2 Rawle 229 | Pa. | 1828
The opinion of the court was delivered by
— I throw out of the case the fact of Ramsey having, eight months previous to his mortgage, subscribed as one of the witnesses to the confession of judgment b y Fritz in favour of Fleming. He certainly ought not to be held bound to inquire into, and remember the contents of a paper, which he was accidentally called upon to attest as a witness. By the way, I do not admit, that the most perfect knowledge of the judgment would have made it good against Ramsey, if void otherwise. As to priority of lien, we take it to' be clear, that the judgment in Cumberland county did not bind the land in Perry. The levy on the Testatum Fieri Facias from Cumberland county would have bound the land, but it was subsequent to the plaintiff’s mortgage. Therefore, unless the defendant’s claim is supported, by the amicable Scire Facias in Perry county, it must fail altogether. The judgment upon it was some months prior to the plaintiff’s mortgage. It would appear, from the proceedings, that the amicable Scire Facias has been almost abandoned, and condemned by the defendant in error himself. Yet, we hold it to be the first lien, and entitled to the money. If, instead of amicable confession, that judgment of revival in Perry county had been by default, on adversary process by writ, perhaps it would have been absolutely void; because, the rule of the common law clearly is, that a Scire Facias issues out of that court only in which the record of the judgment remains; and here the record and papers, though transferred in fact, were not -legally transferred to Perry county. Perhaps there are some exceptions to this rule in Pennsylvania, by reason of inconveniences which could not exist in England, where the jurisdiction cf the superior courts extends throughout the kingdom, and where the creation of new counties has been unusual. But, however that may be, it seems very clear, that all the parties interested, may lawfully agree to confirm an invalid transcript, or nugatory judgment, provided the confirmation is to be efficacious, and give a lien only from the time of the agreement properly appearing. We are all of opinion, that though there was legally no such record as mentioned in the amicable Scire Facias, in Perry county, yet the defendant, Fritz, was estopped by Ms confession. He admits the validity of the record, and such admission by him, if bona fide, is conclusive against all claiming
Judgment affirmed.