Calder v. Chapman

• Decision Date: 17 October 1866
• Parties: Calder v. Chapman.
• Court: Pennsylvania Supreme Court

52 Pa. 359

Calder v. Chapman.

Supreme Court of Pennsylvania.

October 17, 1866

1866

1. Calder purchased a tract of land, excepting out of it a described lot; he then mortgaged the whole, not making any exception of the " " lot," and afterwards became owner of the " lot." A judgment was subsequently entered against him, under which the lot was sold; after the sale the whole tract was sold under the mortgage. Held, that the purchaser under the judgment acquired the title to the lot.

2. The search for encumbrances against Calder on the lot, would begin with the conveyance to him; there would therefore be no notice of the mortgage against him.

3. The doctrine of estoppel concludes the truth in order to prevent fraud and falsehood, and imposes silence on a party only when in conscience and honesty he should not be allowed to speak.

ERROR to the Court of Common Pleas of Wayne county.

This was an action of ejectment by Abner Chapman against Alexander Calder, William C. Marshall and Walker Marshall, for a tract of about 30 acres of land. Israel Chapman and Alexander Calder being the joint owners of a large tract of land, made partition, and Chapman conveyed to Calder the one-half " excepting from and out of the above described premises the undivided two-thirds part of the ‘ Factory Lot." DD’ Subsequently, under proceedings in partition, Chapman acquired title to the whole " Factory Lot." Afterwards, November 1st 1853, Calder mortgaged to the Marshalls, defendants, the whole tract, describing it by metes and bounds, which included the " Factory Lot." The lot was not excepted from the mortgage. Chapman having died, his executors conveyed the " Factory Lot" to Calder, September 21st 1854. On the 5th of August 1858, a judgment was recovered against Calder under which the " Factory Lot" was sold to Abner Chapman, plaintiff, and conveyed to him by the sheriff September 4th 1862. The whole tract was, on the 2d of September 1862, sold by the sheriff to the Marshalls under their mortgage. Chapman then brought this action of ejectment.

On the trial, Barrett, P. J., charged, amongst other things:--

" The question raised is, Whether the " Factory Lot" was bound by the mortgage. As between the parties it clearly would have been. The mortgagor might have perfected his title to the land for the benefit of the mortgagee. But we have to deal with subsequent lien-creditors. The judgment was entered against property acquired subsequent to the mortgage. It became at once a lien. A judicial sale conveyed it clear of any lien under the mortgage.

As between the lien-creditors the judgment had preference. But however that may have been, it was a judicial sale, and the title to the " Factory Lot" passed to the plaintiff. If Chapman was an innocent purchaser, then he took it discharged from the lien of the mortgage. If he was not did the record furnish him notice of any lien? It must have shown that the title to the lot was acquired subsequently to the making and recording of the mortgage. This being the fact, the verdict of the jury must be for the plaintiff."

The jury having found for the plaintiff, this instruction was assigned for error.

A tract of land was purchased excepting out of it a described lot. The whole was mortgaged. The mortgagor became subsequently the owner of the lot. A sale of the lot was made under a subsequent judgment. The whole tract was afterwards sold under the judgment. Held, that the purchaser under the judgment took title to the lot.

F M. Crane, for plaintiffs in error.--Does the mortgage cover the land subsequently acquired by Calder, and does the title enure to the benefit of the mortgagee?

The legal title of the land is in the mortgagee: Lyle v. Ducomb, 5 Binn. 587; Garre v. Thompson, 7 Watts 419; Kuhn's Appeal, 2 Barr 266; Martin v. Jackson, 3 Casey 509; Act of 6th of April 1830, Purdon 1861, p. 325; Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 419; Borough of Easton's Appeal, 11 Wright 265; Clark v. Martin, 13 Id. 303; Brown v. McCormick, 6 Watts 63; Armstrong v. Boyd, 3 Penna. R. 459; Whiting v. Dewey, 11 Pick. 428; Wynne v. Cabot, 18 Id. 553; 14 Id. 411.

