
    [Sunbury,
    July 3, 1829.]
    WILLARD and another against NORRIS and another.
    in error.
    When land* subject to a mortgage, is sold-under a judgment, obtained subse - quently to the execution and ’recording of the mortgage, the purchaser at sheriff’s sale, takes the land discharged of the lien pf the mortgage.
    It is not error to permit a Scire Facias, to revive a judgment to be amended, even after the plea of mil tiel record pleaded.
    Upon a writ of érror to .the Court of Common Pleas of Tioga county, the case was thus:—
    On. the 22d oí December, 1815, Lyman Jldams purchased of Elias Boudinot, a tract of land in Tioga township, Tioga county, containing qne hundred and seventy-six acres and fifty-nine perches, which he mortgaged on the same day to Joseph P. Norris and DavidLenox, to.secure four hundred and ninety-three dollars and eighty-three cents, the purchase money. Robert Tubbs, for the use of John Joseph, recovered a-judgment against Lyman Jldams and others, for sixty-six-dollars and thirteen cents, before John By an, Esq., a justice of the peace for Tioga county, on the 17th of July, 1817, which was entered on the docket of the Court of Common Pleas .of Tioga county, -for the purpose ofbinding the real estate of the defendants, op the' 28th day of Jlpril, 1819; and the land purchased- of Elias Boudinot, and mortgaged' to Joseph P, Norris and David Lenox, was levied upon by virtue of a writ of Fieri Facias, issued upon it to.May Term, 1819. The mortgage to Norris and Lenox ', was recorded, on the 25th of June, 1,819; but .this fact appeared only by the certificate of the recorder, for it is not alleged in any of the pleadings in the case, that the mortgage was upon record, nor was it given in evidence in the court below, so far as appears by the record. Norris and Lenox issued a Scire Facias upon the mortgage to them, and -on the 19th of September, 1822, obtained judgment in the Court of Common Pleas of Tioga county, of September Term, 1S22, against Adams; and on the 22d of September, 1825, they issued a Scire Facias, post annum et diem, against Adarris, to revive the judgment obtained on the 19th of September, 1822.
    
