Gallagher v. Stern , 1915 Pa. LEXIS 939 ( 1915 )

Per Curiam,

The Superior Court correctly held that, as against judgment creditors of Bernard Stern, whose judgments were entered after he had acquired the one-half interest of his son in the property which he had mortgaged as sole owner to the appellant, its mortgage was a lien only upon the one-half interest owned by him at the time the mortgage was executed. This appeal was not allowed for the determination of any other question, and in sustaining the decree of the Superior Court—Gallagher v. Stern, 59 Pa. Superior Ct. 225—it need only be said that Calder v. Chapman, 52 Pa. 359, was properly regarded as controlling authority against the contention of the appellant. In that case Calder, the mortgagor, included in a mortgage property which he did not own at the time,' known as the “Factory Lot.” He subsequently acquired title to this property, and, upon a judgment entered against him, it was sold by the sheriff. The same lot was subsequently sold under proceedings on the mortgage, and, in an ejectment brought by the purchaser at the sale on the judgment against those who had purchased at the sale under the mortgage, the jury were instructed as follows: “The question raised is, Whether the ‘Factory Lot’ was bound by the mortgage. As between the parties it clearly would have been. The mortgagor might have perfected his title to the land for the benefit of the mortgagee. But we have to deal with subsequent lien-creditors. The judgment was entered against property acquired subsequent to the mortgage. It became at once a lien. A judicial sale conveyed it clear of any lien under tbe mortgage.” . This instruction was assigned as error. In overruling tbe assignment and affirming the judgment in favor of the plaintiff, we said: “An examination of tbe title when they (tbe mortgagees) took tbe mortgage must have shown them Calder bad no title to tbe ‘Factory Lot’; an innocent creditor should not suffer for their gross negligence.”

Decree affirmed at appellant’s costs.