Ross & Company's Appeals

106 Pa. 82 | Pa. | 1884

Mr. Justice Gordon

delivered the opinion of the court,

As long ago as the case of Colhoun v. Snider, 6 Bin., 135, it was held that a pre-existing judgment was not a lien on after acquired real estate, and the doctrine of this ease has been followed without doubt or hesitation from that time to this. Upon such property an independent lien may be created by an execution issued from such judgment; but in order to accomplish that result it must be accompanied by a levy: Stauffer v. The Commissioners, 1 Watts, 300; Packer’s Appeal, 6 Barr, 277. It is, therefore, clear that the Ross & Co. and Elsbree fi. fas., by virtue of their levies upon the land from the sale of, which the money in dispute was raised, were liens at common law; and that, in point of date, these liens outranked the Putnam mortgage, is not disputed. But as these executions, with their levies, were not docketed as prescribed by the Act of the 22d of April, 1856, they were not, as to purchasers and mortgagees, statutory liens. “ The lien of no execution,” reads the statute, “ levied on real estate, shall commence or be continued, as against any purchaser or mortgagee, unless the same be indexed in the county where the real estate is situated.” Now it is idle to say that the docketing of the fi. fa. alone was either a compliance with the Act, or constructive notice to the mortgagee. It is the execution levied that is the lien both under the Act and at common law. Hence, if the levy does not appear of record, there is, and can be, no statutory lien. So the question of constructive notice is put out of the case from the fact, that had the mortgagee looked just where he was bound to look he would have found an execution without a levy. It is said, however, that the Putnam mortgage was void for want of consideration. We cannot see the matter in this light. This mortgage was given to secure the Morley judgment, which had been marked to the use of Putnam. The consideration, therefore, moving Reuben Morley to the execution of the mortgage was valid and lawful, and further than this we need not go. It may be that the assignment of the H. & J. Morley judgment may not, as between them and Putnam, have been good for the want of consideration, but that is a matter between themselves, and with which the appellants had nothing to do. It is further urged that the execution of the mortgage is worthless as notice, in that it does not appear, in the certificate of acknowledgment, that the officer taking it was a justice of the peace for the county of Bradford. The person thus certifying, however, subscribes himself as a justice of the peace, and, as was said in Fuhrman v. Loudon, 13 S. & R., 386, it cannot be supposed that he would have received the acknowledgment of a deed or mortgage for or on lands in Pennsylvania, unless he had been a justice of the peace for some county in the state : see also Angier v. Schieffelin, 22 P. F. S., 106. Notwithstanding, therefore, the able and ingenious argument of the counsel for the appellants, we cannot see our way clear to reverse the court below.

The appeals are dismissed, and the decree affirmed at the costs of the appellants.