Martin's Appeal

Mr. Justice Gordon delivered the opinion of the court, January 31st 1881. If a mortgagor or judgment-debtor has a lot or parcel of land, say of ten acres, and of this he sells five to B., the remaining five acres, if of sufficient value, must sustain the whole charge, and the part sold to B. cannot be made to contribute until that remaining in the debtor or mortgagor has been exhausted; and this rule extends to purchasers of the encumbered premises, and in an order inverse to the date of their several titles. The burthen falls first upon the last purchase, and it is only after the fund arising from this source has been consumed, that resort can be had to that which is antecedent, and so on in regular order, until the land of the first purchaser is reached, which is the last to be called on for contribution, and then only to the amount of what remains of the original charge after the lands post-dating it in title have been exhausted. And this, it is said in Mevey’s Appeal, 4 Barr 80, because it cannot be in the power of the debtor, by the act of selling or assigning his remaining land, to throw the burthen of the payment or a ratable part of it back on the first purchaser. It is true, that in the Presbyterian Church Corporation v. Wallace, 3 Rawle 165, a different doctrine was held, but that case was in terms overruled in Cowden’s Estate, 1 Barr 267, and the former ruling of Nailer v. Stanley, 10 S. & R. 450, restored. Precisely the same rule applies to the release of the lien of a mortgage or judgment from the land of one of several vendees of the mortgagor or debtor. Thus if A.’s land is mortgaged to B., and A. afterwards divides that land into three several parts, and at successive periods of time sells such parts to C., D. and E., and B. releases D., this also releases C., unless indeed the values of the purparts of both E. and D. should be insufficient to satisfy the mortgage, in which case C. may be called upon for the balance. This is the doctrine of Paxton v. Harrier, 1 Jones 312, and Lowry v. McKinney, 18 P. F. Smith 294. In the case last cited it was said, that the land of the first purchaser was surety for the debt upon the whole land, and by payment of it this purchaser would be entitled to subrogation, and of this fact the creditor with knowledge was bound to take notice, hence he could not release any of the primary securities and expect to hold the secondaries. The application of this principle renders the solution of the case in hand easy. Grimstone, on the 25th May 1849, owned the lots Nos. 837, 839, 841, and on that day executed the mortgage now owned by the appellant to Alonzo Farrington. On the next day after the execution of this mortgage, Grimstone conveyed to Robert M. Eitch, and Eitch afterwards conveyed as follows: June 12th 1850, No. 841 to Robert M. Foust; August 21st of the same [91] year, No. 889, the lot in controversy, to Henry A. Charter, under whom F. Sarmiento, one of the appellees in this case, now claims; November 7th 1851, No. 837 to Peter Bitmeyer. Then, on the 10th of November 1853, Mary Farrington, as administratrix of Alonzo Farrington’s estate, released the lien of the above-mentioned mortgage from lots No. 837 (Bitmeyer) and 841 (Foust), attempting, without the consent of Charter, to reserve the lien on 839, which was, of course, nugatory. Finally, on the 17th of November following, she assigned the mortgage to William Spink, who afterwards transferred it to Edward D. Martin, now deceased, the estate of whom is represented by the appellant. Now, as we have before us no question of notice or of the entire sufficiency of the Bitmeyer lot, No. 837, to have paid the mortgage in full, the application for an issue not having raised either of these questions, and the master having found that the value of said lot was ample lor that purpose, it is very clear that the release of 837, the subsequent purchase, released also 839, the prior purchase. It follows that the court below properly awarded the money arising from the sheriff’s sale of this property, after payment of the costs and mortgage of Mrs. Morris, to Sarmiento. It is furthermore thus made apparent, that the demand for an issue of fact was properly refused, since, if to the appellant all that she proposes to establish thereby is admitted, her case is made no better, since the writings themselves exhibit a con dilion of affairs under which she cannot recover, and from which the proposed facts would not relieve her. The decree is affirmed with costs.