181 A. 783 | Pa. | 1935
This suit grew out of the exchange of land owned by the legal plaintiffs for land owned by defendants. Both tracts were subject to encumbrances created by the respective owners. The agreement for the exchange, and the deeds delivered in discharge of the agreement, contained provisions by which each grantee assumed and agreed to pay, as part of the consideration, the mortgage debts secured on the conveyed land. The legal plaintiffs performed, but, when the bond and mortgage matured and payment was demanded of them, the defendants defaulted. The mortgagee entered judgment on the bond for the amount due on the mortgage, had the land sold, and became the purchaser at the sheriff's *215 sale for $210.00, a sum less than the judgment. She then demanded payment of the difference between the amount of the judgment and the amount realized at the sale, and threatened to collect the deficiency by execution against other property of the mortgagors. To resolve that situation, the grantor-mortgagors brought this suit, to the use* of the mortgagee, against the defendants for the amount remaining due on the judgment entered on the bond, which, it was alleged, the defendants had promised to pay to the mortgagors.
It has long been definitely settled (apart from recent legislation enacted since the sale in question which we need not consider) that when a mortgagee purchases at his foreclosure sale for less than the amount of his judgment, he may recover the deficiency from his debtor: Lomison v. Faust,
The defendants plead, however, that, notwithstanding the inability of the grantor-mortgagors to rely on these defenses, they are in better position and need not perform their obligation to their grantors because the land purchased by the mortgagee was worth more than the amount of the judgment against the grantors, and that, by taking the land (of greater value than the judgment) at the sheriff's sale, both the grantors' obligation to the mortgagee and defendants' obligation to the grantors were discharged. At the trial there was evidence that the market value of the land exceeded the judgment and no evidence that it was less, whereupon the learned court below directed a verdict for defendants, from the judgment on which this appeal comes.
The defendants rely on Faulkner v. McHenry,
The assignment of error complaining of the refusal to grant plaintiffs' motion for judgment n. o. v. is sustained and the record is remitted with instructions to grant the motion.