Miller v. Musselman , 1841 Pa. LEXIS 43 ( 1841 )

The opinion of the court was delivered by

Rogers, J.

A judicial sale, as is shown by the cases cited, divests all liens, whether general or specific; and in Willard v. Morris, (2 Rawle, 56,) and in the Corporation v. Wallace, (3 Rawle, 109,)'the same rule was extended, so as to divest the lien of a prior mortgage. Yet, although this is the general rule, it is not without exceptions; as for example, when the amount of the lien is uncertain, and is incapable of being reduced to a certainty. Whether this case falls within the latter class, we do not decide, although it is not altogether unlike Knaub v. Esseck, (2 Watts, 282.) We are of opinion that the cause is clearly with the defendants in error on another ground. The mortgage, which it now appears was given as an indemnity to the plaintiffs as security, stands on the record as an absolute mortgage for the payment of a specific, ascertained, certain sum of money. And, as there is nothing to put the vendee on his guard, he has a right to consider the mortgage, what it purports to be, subject to all the rules which apply to that species of lien. At the time of the sale, the sheriff’s vendee had no reason to suppose that further search would lead to any other result than that which is apparent on therecord. It seems from the evidencethatthe mortgagees omitted to have the mortgage drawn in proper form, to entitle them to claim the benefit of the exception; but the loss consequent on the omission, cannot with any propriety be visited on the innocent vendee. The principle which governs this case has already been ruled in M'Lenegan v. Reeside, (9 Watts, 510,) and in Freedley v. Hamilton, (17 Serg. & Rawle, 70.) In M‘Lenegan v. Reeside, it is decided that whatever may be the transaction between the immediate parties, a third person is not bound to look further than the recorded conveyance. A vendee can only judge of it as it appears on the face of the title. And in Freedley v. Hamilton, that, although an absolute deed and defeasance, made at the same time, constitute a mortgage, yet, if the defeasance is not recorded, it is to be considered as an unrecorded mortgage, and postponed to a judgment creditor of subsequent date, notwithstanding the absolute deed has been duly recorded. The reason of these decisions, and in which alone they can be supported, is, that the deed recorded is notice of nothing but what it purports to be; and that a third person, whether creditor or vendee, is not bound to look beyond it, as there is nothing to put him on any further inquiry. And because a different rule would subject a creditor or vendee to a certain loss, which he could by no legal diligence prevent, and where, consequently, he is in no default whatever.

It is proper to remark, that the sheriff’s sale, here, took place before the act of the 6th of April, 1830, and, of course, is unaffected by the provisions of that act, which saves the rights of mortgagees in certain specified cases.

Judgment affirmed.