65 Pa. 306 | Pa. | 1870
The opinion of the court was delivered, May 12th 1870, by .
That the charge in favor of the widow of Tilghman Thompson was a fixed lien, not divested by the sheriff’s sale on a junior encumbrance, is to be considered as now settled beyond any question. Indeed, it was not a matter of dispute either in the court below or here. It has been well stated as a general rule that a judicial sale will not discharge an encumbrance, whether created by the law or by the parties, when the charge stands in the title, and can be discharged only by the court undertaking to administer the fund by investing it in order to fulfil the purpose of it: Dewalt’s Appeal, 8 Harris 236; Hiester v. Green, 12 Wright 96; Strauss’s Appeal, 13 Wright 353. These cases did but generalize and apply the previous determination in Fisher v. Kean, 1 Watts 259; Bear v. Whisler, 7 Watts 144; Reed v. Reed, 1 W. & S. 239; Bauman’s Appeal, 8 Barr 473. See Schall’s Appeal, 4 Wright 170. It has, however, undoubtedly been held that though the charge itself may be a fixed lien, incapable of divestiture, because incapable of computation, the rule is different as to any arrears either of rent, annuity or interest which may be due at the time of the sheriff’s sale; because such arrears are ascertainable with certainty in amount, and therefore payable out of the fund: Reed v. Reed, 1 W. & S. 235; Mohler’s Appeal, 5 Barr 418; Kline v. Bowman, 7 Harris
It is manifest that if these arrears accrued due subsequently to the date of the mortgage, they ought not to have that effect. Devine’s Appeal, 6 Casey 348, and Miners’ Bank v. Heilner, 11 Wright 452, are authorities in point as to this. If the law were not so, no mortgage would be safe; the Act of 1830 would be a snare. It would depend upon the good will or the ability of the debtor in paying up punctually his interest, whether the mortgage would remain or be divested by a sale. "Very great uncertainty would thus be thrown around the vendee’s title, a result to be most carefully guarded against. The same difficulty would exist if a distinction were to be drawn between arrears due at the ddte of the mortgage and those accruing subsequently. It may be said that it was the folly of the mortgagee to accept the security unless prior arrears have been discharged. Careful conveyancers will always see to this, not merely with reference to the question of first lien, but for other obvious reasons. We are not, however, to overlook the rights and interests of subsequent encumbrancers and of the owner of the lands. It is of great importance to them that the question whether a mortgage is to stand or fall by a sale should be disembarrassed as far as possible of all questions of fact in pais outside of the record. The amount of arrears unpaid at the time of the sale can rarely affect the price beyond a few hundred dollars, and may be ascertained without difficulty, and without much risk of loss, if there should even be a mistake. But the mortgage may be the whole or two-thirds.of the value of the land, and upon the question whether it remains a lien or is discharged, it depends whether anything or nothing is to be bid. This should be removed from the region of conjecture and uncertainty, by making it in all cases, as far as possible, a mere question of law upon the record and paper title.
It is true that in Devine’s Appeal, 6 Casey 348, there were no
We conclude, then, that where a mortgage is prior to all other liens except a fixed charge on the land not itself divested by the sale, its lien is preserved by the Act of 1830, although there may be arrears of the prior charge due and unpaid, whether they accrued due before the date of the mortgage or subsequently to it, and that such arrears, being a part of the fixed charge itself, are therefore not to be paid from the fund in court. The mortgage itself being thus ascertained to be a fixed lien, the sheriff’s sale
Decree affirmed and appeal dismissed, at the costs of the appellant.