Mollenauer v. Smith

Citations

• 51 Pa. Super. 517
• 1912 Pa. Super. LEXIS 252

Syllabus

<p>Mortgage — Bond—Payment—Execution—■Sheriff’s sale.</p> <p>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.</p> <p>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.</p> <p>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.</p>