Dirks v. Humbird

Bartol, C. J., delivered the opinion of the Court. The facts shown by the record are as follows: John B. Smissing, to secure a debt of $1400 due Jacob Humbird, on the 9th day of June, 1811, executed a mortgage conveying all his real estate, and certain personal property consisting of horses, cattle, farming utensils, &c. The mortgaged property remained in the possession of the mortgagor until it was sold by the mortgagee, under a power in the mortgage. The real estate was sold on the 21th day of May, 1819, and purchased by Henry Logsdon for $1456.

Paul Dirks, the appellant, having become the purchaser of the equity of redemption in the land, under an execution issued against Smissing, the mortgagor, appeared in the proceedings under the mortgage, and excepted to the ⁴⁰² ratification of the sale. Before these exceptions were filed Humbird, not having realized from the sale of the land enough to satisfy the mortgage, advertised and sold the personal property on the 9th day of June, 1879. Before this sale took place a number of articles included in the mortgage had been disposed of by Smissing. The sale of the personal property was reported by Humbird, the report showing the proceeds of sale to be $221.50, subject to certain expenses paid by him.

On the 11th day of August, 1879, the sale of the real estate was set aside. Whereupon-Dirks, the appellant, filed a petition praying that an audit be made showing the balance due on the mortgage, and an order was passed by consent referring the case to the auditor, who, after taking proof, stated two accounts. To the second, called the “Auditor’s Special Beport,” the appellant excepted; these exceptions were overruled, and from the order ratifying the “Auditor’s Special Beport,” this appeal was taken. The exceptions are as follows: “ 1st.

Because the mortgagee, Humbird, is charged therein with only the sum of $221.50, the amount the personal property sold for at Oorrigansville; whereas this exceptant contends, that as the mortgage provides that the property should be sold in Cumberland, the sale of it at another place amounted to an unlawful conversion of the same by the mortgagee, whereby he should be charged with the full value of the property, which according to Dirks’ undisputed testimony was $400. 2nd. Because Dirks being a subsequent purchaser of the real estate, subject to Humbird’s mortgage debt, is entitled to have said lien marshalled, first upon the personal property in said mortgage, which in this case ought to be credited on the mortgage, to the extent of $400, under the testimony, for the reasons set out in the first exception; and for the additional reason that the mortgagee, after the purchase by Dirks of the real estate, allowed the mortgagor to squander, sell and make way ⁴⁰³ with the personal property, after notice given him by Dirks, that such was being done." “And this exceptant excepts to the auditor’s special report herein for the reason that the mortgagee therein is only charged with $221.50 instead of $400, on the grounds set out in the two exceptions above stated; and second, because the sum of $62 is not credited therein on said mortgage debt, although sworn to by Dirks and uncontradicted by any body; and third, because Henry Logsdon is therein allowed the sum of $90 for keeping the stock and personal property of said Smissing mortgaged herein; whereas this exceptant contends, that said claim is not a preferred one and cannot be allowed as a lien on the fund arising by the sale of said property.” As to the sale of the property, by the mortgagee, at a different place from that prescribed in the mortgage. The appellant not being a party to the contract, cannot be heard to urge this objection. It cannot be maintained that such a departure from the terms of the mortgage, made with the consent of the mortgagor, entitles the appellant to insist that the whole value of the personal property, mentioned in the mortgage, shall be credited upon the mortgage debt.

The proposition that it operated as a wrongful conversion by the mortgagee is not supported by reason or authority. Hor can the appellant rightfully complain that before the sale, some of the property was disposed of