Sharpe v. Tatnall , 5 Del. Ch. 302 ( 1880 )

The Chancellor.

In the view which I take of this case, it is not necessary for me to consider many of the interesting questions which have been argued, arising under the Act known as the Mechanics’ Lien Law, as amended March 29, 1871 (Rev. Code, p. 668); nor is it material that I should decide any of the controverted questions of fact.

It is not disputed that the premises known as “the agricultural fair grounds were sold and conveyed to the complainants by the sheriff of Hew Castle County, under a writ of levari facias to the Hovember Term, 1874, issued on a judgment recovered against the Wilmington Rifle Club upon a mortgage for $12,000 executed by said rifle club to the Agricultural Society of Hew Castle County, dated June 23,1871, and recorded July 5,1871, and subsequently assigned to Jesse Sharpe, since deceased. For the purposes of this case it is of no consequence whether this mortgage was or was not a “purchase-money mortgage,” or whether it was executed and delivered at the time of the execution and delivery of the deed by the agricultural society to the rifle club or afterwards. It was certainly a lien on the premises from the time it was recorded, July 5,1871.

It is claimed by the defendant that said mortgage, and also the assignment of the same to Jesse Sharpe, were usurious and void, and that no valid title could be sold under said mortgage. I am not satisfied, from the evidence, that said mortgage or assignment was in fact usurious; but if they were both usurious, this defense would be of no avail in this suit. There is no allegation in the pleadings, or evidence of any kind, of any privity between the said Jesse Sharpe and the complainants, or of any knowledge by the complainants of the usurious character of said mortgage or assignment; and they must therefore be considered by this court as bona fide purchasers, without notice of any of the circumstances alleged by the defendant as impeaching the validity of said mortgage or assignment. It is well settled that' the title of an innocent purchaser of land at a judicial sale under a mortgage is not affected by the usurious character of said mortgage. Wilkinson v. Dodds, 1 Johns. Cas. 158; Bartlett v. Henry, 10 Johns. 185; Elliott v. Wood, 53 Barb. 285.

‘ The testimony is somewhat conflicting as to the time of the delivery of said deed to the rifle club ; but supposing it was delivered on the day it bears date, May 19,1871, and that said club was seised in fee simple of the premises when the furnishing of the materials was commenced, May 23, 1871, and afterwards while the furnishing of said materials was continued; and that the lien of the judgment of the defendant under the Mechanics’ Lien Law relates back to the said May 23, 1871,—the question remains as to the effect of the sale of the premises under said mortgage. It is contended by the defendant that his said lien was not affected by said sale, but that said sale was subject to the lien of his said judgment, and that he has now the right to sell the premises under his said judgment.

The court of errors and appeals in 1828, in the case of State v. Vickory, 1 Harrington, 193, held that the sale of land by the sheriff, under a junior judgment, discharged the land sold from the lien of a prior recognizance in the orphans’ court, and declared the law to be settled by practice and by the decision of the court of appeals that, if land be sold under a junior judgment, the lien of a prior judgment is discharged.

In the case of Farmers Bank v. Wallace, 3 Harrington, 370, it was held that lands sold by the sheriff in execution:,of a judgment are discharged, in the purchaser’s hands, of all judgment liens, whether due or not due; and that it is the policy of the law to disincumber lands as much as possible from all liens which a sale could possibly remove.

Section 1 of the “Act in Relation to Sales of Real Estate under Execution Process,” passed March 29,1871 (Rev. Code, p. 681), provides “that real estate sold by virtue of execution process shall be discharged from all liens thereon against the defendant . . . whose property such real estate is, except such liens as have been created by mortgage or mortgages prior to any general liens.”

This statute is conclusive as to the effect of the sale of the premises by virtue of the execution under said mortgage. The only liens against a defendant not discharged by a sale of his lands under execution process against him are mortgages which are prior to any general liens. The lien of H. L. Tat-nail is against the rifle club, the defendant in the execution under which, the property was sold to the complainants. This lien is certainly not a mortgage of any kind. It is a judgment which, while it bound specific property, and may have had relation back to a date prior to its rendition, is as much subject to the provisions of this statute as any general judgment.

The sale and conveyance of said premises to the complainants, by virtue of said writ of levari facias to the November Term, 18.14, discharged said premises from the lien of said judgment of said defendant, H. L. Tatnall.

Although no valid title to the premises could now be sold or conveyed under said judgment of the defendant, a pretended sale and conveyance under it might cause the complainants expense and trouble, and would cast a cloud upon their title. For such threatened injury by the defendant there is no sufficient or adequate remedy at law. The prevention of a cloud upon title is a salutary branch of equity jurisdiction, universally recognized, and founded upon sound principles. High, Inj. § 269.

- Equity will restrain a sale of land on execution where such sale would create a cloud upon the title, although in fact no title would pass thereby. Pettit v. Shepherd, 5 Paige, 492; Shaw v. Dwight, 16 Barb. 536; Hill. Inj. 234.

Decreed that the injunction heretofore awarded be made perpetual, and that the defendant pay the costs of suit, etc.