8 Pa. 486 | Pa. | 1848
No man is more thoroughly convinced, than I am, of the wisdom of abiding by what has been decided. Want of stability in the law, is a public calamity which ought to be averted by almost any concession of opinion ; yet in building up a new system in part on the model of an old one, it is better to incur the reproach of inconsistency than to perpetuate a false principle. Where we have not been following a beaten path, but have been exploring untrodden ground; and where we find that we have lost our way, as we sometimes must; it is certainly the part of wisdom to retrace our steps, rather than to persist in going wrong. I submit that in the present case, in which our own decisions afford no lamp to our feet, and in which the English decisions are misleading fires, the first determination of the point before us ought not to be conclusive. If a single decision were so, many of our first attempts to interpret our digested statutes, grown almost into a code, would do little more than impart immortality to error. Yet, notwithstanding our mixed system and peculiar laws, it will be found that we have adhered to our decisions with admirable constancy, when it is considered that of Professor Grcenleaf’s “ Collection of Cases
Though, to avoid a too frequent appearance of division, I suppressed my dissent from the opinion of the majority, in Minier v. Saltmarsh, I foresaw that however adapted to execution of land in England, the principle of that case could not be applied to execution of land here without injustice; and in that view of it, I think I was joined by Mr. Justice Huston. At the least, there was a want of unanimity on the bench, which detracts much from the force of a decision as a precedent. It was not denied then, nor is it now, that the principle of the majority is the English principle; but it is not conceded that it can become a part of our law of execution without violating the provisions of more than one of our statutes. There are two cardinal points of difference between execution of land under our acts of 1700 and 1705, and execution of it under the statute of Westminster, the second. For purposes of execution in England, a judgment binds a debtor’s land as a specific thing, not, as with us, his title to it or estate in it, without regard to the question whether he was seised or disseised at the time of the rendition. There, an owner disseised, is not the tenant of the freehold, or, in contemplation of law, an owner at all, his estate being turned to a mere right, which cannot be bound as a subject of execution: here, whether the debtor was seised or disseised, a judgment binds every immediate interest vested in him, which amounts to an estate, perfect or inchoate. Again, land is taken in execution under the English statute and delivered, specijically to the creditor to make satisfaction by the profits of it, without regard to the debtor’s title to it: under our statutes, the sheriff SELLS, and not the land, as the incontestable property of the debtor, but his estate in it, or title to it, AS A CHATTEL, and at the risk of the purchaser, who takes his chance of recovering on it against whomsoever may be in possession under an adverse title. To show the value of these differences, it is necessary to look no further than Jeffreson v. Morton, 2 Saund. 6, where the terre tenant’s plea was that the defendant in
Eor purposes of execution in England, there is no distinction between the title and the land itself; because, as the law recognises only the person seised as the tenant of the freehold, the estate of the disseisee is regarded as a mere right which cannot even be conveyed ; and the seisin of the debtor, at the time of the judgment, or the subsequent satisfaction of it, is the only fact that can be pleaded in bar of execution. Consequently, as an adverse title existing at the time of the judgment cannot intervene, the land is delivered at once to the tenant by elegit on a liberate; and for that reason it is that the judgment on the scire facias settles all questions with the terre tenant or an occupant under him. Here,
A simple statement of the case before us will show that it is not. It was admitted that the title was in Samuel Cochran, the father, at his death. The plaintiff below claimed as a purchaser at sheriff’s sale, on a judgment against William Cochran, his son, who, though he was for a time his sister’s manager of the land for her benefit, never owned or claimed a foot of it. So far there is no dispute. But the defendant below, who succeeded by conveyance to the sister’s title, having been served with notice, appeared to a scire facias against the son, and pleaded that the land was not bound by the judgment — a matter that was properly disregarded, as the creditor was entitled to have execution of even the possibility of an estate in the debtor. In this ejectment the defendant claimed paramount, by the execution of a power given to the executors of the father’s will, to sell a larger tract, of which the premises were part, with direction to divide the proceeds among his daughters; a conveyance by the executors to his daughter Margaret; and a conveyance by her to the defendant: which were ruled out in submission to the authority of Minier v. Saltmarsh. Were the objections to that case purely technical, I would not consent to raise a finger against it; but as it has worked palpable and revolting injustice in the very case in hand, we must conclude that it would do so again; and we are, therefore, bound to overturn it on every principle of honesty and conscience.
Judgment reversed.