Gosser v. Yohn

Citations

• 67 Pa. Super. 521
• 1917 Pa. Super. LEXIS 447

Syllabus

<p>Execution — Distribution—Order of liens — Act of April 10,1862, P. L. 861f.</p> <p>Under the Act of April 10, 1862, P. L. 864, the order of liens as they appear of record is prima facie the correct order for the distribution of the proceeds of a sheriff’s sale of real estate. A person objecting to the order must produce evidence that he is equitably entitled to priority, otherwise the order will not be changed.-</p> <p>Where a person executed a second mortgage and the same is recorded, and thereafter delivers to the mortgagee a promissory note of the same amount as the bond covered by the second mortgage, because the mortgagee tells him that he cannot negotiate the mortgage without such note, and the mortgagee sells the note to a trust company, and afterwards, assigns the bond and mortgage to a.second trust company, and neither company had notice of the existence of the other evidence of indebtedness when _ their respective transactions occurred, and judgment is entered on the note of the first company after the mortgage was assigned of record to the second company, the judgment on the note will not be given priority over the second mortgage in the distribution of a fund raised by a sale of the real estate, in foreclosure proceedings under the first mortgage.</p> <p>In such a ease there is only one debt, and that is evidenced by the bond accompanying the second mortgage. The transfer of the promissory note was not a transfer of the bond and mortgage, and the assignee of the mortgage took it free from any equitable defense the mortgagor had.</p>