{ "id": 11306878, "name": "THE FEDERAL LAND BANK OF BALTIMORE v. LEVI S. GARMAN and SARAH E. GARMAN", "name_abbreviation": "Federal Land Bank of Baltimore v. Garman", "decision_date": "1942-01-07", "docket_number": "", "first_page": "585", "last_page": "596", "citations": [ { "type": "official", "cite": "220 N.C. 585" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "69 S. E., 422", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "153 N C., 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272863 ], "opinion_index": 0, "case_paths": [ "/nc/153/0434-01" ] }, { "cite": "90 N. C., 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8690845 ], "opinion_index": 0, "case_paths": [ "/nc/90/0226-01" ] }, { "cite": "195 A., 750", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "188 A., 835", "category": "reporters:state_regional", "reporter": "A.", "weight": 2, "opinion_index": 0 }, { "cite": "30 A., 510", "category": "reporters:state_regional", "reporter": "A.", "weight": 2, "opinion_index": 0 }, { "cite": "170 A., 340", "category": "reporters:state_regional", "reporter": "A.", "weight": 2, "opinion_index": 0 }, { "cite": "95 Pa. Superior Ct., 226", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 682030 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/pa-super/95/0226-01" ] }, { "cite": "185 A., 311", "category": "reporters:state_regional", "reporter": "A.", "weight": 3, "opinion_index": 0 }, { "cite": "101 Am. St. R., 931", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "57 A., 561", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "208 Pa., 229", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 998118 ], "opinion_index": 0, "case_paths": [ "/pa/208/0229-01" ] }, { "cite": "144 A., 136", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "294 Pa., 309", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1113367 ], "opinion_index": 0, "case_paths": [ "/pa/294/0309-01" ] }, { "cite": "95 N. C., 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273667 ], "opinion_index": 0, "case_paths": [ "/nc/95/0229-01" ] }, { "cite": "28 N. E., 353", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "13 L. R. A., 796", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "128 N. Y., 387", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2241404 ], "opinion_index": 0, "case_paths": [ "/ny/128/0387-01" ] }, { "cite": "31 A., 918", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "19 A., 1075", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "135 Pa., 246", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 817420 ], "opinion_index": 0, "case_paths": [ "/pa/135/0246-01" ] }, { "cite": "33 Pa., 249", "category": "reporters:state", "reporter": "Pa.", "opinion_index": 0 }, { "cite": "22 Pa., 305", "category": "reporters:state", "reporter": "Pa.", "weight": 2, "opinion_index": 0 }, { "cite": "89 A. L. R., 1503", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "40 A. L. R., 441", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "142 S. E., 772", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N. C., 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630301 ], "opinion_index": 0, "case_paths": [ "/nc/195/0491-01" ] } ], "analysis": { "cardinality": 1054, "char_count": 30804, "ocr_confidence": 0.472, "pagerank": { "raw": 6.659884325335859e-08, "percentile": 0.405626737311712 }, "sha256": "170a72845c5a77f7281c7caea70619b1f07a53c14578588f423ffd751a5cd1af", "simhash": "1:b020e2f2926dfc7b", "word_count": 5279 }, "last_updated": "2023-07-14T14:44:04.432821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE FEDERAL LAND BANK OF BALTIMORE v. LEVI S. GARMAN and SARAH E. GARMAN." ], "opinions": [ { "text": "'W\u2019iNBORNE, J.\nTbe record on this appeal upon careful consideration leads us to tbe conclusion that tbe judgment in suit is a valid judgment of tbe court of common pleas of tbe State of Pennsylvania, and entitled in tbe courts of this State to be given such faith and credit as it has by law or usage in tbe State in which it was pronounced. U. S. Constitution, Art. IV, sec. 1, Bonnett-Brown Corp. v. Coble, 195 N. C., 491, 142 S. E., 772, and cases cited.