Cover v. Black

• Decision Date: 01 January 1845
• Citation: 1 Pa. 493
• Parties: COVER v. BLACK.
• Court: Pennsylvania Supreme Court

Page 493

1 Pa. 493

COVER v. BLACK.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Westmoreland county.

Cowan and Beaver, for plaintiff in error, argued, that the notes were merged in the judgments given, and these were not secured by the mortgage, particularly against a purchaser at sheriff's sale. 6 Watts, 57; 1 Rawle, 325; 3 Serg. & Rawle, 276; 5 Bin. 585; 9 Watts, 283.

Coulter and Kuhns, contrà, argued, the purchaser at sheriff's sale was in no better situation than the creditor, having notice, and the judgment creditor is entitled to no notice. 4 Watts, 410; 5 Wharton, 541.

The opinion of the court was delivered by GIBSON, C. J.

Whether the original single bills were merged in the substituted judgment notes, it is not material to inquire; for certainly a mere change of the evidences of the debt would not discharge the mortgage pro tanto in favour of the mortgagor, or any one claiming on the foundation of his title, and standing in no peculiar equity. A purchaser or second mortgagee, without notice, would not be in that category; for the debtor might mislead him by producing the cancelled bills as evidence of part satisfaction; and thus the creditor, having put into his hands the means of deception, would be bound to abide the consequences; and the presumption would be that the purchaser or second mortgagee had seen the cancelled bills, for such circumstances are seldom susceptible of proof. But does Margaret Walthour, the actual party, appear in the character of a purchaser? Unless a judgment creditor be such, she certainly does not; for it is an admitted part of the case, that her agent, who bought the property for her at the sale on the execution of Rosett and Beckery, was informed of every circumstance, and she is consequently affected by his knowledge. There is no evidence of her having known, when she lent her money, that judgment notes had been substituted for the bills taken up; but that is immaterial; for it was ruled, in Rogers v. Gibson, 4 Yeates, 111, and Huston v. Fortner, 2 Bin. 40, that a judgment creditor is not a purchaser within the recording act of 1775, and I take the consequence to be that he is not entitled to notice. It is true, the question turned on the interpretation of the statute; but even a purchaser would not have been protected without it: for the first conveyance of the title takes precedence of all others, with or without notice, at the common law, and the same rule holds in England, as to...