2 Watts 233 | Pa. | 1834
The opinion of the Court was delivered by
This caseinsubstancewasan issuejoined in the court of common pleas of Cumberland county, to decide whether a tract of land containing two hundred and one acres and forty perches, which had been takenin execution as the estate late of Adam Snoddy deceased, at the suit of the plaintiff, upon a judgment of upwards of 2600 dol
It is to be regretted that form in matters such as the present, is not more attended to. For want of it, indistinctness and confusion often arise, and render it difficult to discover what was the design of the parties, and to determine upon the legal effect of their proceedings. In this case, the judgment had been confessed July the 23d, 1819, with a stay of execution entered upon the record for nine months, to the plaintiff Thompson Brown, by Adam Snoddy himself in his lifetime ; but dying afterwards, a scire facias to make Barnet Aughinbaugh, His administrator, a party to it, and to continue the lien thereof upon the real estate of the deceased which he owned within the county at the time of its entry, was sued out upon it the 22d of December 1824, to January term 1825. In the mean time, however, Dr John Simpson, since dead, the father of William Simpson, the defendant in this case, ón the 12th of August 1824, became the purchaser of the land, for the consideration of 6000 dollars, and was in the actual possession of it by his tenants, at the time the writ of scire facias was issued. It was served upon Barnet Aughinbaugh, as administrator of Adam Snoddy, but was not served uponi Dr John Simpson, or any of his tenants in possession of the land. Afterwards, on the 19th of August 1830, Aughinbaugh confessed a judgment de bonis, &c. on 2260 dollars 17 cents. Upon this judgment a fieri facias was sued out to November term 1830, upon which the sheriff, to whom it was directed, returned a levy on and condemnation of the land in question. A writ of venditioni exponas was afterwards sued out to January term 1831, commanding the sheriff to sell the land ; but before a sale was made, on the 11 l.h of January 1831, William Simpson, the defendant in this case, claiming to be the terre-tenant of the land, made application to the court below to have the judgment opened so as to let him in to make defence against the alleged lien of the judgment upon the land, which was accordingly ordered by the court, and his name was entered as terretenant upon the record of the judgment. A plea was putin by him denying the lien'o.f the judgment upon the land—issue was taken on it—and the parties went to trial before the court below and the jury, upon the question whether the judgment still continued to be a lien upon the land or not. That the judgment is just and valid to its full amount against the estate of Adam Snoddy is not questioned, and such is the form in which it stands entered upon the record. With what propriety then can a judgment be opened, the justice and validity of which are admitted, and to the form of which there is no exception 1 I am strongly inclined to think that a more regular course might have been adopted and pursued, one too which would have tended to prevent some embarrassment that the case at first, in its present aspect, seemed to present, by raising the queslion
The debt for which the judgment was confessed by Snoddy to the plaintiff arose from a bond bearing date the 11th of July 1817, given with six others, by Snoddy to Barnet Aughinbaugh, one for 4343
On the 4th of August 1819, an amicable action and judgment were entered upon the docket of the court of common pleas of Cumberland county, of August 1819, No. 323, in the following terms, to wit:
“ Thompson Brown, assignee of Thomas Gallagher and Henry Fahnestock, who were assignees of Barnet Aughinbaugh and John Clippinger v. Adam Snoddy, entered the 4th of August 1819.
“ Amicable action in debt in the common pleas of Cumberland county, founded upon a bond conditioned for the payment of 1333 dollars 33 cents, on the 1st of April, A. D. 1819.
“July 23, 1819, the defendant appears to this suit and confesses judgment to the plaintiff for the sum of 1358 dollars 45 cents debt, lawful money of the United States, with interest from the date hereof, with costs of suit and stay of execution for nine months from the date hereof.”
At the same time that the bond assigned by Aughinbaugh and Clippinger to Gallagher and Fahnestock, and the other six bonds were executed and given by Adam Snoddy to Barnet Aughinbaugh; a mortgage to secure the payment of them, was likewise executed and delivered by Snoddy to Aughinbaugh upon the land now in question, of which William Simpson, the defendant, claims to be the terretenant, and to hold it discharged from the lien of the mortgage as well as of the judgment.