      Bartlett Seely obtained judgment in the Common Pleas of Tioga county, on the 19th of August, 1826, against Lyman Adams and others, and under the execution issued upon this judgment, Adanis’s land, so as aforesaid mortgaged to Norris and Lenox,-wsls sold on the 19th of December, 1826, to William Willard, Jr., to.whom, on the 17th of February, 1827, the sheriff, in open court, and after proclamation, acknowledged'a deed. On the 21st of September, 1S27, the money arising from the sale to Willard, was ordered by the court, after a hearing, to be paid over to the holder of the judgment obtained by Tubbs, before the mortgage to Norris and Lenox was recorded.
    Judgment by default was entered in the action of Scire Facias post annum et diem, brought by Norris and Lenox, on the 21st of December, 1S27, and a Levari Facias was issued to February Term, 1828, to sell the land in possession of William Willard, Jr.; but upon his application, the default'was set aside, and Willard was admitted as a co-defendant in the action. Willard, then, severally pleaded nul tiel record; upon which issue was joined on the 18th of February, 1829. Willard, also, on the same day, pleaded the following plea:— .
    " William Willard, Jr. for a further plea in this behalf, by leave of the court here for this purpose first had and obtained, according to the form of the statute, in such case made and provided, saith, that the said Joseph P. Norris, who sued with the said David Ler nox, since deceased, ought'not to have execution of a certain tract of land in Tioga township, in the said county, containing one hundred and seventy-six acres, and fifty-nine perches; purchased by the said Lyman Adams, of Elias Boudinot, on the 22d day of December, 1815, now in the possession of the said William Willard, Jr., by his tenant, Andrew Pickard, being the same land described in a Scire Facias, upon a mortgage to secure the purchase money of the said land, issued to December Term, 1821; because he says, that heretofore, to wit, on the 15th day of February, 1819, a transcript of a judgment, for the sum of sixty-six dollars, and thirteen cents, in favour of Robert Tubbs, for the use of John Joseph, against the said Leyman Adams, James Cowt, and Benajah Ives, rendered by John Ryan, Esquire, on the 23d day of July, 1817, then one of the commonwealth’s justices, of the peace, in and for the county of Tioga, aforesaid, was entered on tbe. docket of the Court of Common Pleas, of the said county, for the purpose of binding the real estate of the said defendants, for the said debt and costs, according to law: That afterwards, to wit, on the 28th day of April, 1819, it was so proceeded by the said court on the said transcript of a judgment, that the said tract of land, and appurtenances, were levied on the sheriff of Tioga county, by virtue of a certain writ of Fieri Facias, issued on the said judgment, returnar, ble to May Term, in the year last aforesaid, as by the record and proceedings in the said suit in the said court remaining will more fully apipear: That afterwards, to wit, on the 19th day of August, 1826, Bartlett Seely, assignee of Elijah Stiles, Esq., by the consideration of the Court of Common Pleas of Tioga county, recovered a judgment against the said Lyman Adams, Jeremiah Brown, and Pliny Power, for the sum of one hundred and fifty-six dollars, and eighty-two cents, together with posts. That it was so'proceeded, on the-said judgment, by the said court, that the sheriff of Tioga county, by virtue of certain writs of Fieri Facias, and Venditioni Exponas, afterwards, to wit, on the 19th day of Detíemb;er, 1826,' after giving legal and timely noticé, exposed the said tract to public vendue, and sold the same to William Willard, Jr., for the sum of fifty dollars, he being the highest bidder, and that the best price bidden for the same: That afterwards, to wit, on the 17th day of February, 1827, after due proclamation made, John Beecher, Esq., then the said .high sheriff of the said county, acknowledged his deed to. the said William Willard, Jr., for the said tract of land, in open court, according to law. That afterwards,, to wit, on the 21st day of September, in the year last aforesaid, the said Court of Common Pleas, pursuant to the statute, in such case made and provided, ordered the money raised by the said sheriff, arising from the said sale of the said tract of land, to be paid over to the said Bobert.Tubbs, for the use of John Joseph, to be applied -to the said judgment, in his favour, against the said Lyman Adams, James .Cowt, and Benjamin Ives; all which, by the records and proceeding, in the said court remaining, will more fully appear. And the said Williary Willard, Jr. in fact saith, that the said Lyman Adams hath acquired no right whatever in the said tract of land, since the levy and sale last, aforesaid. And this the said William■ Willard, Jr. is ready to, verify. Wherefore .he prays, j.udgmént, &e.” , ,
    To, this plea, there was the following replication:—
    “And the s.aid plaintiff, &c. as to so much of the second plea, by the said defendant, William Willard, Jr. pleaded, as alleges, * that the said Joseph P. Norris, who sued . with Bavid Lenox, since deceased, ought not to have execution of a certain tract of land in Tioga township, in the said county, containing one hundred and seventy-six acres, and fifty-nine perches, purchased by the said Lyman Adams, of Elias Boudinot, on the 22d day of December, 1815, now in the possession of William Willard, by his tenant, Andrew B. Pickard,’ saith, that the said plaintiff ought to have execution of the land described in the Scire Facias, issued to obtain the judgment upon which his action in this behalf is founded; because he says, that those lands aré the same which Lyman Adams bought of Elias Boudinot, and received a deed for the same, of Joseph P. Norris, and David Lenox, the attorneys in fact' of the said Elias Boudinot, who forthwith took of the said Lyman Adams a mortgage for the consideration, or purchase money, of the said land; upon which said mortgage the original j'udgment in this behalf was obtained. And the said plaintiff claims execution of no lands'other than those described in the said mortgage. _ All which he is ready to verify, &e.”
    To.this replication, the defendant Willard demurred, and the plaintiff joined in demurrer.- On the Í8th of February, 1829, on motion of the plaintiff’s attorney, the court permitted the Scire Facias to be amended, so as properly to recite the j'udgment of September Term, 1822, instead of December, 1821, which had been inserted.
    In May, 1829, after argument, the court below gave j'udgment for the plaintiff, Norris, on the demurrer, and on the issue of nul tiel record; to which opinion the defendant, Willard, excepted, and took his writ of error.
    The errors assigned in this court were, that the court below erred:—
    1. In allowing the Scire Facias to be amended, so'as to recite a judgment of a different term from the one first recited.
    2. In deciding, that the land sold by the sheriff to Willard, was, under the circumstances disclosed in his plea, liable to be again sold at the suit of a mortgagee, whose mortgage was not recorded within the period required by law’; upon which, judgment had been obtained, prior to the sheriff’s sale.
    3. In deciding, that a judgment on a Scire Facias, upon a mortgage of a particular tract of land, was a general judgment against the person, and all the goods, chattels, lands, and tenements, of the mortgagor, upon which a general execution might issue.
    4. In deciding, that the plaintiff’s replication to the special plea of •the defendant, Willard, was sufficient.
    
