| Pa. | Mar 30, 1876
Lead Opinion
delivered the opinion of the court,
It appears to have been taken for granted by counsel in the court below, and it was assumed in the argument here, that if the broad terms of the Act of the 26th March 1867 were to be accepted in their unqualified and literal sense, they would be controlling and decisive in favor of the view presented on behalf of the plaintiff. The case will be mainly considered, therefore, on that ground. The provision is, that the lien of a first mortgage “ shall not be destroyed or in any way affected by any judicial or other sale whatsoever,
When the act was passed, the rules relating to partitions were settled and familiar. The maintenance of an efficient system for the division of estates amongst their joint owners, had long been a vital necessity to the community. Lands descended to all the children of every decedent, and one, or several, or all of them might be unable to retain them. One or more of the parties in a joint enterprise dying, the management of the joint property would often have been hopelessly fettered, if it could not have been freed from the encumbrances of creditors and the claims of heirs. Where land had become part of the assets of a partnership, a settlement after dissolution could often have been made practicable only by its prompt conversion into means of liquidation. Besides, as was said in the Girard Life Insurance Company v. The Farmers’ and Mechanics’ Bank, 7 P. F. Smith 388, it had “ long been regarded as sound policy that property purchased at a judicial sale should pass into the hands of the purchaser clear of all mere liens.” It was accordingly held in that case that a sale in partition, under the ■ Act of 1799, discharged the liens of judgments and mortgages on the lands sold, and that the lien of a mortgage was not preserved by the Act of the 6th of April 1830, and its supplement of the 16th of April 1845. The analogy between proceedings in partition by writ and proceedings in partition in the Orphans’ Court, was remarked upon in the same case, and it was said that “ there is no doubt that under the Orphans’ Court sale, the entire interest of an heir passes to the purchaser, who takes it disencumbered of all liens.” The Act of the 29th of March 1832, indeed, recognises this as the necessary consequence of such a sale. The 49th section provides that “in all cases where the share, or any part thereof, of an heir in real estate shall be converted into money, either by reason of the impracticability or inequality of partition, or by virtue of a sale or otherwise, the Orphans’ Court, before making a final decree confirming the partition or sale, may appoint a suitable person as auditor to ascertain whether there are any liens or encumbrances on such real estate affecting the interests of the parties; and if it shall appear by the report of such auditor, or otherwise, that there are such liens, the said court may order the amount of money which may be payable to any of the parties against whom liens exist to be
In this condition of the law the Act of 1867 was passed. It is insisted that the effect of it was to prevent the disturbance of the liens of first mortgages of undivided interests by any sale in partition, and to preserve them as encumbrances on the same interests in the hands of the purchasers. Very grave inconveniences, so grave, indeed, as to amount to injustice, would result from such a construction. It would seem obvious, if the legislature had intended to make so wide-reaching a change in the existing law, that they would have provided for consequences that could not but have been foreseen. Practically, the lien of a mortgage would, for purposes of security, be left to encumber the interests of all his co-tenants whenever a sale would be the result of a partition. However numerous the parcels into which the property would be divided, each of them in the hands of the purchaser would be followed by the encumbrance. This might add to the value of a first mortgage-as' a security, but its effect on the value of the land could only be disastrous. Nothing would deter a bidder for a single purpart so surely as the knowledge that the estate in his hands would be subject after his purchase to an indefinite and unadjusted proportion of a floating and shifting lien which would expand and contract from year to year over the different parcels of the property as market values wTould rise and fall. There is nothing in the enactment to prevent the co-tenant whose interest in the land had been encumbered from taking his share of the purchase-money produced by the sale. That would be freed from every burden if the lien must follow the land. It is true that plans might be invented to avert such a palpable injustice. The co-tenants might be subrogated to the rights of the owner of the encumbered interest in the money, and a sort of equality could be worked out in this clumsy way. But this would require such an exercise by the courts of discretionary power as to amount to special legislation in its most objectionable form. The general effect of imputing to the legislature the intention contended for on behalf of the plaintiff, would be, whenever a mortgage was found to intervene, to subvert the entire system of partition in the common law courts which had been built up subsequently to the passage of the Act of 1799, and to repeal the 49th section of the Act of 1832. To work a change
The Act of 1867 was described by its title as “relating to judicial sales and the preservation of the lien of mortgages.” The first section authorized the recording of deeds for lands sold under the Act of the 18th of April 1853, upon their acknowledgment in court duly certified without other 'acknowledgment, and empowered the court of the county of a grantor’s residence to approve the security required,by the act, and certify such approval to the court decreeing the sale. The second section declared that private sales made by order of court under the Act of 1853 should discharge the premises sold from the debts of decedents, except debts of record and debts secured by mortgage. These were the only specific provisions in regard to judicial sales. The general words under which this controversy has arisen were contained in the third section, which had special relation to “the preservation of the lien of mortgages.” The primary idea suggested by an enactment for such a pm-pose would be that of its connection with other enactments