Kennedy v. Borie

31 A. 98, 166 Pa. 360, 1895 Pa. LEXIS 1213

• Court: Supreme Court of Pennsylvania
• Decided: February 18, 1895
• Docket: Appeal, No. 191
• Status: Published

Opinion

Opinion by

Mr. Justice Green,

We do not think that the rulings in Rauch v. Dech, 116 Pa. 157, and Rushton v. Lippincott, 119 Pa. 12, control the decision of this case. In both of those cases the purchaser at the judicial sale was a total stranger to the title and under no obligation to protect the title against any incumbrances. He therefore took the lands divested of the liens which were sought to be enforced, and when he subsequently conveyed to the former owner the purchaser took the same title which he held. In this case the allegation of the bill is that Martin bought the property from Groome and wife, subject, in express terms, to both the mortgages described in the bill, one of which is the mortgage of the plaintiff’s assignor. It is true that Martin was not the original mortgagor, but he was the grantee of the title of that person, and it must be assumed that the purchase money which he agreed to pay and in consideration of which he obtained the title, was, in part at least, secured by the very mortgage which he now claims to be discharged because there was a sale under the prior mortgage, which also he agreed to pay. The case looks now more like the line of cases of which Taylor v. Smith, 2 Wharton, 432, and Woodburn v. The Bank, 5 W. & S. 447, are examples, in both of which the purchaser’s title was held to be subject to the prior liens.

Nor are we willing to say conclusively, at this stage of the pleadings, that no force is to be given to tbe other facts stated in the bill, as indicia of an improper purpose to use the sale under the first mortgage, as a means of divesting the lien of the second mortgage, which the purchaser Martin had, according to the bill, expressly agreed to pay. While we will not now review those facts, as we do not wish to prejudge the case, we are of opinion that they would be admissible in evidence, and be entitled to consideration, in support of the charge of a combination between Martin and the other defendants to destroy the lien of the plaintiff’s mortgage.

The case comes before us only upon a demurrer to the bill which necessarily admits the truth of the facts stated in the bill. We think the case should be heard upou its merits and that there is a sufficient averment of facts in the bill to entitle it to be heard. We will therefore overrule the demurrer and direct the defendants to answer over.

The judgment of the court below is reversed, the demurrer of the defendants is overruled, the bill is re-instated and the defendants are directed to answer over, and the record is remitted, the costs of this appeal to be paid by the defendants.