S. E. Dimmick, for defendant in error.--When the Marshalls took their mortgage they had notice by the record that Calder had no title to the " Factory Lot:" Naglee v. Albright and Others, 4 Whart. 291; Stonebreaker v. Short et al., 8 Barr 155. Whatever may be the effect of a mortgage as between the parties--mortgagor and mortgagee,--as between creditors it is only a chose in action, an encumbrance, a lien upon the land: Claason's Appeal, 10 Harris 359; Craft, to use of Powell, v. Webster, 4 Rawle 255; Presb. Corporation v. Wallace and Others, 3 Id. 109; Woods v. Wallace, 10 Harris 177; Love v. Jones, 4 Watts 471; Hendrickson's Appeal, 12 Harris 364; Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 419; 4 Kent's Com. 160; Meyers v. White, 1 Rawle 355; Rickert v. Madeira, Id. 329. A title must be vested before a mortgage-creditor can have a lien: Hiester v. Green, 12 Wright 96; Wilson v. Shoenberger, 10 Casey 124; Kaine v. Denniston, 10 Harris 203; Prebles v. Reading, 8 S. & R. 496; Dennison's Appeal, 1 Barr 206; Colhoun v. Snider, 6 Binn. 147.

The records gave no notice, for we are not to be affected by any entries prior to Calder's acquiring title: Mellon's Appeal, 8 Casey 129; Magaw v. Garrett, 1 Id. 319; Heister v. Fortner, 2 Binn. 46; Stewart v. Freeman, 10 Harris 120; Irvine and Others v. Campbell, 6 Binn. 119; Goepp v. Gartiser, 11 Casey 133; Boynton v. Winslow, 1 Wright 315; Uhler v. Hutchinson, 11 Harris 110; Jaques v. Weeks, 7 Watts 261; Hibbard v. Bovier, 1 Grant 266; 4 Kent's Com. 5th ed. 173; Woods v. Farmere, 7 Watts 385; McLanahan v. Reeside, 9 Id. 510; Ripple v. Ripple, 1 Rawle 386; Keller et al. v. Nutz et al., 5 S. & R. 246; Lightner v. Mooney, 10 Watts 407; Martin v. Jackson, 3 Casey 508; Hetherington v. Clark, 6 Id. 395; Meehan v. Williams, 12 Wright 243; Brown v. Simpson, 2 Watts 245; Tyson v. Passmore, 2 Barr 122; Charnely v. Hansbury, 1 Harris 17; Kennedy v. Skeer, 3 Watts 95.

The opinion of the court was delivered, October 17th 1866, by READ, J.

At the time Alexander Calder executed the mortgage to William C. Marshall and Walker Marshall of the 30 acres called the " Factory Lot," included in the boundaries of a larger piece of land embraced in the mortgage, the mortgagor had no title or estate of any kind in the said " Factory Lot." The mortgage was dated November 1st 1853, and recorded on the 3d.

At the time of the execution, Israel Chapman was the undisputed owner of the 30 acres, and he died in July 1854; and Abner Chapman, who was one of the sons of Israel, with the executors and other heirs of the said decedent, by deed dated September 21st 1854, conveyed the " Factory Lot" to Alexander Calder.

The judgment of Van Dusen & Jagger against Alexander Calder was entered August 5th 1858; and, on the 23d of August 1862, the " Factory Lot" was sold thereon, by the sheriff, to Abner Chapman, and deed executed to him and acknowledged by the sheriff, September 4th 1862. The moneys arising from the said sale being applied to an earlier judgment of Hornbeck v. Calder.

The Marshalls proceeded on the mortgage, and on the 2d September 1862, the sheriff, under levari facias, sold the larger tract, including the thirty-acre " " Factory Lot," to the plaintiffs, the Marshalls; the deed to them was executed and acknowledged September 4th 1862.

The question is, by these sales who...