11 Pa. 19 | Pa. | 1849
The opinion of this court was delivered by
The sheriff’s deed, offered in evidence by the plaintiffs, was objected to and rejected on two grounds: first, because it was not shown the officer had authority to make sale of the land he professed to convey; and, secondly, that the lien of the judgment, upon which the process offered was founded, had expired by lapse of time. As the latter objection goes to the very root of the plaintiffs’ title, it will be convenient first to consider it.
The land in dispute was sold by the sheriff, as the property of George Bell 2d, and, for the purposes of the present inquiry, must be so regarded. The judgment, under which the sale was made, • was recovered against him on the the 24th of September, 1829. A writ of fieri facias sur this judgment, was issued to November Term, 1829, and levied on the land, which was afterwards condemned by an inquisition held on the 4th of December, 1834. On the 8th of the same month, a vend. ex. was issued, by virtue of which the plaintiffs allege the land was sold on the 9th of January, 1835. On the next day a deed wras duly executed to Stephen Hinds, the purchaser; and this was acknowledged on the 5th of August, 1835. From this brief statement, it will be perceived,
As early as the agreement, called fundamental laws, settled in England, between William Penn and the freemen and planters of the province of Pennsylvania, it was established — That all lands and goods should be liable to pay debts, except where there is legal issue, and then all goods and one-third of the lands only. In 1682, the liability was extended, by the legislature of the infant community, to one-half the lands, purchased before the debts were contracted, where there was issue. This principle of liability was further extended in 1688, when it was enacted that all lands and houses of a debtor should be liable to sale upon judgment and execution; with a saving of one year, after judgment obtained, in favour of the mansion tract of the debtor. This statute, which was limited to one year, was re-enacted in 1695, without limitation, and again repeated in substance by the act of 1700, when, I believe, for the first time, the sheriff making the sale was directed to convey the lands sold, under his hand and seal, to the purchaser. The subject was revised, with the addition of many details, by the act of 1705, and subsequent enactments, but without any alteration of the principle upon which the original law was based. Most of these statutes will be found collected in the very elaborate opinion delivered by the late Mr. Justice Kennedy, in Bellas v. McCarty,
In a more modern case, however, the exact question was presented under facts involving so peculiar a hardship, imposed on the representatives of the debtor,- as might naturally have led the Court to strain a point in their favour, had any room been afforded for the indulgence of sympathetic feeling, or the entertainment of doubt. I allude to Fetterman v. Murphy, 4 W. 424. It is unnecessary to cumber this opinion with a statement of the features of that case, further than to say, that a satisfied judgment had been fraudulently revived against the representatives of a deceased debtor, long after the expiring of five years from its rendition, and his estate swept from the heirs by means of executions founded upon it. The leading point of the case was, whether the land could be so levied and sold ? The learned Judge who delivered the opinion of the court, after characterizing the steps taken to enforce a second payment of the judgment as a robbery, found the law was too strongly settled to enable the tribunal to afford relief as against one who was no party to the fraud. After considering the rule as it stood before the act of 1798, he proceeded to observe, that act “ does not operate on the judgment, but on the lien, that is, on the right to follow the lands and take satisfaction out of them,, though such proceeding may affect those who acquired an interest in them after judgment. The right to follow the lands and take the proceeds of them from those who have acquired an interest in them after judgment, is what is affected by the act of 1798. The word ‘ purchaser’ was not introduced because it would have limited the operation and benefit of the act to purchasers, and have excluded from its benefits those who, though not strictly purchasers, had acquired some interest in, or lien on the land after judgment. ‘No judgment shall continue a lien,’ &c., then, has no relation to the defendant in the judgment; it leaves the rights of the plaintiff as to him precisely as they stood before 1798 ; — but it limits the rights of a creditor (unless he revives his judgment according to the act and its supplements) to five years, as respects those who purchase or acquire subsequent liens on lands bound by the judgment.” I have extracted this passage, not only because it is direct to the purpose, but, being expressive of the judgment of the
But the validity of this sheriiFs sale does not altogether depend on the continued existence of the lien of the judgment, irrespective of the levy made under the fi. fa. It is not pretended that by a failure to revive the lien by sci. fa. the judgment-creditor forfeited his debt. That, at least, still continued to exist against the defendant, and might be enforced against any property possessed by him, provided in so doing the plaintiff did not impinge upon the interests of others. The process issued for the purpose, when levied on the land, became of itself a lien, for this quality is said to be a necessary and inseparable incident of seizure in execution, by the principles of the common law. (Stauffer v. Commonwealth, 1W. 300; Shaeffer v. Child, 7 W. 86; Parker’s Appeal, 6 Barr, 277.) And this is true, even as against those who acquire an interest in the thing after the levy. In the first of these cases, the Chief Justice observed: — “Property seized is in the custody of the law, the end of which might be prevented if creditors could subsequently acquire a paramount interest in it. In regard to chattels this undoubtedly holds, so far as to afford the creditor an opportunity to obtain satisfaction by a reasonable pursuit of his remedy, and it equally holds in respect of land, which, with us, is a chattel for the payment of debts.” As between debtor and creditor, the land of the former is as accessible to the latter, in payment of his debt, as would be a horse or any other personal chattel, and a complaint that either species of property was applied in discharge of an unrevived judgment, is entitled to equal favour. The question, in this aspect of it, has nothing to do with the lien of the judgment. It is simply a question whether the property of a debtor is liable to be sold in satisfaction of an execution issued against him. It would be strange, indeed, if, in Pennsylvania, such a debtor, seised of real estate, could hold his creditor at arms’ length, until he had revived his judgment under the act of 1798. True, there ought regularly to be a sai. fa. post annum et diem ; but this is equally necessary where the object is the seizure of personalty. It is objected there is none such here. Had this objection been made by the defendant in proper time, the execution against him must have been set aside. But it is' an irregularity insufficient to avoid the sheriff’s sale, and,
This part of the case has been considered more elaborately than was perhaps necessary, with a view to put at rest the doubt which seems recently to have arisen.
The remaining objection to the evidence offered may be disposed of in a few words. It is true that a sheriff’s sale made without the proper writ is void for want of authority. The judgment and execution must be shown. But the non-return of the latter by the officer will not affect the validity of his conveyance. The omission to make a return of these writs is of very common occurrence, and to hold it essential would, as is remarked in Smith v. Mackay, 1 R. 95, be very hurtful to the security of many titles. For all the purposes of information to the court, the sheriff’s deed may be considered a return of his proceedings. In the instance in hand, there was a fieri facias, levy, and condemnation of the land undisputed. There was also shown in the possession of the sheriff, a venditioni commanding the sale of the particular tract in pursuance of the levy. This was followed by a deed regularly executed and acknowledged by the sheriff, conveying the land to the plaintiff’s ancestor — afterwards, found in the possession of his representative. This of itself was prima facie evidence of a due delivery by the officer, (Hartman v. Stahl, 2 P. R. 251,) and payment of the purchase-money; for, as the sheriff has the right to demand and receive payment before delivering his conveyance, it is not to be presumed, in the absence of proof, that he parted with the deed before satisfaction. Delivery being an act regularly subsequent to payment, the presumption accords with the common practice: Scott v. Greenough, 7 S. & R. 197; Negley v. Stewart, 10 S. & R. 207. Nor is this presumption rebutted by the want of the usual receipt at the foot of the deed. Upon the question of payment, this is considered as of little importance; and is frequently omitted, as being supplied by the acknowledgment con
Judgment reversed, and a venire de novo awarded.
Mr. Justice Coulter dissented as to the first point in the case.