Naples v. Minier

3 Pen. & W. 475

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

Opinion

Per Curiam-

The Universality of the practice, ever since the act.of 1705, to require a condemnation of land levied on z. fieri facia's, though subject to mortgage, ought to be decisive of the question: In King v. Pulaski, 1 Yeates 477, it was held, that the word “reprises” in that Act, clearly includes mortgages; which would be preposterous had the legislature intended that the existence of a mortgage, should supercede the inquisition altogether. So far was it from being deemed to have that effect, that it was treated as being just.such a reprize as a judgment — another proof that a mortgage has been considered with us as but a species of incumbrance. In that case, as in this, all the instalments were due or to become due within the seven years; but though that would be material to a question, whether the mortgage were a reprize that might effect the estate of the tenant by extent, if it were pressed by scire facias, it would by no means affect the duration of the mortgagor ’s estate, as the right of the mortgagee to the possession, would depend on very different considerations. That, however, is not the sort of uncertainty of duration which dispenses with a condemnation; for it would obviously dispense with it whenever the land is unpatented, when quit-rents arc in arrears, or, in short, whenever a vendor has a right of entry for the breach of any condition whatever, a consequence which is well known not to follow. It is true that a condemnation is not necessary to a sale on a liberari facias; but that is because the legislature has thought proper to give an advantage to a mortgagee, which it has seen lit to give to no one else. It is not a little strange that a scruple should have been felt about this point, after -a practice of more than a century; or, indeed, that the point should have been made. We deem if a plain one; and feel no difficulty in deciding it.

Judgment affirmed.