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BROBST V. BROCK, 77 U. S. 519 (1870)

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U.S. Supreme Court

Brobst v. Brock, 77 U.S. 10 Wall. 519 519 (1870)

Brobst v. Brock

77 U.S. (10 Wall.) 519


1. If for any reason appearing in the record it is clear that a plaintiff in error who was also plaintiff below cannot recover in the action, the court will not determine whether error was committed in instructions given to the jury respecting other parts of the case. To warrant the reversal of a judgment, there must not only be error found in the record, but the error must be such as may have worked injury to the party complaining.

2. A mortgagor of land, as between himself and his mortgagee, has only an equitable title. He cannot, therefore, recover in ejectment against the mortgagee in possession after breach of the condition or against persons holding possession under the mortgagee.

Quaere whether such a suit can be maintained until redemption, even though the money secured by the mortgage has been paid or tendered.

3. Twenty-five adjoining tracts of wild and uninhabited land, surveyed in a block and separated by no marks on the ground, were purchased from the commonwealth by one person at one time and subsequently conveyed by him as an entirety by one deed. His grantee also conveyed them as a whole by one deed, and the second grantee mortgaged them as a whole in the same way. After the debt secured by the mortgage fell due, the mortgagee placed a tenant upon the lands, whose actual occupancy, or pedis possessio, did not extend beyond the limits of a single tract

Held that the possession of the whole body of land, as described in the deed, must be presumed to have been taken by the mortgagee in right of the mortgage.

4. An irregular judicial sale made at the suit of a mortgagee, even though no bar to the equity of redemption, passes to the purchaser at such sale all the rights of the mortgagee as such.

5. No presumption of payment of a mortgage can arise from lapse of time against a mortgagee or his assigns in possession when the mortgagor became insolvent and died before the debt fell due and when his vendee of the equity of redemption also became insolvent before the maturity of the debt, removed from the state, and never afterwards returned.

The tract for a fourth of which the ejectment was brought was the easternmost of twenty-five adjoining tracts in Pennsylvania which were surveyed in 1793, on warrants issued the same year, and for which separate patents were issued chanroblesvirtualawlibrary

Page 77 U. S. 520

on the 9th and 10th of May, in 1816, to one George Grant, who in the same year conveyed the whole, forming a tract of 10,000 acres, to Thomas B. Smith. Smith conveyed the whole in undivided fourths, on the 27th of September, to Michael Brobst and three other persons, one-fourth to each. On the 6th March, 1817, Brobst mortgaged his undivided fourth to Samuel Wood for $1,500, payable on the 1st of April, 1821, the mortgage being properly recorded. The deeds of both Grant and Smith, and the mortgage of Brobst described the land collectively as one tract.

Michael and John Brobst were brothers, and were engaged in partnership in making iron in Berks County, in the eastern part of Pennsylvania. They failed in business, and confessed several judgments, among them one, January 17, 1817, for $1,000, to Jacob Kutz and Jacob Levan.

On the 15th May, 1817, Michael Brobst conveyed to his brother, John Brobst, his undivided fourth of the twenty-five tracts and went to Illinois, where he died in 1820, never having married, news of his death being brought to Pennsylvania about 1823.

John Brobst left the eastern parts of Pennsylvania, where he lived, about the year 1820, went to distant parts of the state for a short time, and in 1824 out of it to Maryland. His place of residence was unknown to his relatives in Pennsylvania. He was supposed to be dead, and about the year 1847, letters of administration on his estate were issued, though in point of fact he did not die till 1861.

The mortgage already mentioned as given in 1817 by Michael Brobst to Wood, having been assigned in the same year by Wood to a certain Dunn, and by him to one Boyer. Boyer, on the 3d of November, 1825, proceeded by the mode usual in Pennsylvania, where mortgages are recorded and considered in some respects, as records, to foreclose it -- that is to say he issued upon it a writ of scire facias under an act of 1705.

By this old act, the mortgagee is authorized, a year and a day after the mortgage is payable, to sue forth, if it remains unpaid, a writ of scire facias from the court of common chanroblesvirtualawlibrary

Page 77 U. S. 521

pleas of the county where the mortgaged premises lie, directed to the proper officer, requiring him, by honest and lawful men of the neighborhood,

