In'l'c CAROTHERS, Bankrupt.
(District Oourt, W. D. PennsylfJania.
July 15, 1882)
BANlmUPTCy-SALE OF MOR'fGAQED PREMISES-PARAMOUNT LIEN.
Although a mortgage may be within the equity of the rule that where several pieces of real estate, subject to a comlnon encumbrance, are successively aliened, the properties so disposed of are liable for the amount of the encumbrance in the inverse order of alienation; yet, where the mortgaged property is sold in bankruptcy discharged of encumbrances, the said rule cannot be invoked where the effect would be to deprive the paramount lien creditor of the proceeds of sale. Thelatter is entitled to the fund, and such mortgagee must seek sUbrogation and indeIilnity in another proceeding.
In Bankruptcy. Sur exceptions by William A.Shaw to register's distribution of proceeds of sale of real estate. W. S. Purviance, for' exceptions. John Dalzell, for' report. ACHESON, D. J. Mrs. Margaret J. Chalfant sold the bankrupt a tract of land, taking from him a. mortgage thereon to secure his purchase-money bond. After ,the recording of this mortgage. the bankrupt laid out the land into lots. He subsequently executed a mortgage upon three of them-numbered 1, 2, and 3-to William A. Shaw, to secure a loan of money.: The bankrupt sold lots to divers persons after recording of the Shaw mortgage. Mrs. Chalfant brought· suit on her bond, and on June 22, 1874, obtained judgment. Allthese transactiollswere before the bankruptcy proceedings were commenced. At that time the bankrupt owned lots 1, 2, and 3, and the 8Ssignee, under an. order of this court made upon his petition, sold· said lots discharged of liens. The register appropriated the proceeds of sale to Mrs. Chalfant's mortgage.debt. Of this appropriation Shaw complains, he insisting that for his relief }frs. Chalfant should first resort to the lots pound by ,her, m,ortgage, which the bankrupt sold· after the recording of his (Shaw's) mortgage. The principle invoked by Shaw is that where several pieces of teal estate are subject to a common encumbrance and are aliened successively, the properties Sli) disposed of are liable for the s.mount of the en,cumhrance in inverse-order of alienation. Martin',AppeaZ,,97 Pa. St. 85. Doubtless, in a proper case, a m9rtgagee benefit of this equitable doctrine, and Shaw may find it available to him as against the bankrupt's later vendees in an appropriate proceeding for subrogation and indemnity. Neff's Appeal, 9 Watts & S.
86; Arna', Appeal, 65 Pa. St. 72. But clearly he ha.s no equity as lien, 'and was against Mrs. Chalfant. ld. Her mortgage was the disoharged from the lots sold in bankruptcy. Unquestionably her lien was transferred to the proceeds of sale, and her right to receive the same camiot be gainsaid by a junior mortgagee upon the ground here ' relied on. The court is not dealing with two funds, both subject to the lien of one oreditor, while the other creditor has a lien against one fund only. There is but one fund fOl: distribution, and to it Mrs. Chalfant has a perfect legal right. Moreover, the nndees of the bankrupt are not before the court, a.nd the equities between Shaw and themoannot be settled in this proceeding. Upon general principles, therefore, the register was right in appropriating the fund to Mrs. Chalfant; but his distribution was eminently proper, in view oftha provisions olthe act of' asseinblyof April 22, 1856, (par. 827.) Under that act Shaw was bound to tender Mrs. Chalfant the amount duaher before he could compel her to first levy upon the lots alienated after the recording of his mortgage. Arna', Appeal, supra; Phelpsj, Appeal, 10 W. N. C. 525. This cause came on for hal hearing June 12, 1882, and was argued by counsel; and'i now, 1882, upon tions to the register's repod are overruled and his distribution is COB.'\rmed absolutely. ' ,
P. Oregon. ,JU1I" 10,'1882;)
A demurrer wUl, lie tc? anallegatio,ll in the answer to whIch jeet the defendant to anything in the nature of a penalty or forfeiture; as lUi allegation concerning the number of copies IOld and on hand 01 lit pirated
I. 8A:ME-fnoBINGElIENY-I'BN.u.TUis, AND FOllll'EITt1JlBS. , · The penalties and forfeitlQrtlllgiv,en by section 4965 of the Re.... 8t. (16 8t. 214) for an infringement of a copyright, cannot be enforced in. suit in equity; aMaprayer in a bill that 'the plate'i&nd uJisoldcopies' 01 a pirated map' be delivered up to ,an officer of the court fOl\cancellatio.n and destruction is demurfor the Inch · , , . rabIe, as
. .Qamages well as profits DlIItY noW. be in equity for ulnfrlnpa patent, but not «copyright. . ; . . ....