McLaughlin v. Ihmsen , 85 Pa. 364 ( 1877 )

Chief Justice Agnew

delivered the opinion of the court, November 7th 1877.

That a mortgage conveys an estate as a security for the payment of a debt is held in numerous cases. And even though unrecorded, it is good against the mortgagor himself or his alienee, or mortgagee with actual notice, or a judgment creditor with notice, before his debt is contracted: Mellon’s Appeal, 8 Casey 121; Britton’s Appeal, 9 Wright 172; Nice’s Appeal, 4 P. F. Smith 200; Tryon v. Munson, 27 Id. 262. In the last case the authorities are all reviewed, and it is shown that the effect thus attributed, necessarily springs from the nature of the estate conveyed as a security,- and therefore must prevail, not only against the mortgagor, but his heirs on whom the law casts the property, and who are mere volunteers in accepting it. The 24th section of the Act of 1834, limiting the lien of the debt against the real estate of the decedent, applies to the general estate descended to his heirs, but does not relieve the property specially pledged for the payment of a debt by the deed of the decedent, which estops his heirs, who are mere volunteers, from averring anything contrary to his deed.

That a scire facias to enforce the pledge may issue on an unrecorded mortgage is also proved by the authorities referred to. Tryon v. Munson was a case thoroughly argued and considered, and maintains the doctrine of many cases on the subject of mortgages. Judgment affirmed.