6 Binn. 135 | Pa. | 1813
The question in this case is, whether a judgment's a lien on lands purchased by the defendant after the' judgment, and aliened before execution issued. I am well satisfied that by the English common law such lands are bound. But it seems to have been differently understood in this state. In the case of Rundle and Murgatroyd v. Etwein, in this Court, (December Term 1795) it was the opinion of all the Court, as appears by a manuscript note .of Judge Teates, that after purchased land was not bound. I feel myself obliged to pay great respect to this opinion, particularly as the late Chief Justices MiKean and Shippen. were then on the bench, who from1 their age and long experience were well acquainted with the practice of early times. It is certain that in many instances the common law of England has been departed from in this country, from a sense of inconvenience, which has produced a silent practice, not now to be traced to its origin. In truth it is of no great importance how the point is settled, so that it be but settled; and I am induced to abide by the decision in Rundle v. Etwein, because I perceive that it has been acted upon in different parts of the state, so that to overturn it now might be injurious to purchasers who have relied upon its authority. I find by notes of the late Judge Smith, in my possession, that the law was laid down in conformity to Rundle v. Etwein, in the case of the Canal Company v. Nicholson in this Court, (March Term 1798,) and in Pleasants v. Boyer, Circuit Court, Westmoreland county, November 1802. There has been some difference of opinion respecting the common law on this point; but I have reason to suppose from a conversation which I once had with Judge Smith, that both he and Chief Justice Shippen founded themselves on the understanding which had long prevailed in this state. Be that as it may, my opinion is bottomed solely on the decisions which I have mentioned, and therefore I forbear from entering into any discussion of the common law principle.
I am of opinion that the judgment should be affirmed.
The question before the Court is, whether lands purchased by a defendant after judgment had against him, and sold by him bona fide before execution, be bound
This subject has presented itself to my consideration, both at the bar and on the bench, and I have given it all the reflection in my power. I shall now consider it upon principle, upon the English authorities, and how far such lien would be consistent with our laws and customs.
Upon principle, it seems to me that* whatsoever may be the efficacy of a judgment per se, it must take place at the time the same is rendered. The lien attaches at the moment of entry, and I can have no idea of its shutting at one period and opening at another, so as to embrace, of itself merely, property not originally bound. Its effects are immediate, and must be known and ascertained, when the judgment is given, and cannot depend upon subsequent events, unless it has been so provided by positive law. In a writ of debt, a man shall not have recovery of any lands but of those which the defendant hath the day of the judgment yielded; and of chattels, a man shall have execution only of the chattels which he hath the day of the execution issued. Termes de la Ley, Voc. Execution.
In point of authority, I fully agree that several of the elementary writers lay down the law, that execution may be sued of any land which the defendant had by purchase after the judgment, though he had aliened it before execution. 1 Rol. Abr. 892. pl. 16.; 10 Vin. Abr. 563. pl. 16.; 3 Danv. Abr. 317. pl. 16.; Sugden’s Vendors 306. The position in the first three writers rests on the single authority of the Year Book of 30 Edw. 3.24. The note subjoined to Sugden has enumerated some other cases, none of which upon inspection will be' found to warrant the doctrine in the extent laid down. Rolle seems to have been followed by the other authors, but how far he is himself supported by the authority he relied on, must be collected from 30 Edw. 3. 24., a -literal translation whereof follows: “ A man had recovered “ a certain debt against Sir John de Moleyns, and had an “ ele git.The sheriff returned that he had nothing. Mowb.
' Now it appears to me that this case not only does not support the-inference of the abridgers, but is directly opposed thereto; because the Tear Book s.ays, if at the time of the judgment rendered, the defendant had lands, but had aliened aftertvards, of this you may have execution. If he had purchased lands afterwards, of this you may ihave execution by alias or pluries elegit. It cannot be denied that one may fairly sell his lands, pending a writ sued out against him, before judgment; but that he cannot defeat a judgment by a sale of the lands of which he was seized when the judgment was given. As to after purchased lands, the previous judgment in my idea does not affect them, but they are bound by the delivery of the writ to the sheriff.
