Zeller v. Henry

Citations

• 157 Pa. 1
• 27 A. 559
• 1893 Pa. LEXIS 1393

Syllabus

<p>Suretyship — Mortgage—Husband and wife — Subrogation.</p> <p>If the land oí a wife is mortgaged for the husband’s debt, a subsequent judgment creditor of the husband cannot claim that the mortgagee shall proceed first against the property of the wife, nor can he claim to be subrogated to the mortgagee’s security against the wife. The wife is but a surety to the mortgagee for the husband.</p> <p>A husband owned one seventh of a farm and his wife six sevenths of it. Both husband and wife joined in a mortgage of the whole farm to secure a debt of the husband. A judgment was subsequently entered against the husband, and his interest in the land was sold, with notice that the wife had joined in the mortgage as surety only. After a deed was made to the purchaser, judgment was obtained upon the mortgage. To prevent a sale the purchaser of the husband’s interest paid the mortgage debt with interest and costs to the sheriff, who paid the money into court. The purchaser then obtained a rule to show cause why the mortgage should not be marked to his use, so that he could proceed against the wife’s interest to reimburse him for his loss. Held, that the rule was properly discharged, as the purchaser was not entitled to subrogation against the wife who was merely a surety for the mortgage debt.</p>