Febeiger's Lessee v. Craighead

*MARCH TERM, 1796. Febeiger’s Lessee v. Craighead. Sheriff’s sale. A sheriff’s sale of land, by virtue of a judgment and execution, subsequent to a mortgage to the trustees of the loan-office, does not destroy its lien. At a court of Nisi Prius, held at Carlisle, a case was stated for the opinion of the court, containing these facts: A tract of land, in Cumberland county, was mortgaged by John Glenn to the trustees of the loan-office (whose rights, powers and duties, have been transferred by law to the plaintiff, as state treasurer), and the land was afterward levied upon, and sold at a sheriff’s sale, to the defendant, by virtue of a subsequent judgment and execution. The question is, whether the mortgage remains a lien upon the land, against the purchaser at sheriff’s sale ? Ingersott, attorney-general, for the plaintiff. Lewis, for the defendant. s. c. 2 Yeates 42; and for C. J. Suippbn’s notes of this case, see 3 Rawle 117, note a. Said to be imperfectly reported, in 3 Rawle 137. Whatever may have been the effect of a judicial sale on other interests, both the policy and the practice of the legislature have been, to hold the lien of a mortgage to the state undischarged, by anything but actual payment into the treasury, and such mortgage is not divested by a judicial sale, on any other lien of the land mortgaged, nor is it to be paid out of the purchase-money raised by such sale. Duncan v. Reiff, 3 P. & W. 368. In the report of the case of Febeiger’s Lessee v. Craighead, by Yeates, a qumre is made, as to the effect, upon a prior mortgage to an individual, of a sale under an execution issued by virtue of a judgment subsequent to the mortgage. In the case of Moliere’s Lessee v. Noe, 4 Dall. 450, which was a sale by order of an orphans’ court, this point was suggested, and the judges expressed their opinion, in concurrence with that of the counsel on both sides, that a mortgage retains its lien on the premises, notwithstanding such a sale. The question above stated was, however, presented to the supremo court, for the first time, for direct decision, in Willard v. Norris, 2 Rawle 56; and then it was held, that when land, subject to a mortgage, is sold under a judgment, obtained subsequently to the execution and recording of the mortgage, the purchaser at sheriff’s sale takes the land discharged of the lien of the mortgage. This decision was received with astonishment by the profession, and alarm by the public; and at the ensuing session of the legislature, bills were simultaneously introduced into both houses, to preserve the lien of a mortgage, notwithstanding a sale under a junior incumbrance; subsequently, the act of 6th April 1830, was passed to that effect. Several decisions followed that in Willard v. Morris, sustaining and confirming it; McLanahan v. Wyant, 1 P. & W. 96; Fickes v. Ersick, 2 Rawle 166; Presbyterian Corporation v. Wallace, 3 Id. 109; in this case, the principle was fully discussed, as res integra ; and the learned arguments of the counsel on both sides, and the elaborate and profound opinion of the court, present a complete disquisition on the subject. Notwithstanding the act of 1830, the lien of a mortgage may be divested by a sale under a junior incumbrance, if such be the agreement of the parties. Shultz d. Diehl, 2 P. & W. 273. The decisions under the act of 1880, which we foreign to the point involved in Febeiger v. Craighead, will be found collected in Bright, Dig. 1103-4. And see 1 Tr. & H. Pr. § 1317-8. [MAJORITY — By the Court.] By the Court. — The case admits of no doubt. Judgment must be entered for til 3 plaintiff.