Pierce v. Gardner

Mr. Justice Paxson delivered the opinion of the court, January 2d 1877. It is conceded that the mortgage referred to in the deed from Henry and Catherine Smith to John H. Dilks has no existence. The plaintiff held a judgment against the Smiths upon which there was a balance due of $881.31. It was probably intended to make the deed subject to this judgment, but by some inadvertence it is described as a mortgage. The lien of the judgment expired by reason of a failure to revive. In the meantime Dilks gave a mortgage upon the property for $5000. A scire facias was issued upon this mortgage in 1872, and proceeded upon to judgment and sheriff’s sale. The premises were sold to the mortgagees under whom the defendant claims. Pierce, the judgment-creditor, proceeded to revive his judgment after the mortgage referred to was entered of record, levied upon and sold the premises at sheriff’s sale, and became the purchaser thereof. He then instituted this suit, which was an equitable ejectment against the tenant in possession, and sought to recover a conditional verdict for the balance due him as per the following clause in the deed: “ This deed is made subject to a mortgage against the above-described premises held by Rexford Pierce, balance due $881.31.” The court below rejected the evidence offered by defendants to substantiate the claim referred to in the deed, as well as evidence to prove notice thereof at the sheriff’s sale under the mortgage, and directed a nonsuit, all of which is assigned for error. [214] The claim of the plaintiff must rest upon the language of the deed. It can derive no support from the mortgage, for none existed; nor from the judgment, for the lien thereof had expired when the mortgage of the defendants was recorded. It was urged, however, that the deed itself created a charge upon the land, and that inasmuch as such charge appeared upon the face of the title, the mortgagees had notice and took subject to it. If we concede this position to he correct it does not help the plaintiff. The clause in the deed does not amount to a condition. There was no reservation of any estate in the vendor, which, according to Catlin v. Robinson, 2 Watts 373, does not pass to the sheriff’s vendee, because, as is there held, “ a judicial sale does not divest titles, but only liens and encumbrances.” The greatest effect that can be claimed for this clause in the deed is that it created an equitable lien for so much of the purchase-money. Under the authorities such liens are discharged by a judicial sale. It is sufficient to refer to Stewartson v. Watts, 8 Watts 392; Hiester v. Green, 12 Wright 96, and Strauss’s Appeal, 13 Id. 353. The exceptions noted in the cases cited are: 1. Where liens are created by last wills and testaments as permanent provisions for wives and children; 2. Where from the nature of the encumbrance it will not readily admit of valuation; and 3. Where it is plain from the agreement of the parties that the encumbrance was intended to run with the land. This case comes within neither of the exceptions. The claim of the plaintiff referred to in the deed was due and payable when the premises were sold under the mortgage. If he'had an equitable lien it was discharged by that sale and his remedy was upon the fund created thereby. Judgment affirmed.