Sir Nicholas Statham
“ Mich. 30 Edw. 3, one prayed éxecútion by elegit, and “ had it, to which the sheriff returned that he had nothing; “ wherefore he prayed a capias, and he could not have it. “ But it was said to him that he might sue sicut alias, if the “ tenant came to the lands or goods afterwards, but he shall
The plaintiff’s counsel have urged another argument from the usual form of writs of elegit, which directs the sheriff to deliver one half of the defendant’s lands which he had at the time of the judgment given, or ever after, (or at any time since) upon a reasonable price or extent. At common law, lands could not be taken in execution on a judgment for debt or damages, unless in special cases. The Stat. of Westm. 2. c. 18. (13 Edw. 1,) was the first act which subjected lands to the execution of a judgment or a recognizance. 3 Co. 11 b. 12 a., Wright’s Tenures 170, 171. The statute directs that “ Cum debitum fuerit recupe- “ ratum, quod vicecomes libe ret ei medietatem terree sues, “ quousque debitum fuerit levatum per rationabile pretium “ vel extentam, et si ejiciatur de illo tenemento, hdbeat re- “ cuperare per breve novee disseisince, et postea per breve “ redisseisince si necesse fuerit.” 1 Ruff. Stat. 93. Ed. Coke in his 7 Rep. 39 a, states that by construction of law the medietatem terree is of all the lands which the debtor had at the time of the judgment given, or at any time after. If either he or the writ had gone further, and said “ though “ the lands after acquired, had been sold by the debtor sub- “ sequent to the judgment,” I should hatfe thought the argument conclusive as to the law of England; but as I have before asserted, I understand the law to be, that the after purchased lands of which the debtor stood seized at the time of the delivery of the elegit to the sheriff, became thereby
Sir W. Blackstone likewise, in his 3 Comm. 418. 419., speaking of the stat. of 13 Ed. 1. c. 18, says, if the goods are not sufficient to pay the debt, then the moiety or one half of the defendant’s lands which he had at the time of the judgment given, is also to be delivered to the plaintiff. And to this point he cites 2 Inst. 395, above stated.'
On a recovery in personal actions, execution shall be of any land which the party had on the day of the judgment rendered; but for chattels, only those which he had the'^day of the execution sued. Finch of Law, 471. If debt be brought at common law on a recognizance, he shall have only judgment of the lands die judicii redditi on the original writ; but if by scire facias founded on the record, then he shall have execution of the lands which the conusor had on the day of making the recognizance. Dyer 306. a. b. Execution shall only issue of the lands had at the time of the judgment rendered. 6 Edw. 3. fol. 15. pl. 14. Scire facias.
Per Shard; you shall have execution but of the lands which he had on the day of the judgment rendered. 6 Edw. 3. fol. 17. pl. 23. Scire facias.
It is moreover worthy of observation that though Id. Ch. Bar. Corny ns, in his 3d Dig. 307. (1st edit.) tit. Execution, D. 1., cites the case of 30 Ediv. 3. 24., in two instances, yet he wholly omits the deductions drawn from it in 1 Roll. Abr. 892. pl. 16, and confines the liability of the lands to •those which the defendant had at the time of the judgment rendered.
The case of the King v. Death, Cro. Jac. 513. Mich. 15 Jac. in the Exchequer, which was not cited upon the argument, has been put into my hands by a learned friend, who observed that it required an answer. It is short, and runs thus: — “ It was found by inquisition that one York had reco- “ vered in an action upon the case for words against John “ Allen, five hundred pounds. Afterwards John Allen and Ed- “ ward Allen purchased land in fee, and aliened it to John “ Death. York was outlawed, and so his debt became for- “ feited to the king. The question was, whether the king “should have execution of the moiety of the moiety of “ John Allen, or the entire moiety; and it was resolved, that “ he should have the entire moiety, although York should “ have had but the moiety of the moiety; but the debt com- “ ing to the king, he shall by prerogative have execution of “ the entire moiety. And it was adjudged accordingly.”
