ERROR to the Common Pleas of Fayette County.

This was an action of ejectment for a tract of land containing 146 acres, brought by the defendant in error, Samuel Blocher, against Ann Blocher and others, the defendants below. Samuel Blocher, the plaintiff, was the owner of the premises in 1842. In the month of May of that year, George E. Hogg recovered a judgment against Samuel Blocher, in the Court of Common Pleas of Fayette County, for the sum of $530 83. In the month of December, 1842, subsequently to the entry of this judgment, Samuel Blocher, Isaac Shoemaker, and Joseph R. Taylor, executed a mortgage on several tracts of land, including the tract in dispute, to George Hogg, father of George E. Hogg, for the sum of $30,000, conditioned for the payment of $15,500, in three epual payments of $5166 66, due December 1, 1844, December 1, 1846, and December 1, 1848.

On the 20th of January, 1843, William Morris, the sheriff, obtained judgment in the Court of Common Pleas of Fayette County, against Samuel Blocher, Shoemaker, and others, for the sum of $6755. A fi, fa. was issued upon this judgment, personal property was sold in part satisfaction, and a levy was made on the several tracts of land mortgaged as above stated, for the balance. It seems in some of these tracts Blocher had no interest. A vend. ex. was issued subsequently, and the tract in dispute the property of Samuel Blocher-was sold among the rest. George E. Hogg, son of the mortgagee, became the purchaser for the sum of $3550.

In order to avoid the effect of the coroner's sale, the plaintiff below gave evidence under exception, that the purchase made by George E. Hogg, was admitted both by him and by his father, to have been made for George Hogg, the mortgagee, and that he, the said George Hogg and his son had frequently expressed it to be their wish only to obtain the money for which the mortgage was given, and that Blocher should be allowed to redeem. He also showed a tender of the amount due on the mortgage before suit was brought.

The Court below, in answer to the several points submitted by the counsel for the defendant, instrueted the jury, that if the purchase was made for the mortgagee, George Hogg, the amount

of his mortgage not being due, he became thereby a trustee, and was liable to reconvey on a tender being made of the amount payable on the mortgage. To this charge and to the admission of evidence of the parol declarations of George and George E. Hogg, the defendant's counsel excepted, and after verdict and judgment assigned the same for error.

The case was argued by Hepburn, Howell, and Fuller for plaintiff in error, and by Mr. Patterson and E. M. Stanton for defendant in error.

The opinion of the Court was delivered by

WOODWARD, J.-If it be conceded that the evidence in the bills of exception was properly admitted, and that it justified the finding of the jury, that George E. Hogg purchased, not for himself, but for his father, we have the ordinary case of a purchase of mortgaged premises by the mortgagee at a sheriff's sale, made in pursuance of a junior judgment. What, then, is there in the case to show that that purchase enured to the benefit of the mortgagor, so that, on tender of the money secured by the mortgage, he could recover the premises from the purchaser? Nothing but the erroneous idea advanced by counsel, and which found favor with the Court below, that a mortgagee is trustee of the mortgagor, and that whatever may be the effect of a sheriff's sale to a stranger, when made to the mortgagee the relation continueshe holding the legal title as a security for the debt, and the mortgagor entitled, on payment or tender of the moneys due, to demand a conveyance of it to himself.

A mortgagee in possession is treated as a trustee, but out of possession he is a mere lien creditor. By the terms of the contract, it is true, he is to have not a lien, but an estate; but the effect of the instrument is to give him only a lien, which differs from a lien by judgment in only two essential particulars, duration and extent. It is subject to no statute of limitations, like a judgment; and instead of extending to all the debtor's land in the county, it affects such only as are described in the mortgage. But a mortgagee is no more a trustee of the debtor than a judgment creditor is. Both have liens, and only liens. The whole legal and equitable estate remains in the mortgagor, and every

