116 Pa. 157 | Pa. | 1887
Opinion,
This was a scire facias to revive the lien of a judgment obtained on a mortgage, and which lien had been discharged by a sale of the premises by a judicial sale on a previous mortgage. This sale seems to have been made by the sheriff to C. A. Luckenbach, on the 15th of June, 1878, and subsequently, June 1, 1882, the executors of Luckenbach, for a full consideration, conveyed the premises to James K. Rauch, the defendant in the present suit. The court below seemed to think that, because there had been a re-acquisition of the mortgaged property by the defendant, the lien of the discharged mortgage had been thereby revived, hence entered judgment on the demurrer for the plaintiff. This was a mistake ; a result such as this could only arise by way of estoppel.- When a vendor or mortgagor either sells or mortgages land which he does not own, and afterwards obtains the .title thereto, he will not be permitted .to set up this after acquired title to defeat his previous grant or mortgage, for this would be to permit him to perpetrate a fraud on his grantee or creditor. But there is nothing of the kind in the case before us, for it is not pretended that Rauch mortgaged to Dech land to which he had no title, or that he was guilty of any species of fraud whereby Dech was deceived. The plaintiff’s lien was lost by force of legal process, and it is not even intimated that Luckenbach’s title was not taken clear of that lien. In the meantime, and before the date of the deed of the executors to the defendant, be had received his discharge in bankruptcy; 'so that, at that time, he was not even the debtor of the plaintiff. It thus follows,
The judgment of the court below is now reversed, and it is ordered that judgment be entered on the demurrer for the defendant.
