Selden's Appeal

74 Pa. 323 | Pa. | 1873

The opinion of the court was delivered, November 10th 1873, by

Sharswood, J. —

We think it very clear that neither Selden, the appellant, nor Brecht, the appellee, had any legal lien on the funds in the court below for distribution. Selden’s mortgage was not acknowledged before an officer duly authorized by law to take such acknowledgment, and was therefore utterly ineffectual to convey or encumber the estate of Mrs. Perkins. At the time Brecht’s mortgage was executed Mrs. Perkins had no legal title. The deed from the purchaser to her, though executed, had not been delivered, as the auditor reports. If she had an equitable estate —a right to call upon Metcalf to execute and deliver to her a deed — it was an equity grounded upon the agreement of the parties at the sheriff’s .sale, by which she was bound to reinstate all the mortgages upon the part of the land to which she was entitled, according to their respective priorities. A chancellor would not have decreed a conveyance to her from Metcalf, without at the 9same time providing that she should carry out that agreement. It is hardly necessary to observe that the recording of Brecht’s . mortgage, after the delivery of the deed of Metcalf to Mrs. Perkins, did not cure the want of title in Mrs. Perkins at the time she executed th,e mortgage to him.

How then stood the question of distribution before the auditor ? The eighty-sixth section of the Act of June 16th 1836, Pamph. L. 777, provides that “ in all cases of sales upon execution as aforesaid, when there shall be disputes concerning the distribution of the money arising therefrom, the court from which the execution shall have issued shall have power, after reasonable notice given, either personally or by advertisement, to hear and determine the same according to law and equity.” At law Mrs. Perkins was entitled to receive the balance of the fund after the payment of the purchase-money to Metcalf, as far as appears no subsequent liens having been presented. Mrs. Perkins did not appear to make any claim. If then Mrs. Perkins was in equity bound by the agreement alleged to reinstate the several mortgages in the order of priority as they stood before the first sheriff’s sale, and a chancellor would have decreed the specific performance of that agreement, then in equity in Pennsylvania whatever a chancellor would decree to be done shall be considered as actually done. The auditor reported that such an agreement was entered into, and on the faith of it Selden allowed the sale to go on and did not bid to secure his interest. It is not perhaps very material whether Brecht was a party to this arrangement or not, but if it be considered important, we think upon the evidence the auditor ought to have reported asa fact that'he was. Perkins testified: “On the day of the sale, at November Term 1868, before the sale, I had a conversation on the subject, of the sale. I said to John Brecht that if he would not bid on the property, that his mortgage should be reinstated on the balance of the farm, after what was to be sold to E. P. Bailey was set off to him, Bailey. I do not remember that John Brecht made any reply in words, but seemed to assent.” John Brecht in his deposition did not deny this, but said he did not know of Selden’s mortgage. But he ought to have known of it. The mortgage was on record, and he had constructive notice of it. His assent was to the arrangement that the sheriff’s sale was not to affect the relative position of those who had liens on the property. It was evidently very much for his interest at the time. A large price was to be obtained for a part of the land, which was to be applied to the reduction of the purchase-money mortgage, thus improving the security of all the parties. We think therefore that the Selden mortgage was entitled in equity to priority of payment over that to Brecht.

Decree reversed, and record remitted that a decree may be entered in the court below conformably to this opinion. The costs of this appeal to be paid by the J appellee.