\nTbe Bonnett-Brown case, supra, relates to a judgment of tbe municipal court of Chicago, in tbe State of Illinois, entered by confession on warrant of attorney, and is directly applicable to tbe case in band. There tbe Court quotes with approval from 40 A. L. R., 441, Ann., this statement of law: \u201cIt is established, practically without dissent, that tbe fact that a judgment of a court of another state was entered under a warrant of attorney to confess judgment executed contemporaneously with tbe principal obligation, and without service of process or appearance other than that pursuant to tbe warrant itself, does not take it out of tbe full faith and credit provision of tbe Federal Constitution, or disentitle it to tbe recognition and effect accorded to other judgments of sister states, when asserted as tbe basis of an action or defense. And this is true whether or not such judgments of that kind are permitted in tbe state in which tbe judgment of tbe sister state is asserted.\u201d See, also, 89 A. L. R., 1503, Ann.\nThat being tbe settled law, pertinent to case in band, it is appropriate to see what is tbe law of Pennsylvania on tbe subject.\nPurdon\u2019s Pennsylvania Statutes, Section 739, Title 12, relating to confession of judgment on notes, provides that: \u201cIt shall be tbe duty of tbe protbonotary of any court of record, within this commonwealth, on tbe application of any person, being tbe original bolder (or assignee of such bolder) of a note, bond, or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney at law, or other person to confess judgment, to enter judgment against tbe person or persons wbo executed tbe same, for tbe amount wbicb from tbe face of tbe instrument may appear to be due, without tbe agency of an attorney, or declaration filed, witb sucb stay of execution as may be therein mentioned, for tbe fee of one dollar, to be paid by tbe defendant; particularly entering on bis docket tbe date and tenor of tbe instrument of writing on wbicb tbe judgment may be founded, wbicb shall have tbe same force and effect as if a declaration bad been filed, and judgment confessed by an attorney, or judgment obtained in open court and in term time; and tbe defendant shall not be compelled to pay any costs, or fee to tbe plaintiff\u2019s attorney, when tbe judgment is entered on any instrument of writing as aforesaid. (1806, Feb. 24, P. L. 334, 4 Sm. L. 270, Sec. 28).\u201d\nThe Supreme Court of Pennsylvania, speaking in opinion by Duncan, J., rendered September, 1821, in tbe case Helvete v. Rapp, 7 Sergeant & Rawles Rep., 22 Pa., 305, in regard to judgment by confession entered 17 May, 1815, under this act, bad this to say: \u201cTbe evident and sole intention of tbe Legislature in conferring tbe power of entering a judgment on tbe judgment bond without the intervention of an attorney was, to exempt tbe obligor from tbe payment of costs to an attorney. This act was passed on 24 February, 1806. . . . There being no literal form directed, and no precedent to guide tbe Prothonotaries in tbe exercise of this new duty, each has adopted bis own mode; they are as various as their faces, and many of them scarcely present feature to inform a purchaser or designate a judgment; but here is a substantial entry of a judgment bond, containing all that is necessary to give information. It is entered on tbe docket in tbe form of an action, as a judgment bond, tbe names of tbe parties, tbe amount due, tbe date and time of tbe writing. It states tbe entry of a judgment bond; and seal of tbe defendant; tbe judgment bond is filed of record, entered tbe 17th May, 1815. \"What is entered? A judgment on tbe judgment bond filed. No man could be deceived by this mode of entry, for however inartificial it may be, however defective in tbe technical words of a judgment, none wbo called for information could be led into error; tbe docket entry gave full information. It might have been more formal, but still it is tbe entry of a judgment entered by tbe Prothonotary, wbo was authorized to make tbe entry.\u201d\nAlso, in case of The Commonwealth against Conard, et al., 1 Rawles Rep., 33 Pa., 249, this headnote epitomizes pertinent portion of tbe opinion of tbe Supreme Court: \u201cA prothonotary complies, substantially, witb tbe directions of tbe Act of assembly of tbe 24th of February, 1806, when, in entering judgment on a bond witb warrant of attorney, upon tbe application of the party, he enters on his docket the names of the obligor and obligee, in the form of an action, as parties, the date of the bond and warrant of attorney, the penal snm, the real debt, the time of entering judgment, and the date of the judgment on the margin of the record.