Keen ex rel. Carpenter's Co. v. Swaine

3 Yeates 561

Opinion

Brackenridge, Justice.

I have always thought that‘no sub-. sequent judgment could have any effect by a sale, injurious to prior judgments.

Yeates, Justice.

On the other hand, there are dangers, that the lands sold subject to prior mortgages or judgments, will not bring their full value. Judgments may be entered by way of security. Payments may be set up by the debtor, and controverted by the creditor. How can the sheriff ascertain in such cases the amount of prior incumbrances, or persons desirous of purchasing become acquainted therewith ? No one can tell what the purchase money will amount to, and the result will be injurious to creditors, debtors and purchasers. What sticks with me, is, that mortgages and judgments are mere securities for the payment of money. At the same time, I admit, that injustice may be done, by selling lands subject to prior incum-brances, without giving full notice to such creditors. But this difficulty might I think, be obviated by the court.

Smith, Justice.

There are great dangers and mischiefs on both sides of the question ; and it will require great consideration before the court can lay down any general rule on the subject.