¶1— I concur in what has been so well said by our brother Woodward, and I desire to say in addition, that if we are to give a literal construction to the Act of 1867, it will preserve the lien of a mortgage though the sale be upon said mortgage, or upon the bond accompanying it. Even a sale upon a prior mortgage is within the letter of the act. So is a judicial sale in the execution of a power contained in a will. Such sale of a necessity sweeps away all subsequent liens as well as estates. I do not think that the word “ lien” in the Act of 1867 is to be taken *132in its technical sense, but rather in the broad sense of embracing any charge or right upon the land by means of which a sale thereof could be compelled. Of this nature is a power of sale before mentioned. So, also, I am inclined to think is the right or power which each owner has to compel partition. Such right is incident to every tenancy in common, and an encumbrancer who takes a lien upon an undivided interest, takes it subject to the paramount right of each tenant to have partition, with notice thereof.
81 Pa. 122
Wright v. Vickers
Decided March 30, 1876
Supreme Court of Pennsylvania · decided 1876-03-30
115. This was a scire facias sur mortgage issued March 30th 1875, by Ellen E. Wright, assignee of Edward W. Smith, against George M. Vickers, administrator, &c., of Hardman Phillips Montgomery, with notice to James E. Montgomery and a large number of other persons, terre-tenants. Hardman P. Montgomery, the mortgagor, was a co-tenant with a number of other persons, of real estate in the city of Philadelphia.
Good law ✅— No negative treatment on recordhow we know
Decided 1876-03-30
How this case has been cited
Cited by 8 later decisions — most recently July 2018
8 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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