Gordon v. Correy

Tilghman C. J. The point on which this case turns, was decided bv this Court in Bantleon v. Smith, 2 Binn. 146. Notwithstanding a bond and judgment, a debt still remains due on account of rent, to which the land is subject. The balance, therefore, in the hands of Mr. Armstrong, is to be applied, not to the payment of Isaac W. Morris's judgment, for that is younger than the plaintiff’s judgment, but to the payment of the rent due to Morris, Yeates J. Whether the motion made in behalf of the ground landlord in this case, that he should be allowed to take out of court the money paid in by the sheriff, should prevail or not, depends on the question, whether he has waived his paramount right as the grantor of the lands, by entering up a judgment subsequent to that, wherein the premises were sold by the sheriff. The case of Bantleon v. Smith, 2 Binn. 146, establishes the doctrine, that where the ground landlord has brought an action of covenant for his rent, and obtained judgment thereon, it does not extinguish his right of rent. I can see no good ground of distinction between the two cases. If there is any difference, it would seem to be in favour of the present claimant, to whom a voluntary confession of judgment, not in an adverse suit, would appear to be intended as an additional security for his demand- At all events, I think the principle already settled must govern our decision here. It appeared to me singular on the argument, that Gordon, (who was admitted to have purchased at the sheriff’s sale,) or his personal representatives, should contest the present question. It is certainly more advantageous to them, to apply the monies arising from the sale, in payment of the arrears of the rent charge, than to pay the money over to others, and permit those arrears to remain an incumbrancq on the house and lot of ground, which Gordon had thus pur-' chased. I am of opinion, that the motion made for Isaac W. Morris, to take the money out of court, should be granted. Brackenridge J. concurred. Motion allowed.