Home v. Startzell

83 A. 584, 235 Pa. 110, 1912 Pa. LEXIS 508

• Court: Supreme Court of Pennsylvania
• Decided: February 19, 1912
• Docket: Appeal, No. 238
• Status: Published

Opinion

Pee Cueiam,

The real estate which is the subject of this controversey was sold at sheriff’s sale upon an execution .issued on a judgment entered upon a bond and warrant accompanying a mortgage. When the judgment was entered, Startzell, the mortgagor and the obligor in the bond, had parted with his title to the property, and it was sold by the sheriff’ without notice to the owner of it. The contention of the appellants is that no title passed to the sheriff’s vendee, because of a failure to comply with the following provision of the act of April 23, 1903, P. L. 261: “The plaintiff in any writ of ejectment, in any writ of summons to recover upon a ground-rent deed, or to recover any sum charged upon real property by will or deed, in any writ of scire facias sur mortgage, or in any writ to charge particular land with the payment of a particular debt running with the land, or some person on his behalf, shall file with his praecipe an affidavit setting forth, to the best of his knowledge, information and belief, who are the real owners of the land charged, or in the action of ejectment are claimants thereof, as the case maj be; and all such persons shall be made parties to the writ, which shall then be served by the sheriff as follows.”

A judgment entered upon a bond and warrant of attorney accompanying a mortgage creates a lien upon the mortgaged premises, no matter who may be the owner of them at the time of the entry of the judgment. The lien of such judgment relates back to the day the mortgage was recorded, and a sale upon it discharges the lien of the mortgage: Morris v. Campbell, 186 Pa. . When Dallas, the ¿ppellant, took title, she had record notice that the mortgage which bound her property had been accompanied by a bond upon which judgment might be entered at any time against Startzell, the obligor in it, without notice either to him or to her, for neither was entitled to such notice. After the judgment was entered no writ was issued to recover any sum charged upon the property or to charge it with the payment of any particular debt running with it. Neither the fi. fa. nor vend. ex. charged the land with the mortgage debt. It was so charged by the entry of the judgment, and the writ of execution subsequently issued thereon was clearly not a writ within the intendment of the act of 1903. The court below correctly so held, and the.judgment for the petitioner below, for possession of the property, is affirmed.