Zeller v. Henry , 157 Pa. 1 ( 1893 )

Opinion by

Mr. Justice McCollum,

Reuben L, Light and his wife Susanna Light mortgaged their farm of one hundred and twenty-three acres in Lebanon county to secure the debt of the husband to Christian Henry, mortgagee. The mortgage was a first lien. The husband owned one seventh of the farm and the wife six sevenths of it. At a sale upon a judgment against the husband his interest in it was purchased by David W. Zeller, with notice that the wife joined in the mortgage as surety. After he received a deed of the land so purchased it was levied upon and advertised for sale by virtue of a writ issued upon a judgment obtained on the mortgage. A sale on this writ would have passed to the purchaser the title which Reuben Light had when he executed the mortgage, and extinguished the equity of redemption which Zeller acquired by his purchase. To prevent such a result the latter proposed to buy the mortgage, and, on the refusal of the mortgagee to sell it, paid the mortgage debt with interest and costs to the sheriff, and served a notice on him to pay the money into court. He then moved for and obtained a rule on the mortgagors and mortgagee to show cause why the mortgage should not be marked to his use. This rule, after argument and due consideration, was discharged, and from the order discharging it he appealed. The single question raised by his appeal is whether he is entitled to subrogation to the rights of the mortgagee against the property of Susanna Light. In considering this question it should be borne in mind that Mrs. Light was simply a surety for the mortgage debt, and while her land was pledged for it she had an equity to require that the mortgagee should sell her husband’s land before resorting to hers for satisfaction of any part of it. It may be conceded that, if she was liable as a principal for any portion of this debt, Zeller, having paid the whole of it in order to save the interest he acquired as a purchaser at the sheriff’s sale, might be subrogated to the rights of the mortgagee to enable him to collect such portion from her land. But the entire debt was her husband’s and his land was primarily chargeable with it. Zeller bought this land subject to the mortgage, and by his purchase acquired the right which the husband had in it when the judgment was entered on which the sale was effected. What was this right? Nothing more nor less than an equity of redemption, a right to hold the land by paying the debt for which it was mortgaged. He was not personally bound for this debt; but, by paying it to prevent a sale of the land he purchased subject to it; the surety was as effectually released as if the principal debtor paid it. If he had bought, taken an assignment of, and sold the laud upon the mortgage, and at the sale had purchased the land for less than the debt, he would have no valid claim against the principal debtor or mortgagor for the balance of it: Dollar Savings Bank v. Burns, 87 Pa. 491; Cooley’s Appeal, 1 Grant, 401; Hansell v. Lutz, 20 Pa. 284. The application to this case of the principles on which the cases cited were determined is a sufficient answer to the appellant’s claim, because it is familiar law that the surety is discharged by that which extinguishes or. satisfies the obligation of the principal.

The specification of error is overruled.

The order discharging the rule to show cause is affirmed at the costs of the appellant.