
    Lemon et al., Appellants, v. Emmons et al.
    Argued April 24, 1941.
    Before Maxey, Drew, Linn, Stern, Patterson and Parker, JJ.
    
      
      D. Malcolm Hodge, with him Donald H. Hamilton, Frank M. Hunter and George Henry Huft, for appellants.
    
      Earl G. Harrison, with him Edmund B. Finegan, Allen 8. Olmsted, 2nd, and Saul,-Ewing, Bemiók & Saul, for appellees.
    May 13, 1941:
   Opinion by

Mr. Justice Drew,

The facts involved in this action of scire facias-sur mortgage are stated at length in Pennsylvania Company, etc., Trustee, v. Emmons, 338 Pa. 513, and for' present purposes are briefly summarized as follotvs: Alice L. Emmons, being the sole owner of a tract of land in Springfield Township, Delaware County, and Louis C. Emmons,, her..husband, bej.ng;the sole:owner of a contiguous tract in the Borough of Swarthmore, on May 29,1929, executed their joint bond in the sum of $175,000 to the Pennsylvania Company for Insurances on Lives and Granting Annuities, Trustee for Sundry Trusts, and by a single'instrument, in which both joined, mortgaged tliéir respective tracts of land to. secure the payment of the same. ‘ On December' 11, 1929, the husband, through an. intermediary, conveyed the Swarthmpre tract to himself and wife as tenants by the entireties, and on June 16, 1930, they joined iii a second mortgage oh the sainé two tracts to secure their bond in the sum of $200,000 to Mitten Men and Management Bank and Trust Company, given as collateral security for an obligation of the husband and others to that' bank. On October 24, 1934, Louis C. Emmons died. Thereafter, the first 'mortgage béihg in default, the Pennsylvania Company ' entered judgment against Alice L. Emmons on the bond. After protracted proceedings oh her petition to open the judgment, the- following order was entered by the court below.: . upon the stipulation of counsel, it is ordered, adjudged' and decreed that judgment be. entered on the verdict in the, sum- of $200,22,9 provided, however,;. thát¡ the: lien of the said judgment: be restricted to the mortgaged* premises* to wit, the premises mortgaged :by Louis O. Eminons and Alice L.. Emmons to The Pennsylvania Company-for Insurances on Lives, Trustee for Sundry" Trusts, by mortgage dated May 29,1929, . . . and all other property, real, personal or ¿mixed* of .the said Alice L¡ ■ Emmons, is hereby removed from the lien of the *Said judgment:”. The Pennsylvania Company then; caused a writ of -fieri facias to issue upon the judgment, as reinstated, and became the purchaser of-both tracts,at the sheriffs sale.

Subsequently, some doubt having arisen as to whether this judicial sale discharged the lien of the second mortgage held by the Mitten Bank, , the Pennsylvania Company attempted to foreclose its first mortgage anew, by scire-facias. .This Court held in Pennsylvania Company, etc., Trustee, v. Emmons, supra, that this attempt at a curative procedure was a nullity and. of no effect since the mortgage was divested.by the;sheriff’s sale and there remained nothing, upon Which the Pennsylvania Company could-thereafter predicate its* scire facias; and further that the Pennsylvania Company could' not test in that proceeding the validity Of the title it received upon the sale following, the issuance of the writ of fieri facias. .-

After the decision was filed, the present -action- to foreclose the second mortgage, solely against the Swarthmore tract* was. commenced -by the present appellants, the assignees of Mitten-Men and Management Bank and Trust Company. . From a judgment, entered on. a db rected verdict in favor of appellees,. appellants have appealed: While, some. question is raised :by the- -record now before us as to the validity, of the mortgage in, question and its assignment in trust for Alice L. Emmons, she: having been one of the mortgagors, in the view we take of the case it is unnecessary to decide this question.

The only question, because of the facts of the present ease, requiring disposition is whether or not the lien of the second mortgage was discharged by the sheriff’s sale under ■ the Pennsylvania Company’s judgment against Mrs. Emmons entered on the bond which accompanied its first mortgage.

Appellants'contend that the case of Clarke v. Stanley, 10 Pa. 472, and similar cases, upon which the learned court below relied in entering judgment for appellees, are not decisive of the present controversy because in none:of them was it shown, as it has been in this case, that the execution debtor on the bond (here Mrs. Alice L. Emmons) was not the owner of the premises in question at the' time of the creation of the mortgage.". Appellants’ position is that the judgment entered on the bond against. Mrs. Emmons was effective as a lien against the Swarthmore tract only as of ;the time of its entry; they argue that it cannot relate back to the time of the execution of the mortgage to the Pennsylvania Company because at that:time she did not own the Swarthmore tract, title thereto being exclusively in her hnsband, and therefore, it is reasoned, -that this •land was sold by the sheriff subject to the second mortgage.

It is unnecessary to determine the applicability of the -cases cited by the learned court below, for even assuming that they are not in point, as argued, appellants’-contention is not well-founded, for-the mortgage now attempted- to -be foreclosed by writ of scire facias contáins the following express provision: “Under.and Subject to-a certain Mortgage Debt or Principal Sum of One Hundred Seventy Five Thousand Dollars, with interest due and to grow due thereon.” Thus appellants are precluded in their attempt to secure a larger lien than that contracted for.. Their claim upon the land was by specific agreement made subordinate, to :the Pennsylvania Company’s principal debt of f175,000, with interest, and cannot now justly be asserted in hostility to it. .

Judgment affirmed.  