Perry v. Brinton

The opinion of the Court was delivered by Bell, J. The single question presented by the affidavit of defence is said to be, whether the lien of a mortgage dated and recorded in 1836, is destroyed by a sheriff’s sale, made by virtue of a levari facias, founded on a judgment recovered for taxes assessed in 1842, and subsequently; there being no other encumbrance on the land sold, prior to the mortgage. The solution of this question depends on the proper construction of several acts of Assembly, which, from time to time, have been made in reference to the subject of liens. The first of these necessary to be noticed, is the act of February 3, 1824. This not only constituted all taxes assessed upon real estate within the city and county of Philadelphia liens thereon, but also gave them priority and right of payment, in preference to any precedent mortgage or other incumbrance. As the law then stood, this priority of lien worked no other consequence than priority of payment out of the proceeds of the lands, when sold under judicial process; for such a sale, at the time of this enactment, divested all precedent liens, without regard to the period of their origin, Willard vs. Norris, 2 Rawle 56; Corporation vs. Wallace, 3 Rawle 109. This continued to be the rule until the act of the 6th April, 1830, D. D. 508, which provides that, where “ the lien of a mortgage upon real estate is or shall be prior to all other liens upon the same property, except other mortgages, ground rents, and the purchase money due to the Common [206] wealth, the lien of such mortgage shall not he destroyed, or in any way affected by any sale made by virtue or authority of any writ of venditioni exponas.” Looking rather to the known purpose of the Legislature, to restore what many supposed to be the law of Pennsylvania, before the determination of Willard vs. Norris, than to the inefficient language in which that intention was expressed, the courts, by a liberal interpretation, held that the purport of the statute is, to declare that no mortgage, or judgment, shall bind more than the equity of redemption springing from a prior mortgage ; and that no more than this shall be sold under the execution of a posterior incumbrancer, Pierce vs. Potter, 7 Watts 476; Bender vs. Hiester, 6 Wh. 215. The avowed object of this act, manifested a strong disposition entertained by the law-makers, to protect first mortgagees, against all who should come after them in point of time; and the same disposition has been exhibited more than once since that period. But it appears to have been soon discovered, that the act of 1880 would not avail for the protection of mortgagees in the city and county of Philadelphia, where, under the act of 1824, arrears of taxes took precedence of even first mortgages, and by thrusting them from their position of priority, threatened to render the protecting statute partially nugatory.— To remedy this it was, in substance, declared by the act of llth April, 1885, that no lien created by virtue of the act of 1824, should be construed to be within the meaning of the act of 1830. Properly understood, this provision appears to be decisive of the pending controversy. It is true, the first section of the act of 1830, speaks, in terms, only of sales by venditioni exponas, as incompetent to loosen the grasp of a prior mortgage, and that the sale of the premises here in question, was had under a levari facias, after a statutory scire facias sur., the tax claim filed in pursuance of the statutes relating to that subject. But we held in Clark vs. Stanley, 10 Barr 482, that any form of execution was within the equity of the act. In determining its applicability, the debt to be satisfied is everything; the form of the writ to be employed nothing. Now, here, the debt to be satisfied by sale of the premises, was assessed taxes, created liens by the act of 1824. But this peculiar lien is expressly excluded by the act of 1835, from contemplation, when considering the operation of the act of 1830 upon the rights of this mortgagee, and consequently, as I understand it, his hold on the land is to be regarded as though the priority of lien given by the older act had no existence. In this point of view then, it can make no difference in the relative rights of the parties, that the land was sold for taxes; for the lien of these must now be regarded as posterior to the mortgage in determining the effect of the act of 1830, upon the mortgage, as a subsisting lien. Until, however, recently, some doubt seems to have existed, whether, under the act of 1830, a first mortgage was [207] protected, where the sale of the land was effected by some form of execution other than a venditioni exponas; or a levari facias sur. judgment recovered in a suit upon a subsequent mortgage. This doubt seems to have given birth to the first, fourth and fifth sections of the act of April 16, 1845. Excluding, for the present, from view, the act of April, 1835, the answer given by the plaintiff to the affidavit of defence filed in the cause, may be considered as founded on the fourth section of the latter statute, and its sufficiency is to be determined by the interpretation of the language employed in that section. It ordains, “that the lien of a mortgage upon any real estate, situate in the city or county of Philadelphia, shall not be destroyed, or in any way affected, by any sale of the mortgaged premises under a subsequent judgment, (other than one entered upon a claim which was a lien on the premises prior to the recording of such mortgage,) by reason of the prior lien of any tax, charge, or assessment whatever; but the same shall continue as if such prior lien did^ot exist, when, by existing laws, the lien of such mortgage would otherwise continue: Provided, That the continuance of the lien of such mortgage shall not prevent the discharge of such prior liens for taxes, charges, or assessments, by such sale, or satisfaction thereof, out of the proceeds of such sale.” It must be confessed, this provision is awkwardly constructed; and yet, when candidly scrutinized, I think it is impossible to misapprehend its meaning. In substance it is: the lien of a mortgage shall not be affected by a sale of the mortgaged premises by reason of the prior lien of any tax, &c., but the same shall continue as if such prior lien did not exist, unless the sale be made under a claim which, in fact, existed as a lien before the mortgage was recorded. The lien contemplated is one which .can be ascertained and guarded against by the mortgagee, and not one which is to spring into existence in after years, and by retroaction, jostle the mortgage from its conceded place. That was the kind of lien created by the act of 1824, which being found to conflict with the modern policy cherished by the legislature in respect to mortgages, was, doubtless, intended to be altered by this fourth section. ■ If it effected but this, it effected nothing. As was well observed by the plaintiff’s counsel, if the parenthetical exception was intended to include posterior assessments to take effect as prior liens, by retrospection, the language would have been “ other than a judgment entered on a claim which has, or shall have, priority of lien over the mortgage;” and not the language employed that was a “ lien prior to the recording of the mortgage.” Then, too, the saving clause would have been in violent contradiction to the meaning of the whole enactment, and thus, rendered the section a folly. Again, if the construction suggested by the defendant below were adopted, another consequence would be to render the proviso of this section meaningless; for why pro [208] vide for the payment of liens for taxes out of the proceeds of sale, notwithstanding the continued lien of the mortgage, if all the tax claims that might he sued out take precedence of the older security?. A further argument, of the same import, is deduced from the more recent act of March, 11, 1846, (P. P. 1060;) the 6th section of which declares “ that the lien of such claims shall not be divested by any judicial sale, as respects sp much thereof as the proceeds of such sale may be insufficient to discharge and pay;” a provision obviously based upon the concession of some distinct and continuing incumbrance, which might cause the land to sell for less than the taxes assessed upon it. In short, the defendant’s construction is, in my apprehension, in violation of the manifest spirit of the section, taken as a whole, and in direct hostility to the course of legislation on this subject. Fager vs. Campbell, 5 Watts 287, upon which he relied, as in point, was decided upon grounds which have no application to a case resting upon local statutes; and the most that can be said of the act of 23d January, 1849, (D. D. 1206,) is that it seems to have been passed to make assurance doubly sure! It is, I concede, more distinctly phrased than the act we have been considering, but is scarcely more definite in its expressed object. It must have been made, ex majore cautela, or else, it proposes to make another step in advance by confining the interfering lien to a claim for taxes duly registered before the mortgage recorded. Before this act, taxes became a lien from the moment they were assessed, Parker’s Appeal, 8 W. & S. 449. Judgment affirmed.