Boyer v. Webber, 22 Pa. Super. 35

Boyer v. Webber

22 Pa. Super. 35 | Pa. Super. Ct. | 1903

Opinion by

William W. Pouter,

The plaintiff, Jonathan Boyer, accepted from the executors of his father’s will in part payment of a distributive share of the estate, a bond and mortgage for $1,450, given to the decedent by Joseph M. Webber. Subsequently, interest was from time to time paid by the mortgagor. Upon default occurring, Boyer entered up the bond, issued execution against the land covered by the mortgage, and bought the property in at sheriff’s sale. At the sale a notice was given on behalf of Elizabeth Webber (wife of the mortgagor), to the effect that, when the loan was originally made to Joseph M. Webber, the party “ loaning on the bond and mortgage by virtue of which security, the property is this day being sold,” knew that she, Elizabeth Webber, owned the property, and by the same notice she warned bidders and claimed title. .Under a local act an issue was framed between Boyer and the Webbers, pursuant to the claim of title, which issue took substantially the form of an action of ejectment.- The trial of this action is here for review. The court below directed a verdict for the plaintiff in a charge containing a review of the facts and some discussion of the law bearing upon them.

The plaintiff offered in evidence the deeds by which Joseph M. Webber acquired title ; the bond under which the sale to *43the plaintiff took place, and the accompanying mortgage. He offered also the record of the judgment on the bond and the assignment of the bond and mortgage to the plaintiff, together with the sheriff’s deed duly acknowledged in open court and entered of record. He proved also possession in Joseph Webber at the time of the sale, and rested.

The defendants offered evidence showing that when Webber acquired title to the lands covered by the bond and mortgage held by the plaintiff, the cash purchase moneys were in large part furnished by the wife, out of her separate estate; that title was, against her wishes, taken in the name of her husband; that she knew of his borrowing the amount of the bond and mortgage in order to complete the purchase of one part of the property and that she never asserted title until the giving of the notice above referred to at the sheriff’s sale.

When the plaintiff took the assignment of the bond and mortgage from the executors of his father’s will in part payment of his distributive share, he became a purchaser of the bond and mortgage for value. The release of his claims upon the estate, on receipt of the bond and mortgage and $50.00 in cash, was a valid consideration and made him a purchaser with the same effect as if he had received his distributive share in cash and had with tbe money, bought the bond and mortgage from the executors. The claim of the defendant that the plaintiff took the bond and mortgage as a gift without consideration, is without merit, since there was no pretense that there was any specific bequest or gift of them. Equally without value is the contention that the absence of proof of the sheriff’s return of the writ under which the property was sold, invalidates the plaintiff’s title. The record shows that a sale was held, that a deed was acknowledged to the plaintiff in open court, and duly entered in the sheriff’s deed book. These facts constitute a sufficient record of a return: Hinds v. Scott, 11 Pa. 19; Gibson v. Winslow, 38 Pa. 49; Cock v. Thornton, 108 Pa. 637.

Another claim of the appellants is that in order to show title in the mortgagor, the plaintiff was permitted to prove that the lands had been, over an extended period, assessed in the name of the mortgagor. The case of Miller v. Baker, 160 Pa. 172, justifies the introduction of such proof.

*44This brings us to the last question in the case. The title claimed by Elizabeth Webber is founded in a secret equity. She was no party to the record title. She permitted the title to the lands mortgaged to be taken in the name of her husband and, until the notice given at the sheriff’s sale, slept on any rights she may have had. There is no evidence that the present plaintiff, when he took the assignment from the executors of his father’s will, knew of any claim by Mrs. Webber of title to the property covered by the mortgage. There is some evidence showing that the plaintiff’s father, the mortgagee, had some knowledge of the alleged fact that Mrs. Webber’s money had gone into the property covered by the mortgage given by Joseph M. Webber, in whose name' the title stood. Such knowledge as the mortgagee may have had, is not brought home to the assignee, the present plaintiff. It is often and rightly said that an assignee of a mortgage tabes it, subject to all of the equities of the mortgagor. He does not however take it subject to latent equities in third persons. The reason for this is shown in Mott v. Clark, 9 Pa. 399, followed in Wethrill’s Appeal, 3 Grant, 281. See also Pryor v. Wood, 31 Pa. 142; Sweetzer v. Atterbury, 100 Pa. 18; McConnell v. Wenrich, 16 Pa. 365. If the sale in this case had been under the mortgage and not under the bond the cases just cited would, beyond peradventure, sustain the action of the court below in directing a verdict in favor of the plaintiff.

It is however, argued that the sale by virtue of which the plaintiff took title was not made under the mortgage but under a judgment'on the bond ; that the purchaser took only such title as had the obligor; that the bond was not entered up and made a lien until immediately preceding the sheriff’s sale; and that the sheriff’s vendee took with notice that the defendant in the judgment had no title, but that Mrs. Webber herself, was the real owner'. This point is pressed bard. It has a superficial plausibility. But it overlooks the relation which exists between a bond and mortgage given for the same debt.

While the lien of a judgment ordinarily runs only from its date, yet if it is founded on a statutory lien or mortgage debt, its lien relates back to the date of the lien of the claim or mortgage by which it is secured. Where the bond upon which the judgment is entered is shown to have been accompanied by a *45mortgage, it is notice that the lien of the judgment relates back to the lien of the mortgage : DeWitt’s Appeal, 76 Pa. 283, and cases cited.

In the case before us we have not been furnished with a copy of the bond. We have a copy of the mortgage, which recites the terms of the bond which appear to refer to an accompanying mortgage. Furthermore in the notice given by the defendant at the sheriff’s sale, the proceeding is referred to by her as a sale by virtue of a “ bond and mortgage.” The whole of the evidence shows that all parties knew that the bond and the mortgage were contemporaneously given and for the same loan.

The plaintiff as purchaser at the sheriff’s sale, took title under a judgment whose lien related back to the lien of the mortgage. His title was, in respect to attack by holders of secret equities, as secure as if the sale had been under a judgment upon the mortgage itself.

The course taken by the court below in directing a verdict for the plaintiff was correct and the judgment entered is therefore affirmed.