# Dorrow v. Kelly

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DORROW Affignee verʃus KELLY.
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On the 5th of March 1782, a mortgage was executed by Abd Kelly to Thomas Groome and his affigns,, for fecuring the payment of Ł. 47.4.0 with intereft on the 5th of March 1793. On the 9th of Auguʃt 1782, the mortgage was affigned for a valuable confideration to John Dorrow ; who fued out a Scire Facias to June Term 1784, the day of payment being paft.—After the Affignment, and before the Scire Facias fued, Kelly became indebted to the faid Dorrow by notes and book accounts in divers fums, which ftill remain unpaid and payable.
Ingerʃoll, for the defendant, had obtained a rule to fhew caufe why the proceedings on the Scire Fracias fhould not be ftayed, upon payment of the principal mortage money, interefts, and cofts only ; without payment of the fubfequent fimple contract debts?
Lewis, for the Plaintiff, fhewed caufe, and ftated from the books the law on the fubject in England:— That it is prefumed the fubfequent fimple contract debts,, were contracted on the faith of the firft fecurity, though no fpecial agreement for the purpofe ; that after the day of payment, the mortgaged premifes are forfeited in ftrict law ; the privilege of redemption afterwards is a matter of equity, which fhall be withheld until the mortgagor does equity by payment of all debts ; that it prevents a multiplicity of fuits, and effectuates fubftantial juftice. And he contended that in Pennʃylvania, the chancery jurifdiction for redemption of mortgages, is transferred by the act of Affembly to the common law Courts, which will alfo take care that he who claims equity fhall do it. He cited a great number of cafes, both as to the reafons and conclufions of the law. 3 Peer Wms. 334. 3 Atk. 556 630. 1 Chan. Caʃes. 97. 2. Vern. 286. 2 Chan. Caʃes 98. 2 Vern. 177. Prec. Chanc. 18. Gilb. Rep. in Eq. 104. Prec. Chane. 419. 16 Vin. 264. 5. 1 Peer Wms. 775. 6. 1 Vern. 244. 4. Salk. 240. 1 Eq. Caʃ. Abr. 325. 2 Ibid. 594. Gilb. Rep. in Ep. 96. Max. oƒ Eq. 1 Treatiʃe oƒ Eq. 89. 90.
Ingerʃoll read fome authorities to fhew, that even in England, the law on the fubject is not thoroughly fettled. 2 Stra. 1107. Eq. Caʃ. 359. 3 Bac. Abr. 651. Prec. Chanc. 407. 419—But, conceding it ​to be as ſtated by the oppoſite counſel, yet, he contended, that it is very different in Pennʃylvania. Our act of Aſſembly (Prov. Laws 51.) puts mortgages on quite another footing:—For, 1ſt. Mortgagee cannot proceed on the mortgage until one year expires after day of payment elapſed. 2d. Even then a proceſs is directed by the act, altogether different from that which is practiſed in England, and which does not go to veſt the legal eſtate in the mortgagee. 3d. In fact, the mortgagee cannot by any default of the mortgagor, however long, or reiterated, acquire a right to more than principal, intereſt and coſts, for the amount of which he has an abſolute and ſpecific lein on the mortgaged land, and for the payment of which, the ſaid lands are to be ſold on execution (after judgment on the Scire Facias) in the uſual way. And the act for acknowledging and recording of deeds §. 9, 10 (Prov. Laws. 79) directs under a heavy penalty, that upon payment made as aƒoreʃaid, the mortgagee at the requeſt of the mortgagor, ſhall acknowledge ſatisfaction on the margin of the record of the mortgage, which acknowledgement ſhall be a bar to all actions brought or to be brought on the mortgage, and ſhall forever diſcharge, defeat, and releaſe the ſame. He then read the law of mortgages in England from 2 Black Comm. 157. and contraſted it with our act of Aſſembly. In England, after day of payment paſt and forecloſure, the land is abſolutely in mortgagee without any poſſibility of recall; it ceaſes to be a pledge, and becomes to all intents and purpoſes the abſolute property of the mortgagee. In Pennʃylvania, there is no ſuch thing as foreclosure, the land mortgaged never ceaſes to be a pledge; a legal eſtate never veſts in the mortgagee, nor can he by any poſſibility become owner of the land, unleſs he purchaſes under the execution. Hence, it muſt appear, that the reaſon of the Engliʃh cafes cannot apply in Pennʃylvania. Relief is given to the mortgagor in Chancery, expreſsly becauſe he is remedileſs at law; and, therefore, they will grant the equity upon what terms they pleaſe. In Pennʃylvania, the act of Aſſembly precludes all neceſſity for ſuch an interference. The privilege of redemption after the day of payment paſt is not properly ſpeaking an equity, and therefore the principle of the chancery cafes cannot exiſt. Another reaſon why the Engliʃh caſes do not apply is, that, in England, real eſtate is not anſwerable for ſimple contract debts; and, therefore, Chancery, in favour of ſuch creditors, will cover them where they have it in their power; but here the ſimple contract creditor can come on the land even in the hands of the heir. If the rule ſhould be extended to Pennʃylvania, the moſt miſchievous conſequences would enſue to purchaſers. It would be in vain for them to ſearch the offices to ſee to what amount a tract of land may be incumbered by mortgages; becauſe, however accurate he may be in his calculation and compariſon of the value of the land with the amount of the mortgage debts, an infinity of intermediate ſimple contract debts may ſwallow up the whole difference.
