Chahoon v. Hollenback

• Decision Date: 05 July 1826
• Citation: 16 Am.Dec. 587,16 Serg. & Rawle 425
• Parties: CHAHOON and others v. HOLLENBACK.
• Court: Pennsylvania Supreme Court

16 Serg. & Rawle 425

16 Am.Dec. 587

CHAHOON and others v. HOLLENBACK.

Supreme Court of Pennsylvania.

July 5, 1826

IN ERROR.

Judgments against vendor and vendee, respectively, by their different creditors, bind the right of each in the land whether legal or equitable. ^[a]

In a scire facias to revive a judgment, the terre-tenants ought to be named; if not, the sheriff should return specially that the parties notified were the terre-tenants in fact, and whether of the lands bound by the judgment.

If all the terre-tenants be not named in the writ, it may be pleaded in abatement.^[b]

Occupiers are not terre-tenants, but those who hold the fee.

A motion by an attorney to set aside a judgment by default against a party is not an appearance for him.

Those only who claim by conveyance subsequent to a judgment can come in under a scire facias as terre-tenants.^[c]

When the plaintiff relies on an equitable title, tender of money due must precede the action.

The trustee is the person to whom a tender of money due the cestui que trust should be made.

After an express agreement to settle a doubtful title, founded on parol contract, the latter cannot be inquired into.

THIS was a writ of error to the Court of Common Pleas of Luzerne county.

The suit was an ejectment brought by John Hollenback, the defendant in error and plaintiff below, against George Chahoon, Ziba Davenport, Sarah McCoy and James McCoy, the plaintiffs in error and defendants below, to recover about half an acre of land in said county, in which a verdict and judgment were rendered in the court below for the plaintiff.

The plaintiff, Hollenback, claimed the title of one Thomas Duane a sheriff's deed, executed in pursuance of the following proceedings. A suit was instituted in the court of common pleas of Luzerne county, to April Term 1804, in which William Blackburn was plaintiff, against Thomas Duane, defendant, and being removed to the circuit court, judgment was entered therein in favor of the plaintiff, on the 15th of October 1806, with stay of execution till the 1st of March 1807. A scire facias issued to December Term 1807, and a ca. sa. to March Term 1809, both which writs remained in the office. To November Term 1811, a scire facias to revive this judgment issued at the suit of Mary Blackburn, administratrix of W. Blackburn, deceased against Thomas Duane and terre-tenants (not naming them), to which the sheriff returned, served the same on Thomas Duane in Oswego in New York, George Chahoon, Eleazer Lake, Ager Hoyt and Christian G. Voering, in October 1811. On the 11th of November 1811, on motion of Mr. Dyer, judgment nisi; on the 9th of January 1812, on motion of Mr. J. Evans, judgment nisi stricken off, and the cause continued. On the 11th of April 1812, Ross appeared for Matthias Hollenback, landlord of the terre-tenants, and subsequently he pleaded nil debent, and that the property in their possession was sold under a former judgment, and a sheriff's deed made to the same M. Hollenback. Issues being joined, a verdict was found for Matthias Hollenback and his terre-tenants: this verdict not to prejudice the rights of the plaintiff against any other of the terre-tenants than those claiming under M. Hollenback; whereupon judgment, and judgment by default, against Thomas Duane.

To November Term 1815, another scire facias issued at the suit of the same Mary Blackburn, as administratrix, against Thomas Duane and terre-tenants (not naming them), which was returned nihil: and to April Term 1816, an alias scire facias was issued, in which there were the same parties, which was also returned nihil. On the 9th of April 1816, judgment was rendered, on motion. A fieri facias was issued to August 1816, and land adjoining that in dispute sold, and a fieri facias for residue of the debt issued on the 5th of September 1821, returnable to November 1821, which was levied on the land in controversy, and it was condemned and valued at $2400, and sold on a venditioni exponas to August 1822, to the plaintiff, John Hollenback, for $50; and on the 8th of August 1822, the sheriff made a deed to him accordingly.

The plaintiff then gave parol evidence to prove that Thomas Duane made the first improvements on the land, built a house and barn, about 1791, and was living on the lot before October 1806, when judgment was first obtained, and Chahoon lived there in 1806, 1807 and 1808, as his tenant, and it was admitted that Chahoon was not a tenant of M. Hollenback.

