2 Pa. 96 | Pa. | 1845
— The first exception is, that the auditor refused to allow a claim of $152 60, for and on account of ground-rents, falling due from the estate sold, in the years 1841, 1842, 1843, and 1844. In this, we think that the auditor erred, so far as the $152 60 were composed of principal, but right so far as it consisted of interest calculated upon the principal, from the times, respectively, at which it became payable. That the owner of the rent is entitled to have the principal of the rent, out of the moneys arising from the sheriff’s sale, was settled in the case of Bantleon v. Smith, 2 Bin. 146 ; but not to interest thereon. This rule has been uniformly observed and adhered to ever since. We, therefore, consider the owner of the rent entitled to receive the principal of it, coming to him, in this case, without interest, the amount of which is referred to the prothonotary of the court to be ascertained by him. [His honour then stated the material facts of the case.]
With respect to the validity of the judgment taken by the bank, of Kerns, there can be no question. A judgment or mortgage taken to secure the payment of an existing debt, and debts or liabilities to be created in future, has been held to be good and valid by numerous decisions. Gordon v. Graham, 7 Vin. Abr. 52, E. pl. 3; Lyle v. Ducomb, 5 Bin. 585, 4 Kent Com. 175, and the cases there referred to. It may also be regarded as settled, when the prior encumbrancer, in such case, especially if his encumbrance be a judgment, makes future advancements upon the faith of his encumbrance, with actual notice of a new intervening encumbrance, that he will not be preferred for such subsequent advancements, to the intervening encumbrance; the latter will be entitled to a preference. But suppose he makes such advancement without any actual knowledge whatever, on his part, of the existence of the intervening encumbrance ; shall he be postponed or not, the same as if he had had actual notice ? This question, I think,
This court, therefore, order and decree that the principal pf the ground-rent be first paid to the owner thereof, out of the $1016 33 remaining, after paying taxes and the charges of auditing, (the amount of the principal of the ground-rent to be ascertained by the prothonotary of this court;) next that $457 71 be paid to the Bank of the Northern Liberties, for the use of Tobias Beehler, with interest thereon, from the 25th of October, 1842, to the date of the sheriff’s sale. And, lastly, that the residue of the said $1016 33 cents be paid to Anthoon Ter-Hoven.
Sergeant, J., dissented.