      Lewis, for the plaintiffs in error.
    — The important question on thid record is, whether the sale on the judgment did not extinguish the mortgage, as against the purchaser of the land, and substitute the fund raised by the land itself; out of which fund, all incumbrances were to be paid, according to their priority. In this case, the money raised by the sale went to a judgment creditor; against whom, this mortgage, not recorded until after his judgment was obtained, was a nullity.. Semple v. Burd, 7 Serg. & Rawle, 286. In Pennsylvania, land can never be subject to more than one judicial sale, upon incumbrances of any kind, existing at the time of such sale; and hence, though a creditor. may have several securities, such as a bond, and a mortgage, and judgments on them, he cannot sell the land twice. 9 Serg. Rawle, 304. “By the uniform practice of this state, both before and since the Revolution, no difference is effected by sales being had' under early or late mortgages or judgments. A Venditioni Exponas, under a late judgment, has always been' considered a sufficient authority to the sheriff to sell lands discharged from former incumbrances, even though intermediate judgments could not be paid off on the ac.tual sale.” Per Lewis, arguendo, 2 Yeates, 45. Per Tilgiiman, C. L 3 Binn. 358. Whatever may- be the doctrine in England, here, the mortgagor, as regards third persons, and even as regards the mortgagee, is deemed the owner of the land: he is seized of the legal estate, and the mortgage is but an incumbrance. The extent to which the principle has been carried by our courts, may be collected from The President, &c. of the Schuylkill Navigation Company v. Thoburn, 7 Serg. & Rawle, 411. ‘It is true, that the mortgagee may maintain' ejectment; and, in consequence of the defective organization of our courts, his administrator, or the assignee of his administrator, may do so; but that' is between the parties themselves. Simpson’s Lessee v. Ammons, 1 Binn. 175. Here, the question is between third persons, one of whom is a bona fide purchaser under a judicial sale, not bound-to look to the application of the purchase money. The case of Febiger’s Lessee v. Craighead, a short and imperfect note of which is to be found in 4 Dall. Rep. 151, but which is fully reported, 2 Yeates, 42, was the case of a mortgage to the Trustees of the Loan Office, under the act of assembly, of February, 26th, 1773, (Prov. Laws, 478, sect. 16,) the provisions of which secured a priority, and preserved the lien, • notwithstanding the sale under a subsequent judgment. So by consent of the purchaser • the lien may remain. Stackpole v. Glassford, 16 Serg. & Rawle, 163. But, if it be conceded, that a mortgage is but an incumbrance on land as against third- persons, then the question in this case is settled by Nichols v. Postlethwaite, 2 Dall. 131, and Barnet v. Washebaugh, 16 Serg. Rawle, 410, in which cases it was decided, that, where a legacy is charged upon land, the sheriff’s vendee under a judgment obtained against the devisee of the land, takes the land discharged of the lien of the legacy, and - the legatee must look to the proceeds of sale, in the sheriff’s hands. The reasoning of the court in this case is conclusive.
    As to the other point, a Scire Facias is not in general amendable; and it is. never so where advantage has been taken of an error in it, by pleading mil tiel record. 2 Tidd, (Farr. Edit.) 1036, 1037, note, (d.)
    
