70 Pa. 231 | Pa. | 1872
The opinion of the court was delivered, January 9th 1872, by
This ease turns on the question whether the waiver of inquisition was a part of the judgment on which the land in controversy was sold. If it was, then the defendant, though a lunatic, was bound by it, and the plaintiffs, who are his committee, cannot question its validity in this action. But if it was no part of the judgment, the defendant, if he was so destitute of reason and understanding as to be incapable of assenting to it, was not hound by it, and the plaintiffs are not estopped from denying the validity of the purchaser’s title under it. A sale on a fi. fa. without waiver of inquisition is without authority and void: St. Bartholomew’s Church v. Wood, 11 P. F. Smith 96; and if so, a sale under a waiver to which the defendant was incapable of assenting, ought not to be regarded as valid if the purchaser was aware of his incapacity.
The act under which the judgment was entered provides that it shall be the duty of the prothonotary of any court of record, within the Commonwealth, on the application of any person being the original holder, or assignee of such holder, of a note, bond or other instrument of writing in which judgment is confessed, or containing a warrant for an attorney at law, or other person, to confess judgment, to enter judgment against the person or persons who executed the same, for the amount, which from the face of the instrument may appear to be due, without the agency of an attorney or declaration filed, with such stay of execution as may be therein mentioned, * * * particularly entering on his docket the date and tenor of the instrument of writing on Avhich the judgment may be founded, which shall have the same force and effect as if a declaration had been filed and judgment confessed by an attorney, or judgment obtained in open court and in term time.
The act, it will be seen, authorizes the prothonotary to enter judgment for the amount which, from the face -of the instrument,
The judgment is for the amount of the note, with costs of suit and costs of attorney’s commissions and release of all errors as authorized by the warrant of attorney; and the date and tenor or substance of the instrument are entered in due form on the docket. The phrase — “waiving the right of inquisition and benefit of exemption laws, Ac.,” is predicated not of the prothonotary, but of the defendant, and constitutes no part of the judgment. It was not intended as the language and act of the prothonotary, but as descriptive of the tenor of the defendant’s waiver as contained in the instrument on w'hich the judgment was entered. If it was intended as a part of the judgment, then it was not authorized by the Act of Assembly or by the warrant of attorney, and must be regarded as void for want .of authority. The warrant of attorney contains no delegation of authority to waive inquisition or to make the waiver any part of the judgment authorized to be confessed. The waiver of inquisition is the defendant’s own act and was clearly intended to be, and is no more a part of the warrant to confess judgment than if it had been written below it and separately signed. It is binding on the defendant if he was capable of executing it, but it is no part of the warrant of attorney or of the judgment entered in pursuance of it. Where stay of execution is provided for, it is properly a part of the judgment— otherwise execution thereon might be issued forthwith. But waiver of inquisition is not properly a part of the judgment. It is the act of the defendant, and not the sentence of the law as pronounced by the court. It does not operate on the judgment or modify its character. Its whole effect is to modify the proceedings under the execution, and to dispense with inquisition and condem
Judgment reversed, and a venire facias de novo awarded.