Carpenter v. Koons

1. When tbe mortgagor himself sells the mortgaged premises in pieces for a full price, and at different times, the several parts are liable for the mortgage debt in the inverse order of their alienation. 2. But this rule does not apply to the case of sales of mortgaged premises made by the sheriff, since the Act of 0th April, 1830, under a judgment subsequent to the mortgage. 3. Two purchasers at a sheriff’s sale of pieces of land each sold, since the Act of 1830, subject to the same mortgage, are in egiiali jure; neither has a preference over the other; and the portions so purchased by them, aro, as between themselves, liable to the payment of the mortgage debt in proportion to their respective values. 4. The value of the respective portions is to be determined by the jury. The price for which the parts were severally sold at the sheriff’s sale is not conclusive, hut is only a circumstance to be considered by the jury.

Error to the District Court, Philadelphia. This was an action of assumpsit for contribution, brought by C. S. Carpenter, executor of the -will of Powell Carpenter, deceased, v. Isaac Koons. In 1829, Isaac Koons, the defendant, and K. A. Parrish, were tenants in common of a large lot of ground on Willow and Fifth streets, Philadelphia. On the 27th ^February, 1829, they mortgaged the same to the contributors to the Pennsylvania Hospital, to secure $8000. On 30th June, 1830, they divided the ground and executed a release to each other; Koons releasing to Parrish lots No. 1 and 2, and Parrish releasing to Koons lot No. 3, the largest of the three lots. On 1st July, 1830, an agreement was executed by Isaac Koons, by which he acknowledged that as between Parrish and himself, he was responsible for $5000 of the mortgage, and It. A. Parrish for $3000, from the 1st day of March, 1830. Subsequently, Parrish became embarrassed, and under a judgment obtained against him alone on 24th June, 1843, lot No. 2 was sold by the sheriff in 1844, and was purchased by Isaac Koons, the defendant in this suit, for $975, the sale being, by the Act of 1830, subject to the mortgage. There, was, however, no such condition expressed in the levy, sale, or deed. The sheriff’s deed to him was dated 22d June, 1844. Another judgment had been obtained against Parrish on 25th February, 1843, under which lot No. 1 was sold at sheriff’s sale in 1846, and was purchased by Powell Carpenter for $1050, the sale, by the Act of 1830, being also subject to the said mortgage. The sheriff’s deed was dated 21st November, 1846. On 16th October, 1843, William Overington procured an assignment of the mortgage, and on 21st March, 1847, he obtained judgment on it against Koons and Parrish, Carpenter appearing as terre tenant. By virtue of an alias lev. fa. lot No. 1 was, on 1st November, 1847, again sold, and it was again purchased by Powell Carpenter for $4400 ; and lot No. 2 was afterwards sold under the same writ, at the same sale, for $5025, to Isaac Koons, who paid to the sheriff $500 and afterwards transferred his bid to Overington, the assignee of the mortgage. The lot No. 3 was not sold. The debt and interest due to Overington under the mortgage, at the time of the sales, was $8800. The lots No. 1 and 2 produced $9425, -leaving, exclusive of costs, about $367.83 of an excess. A portion of the money, viz., $4525, was paid to the plaintiff in the execution, and another portion, $4900, was paid into Court. In decreeing distribution, the Court decided that portions of property subject to the same mortgage as security for a debt, and which portions were afterwards sold at sheriff’s sale at different times, were liable to contribute to the payment of the mortgage in the inverse order of the sale thereof. Distribution was decreed accordingly. The executor of Powell Carpenter, the purchaser of lot No. 1, which -had been thus last sold under the judgment against Parrish, brought this suit to recover from Koons, such part of the five-eighths of the mortgage debt as Koons was relieved from paying by reason of the sales and distribution of the fund. On the part of the plaintiff in error it was contended, that the proceeding for substitution, and a personal action for contribution, were concurrent remedies, and that either or both might be resorted to. It is enacted by the Act of 6th April, 1830, as follows:— Sect. 1. Prom and after the passage of this Act, where the lien of a mortgage upon real estate is or shall be prior to all other liens upon the same property, except other mortgages, ground-rents, and the purchase-money due to the Commonwealth, the lien of such mortgage shall not be destroyed or in any way affected by any sale made by virtue or authority of any writ of venditioni exponas. Sect. 2. No sale made by virtue or authority of ahy writ of levari facias issued upon a judgment in a suit upon a mortgage, shall destroy or in any way affect the prior lien of any other such mortgage as aforesaid. The case was tried before Stroud, J., who charged as was assigned for error; and verdict was rendered for the plaintiff for $720.22. It was assigned for error, 1. That the judge charged the jury that “where several pieces of ground are subject to a joint mortgage, and a sale of one of such pieces be made; as between the purchasers of such piece and those remaining unsold, the whole encumbrance is to be thrown on the latter.” Whereas he should have charged that such is the rule only where such first purchaser buys for full value. 2. Because he charged that when No. 2 was sold, No. 1 was bound to bear .the whole $3000. 3. Because he charged that, “ as the property stood at the last sheriff’s sale, No. 3 ought to have borne $5000; and that No. 2 ought not to have been sold at all.” '4. Because he charged the jury, “ that there are two modes of reaching the values of the lots: 1. The amount they sold for at sheriff’s sale; 2. By competent and disinterested witnesses. At the sheriff’s sale, No. 1 was sold for $4400; and to me it seems that it is, under the circumstances of the case, the proper standard of value. The plaintiff’s testator and the defendant both attended at the sheriff’s sale and bid against each other, and stood as highest and next bidders respectively at the close of the sale. I do not say, however, that it is to be binding on the jury; they will judge for themselves.”