273 Pa. 451 | Pa. | 1922
Opinion by
Harry L. Halpern became the owner of a tract of land in 1906, and his deed was duly recorded. Subsequently, he executed three mortgages, using the name as set forth in the prior conveyance, — in 1910 to the American Bank, in December of 1915, to the present plaintiff, the Penna. Co. for Insurances on Lives & Granting Annuities, and in
A scire facias was subsequently sued out by plaintiff to enforce the provisions of the mortgage given by Harry L. Halpern. The right to collect thereon was denied in the affidavit of defense filed, and the supplement thereto, it being contended that the lien was discharged by the judicial sale, in view of the fact that it was preceded, as appeared of record, by the judgment against Harry Halpern, who in reality was the the same person as Harry L., of which fact, it is averred, plaintiff had both constructive and actual notice when the mortgage was taken. Judgment for want of a sufficient affidavit of defense was refused; from the order so made this appeal is taken.
When plaintiff agreed to loan to Harry L. Halpern, the registered owner of the property, it was bound to take cognizance of such matters of record as would affect its lien. At that time, no judgment appeared against him, — except the one released before the transaction was consummated, — and a mortgage, with which plaintiff was not concerned, since it was to be paid from the proceeds of the loan, and marked satisfied, which was actually done. Defendant insists, however, that the latter document should have been examined, notwithstanding the arrangement for its removal as a lien, and had this
The mortgagee was bound by the record of the enforceable liens, but there was no requirement that it read an instrument which was to be satisfied from the proceeds, before it concluded the arrangement for the loan, and which was in fact, before that time, so marked on the index. “Implied or constructive notice is only effectual to charge a purchaser or mortgagee when the circumstances are of such a character that a failure to obtain the knowledge would be gross and culpable negligence.” Appeal of Phillipsburg Savings Bank, 10 W. N. C. 265. The record of a canceled instrument furnishes no constructive notice of its contents: 27 Cyc. 1205. In the present instance, it cannot be said the plaintiff was negligent in failing to examine a mortgage, the satisfaction of which was required before the new instrument was accepted. The statement appearing in the former, indicating that Harry L. Halpern was otherwise known as Harry, was not, under the circumstances, a fact of which plaintiff must be charged with knowledge. No judgment was indexed against the registered owner of the land, and plaintiff was justified in relying upon the record: Crouse v. Murphy, 140 Pa. 335; Fourth Bleucher Bldg. Assn. v. Halpern, 270 Pa. 169.
Even if the contrary was true, or, as averred in the affidavit of defense, actual notice existed, it is insufficient. The claim that the lien of the mortgage against Harry L. was divested because of the antecedent indexed judgment against Harry, is here made by the sheriff’s vendee. “An entirely different case is presented when the question arises between the mortgagee and the purchaser at sheriff’s sale. As the bidder at a sheriff’s sale is not bound to look beyond the record in determining
Nor can we see merit in the contention that the finding by the auditor, appointed to make distribution of the proceeds of the sheriff’s sale, renders the present demand of plaintiff res adjudicata. It was not a claimant before the auditor, having declined to appear; if, as insisted, its mortgage was not divested, it had no interest in the fund to be awarded. The incidental finding, in the contest between others, that the lien was discharged, cannot affect its rights in this proceeding.
The assignment of error is sustained, the judgment of the court below is reversed, and it is ordered that the record be remitted, and that the court below proceed to enter judgment against defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court why such judgment should not be entered.