162 A. 328 | Pa. Super. Ct. | 1932
Argued April 18, 1932. The questions presented to us arose on distribution of the proceeds of a sheriff's sale of real estate and involve a question of priority as between a mortgage and judgments, indexed, in the case of the mortgage, "Catharine E. Miller," and in the case of the judgments, "Catharine E. Miller, alias dictus Kate E. Miller."
The facts are not in dispute and for the most part were found by the auditor. Henry Stroble devised to his daughter a farm in Westmoreland County, and the pertinent part of the will is as follows: "I hereby give, devise and bequeath my farm in Hempfield Township, Westmoreland County, Pennsylvania ...... containing one hundred acres, more or less, to my daughter Kate E. Miller, her heirs and assigns forever, this being the farm on which she now resides." On June 24, 1927, a mortgage on this farm, dated May 1, 1927, in favor of the Ohio-Pennsylvania Stock Land Bank of Cleveland, the appellant, signed "Catharine E. Miller" and "Jonas P. Miller" (her husband), was acknowledged and recorded. The mortgage contained the following recital: "Being the same tract of land title to which became vested in Catharine (Kate) E. Miller, by last will and testament of her father, Henry Stroble, deceased, said will being recorded in the register's office of Westmoreland County, Pa., in will book, No. 23, page 367." It was indexed under the name "Catharine E. Miller," no reference being made in the index to "Kate E. Miller." On December 9, 1930, judgment was entered on the bond, which the mortgage was given to secure, the defendant in the judgment being named as "Catharine E. Miller, alias dictus Kate E. Miller." On January 10, 1927, prior to the recording of the mortgage, a judgment was entered in *242 favor of J.H. Cook and against "Catharine E. Miller, alias dictus Kate E. Miller." After the recording of the mortgage and before the entry of the bond which accompanied the mortgage, three additional judgments were entered in all of which the defendant was designated as "Catharine E. (or Catharine Elizabeth) Miller, alias dictus Kate E. Miller," and the judgments were indexed under both names.
A fi. fa. was issued on the bond accompanying the mortgage, sale was made to appellant, and an auditor appointed to make distribution of the proceeds. Claim for taxes was made and it is conceded that these taxes and the Cook judgment have first claim upon the fund. The controversy is between the owner of the mortgage and the owners of the three judgments. The auditor awarded the balance to the mortgagee and the lower court sustained exceptions to this award and appropriated the fund first to the payment of the three judgments entered after the mortgage was recorded and a small balance to the mortgage.
It appeared by the undisputed evidence that Catharine E. Miller and Kate E. Miller are one and the same person; that "Catharine E. Miller" was the correct name of the obligor; that she was baptized "Catharine" and after her marriage, many years before, always wrote her name in that way and was so known in the community in which she lived; but that she was familiarly called "Kate E. Miller" by her father and brothers. The appellees claim that the indexing of the mortgage under the name "Catharine E. Miller" and the failure to note the alias dictus "Kate E. Miller" on the mortgage index caused the lien of the mortgage to be postponed to the liens of the judgments.
We are unable to agree with the contention of the appellant that because a judgment creditor prior to June 12, 1931, was not entitled to the protection of the recording acts as against an unrecorded conveyance, *243
delivered before the judgment was entered (Beman Thomas Co. v. White,
We cannot agree with the position of the appellees that the question is to be considered as one involving the rights of bidders or a purchaser at a sheriff's sale. The case of Penna. Co. for Ins. v. Halpern,
The only question involved is one of notice and arises out of the manner in which the obligations were signed and indexed. As is pointed out by the lower court, the Act of March 18, 1875, P.L. 32, made defective indexing fatal to a mortgage as against subsequent purchasers and mortgagees, the same as defective recording. See Prouty v. Marshall,
The auditor has found as matters of fact that the judgment creditors had actual knowledge that Catharine E. Miller and Kate E. Miller were one and the same person, — that is, that they had actual notice of this state of facts; consequently, an examination of the indexes in light of this knowledge would have disclosed the mortgage. The index constitutes constructive notice of the existence of the mortgage and they are bound by it. The appellant is entitled to the balance of the fund after payment of the taxes and the Cook judgment.
The order of the lower court is reversed at the cost of the appellees and distribution is directed to be made in accordance with this opinion.