In re Assignment of Speer

Opinion by Beaver, J., The evident object of the 8th section of the Act of April 27, 1855, P. L. 368, and of the supplement thereto May 13, 1876, P. L. 160, was to convey distinct notice to all parties interested and definite information as to the estate to be mortgaged. The former confers a legal right upon certain lessees to mortgage their leases and the latter provides more specifically for the recording of leases so to be mortgaged and the reference to be made to the place of record in the mortgage. There is no question in this case as to the sufficiency of the reference to the book and page where the original lease is recorded. It is alleged, however, that the lease having been assigned by the original lessee to another person and by this [523] assignee to the mortgagor, it is essential to the validity of the mortgage that the several assignments should also be recorded and a reference made in the mortgage itself to the book and page where said assignments are to be found. The description in the mortgage is as follows: “ Being the property leased and demised to John Bare by Elliott Robley, by indenture of lease dated the 4th day of August, A. D. 1886, and recorded in the recorder’s office of Huntingdon county in Miscellaneous Book No. 8, page 89, said lease being for a term of thirty years from the date of said lease, and being the same leasehold which was assigned by said John Bare to R. Bruce Bare, by assignment dated the 19th day of August, A. D. 1886, and recorded in the recorder’s office of said Huntingdon county in Misc. Book No. 8, page 91, and being the same leasehold which was assigned by R. Bruce Bare to Alline B. Speer, therein designated as the Speer White Sand Company, by an assignment dated the 11th day of January, 1887, a true and correct copy of which is as follows: Por value received, I, R. Bruce Bare, assignee, sell, assign, transfer and set over the within lease and assignment to Speer White Sand Company.” The property embraced in the mortgage was the lease of Elliott Robley to John Bare, the reference to which in the mortgage is in exact accordance with the provisions of the act of May 18, 1876, supra. There is no provision in either of the acts of assembly for the recording of or reference to the assignment by which the. mortgagor acquires title to the lease. Such assignment is merely a link in the chain of title and it is difficult to see how the recording thereof could in any way throw light upon the estate mortgaged. In this case, however, the various steps by which the title of the said lease became vested in the mortgagor were distinctly set forth, first, by a reference to the records of the recorder’s office, and, last, by what purports to be a verbatim copy of the assignment of R. Bruce Bare to the mortgagor, the latter being contained in the mortgage and, of course, recorded with it, when it was recorded. If, under the provisions of the acts referred to, it was necessary to record the assignments under which the mortgagor acquired title — which may be doubted — we think their provisions were substantially complied with by the recording of the last [524] assignment which was not acknowledged and could not be recorded separately, as copied in the mortgage and recorded with it. It was said in Hilton’s Appeal, 116 Pa. 351: “ Leasehold mortgages are wholly dependent on the acts above quoted for their validity as liens and, unless there is at least a substantial compliance with their requirements, the mortgagee acquires no right as a lien creditor.” Admitting that the appellant’s contention is correct — which we are not to be understood as deciding— that it was necessary, under the acts of assembly, to record the several assignments by which the mortgagor secured title, there has been a literal compliance with the said acts, so far as the lease and its first assignment are concerned, and a substantial compliance with their provisions as to the last assignment. The distribution of the fund in court to the bonds secured by the mortgage, to the exclusion of the appellant, who was a subsequent judgment creditor, was, therefore, clearly justified. In view of this disposition of the case, it is unnecessary to comment upon the motion of the appellee for a judgment of non pros., because of the defective character of the appellant’s paper-book. It was probably not necessary to print the testimony before the auditor but it is difficult to see how an appellate court could pass upon the validity of a mortgage which was not printed in the appellant’s paper-book. The appellee, however, remedied this defect, at least in some degree, by printing the essential part of the said mortgage and we have relied upon it as correct. The decree of the court below is affirmed and the appeal dismissed at the cost of the appellant.