      Williston and Mallory, for the defendant in error,
    were desired by the court to speak only to the question, whether the mortgage was discharged by the sale. They argued, that a mortgage creates a specific lien upon land, indefinite in its duration, and is so far from being a mere incumbrance, that in a court of law it has never been considered as any thing but a conveyance. of the land itself. The mortgagor has parted with his legal title as between himself and the mortgagee; and it is contrary to good faith, as well as a legal anomaly, to permit him who has ere-, ated a specific lien, and parted with his legal estate in order to do so, indirecitly to procure a sale of the land, and defeat his creditor, by the subsequent creation of a mere incumbrance. All confidence in mortgages, as securities, will be destroyed, by such a decision; and it is well known, that immense sums have been loaned in the city of Philadelphia, where these mortgagees lived, and elsewhere, upon the faith of the opinion, that they remained liens upon land sold under subsequent judgments. It is tru.e, that, because money has been raised by a pledge, the owner of-the land, or chattel pledged, does not, therefore, cease to have power, to borrow more, or create other liens upon it; but-the only mode .by which the subsequent creditor can secure himself is, to pay off the prior lien; and hence, in England, where there are several mortgages, on the same estate, one behind another, the order in which the mortgagees will be let in to redeem is, that the second do redeem the first, the third the second, and so on.' “The principle is believed to be universal,” says Marshall, C. J. (Rankin v. Scott, 12 Wheat. 179.) “ that a prior lien gives a prior claim, which is entitled to'prior' satisfaction, out of the subject it binds, unless the lien be intrinsically defective, of be displaced, by some act of the party holding it, which shall postpone him in a court of law or equity, to a subsequent claimant.. Take the common case of mortgages. It has never been supposed, that a subsequent mortgagee could, by obtaining and executing a decree for the sale of the mortgaged premises; obtain precedence over a prior mortgage, in which all the requisites of the law had been observed. If such decree should be made, without preserving the rights of the prior mortgagee, the property would remain subject to those rights in the hands of tíre purchaser.” Chief Justice Tilghman, in Moliere’s Lessee v. Noe, 4 Dall. 450, was of opinion, and Judges Yeaiies and Brackenridge, concurred with him, that, under a sale by order of the Orphan’s Court, for the payment of debts, though the purchaser took the land discharged from the lien oí judgments, yet,, that a mortgage “stood upon a different footing from judgments, because the mortgagee is, strictly speaking, the owner of the land, and may recover it in ejectment; the mortgagor has no more than an equity of redemption; and the Orphans’ Court has not power to sell a greater estate than he is possessed of.” And the ground upon which he refused to interfere, to assist the mortgagee to take the amount of his mortgage, out of the money in court, in Patterson v. Sample, 4 Yeates, 308, where lands subject to a prior mortgage had been sold under a subsequent judgment, was, because “ the mortgagee had a plain and simple remedy on the mortgage.” In this opinion, Judge Brackenridge united with him; and Judge Smith openly stated his opinion to be, “that no sale under a later judgment, can affect prior judgments, unless they are fully paid by the sale.” Judge Brackenridge never gave up his opinion; which, he says, was that of Chief Justice Shipten, and has left his protest against the doctrine now contended for. Law Miscellanies, 258. Judge Yeates, it is true, did not go so far (2 Binn. 218, 4 Yeates, 316,) as the other judges. Febiger’s Lessee v. Craighead, 2 Yeates, 42, 4 Dall. 151; iá a direct authority, that a mortgage does remain a lien on land sold under a subsequent judgment-; for the provisions of the act of assembly, of February 26, 1773, gave -no greater estate to the'trustee of the Loan Office, than passes to every mortgagee; to wit, the fee simple, subject to a 'condition. Mr. Dallas’s report of it shows how the decision Was understood when it was made.- The uniform practice stated by Mr. Lewis in Judge Yeates’s report of that case'was de-. nied by Mr. Ingersoll, who asserted then, what we how say is the ■law
    The legislature seem to have been impressed with the same idea; for though they have interfered and restricted the lien of judgments, th.ey have left mortgages upon their original footing. Nor is a mortgage given before, but recorded after a judgment is confessed, to be treated by the judgment creditor as a nullity, and, where he ■has notice of it, he must so regulate (his saleas not to prejudice the mortgagee. Muse v. Letterman, 13 Serg. & Rawle, 167. The practice of permitting a younger judgment creditor to sell, and apply the fund, is, but a more direct mode of permitting him to redeem a prior incumbrance to save himself. He has a right to- pay off the prior liens, and repay himself out of the land; which being ultimately responsible -to all creditors in their order, by our practice is rendered immediately available; the principle of equity being, that the party, or fund, ultimately liable to pay, equity renders immediately liable. Nichols v. Posthlewaite, was but a Nisi Prius decision, only reported in Dallas’s Reports ; and the point there and in Barnet v. Washebaugh, was different from that,now before the court. The party who. owned the land sold under the judgments did not create himself the prior lien., In Nichols v. Posthlewaite, the money was In court to pay the legacy, if a, lien, which was the sole question; there was nothing decided, nor any decision called for, as to what the conditio'n of the purchaser was, after the sale; and though the decision, upon the facts, in Barnet v. Washebaugh, the report of which is very unsatisfactory, is right, yet the opinion of the court there delivered was uncalled for; as a very, different principle would have prevented the plaintiff’s recovery in that case.
    