\u201d\nAnd in the case of Whitney v. Hopkins, 135 Pa., 246, 19 A., 1075, Williams, J., writing for the Supreme Court, it is said: \u201cThe prothono-tary of the court of common pleas is merely the clerk of the court. Tie has no authority, virtute officii, to act as the clerk, agent, or attorney of any person ... As an individual, he may be authorized to act for another in the same manner that any other person may be; and, when so authorized, his powers are derived from the instrument under which he acts, and not from his office ... To justify him in acting for suitors, an express authority must be shown, coming either from the person to be affected by his acts, or from an act of the General Assembly. By the Act of 24th February, 1806, it was made the duty of the pro-thonotary of any court of record within the commonwealth, on the application of the holder, to enter judgment on any note, bond, or other instrument of writing in which judgment is confessed by the maker, or which contains a warrant of attorney for an attorney at law or other person to appear and confess judgment thereon.\u201d\nFurthermore, the Supreme Court of Pennsylvania states that, \u201cIt is settled that every judgment entered on a specialty, with warrant of attorney to confess judgment, must follow strictly the authority conferred by the warrant. T-he attorney who executes the warrant cannot change its terms or enlarge its scope.\u201d In re Claghorn\u2019s Estate (Pa.), 31 A., 918.\nMoreover, the rules of the courts of the Nineteenth Judicial District, comprising the County of York, Pennsylvania, adopted 1 December, 1937, provide: \u201cBuie, 146. If a warrant of attorney to enter judgment be above ten years old and under twenty, the Court in term time, or a Judge thereof, in vacation, must be moved for leave to enter judgment, which motion must be grounded on an affidavit setting forth that the money is unpaid and the party living, but if the warrant be above 20 years old, there must be a rule to show cause served upon the party, if he be within the State.\u201d\nWhen tested by these principles the facts shown in the record disclose strict compliance with the requirements for a valid judgment in the State of Pennsylvania. Defendants contend, however, that the record shows that, in the order granting leave to enter judgment, the court vested the plaintiff with authority to enter judgment by confession against defendants. Yet, the order granting leave to plaintiff to have judgment by confession specifies \u201cby virtue of the warrant of attorney in the instrument attached hereto.\u201d And the judgment as entered shows there the prothonotary entered it \u201con note dated March 22, 1918, with warrant of attorney.\u201d Hence, there is no deviation from the strict provision of the warrant set out in the note, which authorizes any prothonotary to confess judgment.\nIt is worthy of note here that the New York Court of Appeals in case of Teel v. Yost (1891), 128 N. Y., 387, 13 L. R. A., 796, 28 N. E., 353, in affirming judgment of New York Court in action upon a judgment confessed in 1878 by the prothonotary of the court of common pleas of Pennsylvania, after quoting from the cases of Helvete v. Rapp, supra, and Commonwealth v. Conard, supra, uses this language: \u201cThese clear and explicit announcements by the highest courts of the State, of the force and effect given to such judgments in that State, are entitled to the highest respect, and cannot, without ignoring the requirements of comity and propriety prevailing among sister states, be disregarded by the courts of other States ...\u201d\nDefendants further contend that there is irregularity in the foreclosure proceeding, and that the land was sold to plaintiff at an unconscionable price. In this connection, it is noted that the levari facias sur mortgage, under which the sale was had, was authorized in a judgment entered by the court of common pleas of York County, and that the land was sold 15 February, 1936, and conveyed 24 February, 1936, by the sheriff to plaintiff. There is no direct evidence as to the insufficiency of the price paid. But, in any event, these are matters collateral and anterior to entry of judgment in question and relate to the merits of the subject matter, as to which inquiry is precluded in suit on such judgment. Miller v. Leach, 95 N. C., 229; Bonnett-Brown Corp. v. Coble, supra.