Fisher v. Connard , 1882 Pa. LEXIS 16 ( 1882 )

Mr. Justice Paxson

delivered the opinion of the Court, April 24th 1882.

The mortgage in suit was recorded on the 9th day of June 1877. On tlie 29th day of May 1877, the city of Reading filed a lien against the mortgaged premises for city taxes, amounting to $10.19. On the same day a lien was filed against the same premises, by the Reading School District, for school-tax, amounting to $20.19. Each of these liens, as will be noticed, antedates the mortgage. During the year 1879, while the record stood in this condition, the mortgaged premises were sold by the sheriff, upon a junior judgment, to the mortgagor himself, for the sum of $40, and the purchase money was applied to the tax lien of the city of Eeading, above referred to. Subsequently a scire facias was issued upon the mortgage, and the only question raised upon the trial below was, whether the sheriff’s sale discharged the lien of the mortgage, by reason of the prior registered liens for taxes. The learned judge held that the mortgage was protected by the Act of 23d November 1867, and this ruling is the only error assigned.

It was held in Willard v. Norris, 2 Rawle 56, that when land, subject to a mortgage, is sold under a judgment obtained subsequently to the execution and recording of the mortgage, the purchaser at sheriff’s sale, takes the land discharged of the lien of the mortgage. This decision was the occasion of the passage of the Act of 6th April 1830 (P. L. 293), the first section whereof provided that “ -where the lien of a mortgage upon real estate is or shall be prior to all other liens upon the same property, except other mortgages, ground rents, and the purchase money due to the Commonwealth, the lien of such mortgage shall not be destroyed or in any way affected by any sale made by virtue or authority of any writ of venditioni exponas.”

This Act operated to the protection of mortgages in many instances. It failed of its object however, in the county of Philadelphia, for the reason that the Act of 3d of February 1824, declared that all taxes, rates and levies on real estate in said county shall be a lien on said real estate, and the said lien “ shall have priority to, and shall be fully paid and satisfied before any recognizance, mortgage, judgment, debt, obligation or responsibility which the said real estate may have become charged with, or liable to, from and after the passage of this act. This defect in the Act of 1830 was remedied, so far as Philadelphia is concerned, by the act of 11th April 1835, P. L. 190. In other portions of the state where by law priority was given to tax liens, and to which the act of Í835 had not been extended, the same trouble existed, and there was the same insecurity of mortgages. There are other subsequent Acts tending to the repose of mortgages, which are local to the county of Philadelphia, and to which further reference is unnecessary.

The Act of 23d of March 1867, P. L. 43, is a general law, and was intended, as its title plainly implies, for “ the preservation of the lien of mortgages.” The third section thereof reads as follows: “ When the lien of a mortgage upon real estate is, or shall be prior to all other liens upon the same property", except other mortgages, ground rents, purchase money due to the Commonwealth, taxes, charges, assessments and municipal claims, whose lien, though afterwards accruing has byr law priority given it, the lien of such mortgage shall not be destroyed, or in any way affected by any judicial or other sale whatsoever, whether such judicial sale shall be made by virtue or authority of any order, or decree of any Orphans’ or other court, or any writ of execution, or otherwise howsoever: Provided, that this section shall not apply to cases of mortgages upon unseated lands, or sales of same for taxes.”

It will be noticed that so far as regards the prior lions of mortgages, ground rents and purchase money due to the commonwealth” this act does not extend the provisions of the Act of 1830, excepting that it applies to ali judicial sales including those ordered by the Orphan’s Court. - It introduces however, into the general law of the state, another class of liens from which the lien of mortgages is protected, viz: “ taxes, charges, assessments and municipal claims, whose lien though afterwards accruing, has by law priority given it,” and the apparent difficulty in the case consists in the proper construction of this last clause. It was argued with much learning and ability by the counsel for the defendant in error that the proper antecedent of the word “ lien” is “ municipal claims,” and that it is to such claims only that the words “ whose lien though after-wards accruing has by law priority given it,” applies. The effect of this construction, if adopted, would be to lift “ taxes, charges and assessments” out of the operation of the subsequent qualification, and place them upon the same plane with prior “ mortgages, ground rents, and purchase money due to the commonwealth.” The grammatical construction of a statute is one mode of interpretation. But it is not the only mode, and it is not always the true mode. We may assume that the draftsman of an Act understood the rules of grammar, but it is not always safe to do so. The Act of 1867 was evidently passed with reference to preceding Acts in regard to taxes. In many of these Acts the words “taxes, charges, assessments and municipal claims” had been used together, and in connection with the word “lien.” This \vas so in the Philadelphia Act of 16th of April 1845, P. L. 488, of 23d of January 1849, P. L. 686, and the Allegheny Act of 5th April 1844. P. L. 199. Our best judgment is that “ taxes, charges, assessments and municipal claims” in the Act of 1867, were all intended as antecedents of the word “ lien,” and if this makes good law, the grammatical construction is not so important.

In this view the manifest object of the Act of 1867 was to protect mortgages from liens subsequently accruing, but which by law have priority given them. The two liens entered before the mortgage in suit do not come within this description. They did not accrue after the recording of the mortgage. They not only accrued before, but were entered of record prior to the mortgage. They were therefore notice to- the mortgagee, and as to them he needed no protection. He had the knowledge and the means to protect himself.

In the Rhein Building Association v. Lea, just decided, we held that the Act of 1867 did not apply. But that case came up from Philadelphia, and was decided upon local Acts which we held were not repealed by the Act of 1867.

The judgment is reversed and a venire facias de novo awarded.