77 Pa. 151 | Pa. | 1874
Judgment was entered in the Supreme Court,
A mortgagee of an undivided estate is not entitled to be made a party to a proceeding in partition. He is not the owner of the estate, but a mere encumbrancer, who cannot claim
The argument as to the supposed contrariety of decision upon the nature of a mortgagee’s interest is unfounded, and results from not discriminating between the questions considered in the cases. A mortgage in form is a deed or conveyance of real estate, and is required to be recorded as other deeds are, Hence in all questions upon the recording acts, the mortgage is spoken of as a conveyance of land, the law having placed deeds absolute and defeasible on the same footing in many respects. So when the questions relate to remedies which follow the form of the transaction, such as ejectment, estrepement, perception of profits, &c., the cases also treat of the subject as an estate in the land, this being its form and the remedies being in acdord with the form. But when the’ questions have related to the real nature of the mortgagee’s interest, it is always held to be personal, and to go to the personal representative and not to descend to the heir. This was a mere personal security for a debt, or other thing. On the death of the mortgagee his administrator could not be made tenant to the praecipe in a writ of partition, or a party to a proceeding in the Orphans’ Court.
We discover no error in the decree of the Orphans’ Court. It is therefore affirmed, with costs to be paid by the appellant, and the appeal is dismissed.