\nHowever, if there were evidence in the record to support the allegation of plaintiff that the sheriff, under the writ of levari facias, sold the land to plaintiff for an unconscionable price, the decisions of the courts of Pennsylvania show that: (1) Where, following a sheriff\u2019s sale, there has been an acknowledgment, delivery and recording of sheriff\u2019s deed, a rule to set aside the sale is, in the absence of fraud, too late. Fenton v. Joki, 294 Pa., 309, 144 A., 136, citing Lengert v. Chaninel, 208 Pa., 229, 57 A., 561, 101 Am. St. R., 931; (2) the \u201cpresumption\u201d as stated in Plummer v. Wilson (Pa.), 185 A., 311, \u201cis that at a public sale the price received is the highest and best obtainable\u201d; (3) mere inadequacy of price, without more, is not a sufficient ground for setting aside a judicial sale, Schekter v. Katler, 95 Pa. Superior Ct., 226; Fenton v. Joki, supra; Plummer v. Wilson, supra; and (4) the setting aside of judicial sales is a subject peculiarly in the discretion of the trial court, and its action will not be reversed except in a clear case of abuse of that discretion, Schekter v. Katler, supra, and cases cited; also Fenton v. Joki, supra. Furthermore, in the case of Plummer v. Wilson, supra, the Court states that the unsupported statement that the value of the property sold is greater than the price received at the sale, does not disclose any fact upon which a court could find either that the sale was not properly conducted, or that the price received was not then the fair market value.\nNow, with regard to motion of defendant, Sarah Edith Garman, for a new trial upon the ground of newly discovered evidence:\nAfter the rendition of the judgment of April Term, 1941, of Granville Superior Court, from which appeal is taken, it appears from copy of proceedings, duly authenticated and attached to the motion for new trial, that on 4 April, 1941, defendant, Sarah Edith Garman, moved in the court of common pleas of York County, Pennsylvania, in the original cause No. 238, in which judgment by confession was entered, for a rule upon plaintiff to show cause why the judgment so entered should not be opened and she be permitted to make a defense, upon the ground that the loan, evidenced by the bond on which judgment was confessed, was made to her husband, and that \u201cpursuant to requirements of the plaintiff\u201d she joined in the execution of the mortgage and mortgage bond, but received none of the proceeds of the loan, and, hence, under sec. 2 of the Act of 8 June, 1893, P. L. 344, 48 P. S., sec. 32, the judgment is void and should be stricken from the record; that on 26 July, 1941, after notice to plaintiff, the rule was made absolute and the judgment opened as to her so that she might \u201cbe let into a defense\u201d; and that, on 11 November, 1941, the matter coming before a jury and the jury having returned a verdict in her favor, the court \u201cordered and decreed on said verdict . . . that said judgment to No. 238, January Term, 1938, as respects Sarah Edith Garman, defendant, be stricken from the record.\u201d\nAgain, we look to pertinent statute and application of it by the courts in the State of Pennsylvania. We find that the statutes of Pennsylvania pertaining to \u201csubstantive rights of married women\u201d provide among other things that \u201cshe may not become an accommodation endorser or maker, guarantor, or surety for another.\u201d Act of 8 June, 1893, P. L. 344, sec. 2. Purdon\u2019s Pa. Statutes, 1936, Title 48, sec. 32.\nThe courts of Pennsylvania hold that a judgment, on a note, admittedly executed by a married woman, having been confessed by attorney under warrant therein contained, is presumed to be valid. Ponevyezh B. & L. Assn. v. Shandelman, Pa., 170 A., 340, and cases cited.\nAt the time of rendition of the judgment in the present action, defendant, Sarah Edith Garman, having admitted the execution of the note on which the judgment in suit was based, the latter stood as a valid judgment against her. Yet, in Pennsylvania, a married woman may move in the cause for order to' open the judgment and to permit her to interpose as defense the presence of circumstances which would relieve her of liability under tbe provisions of tbe Act of 8 June, 1893, supra, Harris v. Reinhard, Pa., 30 A., 510, Ponevyezh B. & L. Assn. v. Shandelman, supra; McKean v. Enburg, 188 A., 835. See, also, Vineland National B. & T. Co. v. Kotok, Pa., 195 A., 750. An order granting sucb permission will not be reversed on appeal. Harris v. Reinhard, supra. And where evidence offered, tbe burden being upon her, is sufficient to show sucb circumstances, an order satisfying tbe judgment will be sustained. McKean v. Enburg, supra.