14 Pa. 380 | Pa. | 1850
The opinion of the court was delivered by
— The leading question made by the plaintiff in error is, whether a mortgagee who. purchases the mortgaged premises, under a younger judgment, for a sum not exceeding the amount secured by the mortgage, is entitled to pay the purchase-money by entering satisfaction upon the mortgage. As preliminary, a grave doubt has been suggested whether such an inquiry can be entertained in this action, founded, as it is, upon the total failure of the purchaser to comply with the conditions of sale ? The allegation is that he wholly refused to abide by his contract; and there is no evidence that, at any time, he offered to do so, or any thing equivalent to it. It is said that had he wished to ascertain his rights and liabilities as purchasing mortagee, the proper course would have been to pay the purchase-money into court, followed by an application to take it out in satisfaction of his mortgage, or possibly, by instituting a proceeding under the act of 20th April, 1846, relative to lien creditors becoming purchasers at sheriffs’ sales. But instead of thus recognising and insisting on his purchase, the mortgagee repudiated and disclaimed it, in direct violation of his covenant, the stipulated penalty of which was a resale at his risk. How, then, it is asked, can the mortgagee, in this action to enforce the penalty, set up the existence of the mortgage as a defence even under an admission of his right to apply it in satisfaction, had the offer been properly made? I confess this query struck me as one difficult to answer, when it was first presented, and I am not yet satisfied that it rests on mistaken ground. Perhaps it might be answered that the risk to be hazarded by the mortgagee depends simply upon the contingency of a sum being bid, at the second sale, less than the amount of the mortgage; a contingency which has not happened in this instance, and consequently no damages have been suffered beyond the costs of the last sale. But I will not pause upon this proposition, since, under the view we take of this part of the defence, it is unnecessary to decide it. To avoid all merely technical difficulties, we prefer to rest the decision of the point upon a total denial of the assumed right of the mortgagee. Such a creditor, purchasing the mortgaged lands generally, and without any previous stipulation, stands in no more favorable position in relation to the subject of the sale than a stranger to it. I will not say that a mortgagee may not, with the assent of the sheriff, and under a distinctly ascertained stipu
The other specifications of error have not been insisted on. Indeed, those which have been considered cover all there is of substance in the defence.
Judgment affirmed.