Cadmus v. Jackson

• Decision Date: 15 May 1866
• Parties: Cadmus <I>versus</I> Jackson.
• Court: Pennsylvania Supreme Court

52 Pa. 295

Cadmus versus Jackson.

Supreme Court of Pennsylvania.

May 15, 1866.

ERROR to the District Court of Philadelphia.

COPYRIGHT MATERIAL OMITTED

W. S. Peirce and E. K. Price, for plaintiff in error.—Terre-tenant may take defence; and is a proper party to the suit: it is error to reject him as defendant: Fraley v. Steinmetz, 10 Harris 437; Roberts v. Williams, 5 Wh. 170; Reigart v. Ellmaker, 6 S. & R. 44; Mevey's Appeal, 4 Barr 80.

The title to Young was not divested by the tax sale, his representatives having two years to redeem: Purd. 752, pl. 36, 37, Acts 1856 and 1849; Hess v. Potts, 8 Casey 407; Perry v. Brinton, 1 Harris 202.

The tax sale was void, because the tax of 1856, for which it was sold, had been paid: Delaney v. Gault, 6 Casey 63; Baird v. Cahoon, 5 W. & S. 540.

An Orphans' Court sale is a judicial sale, and discharges the premises of a mortgage given by a former owner: Moore v. Shultz, 1 Harris 98; Bowers v. Oyster, 3 Pa. Rep. 240; Corporation v. Wallace, 3 Rawle 109.

It was a sale for the mortgage-debt, and carried the purchaser's title by relation to the date of the mortgage in 1834: McCall v. Lennox, 9 S. & R. 302; Brown v. Johnson, 4 Rawle 146;

Jaques v. Weeks, 7 Watts 270; Kellam v. Janson, 5 Harris 467; Perry v. Brinton, 1 Id. 202, and 5 Mo. 169. A sheriff's sale for interest or part of principal, discharges the lien of the entire mortgage-debt: Berger v. Hiester, 6 Wh. 210; Clarke v. Stanley, 10 Barr 472; Bank v. Chester, 1 Jones 287.

Cadmus is a terre-tenant and may come in and take defence, and consequently have a writ of error, if error be committed, to give trouble to himself or title: Fraley v. Steinmetz, 10 Harris 437; Roberts v. Williams, 5 Wh. 170; Reigart v. Ellmaker, 6 S. & R. 44; Mevey's Appeal, 4 Barr 80. The sci. fa. on mortgage is wholly in rem: Wickersham v. Fetrow, 5 Barr 260.

Jackson having accepted purchase-money paid by Cadmus, cannot dispute his title: Stroble v. Smith, 8 Watts 280; Hamilton v. Hamilton, 4 Barr 193; Smith v. Warden, 7 Harris 424.

Jackson's counsel's cases are not to the point, because if Jackson can make title to the premises in question, under this mortgage, it must be to sell a title paramount the Orphans' Court sale, or to take from Cadmus the very title he holds, if anything. There is an utter contradiction in the two judgments. Keenan's title was as much discharged by the Orphans' Court sale, as ever it can be under this judgment against him: Morris v. Garrison, 3 Casey 226. The court will "modify" the judgments as they ought to be entered: Purd. 928.

T. E. McElroy, for defendant in error.—It is a general rule that no person can bring a writ of error to reverse a judgment who is not party or privy to the record, or prejudiced by the judgment: 2 Saunders's Rep. 45, note 6; Fotterall v. Floyd, 6 S. & R. 315, 320; Strange 683; 1 Tr. & H. Pr. 602.

Even in case of bail, he cannot sue out a writ of error, and assign errors in judgment against his principal: Cro. Car. 481, 575, 300, 561, 408; Hylton's Lessee v. Brown, 1 W. C. C. R. 343-8; Vanhorn v. Frick, 3 S. & R. 278.

He only who is interested in a judgment can reverse it on error: Steel v. Bridenbach, 7 W. & S. 150; Watson v. Willard, 9 Barr 89; Chahoon v. Hollenback, 16 S. & R. 425; Catlin v. Robinson, 2 Watts 373, 379.

No person but one who has a direct interest in the cause can appeal from a judgment. He cannot come between the parties who are concluded by it: Morris v. Garrison, 3 Casey 226; Steel v. Bridenbach, 7 W. & S. 150; Watson v. Willard, 9 Barr 89, 92; Reigart v. Ellmaker, 6 S. & R. 44; Clippenger v. Miller, 1 Pa. Rep. 64, 72.

In Pennsylvania lands are mere chattels for the payment of debts, hence a judgment binds only the interest defendant has therein, and an execution will not be stayed because he has none Insurance Co. v. Ketland, 1 Binn. 499. The owner's remedy is trover or replevin against sheriff's vendee, if his goods are seized upon execution against some one else, but he can't have it against the sheriff: Shearick v. Huber, 6 Binn. 2; Walters v. Pratt, 2 Rawle 265.

The debtor's title only is sold by the sheriff: Boas v. Updegrove, 5 Barr 518; Harrison v. Waln, 9 S. & R. 318; Cooper v. Gardiner, 3 A. & E. 211; Mitchell v. Hamilton, 8 Barr 486; Beekman's Appeal, 2 Wright 385; Van Billiard v. Nace, 1 Grant R. 233; Jarrett v. Tomlinson, 3 W. & S. 114; Neel v. The Bank, 1 Jones 18.

