Mott v. Clark

• Decision Date: 03 January 1848
• Citation: 9 Pa. 399
• Parties: MOTT <I>v.</I> CLARK.
• Court: Pennsylvania Supreme Court

9 Pa. 399

MOTT v. CLARK.

Supreme Court of Pennsylvania.

December 18, 1848.

January 3, 1848.

Dec. 18.

Reeder, for plaintiff in error.—The evidence in the first bill was irrelevant. 2. Clark was interested to pay the mortgage debt, the verdict would be evidence for him as a privy. [BELL, J. — For privies in estate, but not as to his personal liability.] 3. Whether he made a good bargain, was irrelevant and dangerous, by producing a false sympathy. 4. The sheriff is liable to the other lien-creditors if he improperly permitted the purchaser to retain the bid. But the main question is on the effect of the notice and the recording acts. If, in a contest between two assignees, the recording act can have no operation because the assignment is not "a conveyance of, and concerning lands, or whereby the same may in any way be affected," as was shown in 4 Raw. 257, the same reasoning will show that under this act a subsequent registered mortgage would not postpone a prior un-registered mortgage; and yet the same section of the act shows such a mortgage will postpone a prior unregistered deed. By the act, the instruments to be postponed are conveyances affecting lands, and the persons who are to postpone, are purchasers or mortgagees. If, therefore, the recording acts are to have any bearing, it must be by treating assignees as purchasers or mortgagees. But here there is no conflict. When the mortgage was registered, it created a distinct title, purchasers of which were not bound by the settled rule of this court (7 W. 382, 5 Raw. 51) to examine the registry for matters subsequent in date, except for conveyances under the mortgagee himself. As respects titles derived from the mortgagor, those conveyances which were duly registered to charge the mortgagee at that time need only be examined. Hence, Mott was not affected by the subsequent registry of defendant's deed, though prior in date. And he is clearly entitled to the benefit of want of notice by Johnson: Sug. on Vend. 729.

To what extent is he then affected by the personal notice to the mortgagee? The authorities are clear that he is bound by the equities of the mortgagor, but not by latent equities of third persons: 4 Ves. 118, and Am. n.; 1 Pow. on Mortg.; 3 Ib. 904; 2 Cow. 247; 2 J. C. R. 443; Ib. 479; 6 Ib. 417; 3 Yeat. 351.

J. M. Porter, contrà.—1. The evidence was part of the record shown by plaintiff, and it also showed a partial payment of the instrument under which he claims. 3. Whether he was a bonâ fide purchaser is to be shown by the amount he paid: 5 W. 538. 4. The claim against the sheriff is barred by the act of limitations: 5 Barr, 285.

It is settled by 5 W. & S. 49, and other cases, that under the act of 1775, the subsequent purchaser registering his deed is preferred before a prior purchaser of the fee: if he is within the registry acts, then he is postponed by these decisions; if he is not, then those acts afford him no protection. Unless, therefore, the assignee of a mortgagee is in a higher position, he will be postponed. But he is clearly not; on the contrary, the cases clearly show him to be but a lien-creditor, whose title or right passes with the bond. 17 S. & R. 400, 3 Pa. 379, 4 R. 257, show this, and hence it follows, that like the assignee of any other bond, he is in no better situation than his assignor. Lancaster v. Dolan merely decided he is a purchaser within the 27 Eliz. But supposing his mortgage to exist as a lien, then it merged in the fee purchased at the sheriff's sale, and could not subsequently be revived. The furthest that the cases have gone, is to say it may depend on an intention not to merge; but by his conveyance to Mott, and the covenant from the words grant, bargain, and sell, there was an election by him to treat the mortgage as merged.

Reply.—If Johnson had acquired the estate by the sheriff's sale this would apply; but this verdict has shown that he never did purchase defendant's moiety. How then can this doctrine prevail? Surely the mere acquisition of the legal title will not merge the trustees' security or lien on the equitable title. It never yet has been decided that where the legal and equitable estates are in different persons, merger must take place, contrary to the interest of the trustee, or without a clear intent expressed by him. But here the title of V. Clark being registered before the sheriff's sale, Johnson did not acquire any title thereto, but on the supposition that deed was fraudulent, which it was not, according to the verdict: as to that, the requisites to merger are therefore wanting.

Jan. 3. ROGERS, J. (after stating the two titles under the mortgage and the sheriff's sale.)

Either of the titles as above stated would entitle the plaintiff to a verdict. But the defendants contend the plaintiff cannot recover because Thomas Clark, on the 5th January, 1841, conveyed an undivided half of the premises (being the property in dispute) to his father, Vinson Clark. That this deed was acknowledged on the day of its date, and was recorded May 1st, 1821. The deed being recorded before the sheriff's sale, and moreover V. Clark having given notice at the sale, the court properly instructed the jury that the purchaser at the sheriff's sale obtained no title unless the deed from John Clark to V. Clark was fraudulent. The jury decided that it was a bonâ fide conveyance. There is therefore an end to the title grounded on the sheriff's deed.

Has then the plaintiff, the assignee of Broadhead, a title under the mortgage? — and this is a principal point in this case. The mortgage to Broadhead was recorded 28th November, 1831, but the deed from J. Clark to V. Clark, although prior in date, was not recorded until May 1st, 1836. And this would be decisive of the case; but the defendant replies, that although his deed is recorded upwards of five years after the entry of the mortgage, he is not to be postponed, because the mortgagee had actual notice of the conveyance of a moiety of the property by John Clark, to his father, V. Clark. The fact of notice was properly left by the court to the jury, who found that the mortgagee had notice. But in answer, the plaintiff contends that admitting this to be so, he is an assignee without notice, and however it may be as between the mortgagee and third persons, he takes the property discharged of all equities of which he had no knowledge. The question, therefore, is (granting he had no notice, which is undoubted), does the assignee stand in the same or a better position than the mortgagee? On this point the court instructed the jury, that the assignment of a mortgage is not so within the recording acts, as to give the assignee protection against an unrecorded deed, of which the mortgagee had full notice. That a mortgagee is a purchaser within the statute of frauds, is ruled in Lancaster v. Dolan, 1 Raw. 245, on the authority of Chapman v. Emery, Cowp. 278. Now it has been repeatedly ruled, that although a purchaser has notice of an equitable claim, by which his conscience is affected, yet a person purchasing from him bonâ fide, and without notice of the right, will not be bound by it. So a person having notice of an equitable claim may safely purchase of a person who bought bonâ fide, and without notice. These positions are elementary, and are fully sustained by the authorities cited. If,...