Berger v. Hiester , 6 Whart. 210 ( 1841 )

The opinion of the court was delivered by

Gibson, C. J.

That a sale on a judgment for a debt, secured by a mortgage, discharges the lien of the mortgage notwithstanding the act of 1830, was asserted in Pierce v. Potter, (7 Watts, 477,) and put on what we think tenable ground. That case was not exactly like the present, nor was a decision of the point absolutely necessary in it; still it is one of the buttresses of the judgment, and what is of decisive importance is, that at least one title, we are told, has been advisedly paid for on the authority of it. I may add to the reasons of the judge who delivered the opinion, that, though such a sale is within the letter of the act, it is not without its spirit, because it is not within the mischief which was intended to be remedied by it. We well remember how that act was procured, and what it was designed to meet. It was the offspring of a panic among a very numerous class of creditors, who supposed that their debts would be jeoparded if the lien of a mortgage might be discharged without the mortgagee’s consent. It is bootless now to say, what is shown by daily experience, that their fears were groundless, and that the fruit of their influence with the legislature bears heavily on debtors and younger lien creditors; but the disastrous consequences of the supposed remedy is a legitimate reason why it should not be pushed beyond the supposed mischief. That its consequences have been disastrous, has been perceived whenever we have had occasion to observe them; of which Garro v. Thompson, (7 Watts, 416,) and Colwill v. Hamilton, to be reported in Mr. Watts’s forthcoming volume, are pregnant instances; nor would the present one be less so, did we make the purchaser pay the price of the land twice told, by giving to the words of the enactment, the widest sweep of which they are susceptible. The act is redundantly worded, and the meaning is consequently ill expressed; but the purport of it is, perhaps, to declare that no mortgage or judgment shall bind more than the equity of redemption springing from a prior mortgage; and that no more shall be sold on a liberari or fieri facias by a subsequent incumbrancer. The object was professedly to do no more than guard the security of the prior mortgage creditor from disturbance by those who should come after him, and be entitled only to what should be left when he should have been satisfied; but what need could there be to guard his security against another security under his own control 1 In the present case, the securities are cumulative; but that is immaterial, for, I take it, the consequence would be the same were they securities for debts arising out of different transactions. The design was to protect the mortgage from the intermeddling of subsequent creditors; but can a judgment creditor, who is himself the prior mortgagee, be deemed a subsequent creditor within the purview of the statute, or, in his capacity of mortgagee, an object of protection against himself1 When he appears in a double character, it is obvious that a case has occurred which was not contemplated, nor consequently provided for. It is a maxim that any one may renounce the benefit of a privilege provided for himself; and when a mortgagee desires to sell the land on his judgment before a year and' a day has elapsed from the time when the debt became due, what is to prevent him. The letter of the statute! We all know what that is, and how worthless are accidental and sweeping expressions. There may be no intermediate creditor; and where there is one, it is not his interest, nor that of the debtor, to object to a sale of the entire estate. That the mortgagee may sell it thus on his judgment alone, cannot be disputed on any principle of legitimate interpretation. But what if he choose to sell only the equity of redemption! He may certainly do so, since the statute, as he might, according to Stackpole v. Glassford, (16 Serg. & Rawle, 163,) have done before it. Suppose, however, that he does not propose the estate expressly subject to the mortgage. Let him, then, be taken to sell the fee as he would have been taken to do in like circumstances before the statute. Pie did not propose the property specially in this instance; and the purchaser consequently took it discharged of the mortgage.

Judgment of the Common Pleas reversed; and judgment rendered on the case stated, for the defendant below.