This case is supposed to bear upon the question now before the Court, in as much as after stating the recovery, it proceeds to say, that afterwards the two Allens bought the lands, and aliened them. Of this circumstance no notice whatever is taken by the Court.
It will be found, that this case is incorrectly reported; and that the only particular wherein it may be supposed to be analogous to that under consideration, is stated differently in other books, and even by Sir George Croke himself. I have endeavoured to trace it through all its different branches, and will give the full result of my'researches.
It first appears in Cro. Eliz. 50, under the names of Allen v. York, 28 and 29 Eliz. in B. R., wherein it is stated
It then in the following year in the same book, page 72, assumes the shape of a scire facias upon a recognizance by Mary York v. Allen; when it was resolved, that if a pardon relates back to a day before the exigent was awarded, the outlawry is thereby discharged.
It appears again in the Exchequer, Pasch. 36 Eliz. Saville 133; and it is there stated that York had recovered 5000/. damages against Allen, that York was outlawed, and the queen had granted to Francis Anger the profits due on the outlawry; and it was held that the patentee might sue in his own name, or in the name of the queen at his election. Attaint having been brought in C.B. of the verdict in B. R., the record was removed into B. R., and there affirmed; and it was resolved that B. R. should award execution on the first verdict. Cro. Eliz. 371. Hil. 37 Eliz.
In Lane 20. Pasch. 4 Jac. in the Exchequer, York and Allen is exhibited with very different features from those disclosed in the report in Cro. Jac. 513. It is there said that a man recovered damages in an action upon the case against B, who at the time of the judgment was jointly seized in fee with C; and that after that, B and C aliened, and the king eight years after the outlawry extended the moiety for the damages recovered against B. And the barons were clear in opinion that the king should have it in extent; for it was liable to the extent of the party outlawed before the alienation, and when it comes to the king by the outlawry, although it be after the alienation, it continueth extendable to the king, although the alienation was before the outlawry.
The reasoning of the Court here, strongly fortifies the sentiment I have adopted. Why should the barons rely on the liability of the lands to the judgment previous to the alienation, if independently thereof, the premises in the hands of a fair purchaser were legally subject to the extent?
The King v. Twine and others, in the Exchequer, Trin. & Jac, Cro. Jac. 179., furnishes the fullest detail of the
I have been thus minute, and I fear tedious, in recapitulating all the views wherein this case presents itself in the different books,' from being told that it is much relied upon by the advocates opposed to my doctrine. I think it will be found, upon the most careful examination, that the case in Cro. fac. 513, decides no other principle, than what must be admitted upon all hands to be clear law, vizNthat where a subject is outlawed, the king shall seize all the land of the conusor or obligor to such outlaw, although a private individual upon a judgment can take only a moiety. The distinction is founded on the prerogative of the crown. 5 Co. 56 a. Plowd. 243. In no ramification whatever of the case, which I have been able to discover, in any book, has any stress been laid either by the bar or Court, on the doctrine that a judgment per se will bind lands, purchased afterwards, though aliened bona fide. Under this review then of the different authorities, I trust, that without hazarding too confident an opinion, I may venture to assert, that the doctrine contended for by the plaintiff in error, is at least highly questionable in the English law.
I now proceed to consider the subject upon another ground,
We have two acts of assembly in force, directing the taking of lands in execution for the payment of debts; the first passed in 1700, (1 Smith’s Laws 7.) the other in 1705, (Ib. 5 7.) which as to the point before the Court pursues the words of the first law. It recites that “ to the end that no creditors “ may be defrauded of their just debts, due to them from “ persons who have sufficient real if not personal estates to “ satisfy the same, Be it enacted that all such lands, tene.- “ merits and hereditaments whatsoever, within this province, “ when no sufficient personal estate can be found, shall be u liable to be seized and sold upon judgment and execution “ obtained.” And by the 4th section it is provided, “ that “ the vendee of the sheriff shall hold and enjoy the lands “ sold as fully and amply, and for such estate and estates, u and under such rents and services, as he or they for whose “ debt or duty the same shall be sold, might, could, or ought u to do at or before the taking thereof in execution.”
