27 Pa. 418 | Pa. | 1856
The opinion of the court was delivered by
This was a scire facias on a mortgage given to James Turbett to secure the purchase-money for a tract of land conveyed by Turbett to Ira Hersey. The defence rests upon a defect in the title to the premises, which will be noticed hereafter. The general rule is, that wherever a defendant enters into possession of land under a contract with the plaintiff for the purchase of it, he will not be permitted to set up an independent title to protect a hostile possession. He must either pay the purchase-money or restore the possession to the person from whom he received it. If the title of the vendor be defective, he may rescind the contract, but he must restore the possession of the land: Congregation v. Miles, 4 Watts 146 ; Nerpooth v. Althouse, 8 Watts 427. Even if he has been induced to enter into the contract by the fraud of the plaintiff, “ the defendant is bound to show that he has disaffirmed the contract without having received any benefit from it.” This was the language of Lord Campbell, in delivering the opinion of the Court of Queen’s Bench, on the 6th of June last, in the case of The Deposit and General Life Insurance Company v. Ayscough, 2 Jurist, New Series, p. 812. This principle applies with peculiar force in an action in which the plaintiff makes no personal demand upon the defendant, but merely asks, in default of payment of the consideration-money, the restoration of the property conveyed. A scire facias on a mortgage is an action of this character. It makes no personal demand on the mortgagor. He is not even liable for the costs of the suit. The judgment is de terms. It is to be levied exclusively on the mortgaged premises, and the sale conveys “no further term or estate to the purchaser than the lands shall appear to be mortgaged for.” See Act of 1705, §. 8, 1 Sm. 61. If neither vendor nor vendee had any title at the time of the mortgage, the latter could by no possibility pledge any title to the mortgagee. It is true that equitable circumstances might exist which would call for the application of the principle, that a title subsequently acquired by a vendor enures to the benefit of the vendee. This principle might apply in the case of a loan of money obtained on the faith of a representation that the mortgagor had an indefeasible estate in the premises granted in mortgage as a security for the money. But it can have no place where the mortgage is given merely as security
The premises belonged at one time to Thomas Foster. They were sold at sheriff’s sale, as Foster’s property, to James Veech, Esq., and he received the sheriff’s deed sometime before the 2d December, 1842. But this deed is not furnished to us in the paper-book, although all parties claim title under it. This title was purchased by Mr. Veech under some agreement with certain creditors of Foster, by which Mr. Veech was to hold it in trust for their benefit. There is also evidence that Samuel Blocher, Isaac Shoemaker, and Joseph R. Taylor, with others who were subsequently left out of the arrangement, agreed to purchase the property from Mr. Veech, and to secure those creditors of Foster for whose benefit the purchase was made, to the amount of $80,000. There is a conflict in the testimony on the questions whether the Bowie debt was to be included among the claims to be paid, and whether the contract was afterwards carried into execution by performance and delivery of the deed to the vendees.
On the 26th January, 1843, Nathaniel Ewing obtained a judgment against Samuel Blocher, Isaac Shoemaker, and Joseph R. Taylor; and by virtue of legal proceedings on that judgment, the premises in controversy were sold on the 7th June, 1847, to E. P. Oliphant. The sheriff’s deed was not made until the 9th October,
If the legal title had been conveyed by Mr. Veech to Blocher & Co. without taking a mortgage on the premises for the unpaid purchase-money, before the entry of Mr. Ewing’s judgment, the sale under that judgment would of course have passed the whole
. It follows from these views that the 6th and 7th assignments of error are sustained. The 1st, 4th, and 5th depend on the covenant of warranty entered into by Mr. Patterson. As this is not given in the paper-book, we can give no opinion on the propriety of the decisions referred to in the specifications of error last mentioned.
The 2d and 3d assignments complain of the exclusion of two records of ejectment Avith conditional judgments requiring the payment of a sum of money by Blocher & Co., the first to Mr. Veech, and the second to Mr. Pauli, to whom Mr. Veech, after recovering judgment on the first suit, had conveyed the legal title. The first ejectment was brought to December Term, 1843, No. 134, by James Veech v. Samuel Blocher, Isaac Shoemaker, and Joseph B. Taylor. The 2d was brought by the defendants in the first against James Pauli and Andrew Grillis. The record of the first judgment is not given in the paper-book, and it is therefore impossible to say whether it was properly rejected or not. Nor can we say whether the parol evidence offered to supply a defect in that record was properly excluded. If the paper containing the conditions requiring the payment of the purchase-money, said to have been filed Avith the judgment, was, through some mistake, not filed, or if after it was filed it was lost, the proper course is to apply to the court having jurisdiction of that cause, and having the custody of the record, to amend it, or to supply the defects in it occasioned by the loss of material papers. We cannot do this in a collateral action. In this suit Ave must judge of the record as we find it when offered in evidence: Hoffman v. Coster, 2 Wh. 453. If Ave AVere permitted to take the date and nature of this judgment from other sources than the record returned on this writ of error, we might readily understand from the opinion of the court in Paull v. Oliphant, 2 Harris 349, that the judgment was entered in June, 1847, and that the record contains the entry of “ Judgment by consent for plaintiff — for conditions see paper filed.” As the law then stood, it did not conclude the rights of the parties, although time was of the essence of the finding in regard to the payment of the purchase-money, because the Act of 5th May, 1841, had abolished the rule of law established by the decision in Seitzinger v. Ridgway, 9 Watts 196. But the Act of
The judgment is to be reversed for the 6th and 7th errors assigned. What has been said renders it unnecessary to discuss more particularly the 8th, 9th, and 10th specifications.
Judgment reversed and venire facias de novo awarded.