Byers v. Hoch

11 Pa. 258

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1849
• Status: Published

Opinion

The opinion of this court was delivered by

Burnside, J.

Before the passage of the act of the 6th of April, 1830, a series of decisions had settled and established the law in Pennsylvania, that a party purchasing at a judicial sale, fairly made, shall hold the land free, not only from liens on account of the debts of the person as whose estate it is sold; but on account of the debts of the previous owners of the land from whom he derived title: Luce v. Snively, 4 Watts, 397. The cases on this subject are arranged in Whart. Dig., tit. Execution, letter L.

The act before recited, of 1830, Stroud’s Purdon, 428, Pamph. L. 293, provides, that, “from and after the passage of this act, where the lien of a mortgage upon real estate is or shall be prior to all other liens upon the same property, except other mortgages, ground rents, and the purchase-money due to the Commonwealth, the lien of such mortgage shall not be destroyed, or in any way affected, by any sale made by virtue or authority of any writ of venditioni exponas.”

Prior to the passage of this act, a sale on a younger judgment discharged the lien of a prior mortgage: Willard v. Norris, 2 Rawle, 56; M’Grew v. M’Lenachan, 1 Pa. Rep. 44. The provision in the statute excepts prior mortgages that are the first lien, ■or prior to all other liens upon the property sold: Luce v. Snively, 4 Watts, 397; Garro v. Thompson, 7 Watts, 416.

There were liens against the original owners of the premises, which it is admitted were paid out of the sale. The mortgage was not the first or prior lien. The liens created by the judgments against Klapp were prior liens on the property in the hands of Glover. We are all of opinion, it is not a case within the act of 1830, and that the mortgage was divested by the sale.

This disposes of the whole case.

The judgment is affirmed.