
    [Sunbury,
    June 20, 1827.]
    STACKPOLE and others against GLASSFORD.
    An execution upon a judgment by default, on a mortgage for the performance of a collateral act, without a previous inquisition, though irregular, is not absolutely void.
    A mortgage is not discharged by a sale under a younger judgment, where the purchaser agrees to take subject to the mortgage.
    Whether there was such an agreement, the jury ought to decide.
    On the return of the record of this ejectment from the court of Common Pleas of Mifflin county, the material facts appeared to be these:
    To November'Yevm, 1807, the administrators of James Stackpole issued a scire facias upon a mortgage against the administrators of John Allen, At August Term, 1811, the following entry was made upon the record: Judgment for sum due. By the court. To January Term, 1S16, a scire facias post annum et diem is-. sued, to which the sheriff returned tarde venit. An alias scire facias, returnable to April Term, 1816, then issued, which recited, that the administrators of James Stackpole had recovered two hundred and fifty-five pounds ten shillings, ten and a-half pence, and commanded them to show cause why execution should not be issued. To this scire facias the defendants pleaded payment with leave, &c.; and, on the 21st of February, 1820, judgment was entered for plaintiffs. A levari facias issued to April Term, 1820, . which commanded the sheriff fo levy on three hundred acres of land for the payment of “a certain debt of two hundred-, lawful money, with the lawful interest theleon from the-,' as also twenty-eight dollars and seventy-two cents, like money, for costs, which said sum of-- with interest and costs aforesaid, the. administrators of James Stackpole, deceased, lately, &c.,'recovered, &c.” An alias levari facias issued-to August Term, .1820, which commanded the sheriff to levy on three hundred acres, more or less, &c., a certain debt of two hundred-. — , lawful money, &c., with interest from the 7th of January, 1707, as also thirty-two dollars and eighty-seven' cents, like money, for costs, &c., which said sum of two hundred and fifty pounds, with the interest, costs, &c., the said administrators of James Stackpole recovered against the administrators of John Allen, by the default of the said John Allen’s ádministrator's, in not paying the sum.of two hundred .and fifty pounds, &c., at the day and time when, &c. •
    On this levari facias, the properly for which the present eject- ■ ment was brought, was sold on the 6th of October, 1820. The Sheriff of Mifflin county executed and acknowledged a deed for the same, to Thomas Stackpole, the plaintiff, for the use of the heirs of James Stackpole, deceased. This was the case on the part of the plaintiff. . .
    The defendant gave in evidence a judgment, entered of April Term, 1806, in the Court of Common Pleas of Mifflin county, in which James Vaw, for the use of Jaimes Reed,-was plaintiff, and the administrators of John Allen, defendants, on which a fieri facias and venditioni exponas were issued; and on'the 8th of January,- 1809, the land was sold for two hundred and nine dollars and fifty cents to William Laird: to whom the sheriff, on the 20th of May, 1814, executed a deed. William Laird had previously, namely, on the 23rd of January, 1813, entered into articles of agreement with William Mering for the sale of the land, and on the 18th of February, 1813, Laird, together with Adam Holliday, gave to Mering a bond conditioned to indemnify and save him harmless against a mortgage given by John Allen, in his lifetime, to a certain James Stackpole, binding the lands and property of the said Allen, in the said mortgage mentioned, to secure a title to to the said James Stackpole, for a two hundred acre tract of land in Wayne township and county aforesaid, in the name of James Holmes; which property, mentioned and described in the mortgage aforesaid, the said William Laird purchased at the sheriff’s sale as the property of the said John Allen, subject to the mortgage aforesaid, and has since sold to the said William Mering.
    
    Whether the defendant, Glassford, claimed the land under a settlement, as to which some evidence was given, or under William Mering, did not appear from the record.
    The President of the Court of Common Pleas charged the jury in the following manner:
    “ The plaintiffs have not proceeded régularly nor legally. There is no judgment for a sum certain. The judgment is for the sum due. What is that? The price of patenting two hundred, acres of land. It may be fourteén dollars, or it may exceed- four hundred dollars. Whatever it was, for so much they had a lien. No suit was brought until both the parties to the mortgage were dead. Then it laid until the land was sold, and long after, until the money was paid and the deed made. In 1816, a scire facias issues, and a judgment is entered, without a trial, although there was a plea and issue: as this judgment was not for a specified sum, there was no right to take out execution. They seem to have had a right to some money, and in the negligent way in which theca,use is brought before us, it is entirely uncertain whether they, were paid or not. It appears the amount of the first sale went to prior liens, or rather, was ordered to be so appropriated. No prior lien is shown,, except this mortgage. If it was the only existing prior lien, it would seem they ought to have got their money from that fund, and are paid in, contemplation of law, at least so far as the amount of that sale; add they have not pretended to show whether it was or was not qqpal to their demand. , We are inclined to the opinion, that the'plaintiffs, on their own showing, could not recover, even against Mien’s heirs, as defendants.
    If this is .the land sold to Laird, he has it clear of the mortgage. The mortgagee ought to have received his money.' '• He purchased in 1809. Four years afterwards he sdld to Mering and received-his money, and covenanted to defend against this mortgage. About á month afterwards he gave an indemnifying bond to Mering, and in that'bond recited that he had bought subject to the mortgage. But the-levy-was not subject to the mortgage, nor the return of sale, nbr the deed. > The defendant bought from a purchaser at sheriff’s'sale.-‘Thé levy was absolute — the sale absolute— the deed» absolute. ■ In taking a~ security from the vendor against a rumoured incumbrance; a-month after the conveyance and payment of the money,-the bond recites that it was purchased at the sheriff’s sale, subject to the , mortgage. This1 appears not to have been true in fact. No doubt it was supposed »to have been, true in law. Will this'statement, if made as a-conclusion of !law, make it so? We think not — not eveirif it was stated »by parol at the time of sale, that the purchaser would by law take subject to the mortgage. We protest against a sale by the law being any 'thing but-what the law makes it; against' a title by record being 'any thing but what the record shows it to be.” ’ ' ■
    
