Long's Appeal , 77 Pa. 151 ( 1874 )

Judgment was entered in the Supreme Court,

Per Curiam.

A mortgagee of an undivided estate is not entitled to be made a party to a proceeding in partition. He is not the owner of the estate, but a mere encumbrancer, who cannot claim to elect or to refuse a purpart, to give security for owelty, or to do any act affecting the title or estate of his mortgagor. His estate is defeasible, and the moment his debt is paid it ceases. What sort of decree would it be to award him the' share or purpart of his mortgagor until his debt should be paid? On what principle should a mere encumbrancer, whose estate is liable at any moment to be defeated, claim the right to say what share shall be taken for his mortgagor, or to refuse to take any? He cannot thus interfere with the lasting rights of the owner. How far a court wmuld permit him to come into the proceeding to defend his interests against unfairness, and thus protect his security, is not the question. In order to be entitled to be made a party, he must have an estate, as owner, such as would confer the rights and powers of an owner. If then he cannot claim to be a party at law, he cannot object to a voluntary partition by the parties themselves. If competent they are not bound to go to law to make the partition. When partition is made the security of the mortgagee follows the separation, and attaches to the estate held in severalty. The only right the mortgagee has is to object to unfairness or fraud affecting his interest; but if the partition be fairly made, he cannot gainsay it. He loses nothing, and his security gains an advantage in being freed from the interference of co-tenants.

The argument as to the supposed contrariety of decision upon the nature of a mortgagee’s interest is unfounded, and results from not discriminating between the questions considered in the cases. A mortgage in form is a deed or conveyance of real estate, and is required to be recorded as other deeds are, Hence in all questions upon the recording acts, the mortgage is spoken of as a conveyance of land, the law having placed deeds absolute and defeasible on the same footing in many respects. So when the questions relate to remedies which follow the form of the transaction, such as ejectment, estrepement, perception of profits, &c., the cases also treat of the subject as an estate in the land, this being its form and the remedies being in acdord with the form. But when the’ questions have related to the real nature of the mortgagee’s interest, it is always held to be personal, and to go to the personal representative and not to descend to the heir. This was a mere personal security for a debt, or other thing. On the death of the mortgagee his administrator could not be made tenant to the praecipe in a writ of partition, or a party to a proceeding in the Orphans’ Court.

We discover no error in the decree of the Orphans’ Court. It is therefore affirmed, with costs to be paid by the appellant, and the appeal is dismissed.