"To make known to the mortgagor, his, her, or their heirs, executors or administrators, that he or they be and appear before the magistrates, judges, or justices of the said court or courts, to show if anything he or they have to say wherefore the said mortgaged premises ought not to be seized or taken in execution for payment of the said mortgage money, with interest &c. . . . And if the defendant in such scire facias appears, he or she may plead satisfaction or payment of part or all the mortgage money, or any other lawful plea; but if such defendants in such scire facias will not appear on the day whereon the writ shall be made returnable, then, if the case be such as damages only are to be recovered, an inquest shall forthwith be charged to inquire thereof, and the definitive judgment therein as well as all other judgments to be given upon such scire facias shall be entered, that the plaintiff in the scire facias shall have execution by levari facias, directed to the proper officer, by virtue whereof the said mortgaged premises shall be taken in execution and sold,"


The writ issued as already mentioned was directed against "Michael Brobst with notice to terre tenant," and confessedly was not served in the way the most proper. There was no personal service upon the mortgagor, who in fact was dead, nor any upon his heirs or representatives, nor any upon the true terre tenant -- that is to say, upon John Brobst, the holder of the title being the only person regarded in Pennsylvania as falling within that designation. Neither was this want of actual service supplied by a return of two nihils, which in Pennsylvania are commonly regarded as the equivalent of service. The return was thus:

"Served upon Jacob Rodeberger, terre tenant, 21 miles. Sci. fa. sur mortgage, debt $3,000. March 29, 1826, judgment lev. fac. July Term 1826, 46."

Upon this irregular service, judgment was entered on motion that the mortgaged lands be sold to satisfy the debt. And chanroblesvirtualawlibrary

Page 77 U. S. 522

upon this judgment all the mortgaged property was sold on the 22d March, 1828, to one Charles Frailey, to whom a sheriff's deed was made, Frailey purchasing at the request of Boyer, assignee of the mortgage, and with his money. He subsequently conveyed to John Smull, whose title became vested in Brock and others, defendants in the case.

The body of lands patented to Grant were uninhabited until about 1824, when one Philip Rodeberger erected a small log tavern in what was still a wildebody of lands patented to Grant were uninhabited until about 1824, when one Philip Rodeberger erected a small log tavern in what was still a wildebody of lands patented to Grant were uninhabited until about 1824, when one Philip Rodeberger erected a small log tavern in what was still a wilderness, upon a tract adjoining the tract whose fourth part was here sued for, and cleared an acre or two of ground.

In 1834 a partition of some sort, valid or invalid, was made of the four undivided fourths of the whole twenty-five tracts, and the parties who had been originally co-owners with the Brobsts took what they considered their own purparts in severalty.

No further improvements than Rodeberger's were made on any of the purparts until 1847, when the owners of some of the purparts (not derived through the Brobsts) laid out towns, began building railroads, opening coal mines, and making extensive and costly improvements, which had been continued to the present time, when not less than ten thousand people live in the various towns laid out on the land -- with their churches, halls, manufactories, stores, school houses, dwellings, cemeteries &c.

About the year 1848, possession was taken of the purpart allotted to the Brobst alienees by the present defendants and those from whom they derived title, who had paid taxes from that time to the present, and on these purparts, also, similar improvements had been made and hundreds of houses and other buildings erected and inhabited by a large population, and more than half a million of dollars expended in mining improvements.

In this state of things, the heirs and devisees of John Brobst brought the present ejectment, A.D. 1865, against Brock and others to recover, as already stated, an undivided fourth of one of the tracts, one warranted in the name of Deborah Grant. chanroblesvirtualawlibrary

Page 77 U. S. 523

In addition to the title made, as already stated, under the mortgage, the defendants asserted that they were possessed of a title under the partition made in 1834; also by virtue of a sheriff's sale of the property under the judgment of Kutz and Levan, already mentioned as entered against the Brobsts, also under a tax sale, as the property of John Brobst, of the particular lot sued for.

Every one of the titles set up by defendants, including all the last-mentioned titles, were disputed by the plaintiff as irregular, null, and void.

The court below (Grier, J) charged that the title set up under the partition was good enough, as also that set up under the judgments of Kutz and Levan. In regard to the title set up under the mortgage, he said that it was not necessary to decide whether those proceedings were regular and sufficient to extinguish the equity of redemption and vest a title in the purchaser, but that admitting that they might have been set aside or could be, it was first necessary to show that the mortgage debt was paid or offered to be paid, which was not shown; that as to redemption now, more than thirty years had elapsed, during which time John Brobst, the owner of the equitable title, had taken no step to assert or establish his right to redeem. That in such case the presumption of law was that he had released his equitable right, and equity would give him no remedy after his sleep of thirty years. "He must now," said the court, "as plaintiff in this case, show a legal title. He has shown no valid title, either legal or equitable."

Judgment having gone for the defendant, the plaintiff brought the case here. chanroblesvirtualawlibrary

Page 77 U. S. 528

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