183 A. 659 | Pa. Super. Ct. | 1935
Argued October 28, 1935. Bernard Williams, terre tenant in the court below, *452 has appealed from the granting of plaintiff's motions for judgments n.o.v. in both of these appeals and as they were argued together and involve the same questions, the appeals will be disposed of in one opinion.
On April 18, 1927, judgments were entered in the Court of Common Pleas of Bedford County, Pa., against Walter G. Calhoun in favor of the Everett Hardwood Lumber Company to Nos. 371 and 372, April Term, 1927 — on which date Walter G. Calhoun was the owner of certain real estate in West Providence Township, Bedford County — which judgments became liens on said real estate. On February 1, 1928, Bernard Williams purchased from Walter G. Calhoun the above real estate and received a deed which he did not record but went into actual possession of the premises on April 1, 1928. On April 18, 1932, the judgments were revived by amicable agreements against Walter G. Calhoun, individually; no writs of scire facias being issued, nor did Bernard Williams sign any agreement of revival. On December 6, 1932, writs of scire facias were issued to revive the original judgments and Bernard Williams was named as terre tenant. Affidavits of defense raising questions of law, filed by the terre tenant, were overruled and Bernard Williams filed affidavits of defense in which he alleged the facts with reference to the purchase of the land, delivery of the deed and the entry of possession by him, and that the judgments against Walter G. Calhoun were revived as to Calhoun alone. In Paragraph 5, he averred the "fact that Bernard Williams had purchased said real estate and had received a deed therefor was fully understood and known at the time by the Everett Hardwood Lumber Company," and in Paragraph 6: "The Everett Hardwood Lumber Company at that time agreed with Bernard Williams that it would release the lien of the above judgment so far as the property purchased by Bernard Williams was concerned." *453
Appellant contends (1) By the failure of the plaintiff to revive the judgment against the terre tenant during the period of five years from the date of the entry of the original judgment, the lien of the judgment is lost as to the land conveyed to the terre tenant, and (2) that under the facts as developed at the trial the action of the court in granting judgment n.o.v. was improper.
(1) The determination of the first question involves the interpretation of the Act of March 26, 1827, P.L. 129; Section 8 of the Act of April 16, 1849, and the Act of June 1, 1887, P.L. 289. By the Act of March 26, 1827, P.L. 129, 9 Smith's Laws 303, supplementary to the Act of 1798, 3 Sm. L. 331, it is provided: ". . . . . . and no judgment shall continue a lien on such real estate for a longer period than five years from the day on which such judgment may be entered or revived, unless revived within that period by agreement of the parties, andterre-tenants, filed in writing, and entered on the proper docket, or a writ of scire facias to revive the same be sued out within said period, according to the provisions of the act to which this is a supplement . . . . . . nor shall the revival of such judgment by agreement as aforesaid, or the issuing of ascire facias either with or without entry of judgment thereon, have the effect of continuing such lien for a longer period than five years from the day on which it may be revived, as aforesaid, or such scire facias may have issued."
Section 8 of the Act of April 16, 1849, P.L. 663, provides as follows: "That in all cases when a judgment has been or shall be regularly revived between the original parties, the period of five years during which the lien of the judgment continues, shall only commence to run in favor of the terre tenant, from the time that he or she has placed their deed on record:Provided, That this act shall not apply to any cases which have been finally adjudicated, or when the terre tenant is *454 in actual possession of the land bound by such judgment, by himself or tenant." By the Act of June 1, 1887, P.L. 289, the Act of 1827, supra, was re-enacted with the following addition: ". . . . . . and no proceeding shall be available to continue the lien of said judgment against a terre-tenant, whose deed for the land bound by said judgment has been recorded, except by agreement, in writing, signed by said terre-tenant, and entered on the proper lien docket, or the terre-tenant, or terre-tenants, be named as such in the original scire facias."
