Corpman v. Baccastow

Mr. Justice Paxson delivered the opinion of the court, The deed of Jacob Corpman to John Baceastow dated April 6th 1868, and the agreement of April 23d 1868, were executed at the same time, and taken together constitute a mortgage.- The deed was recorded prior to the entry of the Ballou & Scott judgment; the agreement has never been recorded. The plaintiff claims title by virtue of a sheriff’s sale under said judgment; the defendants claim by virtue of a sale in pursuance of a power contained in the mortgage. The sale under the mortgage was prior in point of time to the sale by the sheriff upon the judgment. It was contended by the defendants that the sale under the mortgage divested the lien of the judgment, and that Jacob Corpman had no interest in the land at the time of the sheriff’s sale. This raises a question of priority of lien. Its solution is not difficult. It was decided in Friedley v. Hamilton, 17 S. & R. 70, that an absolute deed and defeasance, made at the same time, constitute a mortgage; and if the defeasance be not recorded, it is to be considered as an unrecorded mortgage, and postponed to a judgment of subsequent date, notwithstanding the absolute deed has been duly recorded. This principle has been distinctly recognised and affirmed in Jaques v. Weeks, 7 Watts 261; Manufacturers’ & Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 335 ; Wilson v. Shoenberger’s Ex’rs, 7 Casey 295, and other cases, while in no case has it been doubted or denied. It was contended, however, that this case does not come within the rule referred to for the reason that by the terms of the agreement Baceastow held the legal title for the purpose of selling to pay debts. - The force of this position is not apparent. He had no authority to sell for the payment of debts generally. He could only sell for the payment of the particular debt secured by the mortgage. The mortgagor and mortgagee had by their contract provided a special remedy in case of default in the payment of the money. The instrument was none the less a mortgage by reason of this provision contained therein. Its character and legal effect remained unchanged. It was further contended by the defendants that the sale by Baceastow being under a power divested the lion of the judgment. This might have been so had the lien of the judgment been subject to the power. But it was not. The power of sale was merely the remedy created by the mortgage, and as [366] against the judgment the mortgage was not a lien by reason of the failure to record the defeasance. It follows from what has been said that the first assignment of error must be sustained. It was error to say in answer to the plaintiff’s third point, that by reason of the sale under the power Jacob Corpman had no interest in the land at the time of the sheriff’s sale, and therefore W. S. Corpman took nothing by his purchase. The remaining assignments need not be discussed. Judgment reversed and a venire de novo awarded.