Upon the 1st of June 1819, the Carlisle Bank obtained a judgment in the court of common pleas of Cumberland county against Adam Snoddy by confession, for 760 dollars, upon which they sued out a fieri facias to April term 1820', by virue of which the sheriff of the county levied on the mortgaged tract of land, subject to the mortgage, together with some other lands of Snoddy, which were condemned to sale, and the land in dispute appraised at 47 dollars per acre. A writ of venditioni exponas was issued to August term 1820, under which the sheriff sold the mortgaged tract of land to Barnet Aughinbaugh for 40 dollars, to whom he made a deed of conveyance in the usual form. On the 29th of December 1819, the Carlisle Bank obtained a judgment by confession against Barnet Aughin
After all the instalments of this judgment had-become payable, a jfieri facias was sued out upon it to August term 1824, directed to the sheriff of Cumberland county, who, by virtue thereof, levied upon the mortgaged tract of land as the property of Barnet Aughinbaugh, who, on the 21st of July 1824, executed a written authority authorizing the sheriff, without further writ, to sell the land, by public auction, to the highest bidder, on the 12th of August then next following. The sheriff, accordingly, on the 12th of August 1824, sold the land by public outcry to Dr John Simpson, he being the highest bidder, for 3100 dollars. Barnet Aughinbaugh stood indebted at this time to Dr Simpson by judgments in a sum amounting to nearly 3000 dollars; and it was agreed between them, as it seems, before the sale of the land by the sheriff took place, that the doctor should become the purchaser of it and allow Aughinbaugh the price of 6000 dollars for it, to be paid by transferring stock in the Carlisle Bank to the amount of 3075 dollars, which he owned, and which Aughinbaugh, by an arrangement with the bank, was to give towards liquidating the judgment upon which the execution was issued against him and Clippinger; then the doctor was to have the amount of his judgments against Aughinbaugh paid out of the balance of the 6000 dollars, after deducting therefrom the amount of the bank stock. This arrangement was carried into execution immediately. A deed of * conveyance for the land was executed and acknowledged to Simpson on the same day of the sale, and possession of it given to him immediately, when he transferred his bank stock to Aughinbaugh who transferred it to the bank in part'satisfaction of their judgment against him. Simpson also entered satisfaction upon his judgments against Aughinbaugh. Dr Simpson after this had possession of the land till his death: some time after which, he having died intestate, it was, in the usual course of proceeding had upon such occasions in the orphan’s court of Cumberland county, decreed to the defendant, Willrám Simpson, the eldest; son of the doctor, who agreed to take it at the valuation of 4810 dollars, which had been set upon it by the inquest awarded by the court for that purpose. This decree of the orphan’s court was made on.the 12th of May 1829, when he took possession of the land, which he has kept ever since by his tenants.
The only question to be decided in this case is, whether the lien originally created by the entry of the judgment in favour of Brown upon this land, still continues or not.
I shall treat the sale made of the land in this case to Dr John Simpson as a- sale made in effect by Barnet Aughinbaugh himself, and not as a judicial sale made by operation of law. For clearly the sheriff had no authority to sell the land but what he received
By the act of assembly of 1798, and the construction put on it by this court in the cases of Black v. Dobson, 11 Serg. & Rawle 94, and Bombay v. Boyer, 14 Serg. & Rawle 253, the lien of a judgment will expire in five years from the first day of the term of which it is entered, unless within that time a scire facias be sued out for the purpose of reviving it; or where there is a stay of execution entered upon the record of the judgment, as in this case, then within five years after the stay shall be up. In this case the judgment was entered on the 23d oí July 1819, with stay of execution nine months, and according to the rule first mentioned, the lien of the judgment would have continued to the 22d of April .1825, without a scire facias. Adam Snoddy having died in the meantime, a scire facias was issued on the 22d of December 1824, four months before the expiration of the five years, to make Barnet Aughinbaugh, his administrator, a party to the judgment, and to continue the lien of it upon the real estate of the deceased, held by him, within the county, at the time it was entered. This scire facias was served upon Barnet Aughinbaugh alone, as the administrator of Adam Snoddy, but not on Dr John Simpson, nor on any of his tenants who were in the actual possession of the land. Now, by the express and most positive direction of the act of 1798, the writ of scire facias sued out for the purpose of continuing the lien of a judgment, must be served upon the terre-tenants or occupants of the land, where there are any, and so it has been ruled by this court in the case of Lusk v. Davidson. 3 Penns. Rep. 229. The lien of the judgment therefore expires as to those lands which have been sold by the defendant for a valuable consideration, though subject to the judgment at the time of the sale, unless the scire facias sued out within the five years be served upon such purchaser, or his tenants in possession of the land. Hence, the scire facias in this case, not being served upon John Simpson, or his tenants who were in the actual possession of the land, could not continue the lien of the judgment.