If Cadmus can reverse these judgments, it can be only upon the ground that they can be pleaded against him as estoppels in some other suit. The mortgage has never bound his estate since it came into his possession: Dengler v. Kerchner, 1 Harris 38. To S. P. see Chahoon v. Hollenbach, 16 S. & R. 425; Clippenger v. Miller, 1 Penna. R. 64; Catlin v. Robinson, 2 Wright 373; Mitchell v. Hamilton, 8 Barr 486; Drum v. Kelly, 10 Casey 415; Silverthorn v. Townsend, 1 Wright 263; Haskins v. Low, 5 Harris 64; Eberhart's Appeal, 3 Wright 509. The verdict in the sci. fa. is conclusive of the amount due on the mortgage: Roberts v. Williams, 5 Wh. 187.

A sci. fa. sur judgment, though a proceeding in rem, is merely against defendant's interest: Mitchell v. Hamilton, 8 Barr 486-8-91; Drum v. Kelly, 10 Casey 415.

A judgment in foreign attachment, though a proceeding in rem, will not make a sale of a third person's property under it good: Megee v. Beirne, 3 Wright 50; Taylor v. Carryl, 12 Harris 259; 2 Sm. L. C. (Am. Ed.) 689.

As to errors assigned: —

Where the sci. fa. issues against defendant, with notice to terre-tenants generally, without warning any one, a party desirous of pleading discharge of the lien must prove that he is terre-tenant: Silverthorn v. Townsend, 1 Wright 263.

The record of the tax sale was offered to show that at the time of the Orphans' Court sale to Cadmus, the title bound by the mortgage was outstanding in another than the decedent, and that therefore the mortgage was not discharged by that sale.

The mortgage was not discharged by the sale for taxes, the latter having been assessed subsequently to the former: Act of 23d January 1849, § 4, Pamph. L. 686; Perry v. Brinton, 1 Harris 202.

The sheriff's sale for taxes passed a base fee to Keenan, subject to the mortgage, leaving in the heirs of Young not an equity of redemption, but a right to redeem the land within the time limited by the Act of Assembly, but not afterwards: Claypool v. Dorsey 4 Am. L. J. (N. S.) 563; Gault's Appeal, 9 Casey 94; Delaney v. Gault, 6 Casey 63; and when redeemed to hold it subject to the mortgage: see Powell on Mortgages, chap. 1, pp. 4, 5, 6; Id., chap. 2, pp. 13, 14; Craft v. Webster, 4 Rawle 242.

A sheriff's sale divests all the title of the defendant in the execution: Fox v. Heffner, 1 W. & S. 372; Hoyt v. Koons, 7 Harris 277; Steiner v. Coxe, 4 Barr 13; Naglee v. Albright, 4 Wh. 291; Stonebreaker's Appeal, 8 Barr 155; Hess v. Potts, 8 Casey 407; Griffith v. Cochran, 5 Binn. 87, 105; Martin v. Willink, 7 S. & R. 298; Act of 13th May 1856, § 11, Pamph. L. 568.

The rule of caveat emptor applies to an Orphans' Court sale: Vandever v. Baker, 1 Harris 121; King v. Gunnison, 4 Barr 171; McFarland's Estate, Id. 149; Bickley v. Biddle, 9 Casey 276; Bashore v. Whisler, 3 Watts 490; Kline's Appeal, 3 Wright 463; Diehl's Appeal, 9 Id. 407.

Defendant in error is not estopped from proceeding on his mortgage by the receipt of the purchase-money of the Orphans' Court sale, as he does not allege that that sale was void, but that it passed nothing to Cadmus but a redemption right: see Patterson's Estate, 1 Casey 71; Bradley v. O'Donnell, 8 Id. 279; Canon v. Campbell, 10 Id. 309; Catlin v. Robinson, 2 Wright 378; Irvine v. Campbell, 6 Binn. 118; Creigh v. Shatto, 9 W. & S. 82.

Cadmus cannot set up the payment of taxes of 1856 to avoid the effect of the sheriff's sale, for no one can do this but the defendant or his heirs; nor can he object to the want of a sci. fa. to the personal representatives of James Young: Bennet et ux. v. Fulmer, xxii. Leg. Int. 404.

The Orphans' Court sale did not divest the mortgage, because the title bound thereby was outstanding in another at the time of the sale: Byrod's Appeal, 7 Casey 241; Fisher's Appeal, 9 Id. 294; Hoffman's Appeal, 8 Wright 95.

The estate Cadmus bought was a mere right, subject to the mortgage, and he was bound to redeem the premises within the time limited. This he did not do, and therefore has no title. For this reason defendant in error was entitled to a verdict and judgment against him, for he is not terre-tenant, and had no right to defend: Silverthorn v. Townsend, cited above.

The opinion of the court was delivered, May 15th 1866, by WOODWARD, C. J.

The questions to be decided in this case, including the motion to quash the writ of error, cannot be made intelligible without first stating with considerable precision the facts out of which those questions grew. We will begin therefore at the beginning, and proceed by that natural order in which the events occurred.

John Dickinson being the owner of a house and lot on the north side of Filbert street, in the city of Philadelphia, made a mortgage of the premises to Charles A. Harper on the 1st of September 1834, to secure a debt of $2359.59. By sundry mesne conveyances the title to the premises vested in James Young in 1842, subject to the mortgage.

On the 19th May 1859 the city of Philadelphia entered a claim in the Common Pleas against James Young for registered taxes of 1856, and on 10th September 1859 issued a scire facias thereon, which was returned by the sheriff, "made known by posting on the premises and by publication in a newspaper."

November 26th 1859. — Judgment for want of an affidavit of defence.

December 1st 1859. — Damages assessed at $99.90.

January 27th 1860. — James Young died intestate leaving a wife and five children, two of whom were minors.

February 17th 1860. — Levari facias issued upon the above judgment without any substitution of personal representatives...