Myers v. White

The opinion of the court-was delivered by Rogers, J.

Peter Myers, on the 1st day of April, 1822, mortgaged a tract of land to Johns and Graybill, who, on the 8th of January, 1825, sued out a Scire Facias on the mortgage. On the 15th of January, 1825, Myers and wife assigned the mortgaged premises to David and Henry Myers, the plaintiffs. At the time of the assignment, there was a crop in the ground, which passed to the assignees. The assignees leased the property to Peter Myers, reserving, as I understand, the' crop which was levied on by the sheriff. The mortgagees having obtained judgment on the Scire Facias, issued a Levari Facias to the .August Term, 1825, on which was this endorsement: “ Sheriff will levy the -mortgaged premises, together with the grain growing thereon.” The principal point in the cause is, Whether the sheriff be justified by his writ, for the levy and sale of the grain growing-on the mortgaged premises. It is contended, by the counsel for the defendant in error, that all leases, or other interests in lands, made or conveyed by the mortgagor subsequent to the mortgage, though béfore forfeiture, are void against the mortgagee: That as to. him, the tenants under such leases, or persons claiming such interests, may be considered as ■trespassers, disseisors, and wrongrdoers: That the mortgagee on notice, becomes entitled to the rent of the premises mortgaged (if let,) from the time of executing the conveyance;] for the rents and profits are liable to the debt, as well as the, premises themselves. And this without doubt, is the law of England, and results from the well settled principle, that, the estate of the mortgagee, until forfeiture, still continues as at common law before the interference of the. Courts of Equity. The mortgagee is entitled to an estate in the land as tenant in mortgage, in. fee, or for a term of years, as the case may be. There has been an' essential departure from the law of England in Pennsylvania, for the mortgagee has no estate, property, or interest in the land, until he takes possession of the property. (Yide Rickert and Seed v. Madeira, ruled at this term. * ) Nor has it, as I believe, ever been understood that such a privity exists, as that a mortgagee can compel the tenant of the mortgagor-to' pay him the rent, whether, the lease was executed either before or after the mortgage; Nor has it heretofore been considered, that as *356 to the mortgagee, the tenants under leases from the mortgagor, fairly and bona fide made, can be treated as trespassers. In Pennsylvania, a mortgage, as has been held in repeated decisions, although in form an absolute conveyance, is in substance but the security for a-debt: The mortgagor is the owner of the land, with the same power over it as any other tenant in fee, with encumbrances, or liens, upon the-property. In this case, the mortgagees have treated it as a pledge for the debt, by proceeding under the act of assembly, directing the sale of the mortgaged premises. This is a proceeding 'in rem, it is true, and must necessarily be so, whére the' remedy is on the mortgage itself, and not on the bond, which, for greater security, arid as giving a more extensive remedy, is usually taken. In deciding the question, I throw out of view the endorsement.on the writ, for that cannot enlarge the power of the sheriff. He must rest his defence on the writ itself; and in that, he is'commanded to sell the premises mortgaged, without any authority whatever to dispose of the grain. As there is no difference in this respect between a judgment and mortgage creditor, fhis.case'has been virtually decided in Hambach v. Yeates, not yet reported, in which it was held, that grain growing- in the ground, is personal property, and might’be levied on and sold as such; and that it did not pass by a,salé to-the sheriff’s vendee. . Peter■ Myers, before, judgment on the Scire Fdcias, had parted with his interest in the crop. At the time of the sale, all his right was vested in his assignees for the benefit of his creditors.

When this, cause was first broken, I was of opinion, with the counsel for the defendant in error, that the action had been- misconceived; but upon further investigation, as the assignees had reserved the right to the crop, 1 cannot distinguish this in principle, from Stultz v. Dickey, 5 Binn. 285 . A tenant entitled to the way-going crop,' who enters and warns a third person against cutting it, may maintain trespass quare clausum, fregit, against a wrong-doer, notwithstanding he had, previously to the trespass; given up to his landlord possession of the farm, .in a part of which the crop was growing.

It has also been contended, that inasmuch, as Henry Myers, One of the plaintiffs, received the balance of the money, the assignees ■are estopped from contesting the validity of the sale. In this I cannot perceive any inconsistency. It was' the balance’ of the money after the payment Of the-mortgage, to which Johns and Gray bill pretended to have no right, nor had th'e' sheriff any claim. It undoubtedly belpnged to- the assignees, and the receipt indicates no intention to legalize the illegal seizure of the grain. In order to amount to ah estoppel, it should be inconsistent with the action, which in the opinion of the court, it was not'. Its effect will be, to lessen the'damages, if any shall be recovered on another trial of the cause. . . .

Judgment reversed, and a! venire facias de novo awarded.

Ante, page 325,