M'Grew v. M'Lanahan

The opinion of the court was delivered by Smith, J. The question which is presented for the decision of this court is; whether the purchaser of the land, sold under the levari facias, issued on the judgment obtained on the scire facias on thé mortgage, for several of the instalments due on the land, can recover in an ejectment, the possession of the land from the mortgagor and the purchaser of the same land, sold to him by the sheriff, under an execution issued on a judgment, obtained in the action brought to recover the amount of one of the bonds, the payment of which was secured by the same mortgage, when the said judgment had been obtained, execution issued, and the land sold, before action was brought, or judgment rendered, on the mortgage for said subsequent instalments. At the circuit court held last August by justice Huston, for the county of Westmoreland, he instructed the jury, that the sale of the land, on the judgment in the suit on the bond, extinguished the right of. the plaintiff to sell the same land again, on the mortgage:, that Simon Drum, the purchaser at the first sheriiPs sale, bought the [48] estate, and held it freed and discharged from this mortgage, and that the last sale to the- plaintiff was void, and vested no interest in him. The jury found, accordingly, for the defendants, and from this decision the plaintiff appealed to this court. In the case of judgments, it certainly has been an ancient practice, and is now a settled rule, for the sheriff, when land has been sold by him on a judgment, to appropriate the money proceeding from the sale, to existing liens, according to their priority, and to convey to the purchaser, a title free from incumbrances. See 1 Bin. 97. 3 Bin. 358. 1 Serg. & Rawle, 320. 7 Serg. & Rawle, 290. 14 Sergt. & Rawle, 257. In the case of Nicholls v. Postlethwaite, 2 Dall. 131, decided at a court of Nisi Prius, at Carlisle, the court even directed legacies, charged on the land of the defendants, by his 'devisor, to be paid. And the case of Gurney's Executor v. Alexander, 14 Sergt. & Rawle, 257, clearly goes to establish the principle, that not. only judgments against the defendant, but judgments against his vendor, which were a lien on the land, should be paid out of the money arising from the sale of the defendant’s land. The case of M‘Call v. Lenox, 9 Serg. & Rawle, goes far to decide the present question. In that case, chief justice Tilghnan remar Iced upon the practice in this state, to sell land for its full value,without regard to liens, and apply the proceeds of the sheriffs sale, to the discharge of liens according to their priority. And in a case of Glass v. Gilmore, decided by this court in Lancaster, at May term, 1829, and not yet reported, justice Rogers, in delivering the judgment of the court, said, “ as respects sales, made by the sheriff, it has been already decided, that the lien of judgments, and even legacies, charged on lands are divested; that the judgment creditor and legatee, must look to the sheriff for their money, as the purchaser is not bound to see to the application of the purchase-money.” But it is contended, that the rights of a mortgagee, stand on higher grounds than those of a prior judgment creditor. I confess-I cannot see why they should; nor have they, in adjudged cases on this subject, been so considered. Although mortgages in form arc conveyances of lands, yet in substance, they are only securities for the payment of money; and the debt being once paid, or extinguished, the mortgage is considered as at an end. Between the mortgage and the bond, there is, as judge Duncan expresses it, an inseparable union; the bond is ¡the principal, the mortgage an incident to it, incapable of existing without the debt, of which the bond is the original security. How then, when the land is sold for the very debt secured by the bond, can the rights of mortgagees be considered as standing on higher grounds, than the rights of prior judgment creditors? The bond and mortgage are securities for one and the same debt, to recover which, the mortgagee has three remedies; he may proceed by ejectment, and recover the premises; by scire facias on the [49] mortgage, or on the bond, by an action of debt; if he proceed by scire facias, or by action of debt, on the bond, he may recover the debt by a sale of the land. The mortgagee has his election to proceed in either way, and having seen proper to proceed on the bonds, or one of them, and have the land sold, the very substance-itself it would be wholly incongruous and unjust, to permit him to proceed to a second sale on a scire facias, of the same substance. Such double proceedings are incompatible, and repugnant to the spirit and policy of our law. The land cannot be twice sold. If by this proceeding on one of the bonds, the mortgagee has been injured, or a loss has been sustained, it is his own fault, by not proceeding directly on the mortgage; to prevent injury to others, the mortgagee must, so deal with his security, as not to work injustice. These principles have been established by former decisions, particularly that in the. case of M'Call v. Lenox, 9 Serg. & Rawle, 302. But the question was put at rest by this court, at the last session at Sunbury, in June, in the case of Millard and Adams v. Norris. In that case, the land had been sold by the sheriff, without any reservation or mention of incumbrances. The question was, whether a purchaser at sheriff’s sale, under a judgment, held the land freed and discharged of the lien of a mortgage, prior to the judgment; and it was decided that in this state, the usage had been, if there was not an express reservation, that the title and lien of a prior mortgage were divested, and extinguished by a sheriff’s sale of the land on a younger judgment. The opinion delivered in that case, by Justice Tod, entered into a full examination of all the cases. We are, accordingly, of opinion, that the decision of the circuit court was right, and that the judgment be affirmed. Judgment affirmed.