\nTbe original judgment of tbe court of common pleas of York County, Pennsylvania, as to Sarah Edith Garman having been stricken from tbe record after tbe rendition of tbe judgment thereon in this State, it would be manifestly unjust to affirm tbe judgment in this State. Hence, in tbe discretion of tbe Court tbe motion for a new trial as to her is granted. Carson v. Dellinger, 90 N. C., 226; Chrisco v. Yow, 153 N C., 434, 69 S. E., 422.\nAs to defendant Levi S. Garman, judgment is\nAffirmed.\nAs to defendant Sarah Edith Garman,\nNew trial.", "type": "majority", "author": "'W\u2019iNBORNE, J." } ], "attorneys": [ "Parham & Taylor for plaintiff, appellees.", "Irvin B. Watkins and Royster & Royster for defendants, appellants." ], "corrections": "", "head_matter": "THE FEDERAL LAND BANK OF BALTIMORE v. LEVI S. GARMAN and SARAH E. GARMAN.\n(Filed 7 January, 1942.)\n1. Constitutional Law \u00a7 23\u2014\nA judgment by confession entered upon a warrant of attorney in a court of another state in accordance with the laws of such state comes within the protection of the Full Faith and Credit Clause of the Federal Constitution, Art. IV, sec. 1, and must be recognized in this State even though rendered without service of process or appearance other than that pursuant to the warrant itself.\n2. Judgments \u00a7 5 \u2014 Judgment By confession on warrant of attorney held entered by prothonotary in compliance with laws of State of Pennsylvania.\nPlaintiff\u2019s record evidence disclosed that the order granting leave to plaintiff \u201cto enter judgment by confession\u201d specified that it was by virtue of the warrant of attorney and that the judgment was entered by the prothonotary on the note executed by defendants \u201cwith warrant of attorney.\u201d Held: Defendants\u2019 contention that the court vested plaintiff with authority to enter judgment by confession against defendants is untenable, since the record evidence discloses that the judgment was entered by the prothonotary in strict accord with the warrant of attorney and in compliance with the requirements for the rendition of such judgments in the State of Pennsylvania.\n3. Judgments \u00a7 40 \u2014 In suit on deficiency judgment rendered in another state, the validity of the fox\u2019eclosure may not be attacked.\nIn an action instituted in the State of Pennsylvania to recover a deficiency judgment on a mortgage note executed in 1918, judgment by confession was rendered therein upon a warrant of attorney in compliance with its laws. Plaintiff instituted this action here upon the Pennsylvania judgment. Held: The judgment must be given full force and effect under the provision of the Federal Constitution, and defendants\u2019 contention that the foreclosure of the mortgage was irregular and that the land was sold to plaintiff at an unconscionable price cannot be considered, since such contentions are precluded by the deficiency judgment sued on.\n4. Mortgages \u00a7 39f\u2014\nUnder the laws of the State of Pennsylvania, the mere inadequacy of the purchase price at the foreclosure sale of a mortgage does not entitle the mortgagors to upset the foreclosure after the sheriff\u2019s deed to the purchaser has been acknowledged, delivered and recorded.\n5. Judgments \u00a7 40 \u2014 Where foreign judgment sued on has been stricken out in that State as to one defendant, judgment against such defendant may not be obtained thereon in this State.\nThis action was instituted on a deficiency judgment rendered by a court in the State of Pennsylvania. Subsequent to the judgment of our Superior Court in favor of plaintiff, the feme mortgagor had the judgment of the State of Pennsylvania stricken from the record in that state pursuant to its laws permitting a married woman to open up a judgment against her to show that she signed the instrument upon which the judgment is based as surety. Held: It would be manifestly unjust to affirm the judgment against the feme defendant upon a judgment of the State of Pennsylvania which had been stricken out as to her in that state, and the Supreme Court on appeal will grant the feme defendant a new trial.