Rhein Building Ass'n v. Lea

Mr. Justice Paxson delivered the opinion of the court April 24th 1882. The mortgage of the plaintiff below was recorded April 24th 1877. A lien for the taxes of 1875 had been duly registered January 1st 1876. The mortgaged premises were sold by the sheriff July 6th 1880, under a judgment recovered upon a second mortgage. The single question we are called upon to de [213] cide is: Did the sheriff’s sale divest the lien of the mortgage recorded April 24th 1877, by reason of the prior lien for registercel taxes ? By the Act of February 3d 1824 (Purd. Dig. 1084), “ taxes thereafter assessed shall be a lien .... and said lien shall have priority to, and shall be fully paid and satisfied before any mortgage which the real estate may become charged with.” When, therefore, in order to protect the security of first mortgages, it was afterwards, by the Act of April 6 th 1830 (P. L. 293), enacted “ that when the lien of a mortgage upon real estate is prior to all other liens upon the same property, except other mortgages, ground rents, and the purchase money due the commonwealth, the lien of such mortgage shall not bo destroyed, or in any way affected by any sale made by virtue or authority of any writ of venditioni exponas or levari facias it wras soon discovered that by reason of the lien given to taxes by the Act of 1824, the provision was not effective. It was, therefore, provided by the Act of April 11th 1835 (P. L. 190), “ that no lien by virtue of the Act of February 3d 1824, entitled ‘ An Act relating to taxes on certain real estate in the city of Philadelphia ’ shall be construed to be within the meaning of the Act of Assembly of April 6th 1830.” The security of the mortgagee was still further extended by the 4th section of-the Act of April 16th 1845 (P. L. 488), which provided that the lien of the mortgage should not be affected “ by reason of the prior lien of any tax, charge or assessment whatever, but the same shall continue as if such prior lien did not exist, when by existing laws the lien of such mortgage would otherwise continue,” excepting, however, in case of a sale upon a judgment entered upon a claim which was a lien on the premises prior to the recording of said mortgage; and the subsequent Act of January 23d 1849 (P. L. 686), protected the mortgage against such sale for taxes, “ unless said sale shall be made under a judgment obtained upon a claim which was duly registered in the proper office prior to the recording of such mortgage.” These Acts make a very simple and intelligent system. The plain object was that the lien of a first mortgage should never be divested by a sheriff’s sale, except upon a claim which was duly registered prior to the recording of the mortgage. It was evidently not contemplated that the mere existence of such a registry should have the effect of divesting the lien where the sale was on a subsequent judgment or lien. The mortgagee may rest in perfect security except as against proceedings upon a claim registered before his mortgage was recorded, and of which he had the opportunity to inform himself. Has this system been changed by subsequent legislation ? Certainly not expressly by any Act of Assembly. Implied re [214] peals are not favored: Brown v. County Commissioners, 9 Harris 43, and we can see nothing upon which any such implication can be founded. It may be true that the Consolidation Act of February 2d 1854, P. L. 21, by declaring that “ all taxes remaining unpaid on the first day of January in each year, shall continue a lien upon the real estate, upon which they are levied, in like manner as if registered in the county commissioner’s office, and directing the receiver of taxes to furnish certificates of all taxes and claims which are liens on real estate,- repealed the registry in the county commissioner's office, but that did not repeal the Acts of 1835 and 1845, which provided that the lien of such claim should not affect the lien of a first mortgage. And when the Act of April 21st 1858, P. L. 385, provided that a “ registry of unpaid taxes on real estate shall be kept in the tax office, and that the said taxes should be a lien on ail real estate, in aecoz’dance with the pi-ovisions of the Act of February 3d 1824,” we think that it is very plain that the new registry there provided was simply to take the place of the old registry, as to all legal effects and consequences. Was this system, local to Philadelphia, repealed by the general Act of 23d of March 1867, P. L. 44? The third section of said Act declares that “ When 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, purchase money due to the commonwealth, taxes, charges assessments and municipal claims, whose lien though afterwards accruing, has by law priority given it, the lien of such mortgage shall not be destroyed, or in any way affected by any judicial or other sale whatsoever, whether such judicial sale shall be made by virtue or authority of any order or decree of any Orphans’ or other Court, or of any writ of execution, or otherwise howsoever,” &c. This Act does not in terms repeal the Act of 1845, or any other Act of the system of which it forms a part, but it was contended that inasmuch as it is a general Act and legislates upon the same subject, there is an implied repeal. But this mode of repeal, as before observed, is not favored. Until the present time it does not appear that any lawyer or conveyancer in the city of Philadelphia ever supposed that it affected or was intended to affect, the prior legislation for the protection of mortgages in that city under which millions of dollars have been loaned. We cannot believe the legislature intended such a radical change by mere implication, and it would be dangerous for the judiciary to give the Act of 1867 such a construction. It follows that the Acts of 1845 and 1849 are in full force. The result is that a sheriff’s sale upon any junior incumbrance [215] does not divest tbo lion of a mortgage even wliero there has been a tax duly registered prior to the recording of the mortgage. ^ ^ This question was not decided in Smaltz v. Donolmgh for the tax there was not registered, and it was meant by the opinion to say that even conceding that a registered tax would divest the lien, that essential fact did not appear. It was probably assumed by both sides upon the argument. Judgment affirmed.