Brundred v. Egbert, 164 Pa. 615

Brundred v. Egbert

164 Pa. 615 | Pa. | 1894

Opinion by

Mb. Justice Williams,

The plaintiff acquired his title to the land in controversy by virtue of a sheriff’s sale made upon a judgment obtained in a proceeding by scire facias sur mortgage. The mortgage ap*620pears to have been properly executed, and recorded. After default by the mortgagee a writ of scire facias was issued upon it, to which the sheriff returned “ defendant not found in my bailiwick.” An alias was then issued and returned nihil habet. Judgment bjr default was afterwards entered by plaintiff’s attorneys, and a writ of levari facias issued. Upon this writ the mortgaged premises were sold to C. W. Gilfillan, under whom the plaintiff derives title.

The first question presented by this appeal is over the sufficiency of the judgment by default to support the levari facias and the sheriff’s sale thereon. It should be noticed that this question is not raised by the mortgagor, the defendant in the judgment,, but;by a stranger to the proceedings. It should also be noticed that it is raised more than thirty years after the acknowledgment of the sheriff’s deed that rests on the judgment now attacked. It should be noticed finally, that the question is raised in a collateral proceeding, and against a purchaser bona fide, and for a valuable consideration. Unless the judgment is absolutely void therefore, the title derived under it should be sustained.

Two .objections are made to the judgment. First, that the return to the first writ of scire facias is non est, instead of nihil habet. Second, that the judgment was entered by the attorneys instead of being taken in open court. It must be conceded that both objections point out an irregularity. The question is, do .these irregularities render the judgment void, or voidable ? If no writs of scire facias had been issued, or if issued they had never been returned, there would have been nothing on the record to support a judgment; and if one had been taken it would have been void. A void judgment will not support process, and a sale made upon process issued on a void judgment can, standing alone, confer no title on the purchaser. This was the ground of the ruling in Wilson v. McCullough, 19 Pa. 77. No writ of scire facias issued in that case. An agreement for judgment was filed with the prothonotary which did not recite the mortgage or describe the land covered by it. The judgment entered upon the agreement was held to be insufficient to support a writ of levari facias. The reason was stated by Lowkie, J., in these words: “ The court never had jurisdiction of the land, as it is not even men*621tioned- in the case, and of course it could issue no writ to sell it.” But in the case before-us two successive writs of scire facias were issued in proper :form. Both writs went into the hands of the proper officer.,. Both were returned by him to the court that issued them with a statement of his inability to make personal service upon the mortgagor. Upon the latter of these writs the return is conceded to be formal and regular. That on the first writ, let it be conceded, is informal and therefore irregular. It shows nevertheless a search made for the defendant and the inability of the officer to find him and make known to him the character and contents of the writ. The judgment entered upon these returns is that the plaintiff have execution against the land. - What have we to support it ? We have first the successive'writs of scire facias reciting the mortgage and the description of the land covered by it. The court acquired thereby jurisdiction over the rem. We have two returns showing the inability of the sheriff to make known the contents of thé writs of scire facias to the mortgagor. These, if both returns were formal, would it is admitted be equivalent to a return of scire1- feci and give the court jurisdiction over the person. The judgment in that case would be perfectly regular, the court having jurisdiction both of the land mortgaged and of the person of the mortgagor.

Now the only possible objection to this judgment grows out of the fact that the return upon the first writ of scire facias is non est instead of nihil habet. We quite agree that nihil habet is the more comprehensive return and that it is the appropriate return to a writ of scire facias ; but non est is a proper return to a writ of summons, and we cannot treat it as a nullity upon this writ of scire facias except at the instance of the defendant. If he should ask to set aside the judgment promptly on its coming to his knowledge and show that he had a family or a known agent in the county on whom service might have been made notwithstanding his temporary absence at the time, he would entitle himself to a hearing and to relief from the judgment to enable him to make his defence' against the mortgage. But if he does not complain of the irregularit}1- but acquiesces in the judgment it is not easy to see how any other person can justly complain. Moreover the irregularity in the sheriff’s return is capable of amendment on motion. The courts treat such *622a return as an irregular or defective return which can be made regular and formal by the officer on the proper application. The objection insisted on is therefore one that can be waived by the defendant, or cured by amendment. Such an objection is fatal to a judgment which is otherwise regular only when made by the defendant and within proper time after the judgment comes to his notice. The judgment itself is therefore not void but voidable, and the appellants do not appear to be in a position which entitles them to be heard upon the effect of the irregular return upon the first writ of scire facias.

They encounter the same difficulties when they seek to overturn the judgment because the rules of court were not strictly followed in entering it. The defendant, if injured by the irregularity, might complain of it and ask to have the judgment vacated; but if he is satisfied with the manner in which it was taken and with the amount found due upon the mortgage, it is not easy to. see on what ground third persons, strangers to the mortgage, can be heard to object that the rules of court were not complied with as to the manner of taking a judgment which they are neither to receive nor to pay.

The remaining question relates to the tax title held by the plaintiff. This was considered fully when the case was here before, and our views upon it may be found in Brundred v. Egbert et al., 158 Pa. 552. The able argument presented by the distinguished gentleman who represents the appellants has led us to examine the question once more but we still adhere to the conclusions heretofore expressed. In tax sales as in judicial sales the sale is the method of enforcing a lien. What shall pass under the sale depends upon what was bound by the lien. The extent of the lien in tax cases must depend upon the assessment ; for the lien of unpaid taxes is coextensive with the tract against which they were assessed. The question in this case was therefore, as we held in 158 Pa. 552, against what land were the taxes assessed ? Upon that land the lien attached. To that land the tax sale passed the title.

The assignments of error are not sustained and the judgment appealed from is affirmed.