
    Mollenauer v. Smith, Appellant.
    
      Mortgage — Bond—Payment—Execution—■Sheriff’s sale.
    
    1. Where a sale is on a judgment on a mortgage or on the accompanying bond, the personal liability of the debtor on the obligations the mortgage was given to secure, to make good the deficiency arising out of the sale, remains even though the mortgagee be the purchaser at the sale.
    
      2. Ordinarily where there is a mortgage containing a covenant or promise to pay the debt intended to be secured, or where the debt is evidenced by a separate written obligation, and, in.either case, there is no stipulation that none but the mortgaged premises shall be answerable for the debt, the extent to which the debtor is released from personal liability by a sheriff’s sale of the mortgaged property, under process issued on the mortgage, or on the separate written obligation, is, in the absence of proof, measured by the proceeds of the sale applicable thereto.
    3. In an action on a recognizance for stay of execution on a judgment in favor of the plaintiffs against a third party an affidavit of defense is insufficient which avers that the judgment against the third party was for the amount of promissory notes given by him for part of a debt of a larger amount evidenced by a mortgage with accompanying bond on land in another county; that after the entry of the recognizance the plaintiff caused judgment to be entered on the bond accompanying the mortgage for the whole debt, and thereafter issued a testatum fi. fa. thereon to the county where the land was situated under which the land was sold at sheriff’s sale to the plaintiffs; that there was no competition at the sheriff’s sale; that the plaintiffs bid in the land for costs; and that the value of the land was greater than the entire debt then unpaid.
    Argued April 10, 1912.
    Appeal, No. 43, April T., 1912, by defendant, from order of C. P. No. 1, Allegheny Co., March T., 1911, No. 75, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry Mollenauer et al. v. Harvey H. Smith.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Assumpsit on a recognizance for a stay of execution. .
    The material portion of the statement of claim was as follows:
    The said plaintiffs brought suit against one H. E. Bate-man at No. 900, July T., 1906, of this honorable court, and upon August 4, 1906, obtained a judgment against the said H. E. Bateman in said suit for the-sum of $2,747.55 in default of an affidavit of defense.
    That upon August 14, 1906, Harvey H. Smith, the defendant in this case, made and entered into a recognizance for stay of execution in said case in the sum of $5,000 lawful money, “To be made and levied of his goods and chattels, lands and tenements, conditioned for the payment of debt, interest and cost in the foregoing case.”
    That the said H. E. Bateman has paid or caused to be paid upon the principal of said judgment, the sum of $2,000, together with interest on the balance remaining unpaid to August 1, 1907.
    That the said H. E. Bateman has refused and neglected to pay the balance of said judgment, to wit, the sum of $747.55, together with interest thereon from August 1, 1907, and record costs amounting to $9.75, and has no real or personal property in the county of Allegheny, from which same can be collected.
    The affidavit of defense was as follows:
    That the note, upon which the judgment was rendered, for the payment of which this defendant entered into a recognizance at No. 900, July T., 1906, was part of a debt evidenced by the judgment bond and mortgage of Henry E. Bateman to the plaintiffs herein, dated February 1, 1906, and recorded in the recorder’s office of Westmoreland county, Pennsylvania, in Mortgage Book, vol. 176, p. 34, for $12,900 upon a certain tract of land situated in Upper Burrel township, Westmoreland county, Pennsylvania.
    That at D. S. B. No. 32, January T., 1907, judgment was entered on said judgment bond in the sum of $13,905.53, with interest from October 16, 1906, and that at No. 144, April T., 1909, a writ of fieri facias was issued upon said judgment and a writ of pluries testatum fieri facias was issued thereon to the court of common pleas of Westmoreland county, at No. 73, August T., 1910, in said Westmoreland county; that under said writ a levy was made upon the real estate of the said Henry E. Bate-man, consisting of a tract of land containing 1433^ acres, situate in Upper Burrel township, Westmoreland county, Pennsylvania, and being the same property mentioned and described in the judgment bond and mortgage as aforesaid, and which said property was under the said writ advertised for sale by the sheriff of Westmoreland county on Friday, August 26, 1910, at which time the property was bid in without competition by the plaintiffs herein, who were the execution plaintiffs in said writ for the costs of said execution, and on October 3, 1910, the said sheriff of Westmoreland county made a special return, which was confirmed nisi, and on October 14, 1910, the said special return was confirmed absolutely sec. reg., and on said October 3, 1910, the said sheriff of Westmoreland county acknowledged a deed to the plaintiffs for the said tract of land, and on October 18, 1910, a certificate of the recorder of deeds was filed in the court of common pleas of Westmoreland county, showing that the sheriff’s deed was recorded in sheriff’s Deed Book, vol. 433, p. 168; that the said sale by the sheriff to the plaintiffs herein was not competitive and was for the costs of the said execution; that the said bid of the plaintiffs herein for the costs of the said execution was grossly disproportionate to the true and actual value of the said tract of land, which has a true and actual value of over $15,000, and that the plaintiffs herein by purchasing the said property at a sheriff’s sale for the costs of the said execution thereby accepted the said property in full satisfaction of their said debt evidenced by the judgment for $13,905.53, in which is included the judgment for which this defendant entered into a recognizance as aforesaid, and thereby released this defendant from any liability under the said recognizance.
    
