2 Rawle 166 | Pa. | 1828
The opinion of the court was delivered by
— This was a Scire Facias on a mortgage, sued by Sophia Ersick against Fiches, the mortgagor, and. the other defendants, terretenants. Fiches appeared, and confessed judgment. The two defendants appeared, and pleaded, that they had purchased the land sold by the sheriff of Mams county on an execution on certain judgments against Fiches, and paid their money, and held the land clear of all encumbrances.
The plaintiff was permitted to prove certain conversations which took place at a time previous to the sale, when this land was up for sale; and also, some talk among the bidders at the sale, from which it might be inferred, the defendants thought, or suspected, they were buying, subject to this mortgage. And the defendants
The associate judges overruled the opinion of the President, and directed the jury they might find for the plaintiff. Now the instalment sued for was due some months before the sheriff’s sale, and most clearly was no lien; but further, the act of assembly is express, that a Scire Facias on the mortgage, shall only issue after one year from the time the money is due on the mortgage. Here, the mortgage for two hundred and fifty pounds was to secure to S. Er-sick fourteen pounds nineteen shillings and four pence per year, during her life. It never has been supposed, a mortgage can be sued as each instalment falls due. The suit by Scire Facias puts an end to the security, and sells the whole estate. But Mrs. Ersick was not without a remedy; she might sue on the bond which accompanied the mortgage; or she might have brought ejectment, and, if her mortgage was still a lien, recover, and hold possession to pay herself. There was, then, error in saying the Scire Facias could be supported at all.
A matter was discussed, which does not appear on the record; viz. Whether this encumbrance, being a mortgage to secure a certain sum annually to Mrs. Ersick, during her life, was not necessarily a lien, subject to which the land must be sold, and continue during her life. On this subject the court give no opinion; for myself, I have one. The policy of our laws, and the welfare of debtors and creditors, require, that sales should be untrammelled. In England, the judges have been astute to get clear even of acts
Judgment reversed.