262 Pa. 530 | Pa. | 1919
Opinion by
This is a statutory proceeding to obtain possession of land purchased at sheriff’s sale. In 1910 the Kenneth Coal Company gave the Milford Coal Company a first mortgage on certain coal lands in Somerset County. Later'the land was conveyed to the Mountain Smokeless Coal Company, who, in 1913, executed a royalty lease to Wm. G. Hocking for all the coal therein. The lease was duly recorded and in 1916 assigned by Hocking to the Garrett Smokeless Coal Company, the appellant. By sundry assignments Henry T. Hocking became the owner of the mortgage, and, on February 5, 1917, executed an agreement with the Garrett Smokeless Coal
In our opinion the case was rightly decided. The coal lease being subsequent to the mortgage was subject thereto; and the judgment entered on the scire facias prima facie bound the entire estate, including the coal. The title acquired at sheriff’s sale on the levari facias related back to the date of the record of the mortgage and cut out all intervening estates and interests: Lance v. Gorman, 136 Pa. 200; Saunders v. Gould, 124 Pa. 237; Levan et al. v. Millholland et al., 114 Pa. 49; Coyne v. Souther et al., 61 Pa. 455; Magaw v. Garrett et al., 25 Pa. 319; McCormick v. McMurtrie, 4 Watts 192. Those principles are unquestioned, but appellant contends do not control this case because of the agreement of the mortgagee assuming to give priority to the lease. However, the assignee of the mortgage ignored that
The agreement not having been recorded or noted in. the mortgage book was not constructive notice to any one: Midland Gas Co. v. Jefferson County Gas Co., 237 Pa. 602, 607; Gœpp v. Gartiser, 35 Pa. 130; Banks v. Ammon, 27 Pa. 172, 175. True, the successful bidder knew of the agreement, but he also knew from the record that it had been ignored in the foreclosure proceedings and that the lessee had permitted judgment to be taken and execution issued against the entire property without protest. In the absence of fraud, which is not alleged, he might lawfully bid on the property as it was exposed for sale, and was not precluded therefrom by any knowledge he had, not common to others. At sheriff’s sale all bidders are upon the same plane, and are affected only by what appears of record or of which notice was given at the sale: Eckels v. Stuart, 212 Pa. 161; Hilliard v. Tustin, 172 Pa. 354; Reading v. Hopson, 90 Pa. 494. In the latter case Chief Justice Sharswoo# says, “At the sheriff’s sale the same rule must apply equally to all the .bidders, the mortgagee as well as others, without regard to what their private information may be of facts dehors the record. This puts them all upon an equal footing,
It is urged for appellant that the lease constituted a sale of the coal, and the agreement a release thereof from the mortgage, valid under the Act of April 2, 1822, 7 Sm. 551; 1 Purdon’s Digest (13th Ed.) p, 1185. The holder of the mortgage, however, did not proceed against the balance of the premises, as provided in said act, but against the entire property, and was permitted by appellant to do so. In .addition, the agreement does not purport to release the coal but to postpone the mortgage thereon to the lease and to waive any claim that might impair the rights of the lessee. We are not prepared to disagree with the conclusion of the court below that this was such a change of the status' of the obligations as not to be effective against the protest of the mortgagor; for as a general rule a debtor may insist that his property be taken in accordance with the obligations he has placed upon it: Pisler v. Stewart, 191 Pa. 323. However, we do not base the decision upon that ground.
The assignments of error are overruled and the judgment is affirmed.