      Error assigned was order making absolute rule for want of a sufficient affidavit of defense.
    
      George E. Reynolds, for appellant.
    — The balance of the debt upon both judgments became a part of the purchase price of the property for which plaintiffs accepted a deed thereafter from the sheriff, in other words, a part of the bid: Carpenter v. Koons, 20 Pa. 222; Dollar Savings Bank v. Burns, 87 Pa. 491; Cock v. Bailey, 146 Pa. 328.
    Plaintiffs cannot now proceed against H. E. Bateman
    
      for the amount claimed from Smith because as to Bate-man the debt is extinguished, therefore extinguished as to Smith: In re Davis, 23 Am. Bankcy. Reps. 446.
    In Pennsylvania a mortgage is considered merely as a security for the debt and confers upon the mortgagee nothing more than a lien upon the land: Com. v. Wilson, 34 Pa. 63.
    Payment by the obligor to the obligee of a bond accompanying a mortgage extinguishes the mortgage even in the hands of an assignee of the mortgage for a valuable consideration, who neglects to give notice to the obligor of the assignment before payment of the bond: Hodgdon v. Naglee, 5 W. & S. 217; Tubbs’s Est., 161 Pa. 252.
    
      P. H. McGuire, for appellees.
    — Having exhausted the security represented by the mortgaged premises without realizing the full amount of his claim, the plaintiffs have a right of recourse against other property of the judgment debtor for the residue: Wolfe’s App., 110 Pa. 126; Bradley ,v. Chester Valley Railroad Co., 36 Pa. 141.
    October 14, 1912:
   Opinion by

Rice, P. J.,

This is an appeal from judgment for want of a sufficient affidavit of defense in an action of assumpsit on a recognizance for stay of execution on a judgment entered in favor of the plaintiffs against H. E. Bateman. The material allegations of the affidavit of defense are substantially as follows: first, that the judgment against Bateman was for the amount of promissory notes given by him,for part of a debt of a larger amount evidenced by the mortgage and accompanying bond, with confession of judgment, of Bateman to these plaintiffs, the mortgage being recorded in Westmoreland county, where the land is situated; second, that, after the entry of bail for stay of execution as above, the plaintiffs caused judgment to be entered in Allegheny county on the bond accompanying the mortgage, for the whole debt, and eventually issued a testatum fi. fa. thereon to Westmoreland county, by virtue of which the land described in the mortgage was levied upon and sold at sheriff’s sale to the plaintiffs; third, that the value of the land was greater than the entire debt then unpaid.

It is stated in the affidavit that there was no competition at the sheriff’s sale. But all that reasonably can be inferred from this vague allegation is that no other bid than that of the plaintiffs was made. It does not justify an inference that the sale was not duly advertised or was not conducted openly and in the usual manner, or that no other persons were present, or that anything was said or done to deter them from bidding, or that after the plaintiffs’ bid was. made no opportunity was given for a second one; indeed, nothing is alleged which would have been ground for setting aside the sale in a direct proceeding: Swires v. Brotherline, 41 Pa. 135. We may, therefore, dismiss the allegation that there was no competition at the sheriff’s sale as immaterial, standing alone, in the present action.

