Carkhuff v. Anderson

• Decision Date: 11 June 1810
• Parties: CARKHUFF v. ANDERSON.
• Court: Pennsylvania Supreme Court

3 Binn. 4

CARKHUFF v. ANDERSON.

Supreme Court of Pennsylvania.

June 11, 1810

A judgment in Pennsylvania is a lien on every kind of equitable interest in land, vested in the debtor at the time of the judgment; Held therefore to bind the interest of a Connecticut settler in land within the Seventeen Towns, who was intitled by the act of 1799 to obtain a patent upon terms, although not he, but his assignee, after the judgment and the sale, complied with the terms, and then for the first time obtained the confirmation.

The copy of a Connecticut settler's deed deposited according to act of assembly in the land office, is, if certified under the seal and signature of the proper officer as good evidence as the original would be.

THIS was an appeal from the decision of the Chief Justice at a Circuit Court for Luzerne in June 1809.

It was an ejectment for a tract of land within one of the seventeen townships, to which the plaintiff set up a title under a certain William Craig, who held it as a Connecticut claimant by deed dated the 30th June 1798. On the 4th of April 1799, the commonwealth of Pennsylvania by an act of the general assembly, gave to the Connecticut settlers within the seventeen townships, whose rights had been acquired under Connecticut prior to the decree at Trenton, an option to receive a patent for their tracts upon paying a sum of money, provided the Pennsylvania claimant of the same land should release it to the commonwealth. On the 5th of September 1799, a judgment was obtained against Craig by Matthias Hollinback, who revived it by scire facias in January 1803, levied upon the land in August following, and finally in August 1806 caused it to be exposed to public sale by the sheriff, from whom it was purchased by Carkhuff the plaintiff.

In order to shew that the defendant held under Craig, the plaintiff's counsel offered in evidence on the trial a copy of a deed from Craig to Anderson, dated the 10th January 1801, for the land in question, certified by the secretary of the land office under his official seal, to be a true copy of the original deposited in his office; and which, by the copy, appeared to have been proved by a subscribing witness. This evidence was objected to, but was admitted by the Chief Justice, under the authority of an act of the 9th of April 1781. Parol evidence was then given to shew Craig's continuance in possession until some time in 1803, and the defendant's knowledge of Hollinback's judgment and execution in that year.

The defendant relied upon a patent from the commonwealth, dated the 30th November 1808, which he had claimed and received under the act of 4th April 1799.

The only points in the cause, were, whether the judgment against Craig operated as a lien on the land held by him under the Connecticut title; and whether the certificate of the secretary of the land office was competent evidence; and in order to bring these points before the Supreme Court, it was agreed that a verdict should be entered for the plaintiff, and that a motion for a new trial should be overruled, to ground an appeal by the defendant.

Evans for the appellant, contended upon the first point, that at the time of Hollinback's judgment Craig had no title to the land which was recognised by the law of Pennsylvania. He had not even an equitable right to it, because it had been solemnly settled by the decree at Trenton, and had been repeatedly asserted by Pennsylvania in her legislative acts that Connecticut was wholly without pretence of title to this district of country, and that the settlers under her were of course but mere trespassers. All that the act of 4th April 1799, 4 St. Laws 400, had done, was to give to the Connecticut settler an option to obtain a title by performing certain conditions. But he remained in his former situation until the election was made. There was no compulsion upon him ever to accept the terms; and it did not appear at the date of the judgment that he ever would accept them. In fact Craig never did. The question then is not whether a judgment will bind an equitable interest in lands, but whether it is a lien upon a mere claim or pretence, which the possessor makes against the law of the land, and which after the judgment he transfers to a third person. There can be no doubt that it is not.

