Duncan v. Reiff

3 Pen. & W. 368

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1832
• Status: Published

Opinion

The opinion of the court was delivered by

Gibson C. J.

The practice of the state has ever been to retain an indissoluble lien on the land itself, without regard to the manner in which the debt to be secured was created. This was distinctly manifested in the loan office Act, passed the twenty-sixth of February, seventeen hundred and eighty-three, on the special provisions of which was decided, Febeger’s lessee, v. Craighead, 2 Yates, 42, whose principles were lately scanned with care in the case of The Corporation for the relief of Presbyterian Clergymen v. Wallace, in which the decision went no further, however, than to determine the effect of a judicial sale on the lien of a mortgage whose properties were not regulated by statute. Neither the Acts of the fourth of April, eighteen hundred and five, and the twenty-first of February, eighteen hundred and ten, in accordance with which the mortgage before us was given, nor that of the first of March, eighteen hundred and eleven, to encourage the patenting lands, north and west of the Allegheny river and Conewango creek, expressly or by necessary implication define the qualities of a mortgage for purchase money, further than the intent of the legislature in that respect, may be supposed to have been guided by the policy uniformly evinced in similar cases, of which, however, the legislation that grew out of the dispute between this state and Connecticut, affords a happy illustration. In the compromising Act, passed the fourth of April, seventeen hundred and ninety-nine, patents were ordered to be issued to Connecticut settlers, on security being given by mortgage for the purchase money, but without expressly defining the force and durability of its lien. But the preeise intent of the legislature on this-subject, was explained by a suppletory Act, passed the fourth of April, eighteen hundred and five, in which the patents were directed to be issued to Connecticut settlers, who might “desire such lands to remain as a security for the payment of the purchase money” without being willing to incur the expense of a mortgage, the Surveyor General certifying on the bach of the patents, the amount and the periods when payable; “which sums” it was enacted, “shall remain a lien on the land in the nature of a mortgage, until the money shall have been paid.” Here then is a legislative exposition of the nature of a mortgage to the state. In fact the state has seldom accepted of any other security than the land itself. In a very few instances both bonds and mortgages have been required; as by the Act of the sixteenth of September, seventeen hundred and eighty-five, for the price of lands purchased before the tenth of December, seventeen hundred and seventy-six, and also by the Act of the thirtieth ofMarch, eighteen hundred and twenty-two, which directed sale to be made of the lands ceded by Dickenson College. In the case of the lands oí John Nicholson, sold on the lien of the Commonwealth, for defaults by him in the ¡office of Comptroller General, the sale was on terms which required the purchaser to give bond without a mortgage; but.the land was expressly charged with its price in the hands of the purchaser, and this affords another proof of the uninterrupted course of the policy of which I have spoken. In the case of the estates forfeited aud directed to be sold by the Act of attainder, passed the sixth ofMarch -seventeen hundred and seventy-eight, and of the depreciation lands sold at the Philadelphia coffee-house, under the Act.of the twelfth of March seventeen hundred and eighty-three, for the redemption of the certificates issued to the officers and soldiers of the Pennsylvania line, the title was withheld till the purchase money was paid. All these examples shew that although there have been a feyv instances of superadded personal liability, the state has always looked to the land as debtor. Nor has it ever confided the receipt or custody of itsmonys to any but its particular "officers or agents. Here, if the lien were divested, the public interest would be put to thé hazard of the sheriff’s insolvency, which sometimes occasions loss even to individuals notwithstanding extreme diligence by the losers. The Commonwealth necessarily performs its operations by the instrumentality of agents, and consequently with less vigilance than is infused by self-interest into the operations of an individual; and it is for that reason instead of any approximation of its attributes and prerogatives to those of royalty, that the maxim of nullum iempus is held applicable to it: so that the same consideration would seem to entitle it to a more indulgent construction in other matters, than could be claimed by an individual. Whatever, therefore may have, begn the effect of a judicial sale on .other interests? both the policy and the practice of the legislature have been to hold the lien of a mortgage to the state, undischarged by any thing but actual payment into the treasury; consequently, the mortgage to the govern- or, mentioned in the case stated, is not to be paid out of the proceeds of the sale.

Judgment affirmed,