83 Pa. 31 | Pa. | 1877
delivered the opinion of the court, January 2d 1877.
The case for consideration has its origin in this wise: James Easley issued a writ of scire facias on a judgment which he had obtained against Hugh Campbell and R. S. Connor, and caused John A. ColAYell to be named as terre-tenant. Colwell caused
We think much the better rule to be that laid down in Jarrettu. Tomlinson, 3 W. & S. 114, and Miltenberger v. Schlegel, 7 Barr 241, that where parties are improperly introduced as terre-tenants the jury may be discharged as to them, or a verdict may be directed in their favor. We think, also, that the court erred in striking off the plea that the plaintiff’s judgment was not and never .had been a lien on the lands of Colwell. It is true a contrary doctrine may be gathered from the case already referred to, as well as the cases of Chahoon v. Hollenback, 16 S. & R. 426, and Dengler v. Kiehner, 1 Harris 38. The opinions in these cases were by Chief Justice Gibson, as was also that in Mitchell v. Hamilton, 8 Barr 486, by which Minier v. Saltmarsh was overruled. In Dengler v. Kiehner, the point was, that though the land had been bound by the judgment, yet, as the lien had expired previously to the purchase of the land by Dengler’s ancestor, it was held he was not a terre-tenant, and hence, though he had been served with the scire facias, the judgment thereon did not conclude him. It is, however, difficult to reconcile this doctrine with 0. J. Gibson’s opinions as found in some 'other cases. In Himes v. Jacobs, 1 Penna. R. 162, the court below held: “ That John Ross died before the 6th of April 1805, and that no suit was brought upon the bond from John Ross to Isaac and Abraham Boyer, or any description of it filed in the prothonotary’s office within seven years after the death of John Ross; and that consequently as against a bond, fide purchaser, which Anthony Deardorff was, the lien of that debt was gone before suit brought, and that Deardorff was not estopped by the pleadings and proceedings in the suit which was brought on that bond in 1823, from denying the existence of that lien and its effect in this action.”
On this point the court below was reversed, Gibson, C. J., observing in the opinion delivered by him, that though, as against a terre-tenant, the question might be tried in an action of ejectment by the sheriff’s vendee, yet when he had appeared in the proceedings on the original judgment, and had an opportunity to make a full defence, even though he may not avail himself of it, he is concluded to every intent. Here then is a case as near the converse of Dengler v. Kiehner as can well be imagined. Here, also, is a case in which the only possible defence of the one served as terretenant, was that his land was not and never had been bound by the debt sought to be recovered, and yet, because he did not make this very defence, when he might have done so, he is held to be concluded. So in Mitchell v. Hamilton that same eminent jurist says, that on the trial of the scire facias the terre-tenant may show that the
Judgment reversed, and & procedendo awarded.