13 Pa. 405 | Pa. | 1850
The opinion of the court was delivered by
The whole tract of land, for part of which the ejectment is brought, was mortgaged, on the 1st of April, 1832, by Christian Snyder, (who was then the legal owner,) to John Piper and John Snyder, administrators of John Snyder, deceased, for $5,087 83, conditioned for the payment of $2,543 91J, in two equal annual payments. The mortgage was assigned to Daniel Replogle, the present plaintiff, by the surviving mortgagee, for the consideration of the whole amount then due. There is yet due on the mortgage, $1,569 05.
By the assignment, the legal title of the mortgaged premises became vested in the plaintiff, and a part of the purchase money remains unpaid, there.is nothing in the way to prevent the plaintiff from recovering the possession, to be retained by him until paid the debt, interest and costs remaining due. That the mortgagee has a right to recover possession immediately on the execution of the mortgage, results from the nature of the instrument itself. A mortgage is the absolute conveyance of the mortgaged premises, to be defeated only on payment of the money at the day stipulated by the parties. Unless there is an agreement to the contrary, the mortgagee.has a right to the immediate possession. Thus, in Keech vs. Hall, Doug. 22, it is ruled that the mortgagor is liable to eviction by the mortgagee, without any notice whatever, unless protected by the agreement for quiet possession until default. , ■
In Smith and another, executors, vs. Shuler, 12 S. & R. 240, Tilghman C. J., says: “Why may not the mortgagee recover the land in ejectment? He has a perfect legal estate, which is all that is necessary to support the action.” The right to recover the mortgaged premises is recognized in McCall vs. Lenox, 9 S. & R. 304; 1 Bin. 177; 16 S. & M. 245-51.
The same principle is ruled in Nailer and Stanley, 10 S. & R. 450, and in the more recent case, Cowden’s Estate, 1 Barr, 269; Mevey’s Appeal, 4 Barr, 80. Mr. Justice Kennedy, in Cowden’s Appeal, referring to Clowes vs. Dickinson, says the reasoning of Chancellor Kent is not only satisfactory, but unanswerable. This principle is so firmly established, that it cannot now be considered an open question. No difference is perceived between a judgment that is a general lien, and a mortgage which is specific.
Judgment affirmed.