5 Binn. 585 | Pa. | 1813
The plaintiff had a mortgage on a lot of ground, the property of the defendant, oar which was erected a wooden house. The mortgage was regularly acknowledged and recorded, after which the defendant pulled down the wooden building, and erected a brick one. The different mechanics wjho furnished the materials, and did the work, of the brick building, claim a lien on it in preference to the plaintiff’s mortgage, by virtue of the act of the 11th of March 1806. By that act it is enacted, that “ all buildings “ thereafter erected within the city and county of Philadeluphia, shall be subject to the payment of the debts contract- “ ed for or by reason of any work done or materials found “ and provided by any brickmaker, bricklayer &c. &c. before “ any other lien which originated subsequent to the commence-ument of the said building.” At the first reading of this clause, it seems a very plain provision, that the lien of the workmen &c. shall be preferred to mortgages, judgments &c. given by or obtained against the proprietor of the house, after the commencement of the building. But by an argument which appears to me too refined, it is contended that mortgages &c. prior to the commencement of the building, may be said according to the intent of this act, to originate subsequent to the commencement of the building, so far as respects their lien on the building; and the argument is simply this, that it is impossible to have a lien on a thing not in existence, and therefore a mortgage cannot be a lien on a building before it is erected. In answer to this, it is to be considered that a mortgage is a legal conveyance of the land itself, and of course the mortgagee has the legal title as long as the mortgage is in force, to the land and every building erected
' But there is another question in this cause. Supposing the plaintiff’s mortgage to have the preference, shall it be preferred to the amount of his whole demand? The mortgage appears by an indorsement on it, to have been intended as a security to the plaintiff, for notes drawn or to be drawn by the plaintiff and by Lyle and Newman, in favour of the defendant, and for his use and accommodation, to the amount of 9000 dollars. These notes were to be renewed, from time to time by the plaintiff for twelve months, when they were to be taken up by the defendant with his own funds. By another indorsement on the mortgage, subsequent to the commencement of the brick building, it was agreed between plaintiff and defendant, at the request of the defendant and for his convenience, that instead of Lyle or Lyle and Nexvman being the drawers of all the notes, some of them might be drawn by the defendant and indorsed by the plaintiff or by Lyle and Nexvman, but the whole amount was still limited to 9000 dollars. It is said that this was a departure from the original agreement, and therefore the mortgage lost its force as to all the indorsed notes. I cannot think so. The parties to the mortgage had a right to alter the agreement as they pleased, and so far as they were concerned, there cannot be a particle of doubt. With respect to third persons, the mortgage could not be altered to their prejudice; but I do not consider this as an alteration to their prejudice. It is perfectly immaterial to them, whether notes to the amount of 9000 dollars were drawn or indorsed by James Lyle and Lyle and Newman. The object was to raise 9000 dollars for the defendant on their credit, and this sum would have been raised by drawing, if it had not been done by indorsing. The drawing or indorsing was but the form; the raising of 9000 dollars, and an indemnity to that amount
I have not a particle of doubt as to the mortgage executed by the defendant to the plaintiff on the 21st of February 1811, duly acknowledged and entered upon record on the 28th of the same month, that it operated as an incumbrance on the lot of ground, and frame house thereon from the time of its execution, according to the true intent and meaning of the parties at that period, although no money was actually paid until after the month of November following. It took effect by way of indemnity, and notes were furnished to the mortgagor, upon a reliance on its security. I have known several instances of mortgages given to indemnify sureties, and never heard their legal operation questioned before on this score.
