Brownback v. Ozias

Opinion, Me. Justice Geeen : It is not at all questioned that the Orphans’ Court sale divested the lien of the mortgage in suit. The whole record of that proceeding was in confirmation of that result. When the administrators of John Walter, the mortgagor, filedtheir account in March, 1867, they claimed and were allowed credit for the payment of the mortgage. Whén Hartzel conveyed to Wood it was subject “ to the payment of a certain mortgage of one thousand dollars unto George Grubb of the county of Chester.” In point of fact there never was a mortgage which corresponded with that description, and hence any amount of inquiry would never have developed the existence of such a [92] mortgage. But it is argued that George Grubb’s interest in the original mortgage to Jacob Wellcer might have been discovered if Ozias had made inquiry of Hartzel, Wood and Mitchell. Possibly this might be so; but George Grubb’s interest in a mortgage made to some other person, is not the fact mentioned in the charge contained in the deed from Hartzel to Wood, and hence Ozias was not bound to inquire for it, any more than he would have been bound to inquire for any other fact extrinsic to the record known to his predecessors in the title and affecting his interest. That which appeared in the language of the charge contained in the deed from Hartzel to Wood, would bind a purchaser, of course, but why should he be bound by matter which did not appear there? At the best this sort of notice is but constructive notice, and it is quite enough to hold a purchaser bound by that which does appear upon the record, without subjecting him to responsibility by construction for that which does not appear there. The mortgage which is now claimed against the defendant is the original Walter mortgage, but of,,that instrument there is no kind of description, not even an allusion to it, contained in the deed from Hartzel to Wood. Why should a subsequent purchaser inquire for that mortgage when there was nothing in the deed which in any manner indicated its existence? When the defendant examined the record, he found that the Walter mortgage was discharged by the Orphans’ Court sale and paid, as indicated by the administrators’ account of John Walter’s estate. He therefore could not suppose that the description in the Hartzel deed of a mork gage payable to George Grubb, could refer to it, and hence he was under no legal duty to inquire whether that description was intended to refer to that mortgage. If he was under no legal duty to make such an inquiry he is not chargeable with constructive notice for breach of such a duty. Grubb did not see fit to record his assignment of the Walter mortgage and he thereby prevented innocent subsequent purchasers from acquiring a knowledge of his interest in that mortgage, by the method which the law recognizes as proper constructive notice. It was his own dereliction, and if loss to him is occasioned by it, that loss must rest with him rather than with an innocent purchaser, who, in consequence of that [93] very dereliction, was prevented from acquiring a knowledge of Grubb’s interest which would have enabled him to protect himself. Between Grubb and Ozias, so far as this question is concerned there is no equality of innocence. Grubb knew that he held an assignment of the Walter mortgage and that he had not recorded it. He knew also that the mortgage was discharged by the Orphans’ Court sale and that its lien was only preserved, if at all, by a private agreement between Hartzel and Walter’s administrators. He is presumed to know that while Hartzel would he bound by that agreement, it would not be binding upon a subsequent purchaser without notice. If he wished to preserve the lien of the mortgage debt against all persons, he should either have taken a new mortgage in his own name, or at the very least placed his assignment from Welker, on record, so that there would have at least been a duty of inquiry resting upon a purchaser. It is quite probable he was not a party to the insertion of the charge in the deed from Hartzel to Wood. If he was, his dereliction would be increased by the incorrectness of the description. If he was not, he can claim no benefit from it other than that which necessarily and technically belongs to it. Tried by that standard the charge in the deed is in no sense notice of a mortgage from Walter to Welker made in 1829, and that particular mortgage is the only cause of action set up against the defendant Ozias. It is almost needless to add that the charge in the deed itself is not available to the plaintiff as a hen, since it would constitute at the best but an equitable lien which was discharged by the sheriff’s sale at which the defendant purchased the land: Pierce v. Gardner, 83 Pa. 211. Judgment affirmed.