      
       See Patch’s, Law of Mortgages, 192.
    
   The opinion of the court (Huston, J. being sick, and absent,) was delivered by

Tod, J.

- Therecord presents the following case: — In Septem her, 1822, Lenox and Noiris obtained a judgment against Lyman Adams in Scire Facias, upon a mortgage, executed by Adams to them. This mortgage, though executed on the 22d' of December, 1815, was admitted not to have , been recorded until the 25th of June, 1819. In September, 1835, Lenox and Norris brought the present action of Scire Facias, to revive their said judgment, post annum el diem. After there had been judgment by default against Adams, in this second Scire Facias, Willard moved the court to open the judgment, and let him, Willard, into a defence, which was done. The two defendants then, pleaded separately, nul tiel' record, upon which issues were joined. Willard also pleaded a further plea, in which, and in the replication to it, all the facts of this case are contained.

[His Honour here read Willard’s plea, and the plaintiffs’ replication.]

To this replication, the defendant, Willard, demurred, generally, and the plaintiff joined in demurrer. The judgment of the court was in favour of the' plaintiff below, and the defendant took this-writ of error, and now assigns the following, errors:—

[His Honour here read the errors assigned.]

In the second writ of Scire Facias, there was a mistake in reciting the term of the original judgment; which the court, on the request of the plaintiff below, permitted him to amend. This amendment, and the decision of the court upon the plea of mol tiel record, produced a bill of exceptions from Willard’s counsel; but the first error assigned; has not been insisted, upon here in argument, and we dismiss the matter at once; being of opinion, that the eourt clearly had the power to permit the amendment of the Scire Felicias.

The judgment on the first Scire Facias was confessed by-the defendant, Lyman Adams, on the 17th of September, 1822. Th® amount of it was settled at three hundred and thirty-six dollars and sixty-three and a half cents. The mortgage produced was of th® date already mentioned, to secure payment of a bond of nine hundred and eighty-seven dollars and sixty-six cents, conditioned for the payment of four hundred and ninety-three dollars and eighty-three cents. On what day, or from what time interest was to be paid, does not appear. Thus it appears, that the judgment, upon which the land was sold by the sheriff, was subsequent to the recording of the mortgage of the plaintiff below; but the judgment, towards satisfaction of which, the money was applied by the sheriff, was prior to the mortgage. There was judgment entered on the mortgage long prior to the sale by the sheriff, and against that sheriff’s sale there was ho allegation of fraud. As to the distinction which has been made, depending upon the fact, that though the land was actually sold upon a later judgment, yet that the money raised by the sale was appropriated to a judgment entered prior to the recording of the mortgage, it was not much pressed in the argument, and we shall not rely upon it in the decision. Then, on this general demurrer, the question comes up directly, whether the title of a prior mortgagee, and the lien of his mortgage, are devested and extinguished by a sale of the land under a younger judgment. Perhaps it is a question which now comes for the first time before this court for a direct decision. Yet, I apprehend, that incidentally and indirectly, it has often arisen, and often been decided. I have endeavoured to make a collection of all the cases bearing upon the subject, from Yeates and Binney’s Reports, to Barnet v. Washebaugh, 16 Serg. & Rawle, 410. Most of these cases were cited in the argument.

