Boyle v. Abercrombie , 5 Rawle 144 ( 1835 )

The opinion of the court was delivered by

Sergeant, J.

The sheriff’s sale under the judgment of Owens’ administrators, against James, Abercrombie, passes to the purchaser all the right, title and interest of James Abercrombie, in the lot sold; arid the mortgage being of all his right, title and interest, the mortgagee has a right to come upon the fund for payment. If instead of a mortgage, the creditor had obtained a judgment, his right could not be questioned : and there is no difference between the two in the efficacy of the lien, though there is in their nature; the one being a specific lien, the other a general one. The mortgage, though prior to the judgment, is not the first lien; and it is therefore admitted the case does not fall within the provisions of the act of assembly of the 6th April 1830, and the land is, by the sheriff’s sale discharged, so far as respects James Abercrombie, from all liens against him.

It is objected by the judgment creditor that the deed of the 1st June, 1832, divested James Abercrombie of all title, and that Pennington’s mortgage is only of the interest of the wife transferred under her power, the joining of James Abercrombie, in the mortgage being nugatory — and therefore the mortgagee must look to the land under the title derived from her. It is true, the deed of trust of the 1st June, 1832, divests James Abercrombie, of all title. But the mortgagee might choose not to rely solely ori the title of the wife. The property was previously James Abercrombie’s, and he might deem it a measure of prudence to include his title also in the security, and avail himself of a double assurance for his money; and I know of nothing that forbids a person lending money from including in his mortgage as well the donor as the donee of the tract mortgaged. This is done here expressly: the mortgage is in the name of both, transfers all the right, title, and interest of both, and is executed by both, and there is, on the face of it, some reason to suppose the junction of the husband was not nominal but substantial, because the mortgage recites a loan to both by the mortgagee on condition of their securing him by a mortgage of the premises: It cannot be pretended that the interest of the husband was worthless, since we see a sale of it has produced the moneys about which the parties are contending.

It is further objected by the plaintiff, that the deed of trust and mortgage were fraudulent; and, there are circumstances on .the face of the transaction, such as the execution of the first of these conveyanees immediately after a suit commenced, and of the mortgage whilst a reference was pending, which cast a strong shade of suspicion over it. But suspicion is not proof; and in the absence of evidence we can judge of these instruments only by their face. The deed of trust is a marriage settlement made after marriage, and the general rule is that such settlement is fraudulent and void against all persons who were creditors of the husband at the time of the settlement. 2 Atk. 520. 3 Id. 413. 2 P. Wms. 364. But there are exceptions'to this rule, one of which is, when it is made in pursuance of articles before marriage, Beaumont v. Thorpe, 1 Ves. 127: and the deed of trust recites, that this property was originally settled on the wife to repay moneys borrowed of her separate estate, secured-to her previous to marriage, and was afterwards conveyed by her through C. Riddle to her husband, to enable the latter to effect certain arrangements with respect to a rent charge upon it: and it purports to be made to restore the property to her. If so, and we have no evidence to the contrary, the deed of trust'might be valid against creditors; and if it were even void as respected the parties, it might not be so as to the mortgagee if he lent his money bona fide. But it is not necessary to give any opinion on this point, because in this suit the mortgagee does not claim under the deed of trust: the claim is of the right of James Abercrombie, which is paramount to that deed, and as to that, the only question that could be raised would be whether a person in debt may not mortgage his property to a bona fide lender of money, a question which could admit of no doubt.

If the mortgage was collusive, and for the mere purpose of abetting James Abercrombie in defeating his creditors, the security would be void, and the conduct of the abettor criminal. But no evidence was given on this head. One of the plaintiffs in the judgment, purchased at the sheriff's sale, and holds the sheriff's deed. If he can show fraud, and thus destroy the deed of trust and the title of the mortgagee, he will, so far as we can judge at present, hold the land discharged of the residue of the mortgage claim. But there is no ground laid before us to decree the mortgage fraudulent, or to reverse the decree of the court below, by which the money is awarded to the mortgagee, as the prior lien creditor.

Decree affirmed.