Lewis obſerved, in reply, that the miſchief ſuggeſted by his opponent need not be apprehended, becauſe all the caſes agree, that ​ the offence of the mortgaged premifes fhall not be liable for more than the mortgage debt, though it is otherwife with the mortgagor himfelf. As to the idea that in Pennʃylvania a mortgage is in nature of a common pledge, we find that the authorities extend even fo tar. Demanbry vs Metcalƒ. Gilb. Rep. in Equ. 104. S.C. in Prec. Chene. 419. is the cafe of jewels pawned, which were not permitted to be redeemed, without payment of the pawner's fubfequent note of hand. And, with refpect to the prefect point, the act of Affembly has no other effect, than to extend to our law Courts the power of redemption which Chancery has in England, for if there was no fuch power, upon default on the day of payment, the mortgagor would be without remedy.
After confideration, the president delivered the opinion of the Court as follows..
SHIPPEN, Preʃident.—The cafe comes before us on a rule to fhew caufe, why the proceedings on a Scire Facias on an affigned mortgage, fhould not be faid, on payment on the principal and intereft due on the mortgage ? It is contended, on the part of the plaintiffs, that a fubfequent debt having been contracted with the affignee of the mortgage, the rule fhould not be granted, till fuch fubfequent debt be firft paid.
Being a Court of law, we cannot take upon ourfelves to act as a Court of chancery. We have no power to foreclofe the equity of redemption, or to impofe terms upon a mortgagor applying to redeem. The Courts oƒ law in England have never done it, but under the act of Parliament of 7 G. 2 c. 20, made for the more eafy redemption and foreclofure of mortgages. Under this act, when an ejectment is brought for the recovery mortgaged, if the mortgagor fhal become defendant in the ejectment, and fhall at any time pending the action pay the principal and intereft money due on the mortgage, or bring it into Court, fuch money fhall be taken in full difcharge and fatisfaction of the mortgage and the Court fhall difcharge the mortgagor and compel the mortgagee to furrender and re-convey the mortgagor premifes. There is a cafe under this act which has not been cited at the bar, and which is rather fuller to the point, than any that have been cited : It is in 2 Barn. No. 147. where ‘‘ a rule on the ftatute of
‘‘ 7. G. 2. to fhew caufe why proceedings fhould not be ftaid on
‘‘ payment of the mortgage-money and cofs, was made abfolute ;
‘‘ the leffors of the plaintiff, aʃʃignes of the mortgagee, infifted to
‘‘ bee pad a bond and fimple contract debt due to themfelves in
‘‘ their own right : —Per Curiam : a bond is no lien in equity, unlefs
‘‘ when the heir comes to redeem.’’
The Courts of law in this ftate, have in fome inftances adopted the chancery rules, to prevent the abfolute failure of juftice. But in this cafe, there is no neceffity to ufurp the powers of a Court of chancery. We have a pofitive act of Affembly directing the mode of proceeding upon mortgages, intirely different from the ​ modes prescribed in England. This act expressly confines the remedy of the mortgages to the recovery of the principal and interest due on the mortgage ; and the proceedings under the law shew the uniform construction of it. The Scire Facias is to show cause why the land should not be fold for payment of the principal and interest due on the mortgage : When judgment is obtained, the levari ƒacias is to levy the principal and interest money only. There is no penalty, no judgment for a penalty, and we might as well refuse to stay procedings in a suit on a single bill, till a subsequent debt was discharged, is in this cafe of a mortgage. Upon the execution in both cafes, not more can be levied than the principal and interest.
Rule made absolute.