The copy of the deed could not have been evidence, the original being in existence, unless made so by statute. The act, under which the original of the deed was deposited in the land office, does not authorize the secretary to give a copy of it; it contains no other provision, but that Connecticut settlers applying for the benefit of the act of 1799, shall surrender to the commissioners all deeds and documents of title under the Susquehanna Company, to be transmitted to the secretary. But there it stops. 5 St. Laws 206. There should have been a subpœ na to the secretary, with a clause of duces tecum. The act of 9th of April 1781, 1 St. Laws 891, does not apply to the case. That act makes copies of deeds, entries and papers of the land office, duly attested by the respective officers, under their hand and seal of office, as good evidence as the original could be. But the deed of a Connecticut settler is not a deed of the land office; nor was it intended by the legislature that any paper should be deemed to have that character except where it emanated from the land office, and where the same authority vouched both original and copy.

Dyer and Hall, for the appellee, argued, that whatever might have been the nature of Craig's claim before the act of April 1799, yet from the date of that law he had an equitable right to the land, something in the nature of a preemption, a conditional equity, which it was in his power, and in the power of his assignee to make absolute, and which accordingly was made so by the defendant. It was not in the power of the latter, to defeat Hollinback's judgment, of which he had both actual and constructive notice before he obtained his patent, by saying that Craig had no estate or interest in the land, when his defence rested upon the confirmation of that estate by the commonwealth. The confirmation being made after the judgment and sale, is of no avail to defeat the judgment creditor and the purchaser under him. If tenant in tail mortgages for years, and then suffers a common recovery, this lets in the mortgage; Beck v. Welsh, ^[a]; and upon the very principle which lets us in to the benefit of the confirmation by the state; namely, that he who recovers, cannot say that he against whom he recovered had but an estate tail. Certainly, Craig had at least a preemption right. Now that kind of right was held in Duncan v. Walker ^[b] to be an interest in the land, and to descend to the heir; and if it is an interest in land, it is bound by a judgment, which in this state fastens upon every interest in lands. After the compensating act of 1799, Connecticut titles to land within the seventeen towns, were uniformly considered as real estate, and went in the usual course of descent.

Upon the question of evidence, the appellee's counsel were stopt by the Court.

TILGHMAN C. J.

There is one point in this cause on which I shall give no opinion, because I gave an opinion on the trial in the Circuit Court; that is to say, whether the copy of a deed from William Craig to the defendant, certified under the hand and official seal of the secretary of the land office, the original being deposited in the said office according to the provision of an act of assembly, was legal evidence? My opinion was, that it was evidence.

But on the principal point of the cause, which is of considerable importance to the people of Luzerne county, I gave no opinion on the trial; it being agreed by the parties that the matter should be brought before this Court. I will briefly state the facts on which the point turns. William Craig had title derived from the state of Connecticut to the land in dispute. Being in possession under this title, Matthias Hollinback obtained a judgment against him on the 5th September 1799. A sci. fa. issued on this judgment to November term 1802, on which judgment was entered January 1803. A fi. fa. issued to August 1803, which was returned " levied" on the land in dispute. The land was afterwards sold by a regular course of proceeding to the plaintiff, who received a deed from the sheriff of Luzerne county, dated 26th January 1807. The land lies within that part of the county, known by the name of the Seventeen Towns. The defendant on the 10th January 1801 purchased the same land of Craig, and obtained a deed from him. The defendant afterwards laid his title before the commissioners appointed under the act of 4th April 1799, intitled " An act for offering compensation to the Pennsylvania claimants of certain lands within the seventeen townships of Luzerne, " & c. & c. and obtained a patent from the commonwealth, dated 30th November 1808.

The question is whether the judgment of Hollinback was a lien on this land? The defendant contends that it was not, because at the time of the judgment, Craig had no title which was of any validity under the law of Pennsylvania, and that the title obtained by his patent, is to be considered as an original title, emanating from the commonwealth on the day of its date.

It is well known that the state of Connecticut once made an unfounded pretension to part of the land included in the charter of Pennsylvania, and that the title has been repeatedly and solemnly decided in favour of Pennsylvania, both in the courts of the United States, and of this state. It is also well known, that the title under Connecticut has been...