Lefever v. Armstrong

• Decision Date: 22 January 1901
• Docket Number: 212-1900
• Citation: 15 Pa.Super. 565
• Parties: Lefever v. Armstrong
• Court: Pennsylvania Superior Court

15 Pa.Super. 565

Lefever v. Armstrong

No. 212-1900

Superior Court of Pennsylvania

January 22, 1901

Argued May 15, 1900 [Syllabus Matter]

Appeal by defendants, from judgment of C.P. Butler Co.-1899, No. 25 on trial by the court without a jury, in case of Henry Lefever v. J. T. Armstrong and J. S. Campbell.

Ejectment for a one-fourth interest in a mining lease of land in Marion township.

The case was tried by Greer, P. J., without a jury, under the Act of April 22, 1874.

The plaintiff claimed under a mortgage from P.S. Hovis executed on December 1, 1897, and recorded on December 27, 1897. The defendants claimed as sheriff's vendees under an execution issued on December 22, 1897, on a judgment entered on the same day in favor of O. B. Cross against P.S. Hovis. The facts are stated in detail in the opinion of the Superior Court.

The court below entered judgment in favor of the plaintiffs " for the land described in the writ with six cents damages and costs, to be released upon payment by the defendants to the plaintiff of $ 500 and interest, less the amount of money received from sale of oil on the pipe line order of Hovis."

Error assigned was the judgment of the court.

Reversed.

T. C. Campbell, with him W. D. Brandon, for appellants. -- An assignment to secure a debt is but a mortgage without regard to form: Kinports v. Boynton, 120 Pa. 306; Russell's App., 15 Pa. 319; Fessler's App., 75 Pa. 483; Fredericks v. Corcoran, 100 Pa. 413.

And it was well recorded, though in the deed book: Farabee v. McKerrihan, 172 Pa. 234.

While an unrecorded mortgage is good as against a subsequent purchaser or mortgagee (a mortgagee being a purchaser as well as a creditor), if there is notice of the mortgage, yet there are not wanting authorities to show that notice will not supply the want of record where subsequent judgments are concerned: Muse v. Letterman, 13 S. & R. 167; Hulings v. Guthrie, 4 Pa. 123; Uhler v. Hutchinson, 23 Pa. 110; Hibberd v. Bovier, 1 Grant, 266; Bismark Bldg. & Loan Assn. v. Bolster, 92 Pa. 123.

The judgment creditor must be visited with notice of the unrecorded mortgage at the time not only when his judgment was entered, but also when his debt was contracted: Lahr's App., 90 Pa. 507; Jaques v. Weeks, 7 Watts, 261; Uhler v. Hutchinson, 23 Pa. 110; Manufacturers', etc., Bank v. Bank of Penna., 7 W. & S. 335; Britton's App., 45 Pa. 172; Nice's App., 54 Pa. 200; McLaughlin v. Ihmsen, 85 Pa. 364; Kinports v. Boynton, 120 Pa. 306.

The burden of proof rests upon the holder of an unrecorded mortgage to prove notice: Phillipsburg Savings Bank's App. 10 W. N.C. 265.

If Cross, the execution creditor, was not bound by notice of the unrecorded mortgage, then neither was Armstrong, the purchaser at sheriff's sale, although notice of the mortgage was read when the property was offered by the sheriff: Jaques v. Weeks, 7 Watts, 261; Uhler v. Hutchinson, 23 Pa. 110; Hibberd v. Bovier, 1 Grant, 266; Loomis's App., 22 Pa. 312.

The rule as to change of possession of a chattel real where mortgaged or pledged, necessary to visit a creditor with notice, is stated as follows: There must be a corresponding change of possession. But if such change of the possession be impracticable, it must be dispensed with, for the law never requires that which is impossible: Luckenbach v. Brickenstein, 5 W. & S. 149; Buckley v. Duff, 114 Pa. 602; Ditman v. Raule, 124 Pa. 225.

Under the circumstances, the question whether there was a sufficient change of possession from Hovis to Lefever, is a question of law and not of fact: Corcoran v. Mutual Life Ins. Co. of N.Y., 183 Pa. 443.

Joseph B. Bredin, with him Clarence Walker, for appellee. -- The act of 1820 has no relation to mortgages of leaseholds, nor have any other acts which relate exclusively to mortgages of " real estate:" Bismark Bldg. & Loan Assn. v. Bolster, 92 Pa. 123; Fry v. Miller, 45 Pa. 441.

Leases for years, under twenty-one year terms, accompanied with possession, need not be recorded, nor assignments of such: Williams v. Downing, 18 Pa. 60.

