254 Pa. 140 | Pa. | 1916
Opinion by
Charles DuPont Breck died testate in 1906. All his real estate, including lands in Luzerne and Lackawanna Counties, was devised to his widow, Anna E. Breck, as sole residuary legatee. Defendant, C. S. Woodruff was appointed and qualified as his executor, without special powers. Said decedent at the time of his death was indebted to Emily Fischer, the above plaintiff, in the sum of eight thousand dollars, secured by a bond and mortgage upon land in Luzerne County. The estate being involved and having an advantageous opportunity to sell the land covered by said mortgage in Luzerne County, the executor and Mrs. Breck as such sole, legatee requested plaintiff to accept a payment on said indebtedness and discharge the mortgage, and to take as security for the balance thereof a judgment upon the lands of said estate in Lackawanna County. Relying upon their assurance that such would be perfectly valid, she consented thereto, and on August 10,1907, received from the executor a note for $6,673.47, for the balance of such indebtedness. The note is as follows, viz:
“$6,673.47 August 10, 1907
......One day......after date......I......promise to pay to the order of......Emily Fischer......six thousand six hundred seventy-three 47-100 dollars.
“Without defalcation, value received, with interest.
“And further, I do hereby empower any Attorney of any Court of record Avithin the United States, or elsewhere, to appear for me and after one or more declarations filed, confess judgment against me as of any term for the above sum, with costs of suit and attorney’s commission of — per cent, for collection, and release of all errors, and. without stay of execution, and inquisition and extension upon any levy on real estate is hereby waived, and condemnation agreed to; and the exemption of personal property from levy and sale on any execution hereon, is also hereby expressly waived, and no benefit of exemption to be claimed under and by virtue of any*143 exemption law now in force or which may be hereafter passed.
“Witness hand and seal.
“C. S. Woodruff, Executor, (L. S.)
“Estate Charles du Pont Breck (L. S.).”
Judgment against the estate was entered thereon in the Court of Common Pleas of Lackawanna County to November Term, 1907. The entire transaction was at the request and under the direction of Mrs. Anna E. Breck sole legatee and for her benefit. Thereafter a judgment was recovered against her in Lackawanna County on a personal indebtedness to a third party, and on June 5, 1915, her interest in a part of the lands of said estate was sold by the sheriff to Reese H. Harris, who on June 23, 1915, presented his petition to the court below praying in effect that said judgment first above mentioned be stricken from the record as a cloud upon his title. Plaintiff filed an answer, and the case was heard upon Mr. Harris’ demurrer thereto.
. In 1912 a scire facias was issued to revive and continue said first named judgment against the Charles du Pont Breck estate, to which Mrs. Breck filed an affidavit of defense alleging payment, or want of consideration, and that proceeding is still pending. At one time she became a party to the petition of Mr. Harris, to strike • off said judgment, but later withdrew therefrom.
The court below, after hearing, made absolute the rule to strike off said judgment. The order being as follows, viz:
“The rule to show cause is made absolute and as against the estate of testator the judgment is stricken off without prejudice to any right which plaintiff may have either to assert it against the executor in person or to make claim for the amount on distribution of any funds of the estate which may come to his hands or with which he may become chargeable on settlement of his account.
“By the court,
“Newcomb, J.
“September 11, 1915.”
A stranger or third party can only interfere with a judgment where it is collusive: Drexel’s App., 6 Pa. 272; Milleisen v. Senseman, 4 Pa. Superior Ct, 455. See also, Holshue v. Morgan, 170 Pa. 217, and Miners Trust Company Bank v. Roseberry, 81 Pa. 309; Davidson v. Thornton, 7 Pa. 128; Law’s Est., 140 Pa. 444.
As the executor confessed the judgment by the request and at the direction of the sole legatee, Mrs. Breck, and for her benefit; and she suffered it to remain on the record unchallenged for nearly eight years; and, in her affidavit of defense to the scire facias issued thereon in 1912, made no denial of the power of the executor to confess the same, it should not now be vacated at her instance. And this is especially true as plaintiff accepted said judgment in place of her Luzerne County mortgage to accommodate and assist Mrs, Breck. Good faith will not at this late day permit the latter to repudiate the transaction: McWilliams’ App., 117 Pa. 111.
The rights of Mr. Harris who acquired title by virtue of a judgment entered against Mrs. Breck at a later date are generally speaking not higher than hers.
“A bona fide purchaser at a valid sale of property under execution, who has received the sheriff’s deed therefor, acquires all the rights, title and interest of the judgment debtor therein, whether legal or equitable, and nothing more”: 17 Cyc. 1288. In support of which, authorities are cited from this and other jurisdictions.
A judgment should not be stricken from the record even if so confessed by an executor as to bind him personally and not the estate.
In disposing of this case upon demurrer we have assumed the facts to be as stated in plaintiff’s answer.
The order striking off the judgment in above case is reversed and the judgment reinstated at the cost of the appellee.
