Butts v. Cruttenden

• Court: Pennsylvania Superior Court
• Writing for the Court: RICE, J.
• Citation: Butts v. Cruttenden, 14 Pa.Super. 449 (Pa. Super. Ct. 1900)
• Decision Date: 26 July 1900
• Docket Number: 15-1900
• Parties: Butts v. Cruttenden

14 Pa.Super. 449

Butts v. Cruttenden

No. 15-1900

Superior Court of Pennsylvania

July 26, 1900

Argued February 14, 1900 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by plaintiff, in suit of Dyer J. Butts, executor of Jean Allen, deceased, against William J. Cruttenden, from decree of C.P. Tioga Co.-1898, No. 489, on distribution.

Exceptions to decree in distribution by the court below of money raised by sheriff's sale of real estate of William J. Cruttenden. Before Mitchell, J.

It appears from the findings of fact by the court below that William Cruttenden on June 9, 1875, confessed judgment to Henry B. Card for $ 413.40, which note was entered of record on November 8, 1894. Execution was subsequently issued on the Card judgment and an application made to stay and set aside the sale because the sheriff had not properly advertised the real estate by posting notice on the land to be sold as required by law.

At the hearing of this motion Dyer J. Butts was present and the court stayed and set aside the sale so advertised by the sheriff and the land was not sold. Subsequently the land was sold to Dyer J. Butts for the sum of $ 975.

The court also found that William J. Cruttenden, the same person, who, as William Cruttenden, had confessed the Card judgment, executed a mortgage in favor of said Dyer J. Butts for the sum of $ 1,700.

The bond accompanying the mortgage having been entered up and execution issued thereon, the land in question was sold under the execution of Card and Butts to the said Dyer J. Butts for the sum of $ 975. The court found definitely that William Cruttenden, in the Card judgment, and William J. Cruttenden the mortgagor in the Dyer J. Butts executor's mortgage, is one and the same person. That Butts resided in the neighborhood and had known William Cruttenden for about forty years and that Cruttenden was known in the community where he resided, and by men with whom he did business both as William Cruttenden and William J. Cruttenden.

The court below made, inter alia, the following specific findings of fact:

6. That on November, 1898, the defendant in said execution, William Cruttenden, made an application to the court of common pleas of Tioga county, to stay and set aside the sale so advertised in pursuance of said execution by the sheriff, because the sheriff had not properly advertised the real estate by posting notice on the land to be sold as required by law.

7. That at the hearing had on said rule by the court of common pleas of Tioga county in open court, the defendant in said execution, William Cruttenden, swore that he was the defendant in the Henry B. Card judgment, and Dyer J. Butts was present at the hearing.

8. The court stayed and set aside the sale so advertised by the sheriff and the land was not sold.

9. On December 6, 1898, the executors of Henry B. Card caused a writ of alias vend. ex. to be issued out of the court of common pleas of Tioga county, and the land heretofore seized in execution situate in Richmond township, aforesaid, was advertised to be sold by the sheriff of Tioga county, at the courthouse in the borough of Wellsboro, on January 23, 1899, and at that time was sold to Dyer J. Butts for the sum of $ 975.

12. Dyer J. Butts, executor, caused judgment to be entered upon the bond accompanying the above stated mortgage against William J. Cruttenden and Phoebe Cruttenden on September 2, 1898, to No. 489, September term of 1898, for the sum of $ 1,700, and caused an execution to be issued thereon in pursuance of which the sheriff of Tioga county levied upon the 150 acres of land situate in Richmond township, Tioga county, Pa.; that subsequent on September 26, 1898, said Dyer J. Butts, executor, caused a writ of vend. ex. to be issued out of the court of common pleas of Tioga county, in pursuance of which the sheriff of Tioga county advertised the said lot of land to be sold at the courthouse in the borough of Wellsboro, on November 27, 1898, but said execution was stayed by the counsel of the said Dyer J. Butts, executor; that subsequently, on December 8, 1898, said Dyer J. Butts, executor, caused a writ of alias vend. ex. to be issued out of the court of common pleas of Tioga county, by virtue of which the sheriff of Tioga county advertised said lot of land of 150 acres to be sold at the courthouse in the borough of Wellsboro, and the same was sold in pursuance of said writ and on the execution of the executors of Henry B. Card, aforesaid, against William Cruttenden, to Dyer J. Butts, for the sum of $ 975.