\nAppeal by defendants from Carr, J., at April Term, 1941, of GeaN-ville.\nCivil action to recover on judgment alleged to bave been entered in the Court of Common Pleas of York County, Pennsylvania.\nIt appears uncontroverted that on 22 March, 1918, defendants executed an amortization first mortgage note in the sum of $6,000, payable to the Federal Land Bank of Baltimore \u201con an amortization plan and in accordance with amortization tables provided by the Federal Farm Loan Board\u201d in the manner and form set out. In this note it is provided that \u201cif any default be made in any of such payments, or in case of failure to comply with any of the requirements or covenants contained in the mortgage given by the makers to secure the payment of this note, then at the election of the holder . . . the principal sum hereof and all accrued interest thereon shall at once become due and payable, including a collection fee of five per cent, and costs, and immediately upon such defalcation and maturity I hereby authorize any prothonotary or attorney of any court of record in Pennsylvania or elsewhere to confess judgment against me therefor, with costs of suit, release of errors, and with five per cent additional for collection fees . . .\u201d The note further provides that it is secured by first mortgage of even date therewith on real estate in York County, Pennsylvania. Such mortgage was effected. And though the defendants collaterally attacked the proceedings, the mortgage was foreclosed under order of court and the lands were sold, under writ of levari facias, to plaintiff at the price of $1,000.00, from which costs and expenses were deducted, leaving the net amount of $697 to he credited on the note.\nPlaintiff, in its complaint, alleges that on 17 January, 1938, judgment in its favor, and against defendants, was rendered and duly filed and enrolled in the Court of Common Pleas in and for the County of York, State of Pennsylvania, for $6,538.67, all of which with interest is due and owing to plaintiff by defendants after demand upon them and payment refused.\nEach of defendants in separate answer filed admits demand and refusal to pay, but denies all other material allegations of the complaint.\nDefendants aver as defense that plaintiff knew the addresses of defendants, and of George S. Garman, to whom defendants had deeded land in question on 15 November, 1926, and who had assumed payment of indebtedness to the Land Bank, and had -for a period of several years made regular payments to said bank; that in the foreclosure proceeding there was failure to comply with quoted statute of the State of Pennsylvania as to service of scire facias sur mortgage; that, notwithstanding, no service of the scire facias sur mortgage was made upon these defendants or George S. Garman, the sheriff proceeded with the foreclosure of said land, and on 13 February, 1936, on a writ of levari facias sold said land to plaintiff for the unconscionable sum of $1,000.00 and conveyed same to him by deed dated 24 February, 1936, which sale the defendants upon information aver \u201cTo be unlawful, invalid, and a fraud\u201d upon them, and \u201chence void and of no effect,\u201d and', therefore, no deficiency judgment could he established or sustained upon which to base judgment; and that in the proceeding for deficiency judgment there is failure to comply with the authority given in the note in that no prothonotary or attorney of any court of record therein authorized to confess judgment has done so, and, hence, judgment entered constitutes a fraud on rights of defendants. Defendant Sarah Edith Garman avers that the judgment sued on in this action is invalid as to her for that she, a married woman, signed the note on which the judgment was obtained as an accommodation maker thereof, or surety for her husband, and without receiving before or at the time any value or consideration therefor.