Hartz v. Woods

Coulter, J.

George Hassinger was not a competent witness, being directly interested in the event of the suit. His admission was therefore an error. The loss of the bond was not sufficiently proved, nor was search made in all the places where it might have been found, nor all the persons brought to testify who might have had possession of it, in order to lay the ground for parol evidence of its contents. The parol evidence therefore on that subject was improperly admitted. The other bills of exception to eAÚdenee are not sustained.

The sale on the judgment extinguished all liens prior to the judgment on which it was sold, existing against the same title that was sold; of course, if the judgment on which it was sold was a lien on Hassinger’s title, it would extinguish the mortgage; and no condition or qualification made or annexed by the sheriff at the time of the sale, could alter or affect this rule, the sale being made prior to the act of Assembly of 6th April, 1830.

Whether Singer had acquired title, and was in possession before the rendition of the judgment, was a question of fact, and as such was properly enough left to the jury. But its principal effect would depend upon the fact whether the debt upon which the land was sold, was a debt secured by the mortgage or not. If the debt on which the land was sold was also a debt secured by the mortgage, then it was a matter of no consequence when Hassinger sold to Singer, because the lien of the judgment would run back to the lien of the mortgage; and of course carry the land with the sale, free from the lien of the mortgage. There was error in the charge of the court, and also in the admission of evidence.

'Judgment reversed, and a venire de novo awarded.