In an assignment of an interest in a leasehold estate as collateral security, it is not material that the instrument is not made and recorded in compliance with section 1 of the Act of May 13, 1876, P. L. 160: Brown v. Beecher, 120 Pa. 590.

The Acts of April 27, 1855, P. L. 368; April 3, 1868, P. L. 57, and May 13, 1876, P. L. 160, are remedial and to be liberally construed, and they apply to all leasehold estates for a term of years: Hilton's App., 116 Pa. 351.

The common-law lien is the right to detain a specific chattel until the pledgee or mortgagee is paid his loan. Statutes in derogation of the common law, and contrary to the general policy of the public, are to be strictly construed: Esterley's App., 54 Pa. 192; Eichleay v. Wilson, 8 Pa.Super. 14-17.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

ORLADY, J.

From the facts found by the court below it appears that prior to December 1, 1897, P.S. Hovis was the owner of an undivided one-fourth interest in a leasehold estate and in the machinery on the land described in the praecip, the other owners being John S. Campbell, James T. Armstrong and Nelson P. Duncan. On December 1, 1897, Hovis executed and delivered to Henry Lefever, the plaintiff, an assignment of his interest in the lease and machinery as a collateral security for a note of $ 500, on which Hovis received the money, and which was paid by Lefever before this suit was brought. This assignment was duly acknowledged and recorded in deed book No. 176, page 221, on December 27, 1897. To effectuate the assignment, a transfer order was prepared by Hovis and Lefever to secure a credit to Lefever of the oil run, from this interest, through the pipe lines of the National Transit Company, but it was so improperly signed by the parties as to be a nullity, and a new one of the same date (December 1, 1897) was prepared and signed though not delivered to the pipe line company until December 29, following. The oil received from this interest was credited to Lefever from December 1, 1897, to February 9, 1898. Prior to the transaction with Lefever, Hovis was indebted to O. V. Cross by his note, dated September 6, 1897, on which a judgment was entered against Hovis on December 22, and a writ of fieri facias issued thereon. That same day it was delivered to the sheriff, who levied upon the interest of Hovis in the leasehold, machinery and appliances, and on February 9, 1898, sold them to James T. Armstrong, a cotenant of Hovis, and gave him a bill of sale therefor. Prior to December 1, Hovis had been the active manager of the business, and up to the time of the sheriff's sale there had been no change in the manner of conducting it.

When the interest of Hovis was offered for sale by the sheriff, a notice was given that purchasers would buy the interest of Hovis, subject to the rights of the plaintiff in the property and subject to the amount of the note of $ 500, with interest and costs. Immediately after the sale the pipe line company transferred the credit of oil in its pipes to the defendants, and the plaintiff brought this ejectment to recover the possession of the interest in the lease and machinery. The court below found for the plaintiff, " the land described in the writ" to be released upon payment by the defendants to the plaintiff of the amount of the Hovis note less the amount received from the pipe line company, and the defendants bring this appeal.

The interest of Hovis in the leasehold was interest in land, a chattel real in possession, but none the less a chattel. It was not subject to the lien of a judgment but was subject to levy and sale under a fieri facias: Sterling v. Commonwealth, 2 Grant 162; Titusville Novelty Works' Appeal, 77 Pa. 103; Duke v. Hague, 107 Pa. 57; Kile v. Giebner, 114 Pa. 381; Brown v. Beecher, 120 Pa. 590; Kinports v. Boynton, 120 Pa. 306.

When the execution on the Cross judgment came to the hands of the sheriff, it became a lien on whatever interest, legal or equitable, Hovis had in the leasehold estate, and the sale by the sheriff conveyed to the purchaser all the title of Hovis as of the time of the levy. No subsequent act of Hovis or of Lefever could enlarge or diminish the title as it stood at that time.

The lease from the owner of the fee to Hovis, and the assignment of the one-fourth interest therein by Hovis to Lefever, were recordable instruments under the acts of assembly, and the property described was subject to mortgage: Hilton's Appeal, 116 Pa. 351. The purpose of the Act of April 27 1855, P. L. 368, as expressed in the title is " to amend certain defects of the law for the more just and safe transmission and secure enjoyment of real and personal estate." The 8th section, which authorized the mortgaging of this leasehold interest, provides that it shall be " with the same effect as to the lessee's interest and title as in the case of mortgaging of a freehold interest and title as to lien, notice, evidence and priority of payment." In which case it was held that the words " other premises" embraced a leasehold estate in a city lot for a term of years. The word " premises" as applied to...