incident of seisin and ownership pertains to him, whilst no one of them belongs to the mortgagee. For purposes of taxation, inheritance, execution, sale, and protection from trespasses, the mortgagor's title is treated as if the mortgage had not been made. In all respects he is the sole and absolute owner of the estatean encumbered estate, but nevertheless a complete legal and equitable estate. The mortgagee, on the other hand, has only a chose in action-a security for debt-which may be transferred by parol, and which at his death succeeds to his administrator as a mere personalty. It would be an unpardonable parade of authorities to fill a page with the names of cases in which these principles have been asserted, questioned, discussed and settled as firmly as judicial decision can settle anything. They are as familiar to the professional mind as household words. On no subject has the current of authority flowed more smoothly and with fewer eddies. The best collection and discussion of the cases relating to the nature and qualities of mortgages that I know in our books, will be found in the Corporation v. Wallace, 3 Rawle 109. In Pierce v. Potter, 7 Watts 475, we have the case of a sale of mortgaged premises to the mortgagee on a junior judgment for part of the mortgage debt. The mortgage was for $2500, and the mortgagee purchased the premises for $131. This Court held, that the purchaser took an absolute estate-that the mortgage debt was satisfied only pro tanto, and that the mortgagor had no right or interest whatever in the premises. So in Clark v. Stanley, 10 Barr 472, a sheriff's sale to the mortgagee was held to transfer an indefeasible estate. The fact that the sale in both these cases, though not on the mortgage, was for parts of the mortgage debts, does not impair their authority for the purposes of the present question. A sale on such a judgment has all the effect of a sale on any judgment junior to the mortgage, and more, for it divests the lien of mortgages which are within the protection of the Act of 6th April, 1880. And beside, the objection taken here rests on the general principle, that a trustee or person acting in a fiduciary capacity cannot become a purchaser at his own sale, to the prejudice of the cestui que trust, an obligation which loses much of its force when urged against a sale made by authority of law, at the instance of

another party than the trustee. Indeed, if the doctrine in Fisk v. Sarber, 6 W. & S. 21, and in Prevost v. Gratz, Peters C. C. R. 373, be sound, the argument set up here might have been urged with some reason in Pearce v. Potter, and Clark v. Stanley, because the sales there were made to the mortgagees, at their own instance and procurement, but would be wholly inapplicable to the facts in this case, for the sale here was on a junior judgment in no way connected with the mortgage, and over which the mortgagee had no control whatever. With equal force might the same argument have been urged in Horback v. Riley, 7 Barr 81, where an undoubted trustee was permitted to purchase for himself the estate of the cestui que trust, on a judgment of his own. And why? Because they sustained the relation of vendor and vendee under articles of agreement, and between such parties as between debtor and creditor, there can be no such confidence as to restrain a right of purchase at a judicial sale. The distinction between a purchase by a vendor and a stranger was exploded in that case, and for a superior reason the distinction attempted here between a purchase by a mortgagee and a stranger should be repudiated.

The fact is, the whole course of judicial decision in Pennsylvania discountenances such a distinction. It rests on nothing better than a total misapprehension of the qualities of a mortgage and of the relations of mortgagor and mortgagee. It is opposed, also, to the policy, always cherished in Pennsylvania, of unfettering sheriff's sales, so as to secure to unfortunate debtors, if their property must come under the hammer, the highest price anybody can be found to bid for it. It is a great advantage to the debtor that his mortgagee may bid, especially where, as in this case, there are liens prior to the mortgage, for unless he be permitted to run up the property to enough to pay off those liens, he will get nothing on his mortgage, and the debtor would often fail to get the prior liens paid. For these reasons we cannot sustain the distinction taken by the Court below, and we hold that the sheriff's sale, whether made to George Hogg, the mortgagee, or to George E. Hogg, divested the lien of the mortgage and transferred the whole estate of the mortgagor to the purchaser unencumbered and absolutely.

It is not necessary, of course, to consider the regularity of the tender, nor to go through the assignment of errors in detail. The judgment is reversed.

See Dougan v. Blocher, 12 Harris 28; Murphy v. Nathan, 10 Wright 508.

In the Supreme Court of Pennsylvania.

THE POOR OF PITTSBURGH v. ALLEGHENY.

(Vol. I., p. 194, 1854.)

1. When an amicable action is entered on a case stated, the facts, as agreed upon, must be sufficient to show a right in the plaintiff to sue in the Court in which the action is entered.

2. Property formerly, but not now, used by the city of Pittsburgh, for municipal purposes, is liable to taxation.

ERROR to the District Court of Allegheny County.

This was a writ of error to a judgment entered in favor of the plaintiffs below, against the plaintiffs in error, for the sum of $199 80, on the following case stated:

The Mayor, Aldermen and Citizens of Allegheny v. The Guardians of the Poor of the City of Pittsburgh. It is agreed that an amicable action in debt be entered in the District Court, as of July Term, 1852, and the following case stated be submitted to the said Court for their decision.

It is agreed by the plaintiffs and defendants, that a stated case be made of the facts in the above case, to be submitted to the Judges of the District Court of Allegheny County, for their decision upon the law bearing upon the facts, with the privilege to either party to take a writ of error.

The City of Pittsburgh owned a piece of ground in the city of Allegheny, on which was erected a poor-house, and which was used and occupied by said city for the keeping and maintaining the poor of said city, up to the year 1847; and by an Act of Assembly, passed April 21st, 1841, sec. 9th, Pamph. L. of 1841, page, the real and personal estate belonging to the city of

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