\nIn the trial court plaintiff offered in evidence: (1) An exemplified copy from the records and proceedings enrolled in the Court of Common Pleas in and for the County of York, State of Pennsylvania, No. 238, January Term, 1938, under caption \u201cThe Federal Land Bank of Baltimore v. Levi S. Garman and Sarah Edith Garman, his wife,\u201d (a) of the amortization first mortgage note dated 22 March, 1918, signed by defendants herein payable to the plaintiff herein for $6,000 hereinabove described, and containing the provisions hereinabove set forth, with notation \u201cmortgage foreclosed 12-7-35, see suit of the Federal Land Bank of Baltimore v. Levi S. Garman,\u201d and on back of note endorsement of dates and amounts of payments; (b) of affidavit of treasurer of, and on behalf of Federal Land Bank of Baltimore, filed and entered 17 January, 1938, in said action No. 238 above described, in which it is set forth \u201cthat the attached amortization first mortgage note, containing a warrant of attorney to confess judgment was duly executed and delivered by Levi S. Garman and Sarah Edith Garman, whose names are signed thereto; that the mortgage given as security for the aforementioned amortization first mortgage has been foreclosed, and it is now the desire of the Federal Land Bank of Baltimore to enter judgment by confession against Levi S. Garman and Sarah Edith Garman, by the virtue of the power of attorney in said note, in order to collect a deficiency of $6,538.67, now due and payable according to law\u201d; \u201cthat the amount of said deficiency has been computed according to law as follows : . . . (itemized \u2014 including credit of net proceeds of sale of land) ; and that the debtors are, at the present time, still living\u201d; (c) of an order signed by President-Judge reading as follows: \u201cAnd now, January 17, 1938, upon motion of J. T. Atkins, attorney for the plaintiff, the court grants leave to the plaintiff to enter judgment by confession in the sum of Six Thousand Five Hundred Thirty Eight Dollars and Sixty Seven Cents ($6,538.67), the amount set forth in the foregoing affidavit in favor of the Federal Land Bank of Baltimore and against Levi S. Garman and Sarah Edith Garman, his wife, by virtue of the warrant of attorney in the instrument attached hereto\u201d; (d) of entry of \u201cjudgment in favor of the plaintiff for the sum of Six Thousand Five Hundred Thirty Eight Dollars and Sixty Seven Cents ($6,538.67) debt on note dated March 22, 1918, with warrant of attorney payable as conditioned in said note with cost of suit, release of errors, exemption, inquisition, condemnation, stay of execution and right of appeal waived with five per cent collection fees. Filed and entered January 17, 1938. Harry P. Peeling, Prothonotary\u201d; and (e) of judgment cross index entries. Exception. (2) Purdon\u2019s Pennsylvania Statutes, Civil & Eq. Eem. &\u25a0 Procedure 12, Section 739, pertaining to entry of judgments by confession under warrant of attorney. (3) Eule 146 of the Eules of the Court of Common Pleas of York County, Pennsylvania, requiring leave of court to be obtained to enter judgment when the warrant of attorney is' ten years old and under twenty. Exception.\nOn the other hand, on the trial below defendants testified to the effect: That they, who on' 22 March, 1918, were residing and have since resided in Oxford, Granville County, North Carolina, defendant Sarah Edith Garman never having resided in the State of Pennsylvania, received no notice (1) of any proceeding for the foreclosure in Pennsylvania of the mortgage executed by them on 22 March, 1918, to the Federal Land Bank of Baltimore as security for note of $6,000 payable to said bank, or (2) of any suit in courts of Pennsylvania against them in 1938, or at any other time, to recover of them any amount alleged to be due on the said note; and that defendant Sarah Edith Garman owned no interest in the land conveyed by the mortgage given to the bank, and, derived no benefit from the borrowed money secured thereby.\nDefendant further offered exemplified copy, from the records of proceedings in the Court of Common Pleas, York County, Pennsylvania, in an action No. 105, entitled \u201cThe Federal Land Bank of Baltimore v. Levi S. Garman and Sarah Edith Garman, his wife, original mortgagors, George S. Garman and Carrie M. Garman, real owners,\u201d January Term, 1936, (1) of affidavit of assistant treasurer of, and on behalf of Federal Land Bank of Baltimore, filed in prothonotary\u2019s office, 18 December, 1935, in which it is set forth that said bank is mortgagee and obligee in a certain mortgage and amortization note, dated 22 March, 1918, executed, acknowledged, and delivered by Levi S. Garman and Sarah Edith Garman, his wife, as original mortgagors and