5 Rawle 51 | Pa. | 1835
The opinion of the court was delivered by
The right of the holder of a judgment binding real estate, to discharge by covenant or release, a portion of that estate from the lien, preserving it in force, against the rest, cannot, as between the creditor and debtor, be disputed. It is no more than an act of common justice, where the remaining property is sufficient to respond to the claim': and he would be thought a harsh creditor, who, under such circumstances should refuse it, when,by enabling the debtor to make a clear' title to a.purchaser, it might materially relieve him. It is in truth no more than perfecting a partial equity already existing, by which, if the debtor sells a portion of land bound by a judgment, the remaining land in the hands of the debtor or his heir or vendee, must first be proceeded against by the judgment creditor, before the land of the prior purchaser can be levied on. Sir Wm. Herbert's Case, 3 Co. 11. Nayler v. Stanley, 10 Serg. & Rawle, 450. Culp v. Fisher, 1 Watts, 494.
An act, however, which is perfectly innocent and legal in itself, may become improper, if the party has notice that the rights of third persons may be impaired by it. As if such covenantor or releasor ■is apprised beforehand that a portion of the land is bound by a subsequent mortgage in favour of another person, and that if he discharges a different portion, and reserves his lien against the part bound by such mortgage, thus loading it with a double burden,- the claim of the mortgagee will be sacrificed by his priority. It is manifest that it is unfair and inequitable that he should voluntarily do an act producing these consequences. Sic utere tuo ut alienum non Icedas. Thus in an analogous case: A person may buy a legal title free from all secret trusts: but if he has notice of a trust, though he may have paid his money, equity will make him the trustee for the party beneficially interested.
But it is essential that notice be shown. It is not sufficient to say, that by the release there is a possibility that injury may result to some one. Perhaps there is no exercise of a legal right, from which, by possibility, a loss may not result to. others, in particular cases. Whoever buys a legal title, may by possibility do injury by destroying trusts and equities of which he is not apprised. In itself the act is innocent. It becomes otherwise, when the party knows that it will occasion a loss to a third person.
Had the defendant Mrs. Maris, given Mr. Taylor notice of her mortgage and desired him to retain his lien, or at least so much of
The act of 2d April, 1822, in relation to the releasing of parts of mortgaged premises, has been alluded to in the argument. ■ This act enables a mortgagee in such case, to sue out a sci.fa. to recover his claim against the remaining property, but makes no provision as to the effect of the release, leaving that to be decided by established principles of law and equity. And according to these, I take it, the effect of such release must depend on the circumstances of the case. If the mortgagee has notice that by such act, he sacrifices the interest of a subsequent lien creditor, he will be bound to withhold his hand, or if he proceeds, will be held responsible for the loss incurred. He may have this knowledge in the very creation of the mortgage. As if two or more severally seised of land, join in a mortgage, they are all in-cequali jure, entitled to contribution amongst themselves; and if the mortgagee should release the land of one from the mortgage, leaving the whole sum to be levied of the remaining lands, he would be doing an act of the injustice of which he was fully conu
The principles of English Chancery are the same. I shall content myself with citing a single case decided in that court, in which the doctrine was established; Griswold v. Marshman, 2 Ch. Cases, 370. There was due to Marshman four thousand pounds upon a mortgage made to him of lands. The mortgagor after the mortgage, acknowledged three judgments, to other persons for other moneys due. Two of those persons to whom the judgments were given, gave notice tó Mr. Marshman of their judgments, and desired him to accept of his money that was due upon the mortgage, which they said they were ready to pay him, and desired him to appoint a time when, and they would pay him his money within a fortnight, to the intent that his mortgage being set aside they might take execution on their judgments, but proved not any money actually tendered.
Decree affirmed.