It is the obvious meaning of the legislature herein, that the lands directed to be sold, should be such lands as the debtor had at the time of the judgment, in defect of his personal property. But it is also a reasonable construction, that if the lands to which the debtor was then entitled, should be insufficient to pay the debt and costs, other lands which he might acquire afterwards either by descent or purchase, should be subject to the execution of the creditor; provided that no injury was done thereby to third persons, and that the lands belonged to the debtor at -the time of the taking thereof in execution. If after purchased lands should happen to be sold by the debtor, before an execution issued upon the judgment, they would no longer be his property, and would cease to be such lands as were subjected to his execution. No creditor could rely on lands as a fund for the payment of his debt, which did not then belong to his debt- or. In 3 Black. 418, 419, before cited, it is said that if the goods are not sufficient to pay the debt, then the moiety of the defendant’s freehold lands, which he had at the time of the judgment given, whether held in his own name, or any other in trust for him, are also to be delivered to the plain
Our local circumstances differ materially from those of an old settled country, where lands being improved for many years, their prices are not subject to great fluctuation. In Great Britain the transfers of lands are comparatively few to what they are amongst us. There through the rights of primogeniture, the instrumentality of strict settlements, and other local causes, real estates continue in ancient families for generations. It is much otherwise here, where lands rapidly rising in price, are treated as a specious of merchandize. Admit for argument’s sake the position of the plaintiff’s counsel to be correct, as to the law of England., where the moiety of the land is held by the creditor until his debt be paid, the land is afterwards restored to the fair purchaser from the defendant; but if that principle was adopted here, the whole estate would pass to the sheriff’s vendee, freed and discharged from all claim or pretence of right by such purchaser.
. The strong ground however, upon which I rely as to this branch of the case is, the practical construction of our acts of assembly, since they were passed, by the common usage of the country. I have never known or heard it suggested, that upon sales of lands the public offices have been searched for judgments against the purchasers prior to the sale, or against, the sellers, except from the time that their title commenced. It is observed in Sugden 306, that it is not usual to search for judgments against the vendor, except from the time he purchased the estate: which by the by furnishes proof of the general opinion in England.as to the point in question. If the rule should be adopted here, that judgments themselves bind after purchased lands, though transferred bona fide, the situation of both seller and buyer is
But the question is not undecided amongst us. In Rundle and Murgatroyd v. Etwein, it was adjudged by á full Court in bank, that mere judgments did not bind after purchased lands, when aliened before execution. I will not say that the point was fully argued, though there were counsel of great ability on both sides; but I have no difficulty in asserting, from the note 1 took 'of the case at the time, that. M'-Kean Chief Justice pronounced what was then understood to be the unanimous opinion of the other judges. It has been' truly said, that our brothers Shippen and Smith afterwards expressed doubts upon the English law, respecting the liens of such judgments; yet I think I have abundant reason to conclude from copies of their own papers now in my possession, that their minds were not changed as to the law and usage of Pennsylvania on this point. The inconveniences of a different doctrine struck them
It remains'only, that I should consider a difficulty raised by the plaintiff’s counsel, as to holding inquisitions upon lands seized in execution, and the security of sheriffs upon sales. It has been asked how an inquest can possibly ascertain the time when the defendant’s title accrued, in or'der to distinguish between the different judgments binding on his land? I answer, by the public records, if the title is derived under a deed or will; but if by descent, it is as susceptible of proof as any other fact whatever. And as to sheriffs, their conduct may be regulated in the same manner; and it is obvious, that the fewer judgments they- have to discharge, there is the less danger as to the misapplication of the money arising upon the sales.
Upon the whole, I am of opinion, that the judgment of Samuel Calhoun, the plaintiff in error, did not continue a lien upon the house and lot of Michael Immel; and therefore that the judgment of the Court of Common Pleas of Franklin county be affirmed.
