Fisher v. Connard

• Decision Date: 24 April 1882
• Citation: 100 Pa. 63
• Parties: Fisher <I>versus</I> Connard.
• Court: Pennsylvania Supreme Court

100 Pa. 63

Fisher versus Connard.

Supreme Court of Pennsylvania.

March 2, 1882.

April 24, 1882.

March 2nd 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Berks county: Of July Term 1881, No. 45.

COPYRIGHT MATERIAL OMITTED

Frank R. Schell (J. H. Jacobs and B. Y. Shearer with him), for the plaintiff in error.—The question for determination depends on the construction to be given to the general Act of March 23d 1867. Does that Act protect the lien of a mortgage from being discharged by a judicial sale under a junior incumbrance, where such mortgage is subsequent in date to a tax claim duly filed and registered in the office of the prothonotary of the county? We say no — that the object and effect of the Act is to protect a mortgage against a tax, charge or municipal claim, which though accruing after the date of the mortgage was entitled by law to priority. Where the tax is assessed and the claim is filed and registered prior to the mortgage, the mortgagee can protect himself in the first instance by a search in the prothonotary's office, where it is indexed on the judgment index. The contention on the other side is that the Act places mortgages which are prior to all other liens except "taxes" on the same plane with mortgages prior to all other liens except "other mortgages, ground rents, and purchase money due the Commonwealth." To reach this result, they argue that the words of the Act "whose lien, though afterwards accruing, has by law priority given it" relate only to the one immediately antecedent term, "municipal claims." We say that those words relate to the immediately antecedent class, "taxes, charges, assessments and municipal claims."

This Act is to be read in relation to preceding legislation, the mischief and the remedy. In numerous preceding Acts the words "taxes, charges and municipal claims" are joined as a class, followed by the word "lien" relating to the class. See Acts of Feb. 3d 1824, P. L. 192; April 5th 1844 (Allegheny county), P. L. 199; April 16th 1845 § 41, P. L. 488; March 11th 1846, § 3, P. L. 115; January 23d 1849, § 4, P. L. 686; May 13th 1856, § 11, P. L. 569; Duffy v. City, 6 Wright, 192.

Prior to 1830, all mortgages were discharged by judicial sales under subsequent incumbrances. By the general Act of that year the lien was preserved of mortgages "prior to all other liens except other mortgages, ground rents and the purchase money, due to the Commonwealth." This Act failed to protect mortgages where there was a lien for taxes subsequently assessed but entitled to priority by Act of February 3d 1824, P. L. 192 — of which the Act of 1874, under which the tax lien was filed in this case, is almost a literal transcript. This evil was first remedied in Philadelphia by the special Act of April 11th 1835, P. L. 190, subsequently extended to Allegheny county. But the citizens in other counties were without remedy until the Act of 1867. During all this time no evil existed from cases where the tax was a public registered incumbrance prior to the mortgage, but the trouble was where a subsequently accruing tax by force of law became a prior lien. The only object of the acts giving priority to taxes was payment. The Act of 1867, while not postponing taxes as first liens in the distribution, prevents the divesting of mortgages by retroactive tax liens. The tax in this case was paid out of the proceeds of the sheriff's sale (except 19 cents), and it is settled law that a lien which so participates is discharged by the sale, and thereby divests all subsequent liens.

Jeff. Synder (Geo. F. Baer with him), for the defendants in error.—It is a rule of syntax, that where a relative has two or more nouns preceding it to which it may apply, its application must be confined to the last. Particularly is this so when the relative cannot possibly refer to all, and if it is applied to more than the last we are dependent on voluntary selection. Thus, when the Act says "other mortgages, ground rents, purchase-money due to the Commonwealth, taxes, charges, assessments, and municipal claims whose lien," &c., the relative "whose lien," &c., cannot sensibly apply to "other mortgages, or ground rents, or purchase-money due the Commonwealth." It must apply to "municipal claims." It may or may not apply, sensibly, to "taxes, charges, assessments." But these are classed in the sentence with the preceding words; there is no "and" between the words "Commonwealth" and "taxes." Grammatically, therefore, as well as logically and legally, we contend that the manifest purpose of the Act was to enlarge the list of incumbrances which might precede a mortgage without divesting its lien in case of a judicial sale. It placed "taxes," &c., upon the same plane with "other mortgages," &c. Otherwise the act would in many cases fail of its alleged object, for in Reading taxes are a lien from date of levy, viz., on or before June 1st, and the lien is not registered until after the 1st of January following. In the meantime an inspection of the record will not enable a mortgagee to discover the lien, yet, under the construction contended for on the other side, a mortgage given after the lien, i. e., the levy, attaches, and before registration, will be discharged by a sale under a junior incumbrance. Even if the relative clause relates to "taxes, charges and assessments," as well as to municipal claims, its function is not to specify the circumstances under which a claim may be a prior lien and yet save the lien of a mortgage, but it is to designate and set apart the class of claims that is to have the same effect upon mortgages that ground rents, &c., have had since 1830, without regard to the time such claim accrued, whether before or after the recording of the mortgage.

Mr. Justice PAXSON delivered the opinion of the Court, April 24th 1882.

The mortgage in suit was recorded on the 9th day of June 1877. On the 29th day of May 1877, the city of Reading filed a lien against the mortgaged premises for city taxes, amounting to $40.19. On the same day a lien was filed against the same premises, by the Reading School District, for school-tax, amounting to $20.19. Each of these liens, as will be noticed, antedates the mortgage. During the year 1879, while the record stood in...