18. Dyer J. Butts resided in the borough of Mansfield about two and one half miles from the farm where William Cruttenden lived and had known the said William Cruttenden for about forty years.

19. The said Cruttenden was known in the community where he resided and by men with whom he did business, both as " William Cruttenden" and " William J. Cruttenden; " that he transacted business under both names; that he gave a large number of judgment notes which were entered in the court of common pleas of Tioga county, some of which were signed by him as, " William Cruttenden," and some as " William J. Cruttenden; " that said judgments and notes were paid by one and the same person, the William J. Cruttenden who lived on the two and one half acres willed " William Cruttenden" and Phoebe Cruttenden by Lewis Cruttenden, on the east of the land sold by the sheriff January 23, 1899, the proceeds of which is in court for distribution.

The court below entered the following decree:

[Sur distribution by the court of the money raised by sheriff's sale of defendant's lands, July 17, 1899. This matter was heard on the 27th and 28th of April last, and the evidence heard is written out and filed of record. The plaintiffs in this case claim payment in full for balance of their writ unpaid with interest and costs, and are resisted in this by Dyer J. Butts, executor of Jean Allen, who claims the whole fund in court on his judgment to No. 489, September term, 1898, against William J. Cruttenden. The lien of the Card judgment is prior in time to that of Butts, but the former was entered and indexed only against William Cruttenden, while the latter was entered and indexed against William J. Cruttenden, and the lands sold were held in the name of William J. Cruttenden, though they were sold by the sheriff on writs in both cases, as lands of William and William J. Cruttenden. The Card judgment was entered upon a judgment note, while that of Butts was entered upon a bond to secure payment of which there was a mortgage, of date later than that of the entry of the Card judgment, by which these lands were mortgaged to Butts as executor of Jean Allen by William J. Cruttenden and wife. There is no doubt, under the proof, that William Cruttenden and William J. Cruttenden are one and the same person, nor is there any doubt, under the proof, that Butts knew of the existence of the Card judgment when he took this bond and mortgage against William J. Cruttenden; but it was not proven that Butts knew that William and William J. Cruttenden were one and the same person at the time he took this bond and mortgage. But a large amount of evidence was offered and admitted pro forma (in order to get the whole case before the court), the effect of which, it is contended by counsel for the executors of Henry B. Card, is to charge Butts with knowledge of the identity of William and William J. Cruttenden at that time, or with knowledge of such facts, at that time, as made it his duty as a prudent man to ascertain that fact before he made the loan on the bond and mortgage that he took from William J. Cruttenden and wife.

If Butts had had no knowledge of the Card judgment before he made the loan, following the well-settled law in this state, we should hold that he was not bound to search for liens against William Cruttenden and that, therefore, the money for distribution should be first applied upon his writ; but while we know of no case precisely to this effect, we feel sure that, in this case, in justice and good conscience, we must hold that, under the facts and circumstances clearly proven, Mr. Butts, as a prudent man, was bound to know the fact that the William Cruttenden, defendant in the Card judgment, was the same person from whom he took the bond and mortgage in name of William J. Cruttenden, and therefore that his previous knowledge of the Card judgment was notice thereof to him as a valid and subsisting lien against the lands of William J. Cruttenden at the time when he took the bond and mortgage in question before us. He knew of the Card judgment and made inquiry about it repeatedly, and with the knowledge he had of it, and the anxiety his inquiries exhibit, surely we think it was his duty, under the facts and circumstances proven, as a reasonably prudent man, to have gone to the owner of the judgment to inquire about it and that he should not have rested content, as his conduct appears to show, with inquiries made of the defendant and his son.

Therefore we find the facts in this case as they are set forth in the request made by counsel for the executors of Henry B. Card, deceased, filed herewith and made a part hereof, and we also affirm the conclusions of law as stated in their request therefor, also hereto attached and made part hereof.

Let the money in court (after payment of the prothonotary's poundage) be first applied in payment in full of the balance of the Card judgment with interest and costs, and the balance thereof upon the judgment of Dyer J. Butts, executor of Jean Allen, v. Williams J. Cruttenden, No. 489, September term, 1898.]

Exceptions were filed to the decree of the court below which were subsequently dismissed. Dyer J. Butts, executor, appealed.

Error...