The equity of redemption on the face of the mortgage, rests on the payment of 9000 dollars on demand to Lyle. But by an indorsement thereon signed by all the parties, and bearing equal date therewith, it is stated “ that the “ bond and mortgage recited therein had been given to se- “ cure Lyle and Newman and James Lyle against any in- “ convenience or damage he or they might sustain, by rea- “ son of divers promissory notes already drawn by the said “ Lyle and Newman, and of other notes about to be drawn “ by James Lyle in favour of Ducomb, to the amount of “ 9000 dollars, all of which notes , have been or are about to “ be drawn for the use and accommodation of, and lent to “ Ducomb, and which notes Lyle thereby promised,to renew “ from time to time as they might become due, and so to
By another indorsement on the mortgage likewise signed by all the parties, bearing date the 5th of September 1811, it is recited that “ whereas it appeared by the declaration of “ Ducomb, that in some cases it would be most convenient “ for him to have the indorsements of Lyle and Newman and “ of James Lyle on notes drawn by Ducomb, instead of notes “ to be drawn by them or either of them, as was mentioned “in the first agreement, and Lyle and Newman and James “ Lyle were willing so to accommodate Ducomb: It was “ agreed, that the bond within recited, and the within mort- “ gage, should be held not only to indemnify James Lyle “ and Lyle and Newman from such notes of which they “ might be drawers as before mentioned, but also in like “ manner to indemnify them against any inconvenience or damage they or either of them might sustain by reason of “ any indorsements lent or to be lent as abovementioned; “and that the said Lyle and Newman and James Lyle “might have the same advantages and benefits for the reco- “ very of any money they might be compelled to pay as in- “ dorsers, as by the first agreement they might be compelled “to pay as drawers of notes; and that generally the above “ agreement and every thing therein contained, should ex- “ tend to such indorsements as they might give, in as full “ and ample manner as if they had been notes drawn by “ them or either of them.”
I have been minute in my extracts from these two agreements. I shall hereafter more particularly consider the light in which I view their influence upon the questions before the Court.
In opposition to the claim of the mortgagee to take out of Court the money raised by the sheriff, it has been contended that the mortgage having been given subsequent to the 17th of March 1806, when a law was enacted conferring a lien on dwelling houses and other buildings thereafter to be
We are now called upon to construe this law upon general principles, and to declare what effect it ought to have. It makes no distinction between the operation of liens prior or posterior to the passing of the act; and yet it is certain, that if the doctrine contended for is applied to incumbrances done or suffered previous to the t7th aiMarch 1806, it would impair the obligation of a preceding contract. Erections made on lands which have been mortgaged, operate as a further security to the mortgagee, for cujus est solum, ejus est usque ad caelum. It cannot be asserted with any shadow of reason, that, a mortgagee shall be placed at the mercy of a mortgagor; that ;he latter may prostrate what erections are on the ground, and build up others at his sole will and pleasure, which might diminish the security of the former upon a sheriff’s sale, if they are to be paid for out of the proceeds ©f the sheriff’s sale.' The mortgagor might thus cover the
I regard the indenture of mortgage, and the indorsement on it bearing equal date therewith, as one act, in the same manner as if they had been incorporated in the same instrument. They show the intention of the parties accurately and precisely defined at the moment. The mortgage was expressly declared to be an indemnity against divers promissory notes drawn by Lyle and Nexvman, and of other notes about Jo be drawn by James Lyle in favour of Dücomb, to the amount of 9000 dollars. To the amount of the notes thus drawn and taken up by them, the mortgage takes effect from the date of the 21st of February 1811, but no further as between the litigant parties. Above six months after, viz. the 5th of September 1811, a new agreement was entered into, whereby it was declared, that the indemnity of the mortgage should extend to indorsed notes in order to meet
It has been urged on the part of the mortgagee, that the spirit of the contract was an indemnity against notes lent or indorsed for the accommodation of Ducomb; and that third persons have no right to object that the notes were indorsed by James Lyle or Lyle and Newman, instead of being drawn, by them or either of them. The same substantial benefit was conferred on Ducomb in either mode.
True: as between the original parties, the whole transaction is perfectly right and fair. But how far it should affect third persons, now becomes the point of inquiry. That the mortgage was meant as an indemnity, there can be no question; but it must be limited and governed by the agreement of the parties. To warrant a recovery upon it, there must have-been a damnification within the precise terms of the contract. If those original terms have been enlarged to the injury of other lien creditors, those creditors have a right to make objections. I will exemplify my system of reasoning by putting a few instances. It would be of no moment to a mortgagor, whether the consideration money of the mortgage was grounded on the delivery to him of meal or of malt, or of his individual debts due to other persons for such articles advanced and paid by the mortgagee. But if a mortgage is given to indemnify a person against an advancement of money for debts due for meal, it will not be construed an indemnity to the mortgagee for monies paid by him for debts due for malt. So in the principal case, if James Lyle or Lyle
Upon the whole matter I am of opinion, that the plaintiff is, intitled to a preference as to receiving the proceeds of sales to the amount of the notes drawn by himself or by Lyle and Newman, and taken up by them in pursuance of the mortgage, but no further.
Judgment that the money be paid to the plaintiff.