In Wetmore v. Wetmore,
Appellant further argues that there is an important distinction between reviving a judgment by amicable agreement filed and by issuing a scire facias for that purpose, and relies upon Baum v. Custer, 22 W.N.C. 145, 10 Sadler 199 as authority. The facts in that case are not analogous, as the terre tenants had recorded their deed and as the facts arose prior to the Act of 1887, the decision was based on the law prior to its passage. Before the Act of 1887, there was a vital distinction between a revival of a judgment by amicable agreement and issuance of a writ of scire facias: Armstrong's App., 5 W.S. 352; McCray v. Clark,
(2) The Everett Hardwood Lumber Company was a general partnership composed of Lesley Blackburn, A.F. Foor and Harold Blackburn, but was largely managed by Lesley Blackburn, who was also a director of the First National Bank of Everett by whom Bernard Williams was employed. In the latter part of 1927, Calhoun, original defendant, became financially involved, of which fact Williams and Blackburn had knowledge. A judgment had been entered in favor of J.L. Sponsler for $1,250; a judgment in favor of the First National Bank of Everett for $1,950; and two judgments in favor of the Everett Hardwood Lumber Company for $2,600. The judgments of Sponsler and the bank exceeded the value of the property. Prior to February 1, 1928, Williams and Lesley Blackburn had some discussions concerning the real estate involved and according to the testimony of Williams, it was understood between him and Lesley Blackburn that it would be satisfactory for Williams to purchase the property, which later he did paying the Sponsler judgment and a part of the bank judgment, and he was to be relieved from the payment of the balance of the bank judgment and also of the two judgments here involved. If such agreement had been entered into between Williams and Blackburn, we are of the opinion, as managing partner of the lumber company, Blackburn had authority to enter into such arrangement although perhaps not to the advantage of the lumber company, and if relying upon the promise to release the liens, the appellant had purchased the property, paid the Sponsler judgment and a portion of the judgment of the bank, the agreement was based upon sufficient consideration. There may even be a consideration without the accrual of any benefit at all to the promisor. If the promisee has suffered any detriment however slight, *458
or though he has suffered no real detriment, if he has done what he was not otherwise bound to do, in return for the promise he has given a consideration and the court will not ask whether the promisor was benefited: Weigand v. Standard Motor Co.,
When called by plaintiff as on cross-examination he had testified: ". . . . . . Q. When did you first make known to Mr. Foor or to anybody of the Everett Hardwood Lumber Company that you were the owner of that property? A. They knew it when I bought it. Q. How did they know it? A. Well Mr. Blackburn and I talked it over before I ever made the arrangements to do anything about it. Q. Before you bought it, you talked it over? A. Yes, sir. Q. What knowledge did they have that you ever bought the property? A. They knew it just as well as I did. Q. How would they know it? A. Blackburn and I talked it over and it was decided there would be a satisfactory way out of it; I needed a place to live and I arranged to take care of some of the payments ahead of their payment, and they knew it at the time we talked it over in December 1927, and if they didn't know it, it was their own fault. By the Court: What was the date notice was brought home to you that they knew you had bought? A. My understanding was they knew at the time, they knew it when I moved. Q. Had you bought it when you moved? A. Yes, sir. Q. Did you have a deed for it? A. Yes, sir. Q. When was that that you got the deed? A. Well, I would say the latter part of January or first of February of 1928, the deed was made up some time before that. Q. February or January of 1928. *460 A. Yes, sir, but it was discussed before that, it was [under] consideration for a couple of months before that. Q. Do you have the exact date when you got your deed? A. No, I have not. Q. Where is your deed? A. It is misplaced. Q. How did it come to be misplaced? A. I cannot tell you. By the Court: Has it ever been recorded? A. No."
This testimony was so indefinite that it would be pure conjecture to state an agreement to release the liens had actually been reached. It was dependent upon "other transactions pending" between the parties, the nature of which the record fails to disclose. Undoubtedly, there were transactions and other efforts to be carried on to minimize the loss to be suffered by the judgment creditors; but this clearly indicates that the discussions were preliminary to the final arrangements that were to be effected. These transactions were to be worked out so the judgment creditors "would be able to get at least a part of their judgments," but as to what efforts were made, if any, the record is silent and no part of the judgments was paid. Nor does the language "it was supposed to be" establish an affirmative agreement by Blackburn. Williams' supposition did not create an affirmative promise by Blackburn. After the discussions, Williams gave no notice to Blackburn that he had purchased the property or gone into possession until 1932, and no notice was given to Foor until about the time of the revival of the judgment in 1932. An agreement to release the liens of judgments must be of a precise and definite character in which no element of the agreement is to be left to conjecture or supposition. Our examination of the record fails to disclose a definite agreement on the part of Blackburn to release the liens.
Judgments affirmed. *461