Reisinger v. Garrett Smokeless Coal Co.

Citations

• 262 Pa. 530
• 106 A. 78
• 1919 Pa. LEXIS 717

Syllabus

<p>Mortgage — Leased coal — Agreement between mortgagee and lessee — Waiver of priority — Record—Constructive notice.</p> <p>An owner of coal mortgaged it and subsequently conveyed it to another person who executed a lease of the coal. Thereafter an assignee of the mortgage entered into an agreement with an assignee of the lease, whereby the former agreed for a consideration to waive his priority rights as mortgagee so far as they might affect the rights of the lessee. This agreement was recorded in the deed book, but not in the mortgage book, and shortly afterwards the owner of the coal recorded a repudiation of the agreement in the deed book. Subsequently an assignee of the mortgage ignored the agreement and foreclosed against the entire property, including the coal. The scire facias was served on the lessee as tenant in possession, but the lessee interposed no defense, and permitted judgment to be entered by default. There was no notice of the agreement given in the foreclosure proceedings. The purchaser at the sheriff’s sale had knowledge of the agreement and the repudiation. Held, (1) that the title acquired at the sheriff’s sale on the levari facias related to the date of the record of the mortgage, and cut out all intervening estates and interests; (2) that the lessee having permitted the property to be sold without protest or notice at the sale, could not afterwards interpose the release agreement to defeat the purchasers’ claim to possession; (3) that the agreement not having been recorded or noted in the mortgage book, was not constructive notice to any one; (4) that the actual knowledge of the purchaser of the agreement, was immaterial, as he was not precluded by such knowledge in bidding in common with others at the sale; and (5) that the purchaser was entitled to the possession of the coal.</p>