Fluck v. Replogle

• Decision Date: 01 January 1852
• Parties: Fluck versus Replogle.
• Court: Pennsylvania Supreme Court

Page 405

13 Pa. 405

Fluck versus Replogle.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Bedford county.

The case was submitted, without argument before the court. Russel, for plaintiff in error. Cox and Loy were concerned for defendant in error.

The opinion of the Court was delivered by ROGERS, J.

The whole tract of land, for part of which the ejectment is brought, was mortgaged, on the 1st of April 1832, by Christian Snyder (who was then the legal owner), to John Piper and John Snyder, administrators of John Snyder, deceased, for $5087 83, conditioned for the payment of $2543 91½, in two equal annual payments. The mortgage was assigned to Daniel Replogle, the present plaintiff, by the surviving mortgagee, for the consideration of the whole amount then due; there is yet due on the mortgage, $1569 05.

By the assignment, the legal title of the mortgaged premises became vested in the plaintiff, and as a part of the purchase-money remains unpaid, there is nothing in the way to prevent the plaintiff from recovering the possession, to be retained by him until paid the debt, interest and costs remaining due. That the mortgagee has a right to recover possession, immediately on the execution of the mortgage, results from the nature of the instrument itself. A mortgage is the absolute conveyance of the mortgaged premises, to be defeated only on payment of the money at the day stipulated by the parties. Unless there be an agreement to the contrary, the mortgagee has a right to the immediate possession. Thus, in Keech v. Hall, Doug. 22, it is ruled, that the mortgagor is liable to eviction by the mortgagee, without any notice whatever, unless protected by the agreement for quiet possession until default. In Smith and another, executors, v. Shuler, 12 S. & R. 240, Tilghman, C. J., says: "Why may not the mortgagee recover the land in ejectment? He has a perfect legal estate, which is all that is necessary to support the action." The right to recover the mortgaged premises is recognised in McCall v. Lenox, 9 S. & R. 304; 1 Binn. 177; 16 S. & R. 245-51.

The possession of the mortgagor is the possession of the mortgagee. The court was right in saying there is no necessity for a conditional verdict. Indeed, it would be unjust for the jury to prescribe conditions, by delaying the payment of money already due, thereby impairing the security; the land deteriorating in the meantime, and the debt increasing by the accruing interest. That the judgment for the plaintiff is right, therefore, is unquestionable. But as it is admitted the plaintiff is entitled to retain possession only until the debt, interest and costs are paid, it is desired by the parties, that the rule should be fixed by which the amount to be paid may be ascertained. The plaintiff contends that he is...