It is also stated in the affidavit that, the plaintiffs bid in the land for costs. But, in his history of the case, counsel for defendant say that the bid was “for the sheriff’s costs, though nominally in the sum of $2,000.” Perhaps, if the sheriff’s special return had been set forth at length in the affivavit of defense, this seeming discrepancy would be explained. But we base nothing on this surmise; for we do not regard it as making any material difference, in disposing of the question before us, whether the plaintiffs’ bid was nominally $2,000 and was paid by giving their receipt, as provided in the Act of April 20, 1846, P. L. 411, or was only sufficient to pay the costs. According to either view, all that the plaintiffs paid in cash, or that their bid required them to pay in cash, was the amount of the sheriff’s costs; and, according to either view, the bid was insufficient in amount to reach any part of the debt involved in this appeal.

It is argued that the plaintiffs’ acquisition of the mortgaged premises in the manner and under the circumstances stated operated, in law, to discharge the entire indebtedness and, therefore, to release this defendant from any liability upon his recognizance. This conclusion is irresistible if the premises be correct. But is it true that the whole debt was discharged or extinguished? It might be true if the plaintiffs had bought subject to the mortgage and there was any ground for implication that the mortgage debt was part of the consideration: Dollar Savings Bank v. Burns, 87 Pa. 491; Cock v. Bailey, 146 Pa. 328; Greensburg Fuel Co. v. Irwin Natural Gas Co., 162 Pa. 78. Be that as it may, the principle of those cases is not applicable where the sale is on a judgment on the mortgage or on the accompanying bond and the land is thereby discharged from the lien. In such case the personal liability of the debtor on the obligations the mortgage was given to secure to make good the deficiency arising out of the sale, remains even though the mortgagee be the purchaser at the sale. This was expressly decided in Wolfe’s App., 110 Pa. 126, and the principle is recognized generally. See Bradley v. Chester Valley R. R. Co., 36 Pa. 141, 151; 27 Cyc. of Law & Pro., 1746, 1747, 1748. Ordinarily, where there is a mortgage containing a covenant or promise to pay the debt intended to be secured, or where the debt is evidenced by a separate written obligation, and, in either case, there is no stipulation that none but the mortgaged premises shall be answerable for the debt, the extent to which the debtor is released from personal liability by a sheriff’s sale of the mortgaged property, under process issued on a judgment obtained on the mortgage, or on the separate written obligation, is measured by the proceeds of the sale applicable thereto. Thus, where the defendant on the purchase of land from the plaintiff, executed to the latter a purchase money mortgage and bond, and, upon judgment confessed on the bond, the land, though greatly improved by the defendant, was sold for a trifle to the plaintiff, there is no relief from the unsatisfied judgment: Lomison v. Faust, 145 Pa. 8. To the same effect is Bohde v. Lawless, 33 N. J. Eq. 412. If there was fraudulent connivance by the mortgagee, whereby other bidders were deterred and he was enabled to buy the property for less than it was worth, there would be plausibility in the contention that in equity the actual value of the property ought to be the measure. But nothing of that kind is alleged in the present case; the mortgagee is simply pursuing his legal remedies and insisting on the advantages that they give him. Moreover, it is expressly admitted in the affidavit of defense that the sheriff made a special return, which was confirmed nisi and, at a later date, confirmed absolutely, and that he acknowledged and delivered to the purchasers a deed, which was duly recorded. Thus, the debtor had full opportunity to attack the sale and the application of the proceeds, if there was ground for such attack, but did not avail himself of it. Under the circumstances, the fairness and validity of the sale must be presumed in this collateral proceeding. This being so, the ordinary rule for determining the extent to which the debtor is released from personal liability by a sheriff’s sale of his property, is applicable. If, by reason of the inadequacy of price brought at the sale — a not uncommon occurrence— there is hardship, it is one that might have been anticipated and avoided by the debtor insisting upon a stipulation in the first instance, that none but the mortgaged premises should be answerable for the debt.

This looks like a hard case; but it is not near as hard a' case as Lomison v. Faust, 145 Pa. 8, and we cannot more appropriately close the discussion than by quoting the concluding part of the opinion in that case. “If we possessed unlimited power we might perhaps relieve the appellant. But we administer the law by fixed rules, and in accordance with established precedents; and we cannot stay the hands of a creditor, who is merely pursuing his legal remedies, because the case as presented to us may appear to be a hard one. Were we to depart from this rule, the evil we would do would be greater than the particular hardship we sought to remedy.”

The judgment is affirmed.  