Wilson v. Downing, 4 Pa. Super. 487

Wilson v. Downing

4 Pa. Super. 487 | Pa. Super. Ct. | 1897

Opinion by

Wickham, J.,

The appellees purchased, at sheriff’s sale, a tract of land owned and occupied by Robert W. Downing, and sold on execution as his property. Due notice was given, by the appellees, under the Act of June 16, 1836, P. L. 780, to Downing, and also to the appellant, his wife, and D. O. Downing his son, who were in possession of the land, to remove from and give up the same. This notice being disregarded, proceedings to obtain possession were commenced, before a justice of the peace, against the Downings, under the said act of 1836, and the supplement thereto of May 24, 1878, P. L. 134.

At the hearing and inquisition before the justice, the appellant, claiming the benefit of one or both of sections 114 and 115 of the act of 1836, made and filed the following affidavit: “ I, Lovina B. Downing, do swear that I verily believe that I am legally entitled to hold the premises in dispute against the petitioners, that I do not claim. the same by, from or under the defendant as whose property the same were sold, that I do not claim the same by, from or under the defendant as whose property the same were sold, by title derived to me subsequently to the rendition of the judgment under which the same were sold but by a different title.”

An examination of section 114 of the act and an analysis of the affidavit shows, that the latter does not meet the requirements of either subdivision of this section. The first provides that the claimant to the premises shall swear, that he “ has not come into possession and does not claim to hold the same under the defendant in the execution, but in his own right,” and the second requires him to state in the oath, “ that he has come into possession, under the title derived to him from the said defendant before the judgment under which the execution and sale took place.” It will be noticed that there is nothing in the affidavit as to how the appellant did or did not come into possession, nor any assertion that she claims in her own right. To allege, as she does, that she claims under “ a different title ” *492from that of her husband, is not necessarily an averment that she is claiming in her own right. The title on which she relies may be that of a third party and her claim may therefore be in his right. Nor is the affidavit sufficient under section 115 of the act, which provides, “ that if the person in possession of the premises shall make oath or affirmation, before the justices, that he does not hold the same under said defendant, but under some other person, whom he shall name, the said justices shall forthwith issue a summons to such person, requiring him to appear” .... and if the said person shall appear and make oath or affirmation, that he verily believes that he is legally entitled to the premises in dispute and that he does not claim under the said defendant but by a different title,” etc., and shall enter into recognizance, the justices shall forbear to give judgment. Section 116 prescribes the form of oath to be made by the person brought in by the summons referred to in section 115, and unfortunately for the appellant, this form, not intended for nor adapted to, her case, is the one she adopted. If she held under some other person than the defendant in the execution, she should have so stated and named the person.

We are of the opinion that the affidavit was not offered too late, but, as it utterly fails to comply with the act of assembly, the justice rightly disregarded it.

The objections to the constitutionality of the act of 1878 are baseless. The act is entitled “ A further supplement to an Act entitled, ‘ An Act relating to executions,’ approved June 16, 1836, providing that one justice of the peace, alderman, or magistrate shall act where two are now required.” Its provisions being within the limits suggested by the title, and being also germane to the subject of the original statute, its title is sufficient: Craig v. First Pres. Church, 88 Pa. 42, Millvale Borough v. Evergreen Ry. Co., 131 Pa. 1. Nor is the act contrary to act 3, sec. 6 of the Constitution of 1874, which provides that “ No law shall be revived, amended or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length.” What is meant by these words is, that all statutes shall be self-explanatory and complete in their provisions, Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627, and this act comes up to that requirement. The *493constitution of Ohio contains a clause very similar to the above, to wit: “ No Act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length.” In Lehman v. McBride, 15 Ohio, 578, 602, 603, the court say, “As we understand this clause of the constitution, it requires, in the case of an amendment of a section or sections of a prior statute, that the new Act shall contain, not the section or sections, which it proposes to amend, but the section or sections in full as it purports to amend them. That is, it requires, not a recital of the old section, but a full statement, in terms, of the new one .... The constitutional provision was intended, mainly, to prevent improvident legislation, and with that view, as well as for the purpose of making all acts, when amended, intelligible, without an examination of the statute as it stood, prior to the amendment, it requires every section, which is intended to supersede a former one, to be fully set out.” This is a reasonable construction, and one fully applicable to the clause above quoted from our own constitution.

Judgment affirmed.