suit was a nullity. It was not denied that Martin had signed and sealed it. He did not say that its contents were misrepresented to him. As he might have read the paper but did not, he is presumed to have been acquainted with all that it contained. Such a verdict as that which the defendant asked the trial judge to direct could not possibly be sustained, nor can judgment non obstante veredicto be entered in his favor. Had there been doubt as to the amount which the defendant actually owed upon the mortgage, that question should have been left to the jury. But there was not. The amount of his indebtedness was agreed upon. There was no question of fact open, and there can be no need of a new trial.
    November 18, 1907:
    The application to this case of the principles upon which we have decided it works no injustice to the defendant. He borrowed $600 and agreed to pay it back with interest. The verdict is for that sum with interest at the stipulated rate. He undertook to secure payment of the loan on his property by mortgage. The judgment on the verdict is that his property shall be taken in execution and sold to pay the mortgage debt. The fraud or mistake by which the mortgage was made to refer to the debt secured by it as greater than its true amount was not the fault of the building association, but of his own scrivener and agent. Ordinary care on Martin's part would have led to its discovery and prevention. It would be hard law, indeed, for such a reason to deprive the estate of the association of its lien on his land.
    
      Error assigned was the charge of the court.
    
      Edmund Randall, with him James A. Flaherty and Thomas A. Mullen, for appellant.
    
      Wayne P. Rambo, with him Albert L. Lewis, for appellee.
   Per Curiam,

In the appellant’s statement of the question involved it is assumed that the mortgage was prepared by Carroll, the financial secretary of the building and loan association, mortgagee, and in disposing of the motion for judgment for defendant non obstante veredicto the court took the same view. It is true, as the appellee’s counsel say, that it does not affirmatively appear who actually drew the mortgage. But as Carroll, with whom the defendant’s prior negotiations were had, presented it to the defendant for his execution, it is fairly inferable, in the absence of evidence to the contrary, that Carroll knew its contents; therefore we cannot see that the defense is to be viewed in any less favorable light because it was not affirmatively shown that the mortgage was actually prepared by Carroll: But while it is inferable that he knew the contents of the instrument, it is to be observed that there is no evidence that he made any representation respecting the same to the defendant, or that he did or said anything to induce the defendant to refrain from reading the paper or asking to have it read. This being so, we think the court was right in holding that although the mortgage was drawn for a larger amount than was actually advanced thereon, it was not wholly void, and that the receiver of the association could recover the amount actually advanced to the defendant. This conclusion is so well supported by the opinion of the learned judge below that we deem it unnecessary to add anything further to the discussion.

The judgment is affirmed.  