providing for the security of such and other liens. While it is to he treated as in pari materia with the Acts of 1830 and 1845, and while it would control the operation of other laws relating to liens as such, it does not necessarily follow that this act should affect any of the provisions of laws whose general scope embraces the division, devolution and transmission of estates in land. The object of proceedings in partition is division, and not conversion. And whenever it can he done this object is carried into effect. It is always possible that a sale may be necessary, but that is a contingent incident, and not the original end in view, and it is only when a sale is inevitable that a partition can be used for the liquidation of liens. Each tenant in common takes the money value of his interest only when it is impracticable to invest him in severalty with the interest itself. It can very readily he conceived, therefore, when this act was passed, that no thought of the partition statutes was i.n the legislative mind. “Every affirmative statute is a repeal of a precedent affirmative statute where its matter necessarily implies a negative; hut only so far as it is clearly and indisputably contradictory and contrary to the former act ‘in the very matter’ (Foster’s Case, 11 Rep. 64), and the repugnancy such that the two acts cannot be reconciledPotter’s Dwarris on Statutes 154. The American eases are substantially to the same effect. To repeal a statute by implication, there must be such a positive repugnancy between the provisions of the new law and the old that they cannot stand together or be consistently ■reconciled: Id. 154, 155, note 4, and the cases there cited.. I't was held in Brown v. The County Commissioners, 9 Harris 37, that a general statute without negative words will not repeal a
As a technical authority, the case of the Girard Life Insurance Company v. The Farmers’ and Mechanics’ Bank, supra, is of course valueless in the present discussion, for it grew out of facts occurring before the Act of 1857 was passed. But the case was decided nearly a year after the enactment, and when its provisions must have become familiar to the profession and to the members of the court; and it is a fact of some significance, that in delivering the opinion Judge Strong said: “ The argument from the inconvenience of selling subject to encumbrances on the interests of some of the parties is not without weight. It would produce great difficulty and uncertainty in the distribution, and it would
It is urged that a sale under proceedings in partition must be governed by the act because the sale is judicial, and because the act applies to all judicial sales without exception or qualification. But a sale of perishable goods under an order of court pending a controversy in regard to the title to them, would be equally a judicial sale, and yet it would never be pretended that it would be governed by the most general law that could he framed to regulate judicial sales of personal property in ordinary practice. The act of conversion would be the incidental exercise of the general jurisdiction of the court, and the effect would simply be that in place of the goods their money price would be substituted on which the judgment in the end would operate. So a sale is an occasional and contingent, and not a necessary incident of a partition. The property being divided, the lien of a mortgage would be drawn to the particular purpart allotted to the mortgagor. Symmetry of principle requires, when a sale has been made, that the lien on the undivided interest should be transferred to the mortgagor’s share of the purchase-money which the sale has produced. And this symmetry ought to be disturbed only in view of an unequivocal expression of legislative will. The distinctive characteristics of this proceeding were clearly stated by Chief Justice Gibson, in the Commonwealth v. Pool, 6 Watts 33. “A sale in partition works conversion of form without a transmutation of essence, and this distinguishes it from a sale for payment of debts, of which transmutation is the primary and entire intent. * * * In every judicial sale for payment of debts, the money raised for the object is in the course of administration, and no process lies against it to enforce or continue a lien on it; but money raised incidentally by process in partition, is land in another form, and attended with inheritable qualities.”
Hitherto, the question has been discussed upon the assumption that the terms of the statute, if entirely unrestrained, would be necessarily applicable to the case, and w'ould control its determination. But it may be considered in an aspect under which grave doubt would arise whether such an assumption is well grounded. The legislative provision was for the protection of the liens of mortgages from destruction by judicial sales.- What “judicial sales” were intended ? Manifestly such as should transfer the title to the special and particular estate mortgaged. A single co-tenant’s interest is only a fractional — often it is only a minute — proportion of the land of which it forms a part. His rights, and those of his creditors resulting from their liens against him, must be so restrained
Upon every ground, it is believed that the question in the cause was accurately ruled by the court below. By due process of law all rights of the mortgagor in this land have been extinguished. In due legal form their exact equivalent in money has been obtained. This money is the measure of the value of the mortgagor’s land on the one hand, and of the extent of the mortgagee’s lien on the other. Certainly there can be no hardship in a legal rule that gives to a creditor the entire property which he has accepted as the security for his debt.
The order of the Court of Common Pleas discharging the rule for judgment for want of a sufficient affidavit of defence is affirmed.
Concurrence Opinion
— I concur in what has been so well said by our brother Woodward, and I desire to say in addition, that if we are to give a literal construction to the Act of 1867, it will preserve the lien of a mortgage though the sale be upon said mortgage, or upon the bond accompanying it. Even a sale upon a prior mortgage is within the letter of the act. So is a judicial sale in the execution of a power contained in a will. Such sale of a necessity sweeps away all subsequent liens as well as estates. I do not think that the word “ lien” in the Act of 1867 is to be taken