In Petty v. Beauvarlet, 1 Binn. 97, decided in 1804, there was a rule on the sheriff -to bring money into court, to which he made return, “ that with the money he had paid off several judgments and mortgages upon the premises sold, which beingprior to the judgment in this case, were entitled to prior satisfaction; and, that he had charged a poundage upon the different sums so paid.”

Per Curiam. — “ The construction of that clause, (viz. of the fee bill,) has uniformly allowed to the sheriff poundage upon the payment of all prior judgments and mortgages. He must, therefore, take his costs.”

That this decision was accordant with the sense of,the community and of the bar, is strongly shown by the ease of Browne v. Browne, 1 Broione’s Rep. 97, where some contested items in a sheriff’s bill of costs were referred to two gentlemen among the most practical and experienced of the profession. The sheriff had sold land under the act of assembly of the 11th of Jlpril, 1799, after the execution of a writ of partition. Objection was made to an item of ten dollars and some cents, charged and paid by the sheriff for searches of judgments and mortgages. The, referees approved the charge, and gave these reasons: — '“It appears to us necessary, for the sheriff’s security, to make these searches, as he could not safely distribute the money arising from the sale among the parties without ascertaining what liens are upon the estate. We have no doubt, that the sheriff is entitled to a reasonable and proper allowance for the trouble, risk, and responsibility, in performing this duty; and we can perceive no difference in any of these respects, between such a sale as this, and a sale under judgment and execution. This opinion seems to be sanctioned by the case of Petty v. Beauvarlet, in the Supreme Court, wherein the court allowed poundage to the sheriff on the payment of the judgments and mortgages prior to the judgment and execution on which, the defendant’s land was sold, although the fee bill declares, that no poundage shall be paid for more than the real debt, and also declares it to be illegal for any officer to demand greater fees than are specified in the act of assembly, for any service to be done by him; but does not notice the poundage on payment of such judgments and mortgages prior to the plaintiff who sells.” This award was confirmed by the court, with the approbation of all, as far as appears. Eveni though this cáse should not be held as a precedent in law, yet it seems to me, nothing can more .clearly show how notorious is the rule, that in every judicial sale in Pennsylvania, the land goes to the purchaser clear of all liens- of judgments and mortgages, and that out of the purchase money, the sheriff, at his own risk, is to pay off all those liens, according to their priority, insomuch, though the act of assembly, about partition, makes no mention of liens, yet by mere analogy, drawn from the notorious usuage of the commonwealth, an allowance was adjudged, in this case, to the sheriff, for the fees paid for searches of judgments and mortgages, the owners of which might afterwards call upon him for their money. I refer also to Shoemaker v. Houtford, 1 Browne’s Rep. 251.

