Kinports v. Boynton , 120 Pa. 306 ( 1888 )

Opinion,

Me. Justice Paxson:

This proceeding in the court below was a scire facias to revive and continue the lien of judgment No. 485 September Term 1876, in which Porter Kinports was plaintiff and Gideon R. Kinports, defendant. This judgment was entered of record August 11,1876. On November 17, 1885, a judgment for want of an affidavit of defence was entered against the said defendant and Jonathan Boynton, as terre tenant, in the scire facias. Subsequently an application was made to the court below by Boynton to strike off the judgment as to him upon the ground that he was not a terre tenant, and that the judgment had never been a lien upon the particular real estate in controversy. We need not refer to these proceedings in detail; they are not very clearly stated, but appear to have resulted in an issue to try this question, and a verdict in favor of the terre tenant in conformity to a binding instruction of the court.

The question we have to determine is, whether Gideon R. Kinports had such an interest in this particular real estate at the time the original judgment was entered as was bound thereby, and if so, whether the same was bound by the judgment on the scire facias as against Jonathan Boynton as terre tenant.

The real estate which the plaintiff claimed was bound by the lien of his judgment, consisted of a tract of land of about two hundred and sixty-five acres. It is undisputed that Gideon R. Kinports was the owner of this land in 1874, and that on October 8th of that year he entered into a written contract with Thomas Tozier by which he agreed to sell the said tract of land to the said Tozier for the consideration of $22,500 payable by instalments; that of these instalments, $6,000 only was paid; that on May 29, 1875, Gideon R. Kinports, by a writing duly executed, assigned the purchase money due him from Tozier, as well as his legal title to the said real estate, to John W. Williams, and that the said Williams on October 14, 1876, assigned the same to Jonathan Boynton. Each of these assignments upon its face shows that it was as collateral security merely, and that the sum intended to be secured was several thousand dollars less than the purchase money remaining unpaid. Neither assignment was recorded. We may further state as a part of the history of the transaction, that on March 9,1875, G. R. Kinports brought an action of ejectment against Thomas Tozier, upon the legal title, to enforce the payment of the balance of the purchase money, to which action the name of Jonathan Boynton was subsequently added as a plaintiff. This action was so proceeded with that a verdict was rendered for the plaintiff to be released upon the payment of $15,510. A judgment was entered upon this conditional verdict, which subsequently became final, and a writ of habere facias possessionem was issued April 18, 1878, and the writ executed by delivering the premises to Jonathan Boynton.

The legal effect of the agreement between Gideon R. Kin-ports and Thomas Tozier, of October 8,1874, was to place the equitable title in Tozier, wlfile the legal title remained in Kin-ports as security for the unpaid purchase money. A judgment in this state binds the equitable as well as the legal title, hence it needs neither argument nor the citation of authority to show that the interest of Kinports or Tozier, in the premises in question, would be bound by the lien of a judgment so long as the contract remained unexecuted, and to the extent that it was unexecuted.

If, on August 11, 1876, the day when the judgment, No. 485 September Term 1876, was entered, Gideon R. Kinports had parted with his entire interest in the property, there would have been nothing to which the judgment could have attached as a lien. The assignment to Williams, however, was not an absolute conveyance of either the legal title or of the unpaid purchase money. It was, as before stated, merely an assignment as collateral to secure a debt less than the purchase money remaining unpaid, while the assignment from Williams to Boynton was of the same character. This left a resulting interest in Kinports which was subject to the lien of a judgment. A judgment obtained against the vendor of land, after the execution of an article of agreement, but before the execution of a deed, binds the legal estate of the vendor; and on a sale under such judgment the sheriff’s vendee stands precisely in the situation of the original vendor, and is entitled to the unpaid purchase money, payment of which he may enforce by ejectment against the terre tenant: McMullen v. Wenner, 16 S. & R. 18; Fasholt v. Reed, 16 S. & R. 266; Catlin v. Robinson, 2 W. 373; Wilson v. Stoxe, 10 W. 437; Stewart v. Coder, 11 Pa. 90.

The right which Gideon R. Kinports had in the real estate after the assignment to Williams, was the right to a reconveyance of the property after the payment of the debt which the assignment was intended to secure. It appears that the debt has not been paid, and the learned judge below was of the opinion, that because it has not been paid, G. R. Kinports had a mere possibility -which has never happened, and therefore he had no interest when the judgment was entered against him. But he had a right to pay the money and thus redeem the pledge, and when so redeemed, to a reconveyance or return of the property pledged. His judgment creditor would have the right to sell the property subject to the pledge, and the purchaser at such sale would be entitled to stand in Kinports’ shoes, and redeem. Whether such right would be of any value is not to the purpose. There was an interest, valuable or otherwise, to which the lien of the judgment attached, and we are of opinion it was error to instruct the jury to find for the defendant.

Moreover, we are of opinion that the assignment by Gideon R. Kinports to John W. Williams was in legal effect a mortgage. It was an assignment of the purchase money of the real estate therein described and mentioned, “ together with all my interest and legal estate in the land,” etc., as collateral security merely. . This interest was of such a character as before remarked, as to be liable to the lien of a judgment. It was equally capable of being conveyed or mortgaged. It was assigned to Williams as a mere pledge. It is well settled in this state that an assignment or conveyance to secure an existing debt or future advances, is but a mortgage without regard to its form. It is so, if absolute upon its face: Kellum v. Smith, 33 Pa. 158; Rhines v. Baird, 41 Pa. 256; Myers’s Appeal, 42 Pa. 518; Harper’s Appeal, 64 Pa. 315; McClurkan v. Thompson, 69 Pa. 305; Fessler’s Appeal, 75 Pa. 483.

We hold that the assignment in question is but an unrecorded mortgage. What effect it may have in any future contest is a matter not now before us. It is sufficient to say that it leaves no doubt in our minds as to the right of the plaintiff to revive his judgment against this land, and Jonathan Boynton as terre tenant, to the extent of Kinports’ interest, whatever it may be.

We think that in view of what was said in McLaughlin v. Ihmsen, 85 Pa. 364^*, it was competent for the plaintiff to show that the debt represented by his judgment was prior in point of time to the assignment to Williams, and that it was error to reject the evidence referred to in the first assignment. We also sustain the second, third, fourth, fifth, sixth, seventh, eighth and tenth assignments.

Judgment reversed, and a venire facias de novo awarded.

* “ And, even though unrecorded, it [a mortgage] is good against the mortgagor, himself, or his alienee, or mortgagee with actual notice, or a judgment creditor with notice, before his debt is contracted: ” Agnew, C. J.