Mevey's Appeal
| Decision Date | 26 September 1846 |
| Citation | 4 Pa. 80 |
| Parties | MEVEY'S APPEAL. |
| Court | Pennsylvania Supreme Court |
Hampton and Shaler, for appellant.—The whole twenty-seven acres were mortgaged; there were no divisions. The mortgagee is not bound to notice subsequent divisions by the mortgagor. Under the act of 2d April, 1822, 7 Smith, 551, a mortgagor can release a portion of the mortgaged premises. This act is directory as to the proceedings; he is obliged to levy on all not released. It is a proceeding in rem, the mortgage being the basis. The sci. fa. must pursue the mortgage, except as to released portions. The court cannot compel him to do what the law will not permit; that is, to levy on a portion of the premises, without the residue being released. If the court here must compel the plaintiff to release the three acres, before permitting him to proceed and sell the fourteen acres, it would not only be against law but justice.
Nor would the difficulty be obviated by levying on the whole, but selling only the fourteen acres. This could not be done. The sale must be co-extensive with the levy. A mortgagee cannot know, nor is he bound to know, the metes, bounds, and dates of the respective divisions or portions. The principle on which the decisions in Nailer's Executors v. Stanley, 10 Serg. & Rawle, 455, 456, rests, is entirely different from the present. The reason of the rule there is obvious and just. The debt is a personal one. The debtor always remains liable to pay the debt. All his property must be first taken and exhausted. Hence the last purchaser takes with that understanding. But in the case of a mortgage there is no personal debt. The judgment not against the person, but de terris. The land, not the person, pays the debt. As to the equities in this case: the complainant is not an innocent purchaser without notice. He knew of the mortgage. Now he asks the intervention of the equitable powers of this court, to enable him to evade the payment of any portion of the mortgage; whilst all that we ask, standing in the double capacity of purchaser and mortgagor, is, that he be compelled to pay his proportionate part of the mortgage, and we will pay ours.
Biddle, contrà, contended, that where a mortgagor sold parts of the mortgaged property, the mortgagee was bound to proceed against, and sell the residue of the premises in the first instance, and if this were not sufficient to pay the debt, then to sell the portion last sold by the mortgagor, and so on, in the inverse order of the dates of the purchases. He cited, Nailer's Executors v. Stanley, 10 Serg. & Rawle, 455, 456; Gill v. Lyon, 1 Johns. Ch. Rep. 449; Clowes v. Dickenson, 5 Johns. Ch. Rep. 242; James v. Hubbard, 1 Paige's ...
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