But it has been argued in this case, that inasmuch as the debt for which the judgment was had in favour of Thompson Brown, is also secured by the mortgage ; that the lien of it is preserved and continued upon the land, by force of the mortgage, without the scire facias. If it appeared upon the face of the record of this judgment, that it was given fora debt, the payment of which was secured by the mortgage, and by one of the bonds recited in it, I cannot say but that it would be so. But instead of that appearing, or any thing else that could be considered sufficient to put any one of ordinary sagacity and caution upon inquiry, so as to have led to a discovery of the judgment
It is, however, further contended, that Dr Simpson was bound to take notice of the mortgage as it was upon record in the county, and to know whether it was paid or not. Admit this to be so; but then whom was he bound to make the inquiry at, in order to ascertain whether it was paid or not 1 There were but two persons named in the mortgage on record, the mortgagor and the mortgagee; and it cannot be pretended that there was any other person in being whom Dr Simpson had the means of knowing that he was bound to call on to obtain information of on this point. If Adam Snoddy had been living at the time the doctor bought the land, it will, I think, be admitted for reasons that are obvious, that he would not have been the most proper person for the doctor to have called on to be informed whether the whole of the mortgage money was paid or not. It is well known that debtors oftentimes for various reasons are not willing to acknowledge their indebtedness, and will even affirm the payment of debts contrary to the truth. Beside, Adam Snoddy, if he had been living and inquired of by the doctor as to this matter, would have forfeited or lost nothing by saying that the whole of the mortgage debt was paid, when it fact it was otherwise ; so that being subject to no penalty in case he falsified, the inducement to speak the truth was not so great as with Aughinbaugh, the mortgagee ; who, if inquired at for such purpose, might lose or forfeit all that was due to him on the mortgage, in case money really were due on it, by declaring that nothing was due. So far, then, as interest could have an influence in prompting Snoddy or Aughinbaugh to
From the view which I have taken of this case, I consider Dr Simpson a bona fide purchaser of the land from Barnet Aughinbaugh . for a valuable consideration without notice of Thompson Brown’s claim under the mortgage, and that he therefore took the land entirely freed and discharged from it. I admit that the assignment of the bond to Brown was an implied assignment of the mortgage pro tanto, and that if Dr Simpson, before or at the time of his purchase, had been notified of it, he would have taken the land subject to. the payment of it; but inasmuch as he had no notice of it, nor yet any thing put by Brown on record which’was calculated to show or to give notice of his interest in the mortgage, Dr Simpson, or the defendant in this case claiming under him, is not to be affected by it. Secret liens or trusts are not to be encouraged upon any species of property whatever; but in no case can such a thing prevail as to real estate against an innocent purchaser of it for a full and valuable consideration without notice, unless our recording acts are to be overturned and set aside.
As to the question of fraud, there was no evidence given on the • trial of the. cause of fraud having been committed or intended on the part of Dr Simpson ; nor yet of circumstances'from which the jury could have inferred it: and it would therefore have been error in the court below to have submitted the cause to the jury upon that ground, without some evidence at least to warrant it.
The judgment is affirmed.