In re Assigned Estate of McFadden

43 A. 383, 191 Pa. 624, 1899 Pa. LEXIS 865

• Court: Supreme Court of Pennsylvania
• Decided: May 23, 1899
• Docket: Appeal, No. 234
• Status: Published

Opinion

Per Curiam,

As to the controlling question of fact in this case, the learned president of the court below found on sufficient evidence “that it was understood and agreed between the parties concerned that the McFadden farm should be sold by the assignee free and clear of the lien of the Brooke first mortgage, and that the first proceeds of sale should be applied to the payment of said mortgage.”

There cannot be any doubt that the act preserving the lien of a first mortgage at a judicial sale not made on said lien is for the benefit of the holder of the mortgage, and that by agreement he may waive such right or benefit and consent that the sale may be made free and clear of the lien, etc.: 4 Pa. Superior Ct. 556.

There appears to be nothing in the record that would warrant us in holding that the court erred in finding as above quoted, or in any of the matters complained of in the specifications of error. We find nothing in either of said specifications that requires further notice.

The decree is affirmed on the opinion of the court below, and the appeal is dismissed at appellant’s costs.