48 Pa. 96 | Pa. | 1864
The opinion of the court was delivered, by
— Neas’s Appeal, 7 Casey 293, ruled this cause in the court below, and we are asked to reverse the judgment on the ground that the decree in that case, was contrary to the settled law of Pennsylvania, a demand which ought to have been supported by a better exhibition of authorities than the paper-books contain.
Though I dissented from the ruling in Neas’s Appeal, I would cheerfully have dismissed my doubts and followed it on the present occasion, had my brethren been agreed in recognising it as law; but as they stand equally divided on the question, I am ■ unwilling to give the casting vote without first re-examining the subject in the light of the authorities.
A distinction might be taken between Neas’s Appeal and this case, for all that was alleged there was, that a lien existed for the unpaid purchase-money, which, being divested by the sheriff’s sale, was entitled to be paid out of the proceeds, whilst here the allegation is that the lien survived the sheriff’s sale and ran with the land. The question here is, not as it was there, one of distribution, but as expressed in the case stated, it is “ whether the plaintiff is entitled to recover from the purchaser at the sheriff’s sale $100 per annum, the consideration mentioned in the release.”
Had Mrs. Green come in upon the proceeds of the sale she would have likened her case to Neas’s Appeal; but attempting to support her lien against the purchaser, notwithstanding the sheriff’s sale, a reversal of the judgment she obtained would not necessarily trench upon the ruling in that case.
Not to insist, however, upon this distinction, I prefer to discuss the main question common to both cases, to wit, whether
If it be a lien, it is so by virtue of no principle of the common law, and by no statutory provision, and must therefore be classed as an equitable lien, which arises only when the legal title has been conveyed.
The doctrine of equitable liens, though long prevalent in English and some American courts of chancery, was never intended to be admitted into Pennsylvania jurisprudence. If favoured by what fell from this court in Stauffer’s Lessee v. Coleman, 1 Yeates 398, and Irvine v. Campbell, 6 Binn. 118, it was expressly and very forcibly repudiated in Kauffelt v. Bower, 7 S. & R. 64. That was the case of an executed conveyance by a vendor, half the purchase-money received, and bonds taken for the other half, but no judgments entered on the bonds. Under judgments subsequently obtained against the vendee, the land was sold at sheriff’s sale, and the vendor claimed the unpaid balance of his purchase-money out of the proceeds of the sale. The masterly opinion of Judge Gibson showed that the doctrine of equitable liens had grown up in England since the foundation of the colonies, and therefore that our ancestors did not bring it with them ; that it was opposed to the policy of our legislation; that it was not recognised in the practice of-our courts, and that it accorded with neither the professional nor the popular understanding. “ The implication,” he added, “ that there is an intention to reserve a lien for the purchase-money in all cases where the parties do not by express acts evince a contrary intention is, in almost every case, inconsistent with the truth of the fact, and in all instances without exception, in contradiction of the express terms of the contract, which purports to be a conveyance of everything that can pass. The construction, therefore, which, independently of fraud or mistake, reserves an interest against the express language of the parties, is unnatural and unjust.”
In Semple v. Burd, Id. 286, the same views were repeated against a vendor who held an unrecorded mortgage, and in Megargee v. Saul, 3 Whar. 20, the court expressed a very confident trust that it was “ unalterably established in Kauffelt v. Bower, that there can be no lien in any case where the vendor has conveyed the legal title.”
But in these cases there was nothing on the face of the deed to show that any portion of the purchase-money remained unpaid. The formal acknowledgment of its receipt would imply a fully-executed contract on the part of the vendee, and delivery of the deed imported full execution on the part of the vendor. Between parties whose writings wore such a face there was no ground for implying unexecuted covenants, or liens to secure performance of them. But in Bear v. Whisler, 7 Watts 144, we
The next year the case of Stewartson v. Watts, 8 Watts 392, came up. Here was an express charge of the purchase-money upon the land, which was also secured by a mortgage, and a sheriff’s sale on judgment junior to the mortgage. The sale occurred before the Act of the 6th April 1830, and the court held the lien, whether created by the words of the deed or the mortgage, to be divested by that sale. Judge Rogers vindicated, with great force of argument, the policy that judicial sales should pass property clear of all liens, but he said the court had yielded to certain exceptions which may be reduced to three: 1st. Where liens are created by last wills and testaments as permanent provisions for wives and children; 2d. Where from, the nature of the encumbrance it will not readily admit of valuation ; and 3d. Where it is plain from the agreement of the parties that the encumbrance was intended to run with the land. Under one or the other of these heads it was manifestly intended that every lien should fall which was to be-saved by judicial decision from the ordinary effects of sheriff’s sales. Mortgages and certain other liens were saved by statutes. In the eases of The Episcopal Academy v. Frieze, 2 Watts 16, Barnitz v. Smith, 1 W. & S. 145, we have instances of liens created by the agreement of parties, and divested by sheriff’s sales on subsequent liens, so that we are not to forget that something more than the creation of a lien by agreement is necessary to make it survive a sheriff’s sale; it must be expressly charged upon the land as an encumbrance manifestly intended to run with it. Bury v. Sieber, 5 Barr 432, was ruled on the doctrine of McCall v. Lennox, 9 S. & R. 310, which was the case of tacking one security to another, whereby a subsequent encumbrance was saved by relation to a prior one, quite a different subject from that we are upon. Dewalt’s Appeal, 8 Harris 236, and Hart v. Homiller’s Heirs, 8 Id. 248, were instances of liens not divested by sheriffs’ sales, and which admit of classification under the heads above-stated.
The sum of the authorities is, that though equitable liens are
Mrs. Green’s deed was a release of all her estate, right, title, and interest in the premises conveyed, and though the consideration is expressed upon the face of the deed, as an annuity of $100, there is not a word to import an intention to charge it as a lien on the land. The policy of the law forbids us to surmise or imagine such an intention. But even if we should guess that she meant to resei’ve a lien, it would not avail her as against the sheriff’s sale, unless we held it equivalent to a first mortgage, which would be carrying judicial implications further than
Now, to wit, October 19th 1864, after argument of this case, and full consideration, the judgment of the Court of Common Pleas of Lancaster county is reversed and set aside, and judgment is here entered for the defendant.