Riddle & Pennock's Appeal, 37 Pa. 177

Riddle & Pennock's Appeal

37 Pa. 177 | Pa. | 1860

The opinion of the court was delivered, by

Strong, J.

— This appeal has no solid ground to rest upon, unless the assumption of the appellants be admitted, that no valid recognisance had been entered into by Thomas S. Mitchell before their judgments were obtained against him. That assumption, however, cannot be allowed. The records of the Orphans’ Court show that the property was appraised by the inquest at $2558, on the 13th of April 1853. The inquisition was confirmed, and, on the 15th of September 1854, the land was adjudged to Thomas S. Mitchell “upon his entering into recognisance with security to pay the heirs one-third in three months, and balance in nine months, and to pay the interest on the widow’s portion annually, and at her death the principal to the heirs, according to the Act of Assembly.” James Means was approved as surety. On the same day a paper purporting to be a recognisance was acknowledged by both Mitchell and Means before the clerk of the Orphans’ Court, and filed of record. It was informally drawn. It acknowledged an indebtedness to the Commonwealth, but in no specified sum, and declared that the condition of the recognisance was that it should be void if Mitchell should well and truly pay to the heirs and legal representatives of James Wachob the amount of the valuation of the real estate as valued by the inquest, on the 13th of April 1853. . The defect alleged is, that there was no penalty inserted. But what of that ? The amount of the real debt is certain, made so by reference to the inquisition. And it cannot be doubted that the instrument created a legal liability to the heirs and legal representatives of *181the decedent. It is useless to inquire what must have been the form of the action to enforce it, for if it imposed a legal obligation it was a recognisance. A recognisance is a debt of record entered into, or acknowledged before a court or officer having authority to take it. The form is not essential. Though usually in the form of a penal obligation, it is not necessarily so. It need not even be signed by the eognisor, and a short memorandum of it is sufficient. The legislature has prescribed no form for recognisances given in partition in the Orphans’ Court, and therefore an obligation of record in any form taken before the court or its clerk is sufficient. In this case, the omission of the clerk to insert a penalty was supplied in 1858 by leave of the court, not, it is true, until after the appellant’s judgment was recovered. But we are of opinion that the obligation assumed by Mitchell at the time when the land was adjudged to him, was a sufficient recognisance to create a lien upon the land taken at the valuation, and that the amendment was but the correction of a clerical omission of a matter of form. But it is said that, previous to the insertion of a penalty in the recognisance in 1858, or, as it is called, the amendment of the recognisance, there was nothing upon the record to show any amount of the lien intended to be created, and therefore there could be no claim. The argument is an attempt to apply to liens for owelty of partition in the Orphans’ Court the principles which govern the liens of judgments in the Courts of Common Pleas. They are, however, entirely unlike. The one is in the line of the title, the other is outside. An Act of Assembly has declared that a judgment docket shall be kept in the Common Pleas. This is for the information of subsequent lien-creditors and purchasers. No such requirement exists respecting liens in the Orphans’ Court. To ascertain the amount of such liens the purchaser or creditor must look to the proceedings in partition, and if the appellants in this case looked there, they discovered the amount of the encumbrance upon Mitchell’s land. It was of course measured by the valuation, and the parties to the partition. It is, therefore, a mistake to urge that there was nothing upon record to show the amount of the lien.

Again, it is contended that the recognisance was not taken for the security of the widow, and that she had nothing but her statutory charge. From this it is inferred that the purchaser at the sheriff’s sale took the land encumbered by her third, and, therefore, that it was erroneous to distribute to the heirs and administrator of the widow that portion of the valuation which became due at her death or the interest thereon in arrears. The widow, however, had died before the sheriff’s sale, and consequently the land was sold discharged of the third which was payable to the heirs after her death. The amount of the lien and *182its interest was then ascertainable, and there was no reason for its remaining longer an encumbrance. It had become payable by the express provisions of the Act of Assembly; and, although the widow died after the levy under the fi. fa., yet, as her death .was before the sale, the purchaser took the land disencumbered of the charge, and the proceeds of the sale were properly appropriated to the owners of the charge. Nor was this, as is supposed, selling a greater estate than was levied upon. The land was the subject of the levy, not any particular interest therein, and the land was sold.

There is, therefore, no error in the appropriation, and the decree of the Court of Common Pleas is affirmed.