The defendants proved that a certificate for the land in question was, with another lot, granted, on the 10th of November 1803, to Obadiah Gore, that a patent issued to him for them in May 1805, and that on the 1st of January 1811, O. Gore conveyed to G. Chahoon the land in dispute, with covenant of general warranty. Chahoon had previously leased from Gore.

The plaintiff, in reply, called M. Hollenback and other witnesses, who testified, that in 1806, in conversation with Gore about the property, he stated, that it was Thomas Duane's property, and that he would convey it to whomsoever Duane should direct; but there was something of the price to be paid to the children of John Shepherd and Avery Gore, and he would convey, if the purchaser would become accountable to them: that the lot belonged to Duane, but there was a claim on it. A deed was read from Gore, describing a property as bounded by the lot in dispute, which was stated as belonging to Thomas Duane. It was further testified, that Gore said the patent was made to him to save some expense: that he did not dispute Duane's title, but Duane was to pay one or two hundred dollars, the purchase-money or part of it.

The defendants requested the court to charge upon the following points:

1. That the judgment was not revived by the scire facias, to November Term 1811, and proceedings thereon, so as to continue its lien upon the land in dispute.

The court charged: George Chahoon was a party to the scire facias to November Term 1811; he appeared by his attorney, Mr. Evans, and the judgment rendered revived and continued the lien of the judgment against Thomas Duane, against the land in dispute. The great object of the act of 4th of April 1798, in requiring a scire facias, was to bring home notice to the terre-tenant of the intention of the judgment-creditor to claim the lien of his judgment. And if the executions previously issued cannot be regarded as sufficient for that purpose, the service of the scire facias on George Chahoon, and the proceedings thereon are.

2. That if the judgment was legally revived as to the land in dispute, by the judgment of the 29th of October 1813, yet the lien expired at the expiration of five years from that, in consequence of the subsequent scire facias not having been served on Chahoon, if the jury believe he was in actual possession during the time these writs were in the hands of the sheriff.

The court charged: After the judgment of the 29th of October 1813, the writs of scire facias, and the executions and the proceedings thereon, within the five years, continued the lien of the judgment, whether Chahoon was in the actual possession of the premises whilst the writs of scire facias were in the hands of the sheriff or not. The evidence is, that he was in possession from May 1806 until the service of the ejectment in this cause.

3. That the issuing of the fieri facias to November Term 1821, without a revival of the judgment, was irregular, and if the jury believe that the plaintiff was the owner of the judgment or directed those proceedings, he is affected by the irregularity, and cannot recover.

The court charged: The fieri facias to November 1821 is sustained by the previous proceedings in the case, and was therefore regular.

4. That the purchase-money due should have been tendered before the commencement of the suit.

The court charged: There is no pretence that the defendant, or any person under whom he claims, has a lien upon the premises for the purchase-money. There is some evidence that Obadiah Gore, when applied to in 1806, to convey the legal estate to Judge Hollenback, who had contracted with Thomas Duane for the premises, said that something was to be paid to the children of John Shepherd: and one witness, S. Tuttle, deposes, that upon his application to O. Gore, at the instance of Judge Hollenback, to convey the legal estate, O. Gore told the witness that something was to be paid to John Shepherd's children; to the best recollection of the witness, one hundred and fifty or two hundred dollars. Before the necessity of a tender can be urged in this case, it must be satisfactorily shown that purchase-money was due, and the amount thereof, that there was some person to whom the tender could have been made, and that the plaintiff is bound, in equity and good conscience, to pay it before he is entitled to recover.

5th, 6th and 7th. That if the jury believe that no purchase-money was paid by Duane to Gore, the verbal contract is not valid. That if the possession was not delivered by Gore to Duane, in pursuance of the verbal contract, the contract is not valid. That if Duane had but an equitable interest in the land, at the rendition of the judgment, and there was a conveyance of the legal title to a third person, prior to the levy, the judgment is not a lien upon it.

The court charged: That if the jury believe from the evidence that Duane went into possession of the land in 1790 or '91, erected valuable buildings, and made other improvements, and remained in actual possession, by himself and his tenants, until 1808, a period of seventeen or eighteen years; that whilst he was in possession, O. Gore, to whom the certificate and patent issued, declared that Duane was the owner of the premises, that he...