Murray v. Weigle , 1888 Pa. LEXIS 377 ( 1888 )

Opinion,

Me. Justice Paxson:

W e think it was error to admit the evidence referred to in the first specification. The judgment upon the scire facias was taken upon two returns of “nihil.” That this is the equivalent of a return of scire feci to a scire facias upon a. mortgage is settled by Hartman v. Ogborn, 54 Pa. 120; Tryon v. Munson, 77 Pa. 250. And this is so even if the mortgagor be dead at the time the writ issues: Warder v. Tainter, 4 W. 270.

The second assignment alleges that the court below erred in entering judgment for the plaintiffs upon the verdict.

This was an ejectment brought by the heirs of Henry Weigle, deceased, against the purchaser at a sheriff’s sale of the premises in dispute. He claims the title of the widow and heirs of the said Weigle by virtue of a sale under a mortgage given by a former guardian of the minor children of said Weigle, in which the widow joined as a party in interest. Judgment had been obtained upon the mortgage; the property sold upon a levari facias, and bought by the plaintiff in error.

The court below held that the mortgage was invalid and that the purchaser took no title. Various reasons were given for this ruling, the principal one of which was, that it did not appear by the proceedings in the Orphans’ Court that the guardian had made a return to the order to mortgage, and there was no confirmation thereof. Morgan’s Appeal, 110 Pa. 271, was cited in support of tins position. But the learned judge entirely overlooked the fact that in that case no rights of third parties had intervened. Here we have a purchaser at sheriff’s sale of the mortgaged premises. He was not bound to look beyond the judgment on the mortgage. That is conclusive between the parties to the- mortgage as to its amount, and that- the interest of the mortgagor at the date of the mortgage should be taken in execution for the payment thereof: Dorris v. Erwin, 101 Pa. 289. After a scire facias on a mortgage has ripened into a judgment, the mortgage is merged in it, and even if null and void is no longer open to attack: Hartman v. Ogborn, supra.

The judgment is reversed and judgment for the defendant non obstante veredicto.