I understand the question in this case to be, whether a judgment binds lands purchased after the judgment, and aliened before execution. If this was to be taken up upon principle, I should find no difficulty; for ideo consideratum est per curiam quod recuperet, is the entry of the judgment. This judgment by force of the Statute Westminster 2., 13 Ed, 1. c. 18, charges the land of the debtor, and is in the nature of a general security. The lands are but in the nature of a pawn or pledge to secure the payment of the debt. 2 Black. Comm. 289. In the same manner lands descending to the heir were a pledge for the debt of the ancestor, and where no assets existed it might be levied of them, and they might be sold for the debt; and this was the only case in which the land could be sold, unless upon a recognizance in the case of the king. Can any one be supposed to pledge a thing of which he has not the property ? It would be an absurdity, and inconsistent with the notion
But supposing it to be the law, I would resolve it into that all grasping principle, the prerogative of the king. For at the common law, independent of lands coming to the heir by descent, which might be sold for the debts of the ancestor, the recognizance to the king was the only judgment under which lands could be sold. The king having this prerogative, it might be considered but an incident to the prerogative to take after purchased lands, though aliened before execution; and this having become a principle,' it was applied in the case of common persons, when by the
Another consideration may have led to the having given this extent to the judgment, even by the' adjudication of the Courts. Subjecting to debts under the júdgment was favourable to alienation; and the greatest extent that could be given to the effect of a judgment, was within the policy. The king was favourable .to this, and the judges would seem to have had the same bearing. “ A free power of aliena- - “tion tended to reduce the power of the nobility, and pro*“portionably to increase that of the crown.” 4 Reeve 135. “ The barring an estate tail, induced the judges to give way “ to a subtle finesse of construction, (for such it undoubtedly ££ was) in order to shorten the duration of those conditional -“ estates. Courts had' so long before as the reign of Edtvard “III., very frequently hinted their opinion that a bar “ might be effected upon these principles.” 2 Black. Comm. 111. For upon the introduction of the feudal tenures into England, the feudatory was not only prohibited from alienating his land, but also from charging it with the payment of his debts, because this might tend to disable him from performing his military services. The goods and chattels of the debtor therefore, and the profits of his lands, were the only fund which the law allotted for the payment of his debts. Although this law was well suited to the situation of a warlike nation, yet it was noways for a -trading people, where it is a material object to create an extensive credit, which can only be done by making lands and profits subject to the payment of debts; and therefore when about the reign of Henry III., the English began to acquire some little foreign trade, the inconvenience of this doctrine began to be felt. 2 Cruise 59. Hence it is, that the spirit of the people, and the sense of the nation, together with the policy of the crown, could not but give a determination to the jurisprudence of the country. “ Alienation of real estate was “'always resisted by the feudal lords, but favoured by the “ prince and the people. The increase of liberty, and the “ growth of commerce, pushed the spirit of unshackling “ estates, and the judges also leaned to the unfettering trans- “ mission. In the case of the power of devising lands, so “ loose was the construction put upon the stat. 32 Hen. 8.
What is there to justify a contrary decision? If in England it has become a rule of property, and estates are holden under it, it cannot there be changed without inconvenience. It may affect those who have taken the after purchased lands aliened before execution; who have taken possession by elegit. It may affect creditors, who looking to this principle, may have counted upon the fund of all lands being bound, that at any time come to the. debtor after judgment, even though he aliens them before execution. The elegit, giving but a temporary possession for the extinguishment of the debt by the issues and profits, cannot affect much. But still it is something as a rule of property, and renders it less easy
Pretty in amber to observe the forms
Of hairs, or straws, or dirt, or grubs, or worms;
The things we know are neither rich nor rare,
But -wonder how the devil they got there.
Judgment affirmed.
John de Mowbray, a Serjeant at Law. Lugd. Chron. Seri. 47.
THU. de FisMde, Serjeant at Law. Lugd. Ghron. Ser. 49.
Seton, a ¡judge of B.B. Ib. 4G. and appointed Chief Justice, 31 Edw. 3. Ibid. 43.
Be was appointed second Baron of the Exchequer. Bugd. Chron. Ser. 68.,
Will, de Thorpe vjus appointed Chief Justice of B. R. 20 Edw. 3.