    This opinion was excepted to by the plaintiffs’ counsel, and in this court, ■Hale, for the plaintiffs in error, contended,
    1. That the judgment was of süch a character as to-sustain the execution. It has never been reversed or set aside, which is sufficient. It is objectionable, perhaps, in point of regularity, blit that cannot be taken advantage of collaterally. Independently of this title, the plaintiffs may recover upon the mortgage itself.
    2. As a general provision of the law, a sale on a judgment does-not devest an older mortgage; but whatever may be the difference of opinion on that point, a doubt has never been entertained where the purchaser agrees, as in this instance, .to take subject to the mortgage.
    
      Fisher, contra.
    
    1, The plaintiffs did not pretend that they were entitled to reco-. ver on the mortgage, but relied altogether on the sheriff’s deed. That deed was founded on a judgment for unliquidated damages; and by the words of the act of assembly, an inquisition was a necessary preliminary to the execution. 2 Binn. 42, 86, 92. 1 Str. 309. Tid, 936. 11 Serg. Sr Rawle, 223.
    2. The mortgage was discharged by a sheriff’s sale on a younger judgment, and the mortgagee ought to have come in and taken his money. 7 Serg. & Rawle, 290. 11 Serg. & Rawle, 223. There was no evidence that Laird agreed to purchase subject to the mortgage. The opinion of the judge was merely hypothetical, as to this part of the case.
   The opinion of the, court was delivered by

Rogers, J.

I agree with'the learned judge who tried this cause, that the plaintiffs have neither proceeded regularly, nor legally. The judgment upon the scire facias, (sur mortgage) does not ascertain the amount claimed by the plaintiffs being merely a judgment for the sum due. The scit'e facias quare executio non, recites that two hundred and fifty-five pounds, ten shillings, and ten and a-half pence have been recovered, and demands execution for that sum. The defendants, instead of pleading nul tiel record, plead payment with leave, &c., on which there is a judgment for the plaintiffs, which in strictness would be a judgment, that they have execution for the sum averred to have been recovered. The levari facias is clearly irregular, being for two hundred -, without stating whether it be pounds, shillings, dollars or cents. The alias levari is to levy on three hundred acres of land, for the non-payment of two hundred and fifty pounds. On these proceedings, the land in dispute was sold, and without anjr complaint from the administrators of Allen, or from any other person. Thomas Stackpole became the purchaser at the sheriff’s sale, for the use of the heirs of James Stackpole, deceased. The court on motion, would have had no difficulty in setting aside these proceedings for irregularity, and the judgment would have been reversed by the Supreme Court, in error. These irregularities, however, do not render the proceedings so absolutely void, as to vest no title in the purchaser at sheriff’s sale. On the contrary, they are available against the present defendant until reversed, and are not to be examined in this collateral suit. Henry Glassford seeks to take advantage of a defect, with which he has no concern; for it is a matter of no consequence to him to whom the money arising from the sheriff’s sale belongs,'whether to the mortgagee, or the judgment creditors of Allen. The erroneous process stands good until the party avoids it by error, and no person can bring a writ of error, but he who is party or privy to the record, and competent to. release it. Carth. 148. 1 Wils. 255. Cro. E. 165. Cro.J. 288. 2 Saund. 46. note b.

As I understand this cause, the plaintiffs allege, that when the land was sold by the sheriff on the judgment, it was sold subject to the mortgage, and that there was an express understanding to that effect. That this was a condition of the sale, and so understood by the sheriff and the purchaser. If this were the fact, which it was for the jury to decide, it would be against equity, that the defendant should retain the land without paying the amount actually due on the mortgage. It forms a part of the purchase money; as much so as if Laird had paid an amount sufficient to cover the mortgage, with the additional sum of two hundred and nine dollars and fifty cents, paid for the land. He takes upon himself, the payment of the amount due in addition to the sum-paid.

As it seems that this material fact was withdrawn by the judge from the jury, this is error.

If the jury should find that there was such an agreement, the defendant can relieve himself, by paying or tendering on the trial the amount really due on the mortgage.

Judgment reversed, and a venire facias de novo awarded.  