obligors to the Federal Land Bank of Baltimore to secure the payment of Six Thousand ($6,000) Dollars on a tract ... of land in York County . . .; the balance due ... on account of the said mortgage deed . . . (itemized-totalling) \u201c$6,270.06; that the whole of the said debt has been \u2022declared due and payable by reason of default of mortgagors or obligors and their heirs and assigns, in payment of . . . (installments 1931-1935 listed), in failing to pay the taxes on the mortgaged premises for 1934-1935, and in failing to maintain insurance on the mortgaged premises as required by the terms and conditions of the aforesaid mortgage and of the note secured thereby . . that the affiant has been unable \u201cto ascertain that there are any other persons interested in said real estate except those above mentioned, and, . . . and that the real owners are George S. Garman and Carrie M. Garman, his wife, Reisterstown, Maryland\u201d; (2) of praecipe by attorney for the Land Bank for \u201cwrit of scire facias returnable the first Monday of January, 1936, sur mortgage given by Levi S. Garman and Sarah Edith Garman, his wife, to the Federal Land Bank of Baltimore, dated March 22, 1918,\u201d copy of which is attached, and alleging facts substantially as set forth in the last foregoing affidavit, and that \u201cplaintiff further avers that the said Levi S. Garman and Sarah Edith Garman, his v?ife, by their deed dated November 15, 1926, . . . sold and conveyed the said property to George S. Garman and Carrie M. Garman, who are the present owners of said land, who have continued the defaults hereinbefore declared\u201d; (3) of scire facias sur mortgage, dated 18 December, 1935, commanding the sheriff to \u201cmake known to the said Levi S. Garman and Sarah Edith Garman, his wife, original mortgagors, and George S. Garman and Carrie M. Garman, real owners, that they\u201d appear before \u201cour Judges at York, at our Court of Common Pleas ... on the first Monday of January, A.D. 1936, ... to show . . . why the said premises . . . should not be seized and taken in execution, and sold to satisfy the debt and interest aforesaid . . .,\u201d to which as to said original mortgagors and said real owners the sheriff shows \u201cmy return is nihil h\u00e1bet\u201d; (4) of judgment of P. J. at January Term (13 January), 1936, in which after reciting service of writ of scire facias sur mortgage upon tenant in possession of property, and return of sheriff \"nihil h\u00e1bet\u201d as above stated, and that no appearance has been entered and no affidavit of defense filed, judgment by default upon motion therefor was entered in said action in favor of the plaintiff and against the defendants \u201cfor want of an appearance and for want of an affidavit of defense\u201d in the sum of $6,270.06, and attorney\u2019s fee and commissions, and \u201cthe court orders that the plaintiff shall have execution by the levari facias directed to the proper officer\u201d; (5) of levari facias issued 14 January, 1936, in the name of President-Judge by Prothonotary to sheriff of York County; and (6) of answer of sheriff on levari facias showing sale of real estate 15 February, 1936, to the Federal Land Bank of Baltimore for $1,000, from which cost amounting to $303 is deducted, leaving a net of $697.\nUpon evidence so offered by plaintiff and by defendants the court submitted this issue: \u201cIn what amount, if any, are defendants, Levi S. Garman and Sarah E. Garman, indebted to the plaintiffs ?\u201d\nThe court charged in substance that if the plaintiff has satisfied the jury by the greater weight of the evidence, the burden being upon the plaintiff, that tbe judgment, referred to on tbe exemplified copy of tbe certified record from tbe Court of Common Pleas of tbe County of York, Pennsylvania, was rendered in said court on 17 January, 1938, then it would be tbe duty of tbe jury to answer tbe issue $6,538.67, with interest thereon from 17 January, 1938, until paid. In accordance therewith tbe jury returned verdict.\nFrom judgment thereon defendants appeal to tbe Supreme Court and assign error.\nPending appeal, defendants file motion for new trial on account of newly discovered evidence.\nParham & Taylor for plaintiff, appellees.\nIrvin B. Watkins and Royster & Royster for defendants, appellants." }, "file_name": "0585-01", "first_page_order": 629, "last_page_order": 640 }