In the case of The Bank of N. America v. Fitzsimons, 3 Binn. 358, Tilghman, C. J. says, “ it has been a practice of .long standing in this state, where the sheriff sells-land by virtue of an execution to sell it for its full value, and apply the money to the discharge of tho.se liens.” The consequence was, that the sheriff retained the money in his hands till he could ascertain the amount of.old judgments. In Wall v. Lloyd’s Executors, 1 Serg. & Rawle, 320, Tilghman, C. J. says, “ I know, that by the practice of -this court,sheriffs have been allowed poundage out of the money they pay, not only for the satisfaction of the debt of the plaintiff in the execution, but also of other judgments by-which the land was bound.” And in the same case, Yeates, J.’says, “Thiscourt has determined, Petry v. Beauvarlet, 1 Binn. 97, that the construction of the act of assembly of the 25th oí April, 1795, uniformly has been, to allow the sheriff poundage upon all prior judgments and mortgages. And I take it, that the uniform practice for fifty" years past, has been, that the sheriff has been allowed poundage for all debts which he has paid on sales.” The case of Nichols v. Postlethwaite, 3 Dall. 131, would, I apprehend, if any question were yet remaining as to the usage of Pennsylvania, requiring all liens to be paid on sheriffs’ sales, end the doubt. There it was expressly decided, that legacies charged by will, on lands sold by the sheriff on a subsequent judgment, should be paid out of the purchase money, which goes far beyond any payment of a prior mortgage. It is argued, that this is but a Nisi Prius decision, and that the same case is not at all mentioned in Yeates’s Reports. As to authority, the judges appear tó have been Bradford and Shippen; and Judge Yeates reported no decision, made at a circuit where he did not attend. Besides, the decision in Nichols v. Postlethwaite, is cited with express approbation by Duncan, J. in. Gause v. Wiley, 4 Serg. & Rawle, 535, by Tilghman, C. J. in The Commonmealth v. Alexander, 14 Serg. & Rawle, 263, and by the whole court in Barnet v. Washebaugh, 16 Serg. & Rawle, 413, in which the very same point was decided. It appears difficult' to state any reason why prior legacies shall be paid out ,of monies raised by a sheriff’s sale of the land on which they are charged, and yet, that prior judgments, or prior mortgages, shall not be paid.

I am not aware of any decision of this court, contradicting, the usage which has been mentioned, and which, I think, there is reason to believe, has existed in this state, beyond the memory of man. The incidental dicta of the judges, however, have varied very much indeed. Judge Yeates seems to have taken the lead in support of what he deemed the ancient usage; and his reasons, which may be found in the case of Keen v. Swaine et al. 3 Yeates, 561, cannot, in my opinion, be easily and satisfactorily answered. Judge Brackenridge was foremost on the other side. On every occasion he seems to have declared his mind unequivocally, that by a sheriff's sale of lands, all prior liens, whether judgments or mortgages, are left wholly untouched.; and be gives his reasons most fully in his Miscellanies, page 258; and from some of the dicta in the books from, the judges incidentally,, it seems probable, that one or more of them were of the same opinion with-Brackenridge, J. But this, it appears to me, could-,not have lasted long.. In the case of Patterson v. Sample, 4 Yeates, 308, there was a mortgage, and the land having been sold under a subsequent judgment, there was an. application by the mortgagee to receive his money from the sheriff. The case was héard before Smith, J., and the only..g.round'upon which that judge seems to have placed the case was, the recording ©f the mortgage deed within six months. The later cases on the subject are still more conclusive. In The Commonwealth v. Alexander, 14 Serg. & Rawle, 257, it was decided, Tilghman, C. J., pronouncing the opinion of the court, not only that a prior judgment was to be paid out of the purchase money accruing from a sheriff’s-sale, but that a judgment still older, and against another person, who-had been-the preceding owner of the land, should also be paid. Then, as to mortgages;’in M'Call v. Lenox, 9 Serg. & Rawle, 302, the land was sold on a judgment. Without ¿ny question, as far as-appears, the money was applied by the sheriff to the satisfaction, of a mortgage, and the residue as far as it would go,, to a second mortgage, both mortgages being prior to the judgment. The last two cases are full of other matter, leading, .as it seems to me, to the same conclusion. That a mortgage is but a record evidence of a, debt, and entitled on this question to no prerogative whatever above a judgment, independent of the express authorities cited, 1 refer to Wentz and Wife v. De Haven, 1 Serg. Rawle, 312, and Porter’s Executor v. Neff, 11 Serg. & Rawle, 223. Other cases'might be cited to the same purport, but it seems to be unnecessary.

Judgment reversed, and judgment for the plaintiffs in error on the demurrer.. /  