83 Pa. 211 | Pa. | 1877
delivered the opinion of the court, January 2d 1877.
It is conceded that the mortgage referred to in the deed from Henry and Catherine Smith to John H. Dilks has no existence. The plaintiff held a judgment against the Smiths upon which there was a balance due of $881.31. It was probably intended to make the deed subject to this judgment, but by some inadvertence it is described as a mortgage. The lien of the judgment expired by reason of a failure to revive. In the meantime Dilks gave a mortgage upon the property for $5000. A scire facias was issued upon this mortgage in 1872, and proceeded upon to judgment and sheriff’s sale. The premises were sold to the mortgagees under whom the defendant claims. Pierce, the judgment-creditor, proceeded to revive his judgment after the mortgage referred to was entered of record, levied upon and sold the premises at sheriff’s sale, and became the purchaser thereof. He then instituted this suit, which was an equitable ejectment against the tenant in possession, and sought to recover a conditional verdict for the balance due him as per the following clause in the deed: “ This deed is made subject to a mortgage against the above-described premises held by Rexford Pierce, balance due $881.31.” The court below rejected the evidence offered by defendants to substantiate the claim referred to in the deed, as well as evidence to prove notice thereof at the sheriff’s sale under the mortgage, and directed a nonsuit, all of which is assigned for error.