Collins v. Phillips
| Decision Date | 13 May 1912 |
| Docket Number | 147 |
| Citation | 84 A. 854,236 Pa. 386 |
| Parties | Collins, Appellant, v. Phillips |
| Court | Pennsylvania Supreme Court |
Argued October 9, 1911
Appeal No. 147, Oct. T., 1911, by plaintiffs, from judgment of C.P Greene Co., March T., 1910, No. 125, on verdict for defendants in case of Carrie H. Collins et al. v. William S Phillips et al. Affirmed.
Ejectment for land in Cumberland township. Before INGRAHAM, P.J.
The facts are stated in the opinion of the Supreme Court.
Verdict and judgment for defendants. Plaintiffs appealed.
Errors assigned were (1-36) various rulings on evidence and instructions, including binding instructions for defendants.
Assignments of error overruled and judgment affirmed.
James J. Purman, with him James W. Collins, for appellants. -- The judgment was void. In the case at bar no warning was given the legal representatives of Robert Henderson, deceased, and no warning was given to his heirs at law. His property was seized by his alleged creditor, sold and bought in by him. He and those claiming under him must abide the consequences of his unlawful act: Steele v. Lineberger, 59 Pa. 308; Hill v. Truby, 117 Pa. 320; Skeels v. Ferris, 1 Lack. Jur. 35; Suter v. Findley, 5 Pa. Superior Ct. 163; Sample v. Barr, 25 Pa. 457; Wood v. Colwell, 34 Pa. 92; Wallace v. Holmes, 40 Pa. 427; Diese v. Fackler, 58 Pa. 109; Handley v. Walsh, 49 Pitts. Leg. J. 285; Duquesne Nat. Bank v. Mills, 32 Pitts. Leg. J. 213; Smith v. Siegel, 1 Woodward's Dec. 203; Keenan v. Gibson, 9 Pa. 249; Riland v. Eckert, 23 Pa. 215; Taylor v. Gaughan, 4 Lack. Jur. 66; Hoke v. Wentz, 13 York Leg. Rec. 101.
Execution could not issue. -- Beck v. Church, 113 Pa. 200; Smith v. Gosline, 2 Pa. C.C.R. 15.
Before a judgment can be taken by default the record must clearly and affirmatively show legal service of process: W.-B. Ger. Schuetzen Verein & Ben. Assn. v. Schubach, 6 Kulp 136; Bryn Mawr Trust Co. v. Wilkins, 10 Montg. County 101; Huckenstein v. Love, 98 Pa. 518; Bryn Mawr Trust Co. v. Wilkins, 5 Del. County 494; Wright v. Cheyney, 1 Chest. County 237.
No one is precluded by a judgment who had not an opportunity to appear and take defense: Morrison v. Mullin, 34 Pa. 120; Rhoads v. Armstrong County, 41 Pa. 92; Mitchell v. Stewart, 13 S. & R. 295.
If inquisition is not waived or held, sale on fi. fa. is void: Baird v. Lent, 8 Watts 422; Wolf v. Payne, 35 Pa. 97; St. Bartholomew's Church v. Wood, 61 Pa. 96; Hope v. Everhart, 70 Pa. 231.
John C. Bane, with him William J. Kyle, of Kyle & Reinhart, for appellees. -- The judgment was not void: Hays v. Shannon, 5 Watts 548; Duff v. Wynkoop, 74 Pa. 300; Shannon v. Newton, 132 Pa. 375; Lengert v. Chaninel, 208 Pa. 229; Colley v. Latimer, 5 S. & R. 211; Martin v. Rex, 6 S. & R. 296; Allison v. Rankin, 7 S. & R. 269; Warder v. Tainter, 4 Watts 270; Sloan v. McKinstry, 18 Pa. 120; Billings v. Russell, 23 Pa. 189; Ziegler v. Schall, 209 Pa. 526.
The plaintiffs took the land in controversy as heirs-at-law and not as terre tenants. They were mere volunteers and they took only what was left, if anything, after their ancestor's debts had been paid. And a judgment recovered against their ancestors in his lifetime remained a lien against them, their heirs and devisees, without revival: Horner v. Hasbruck, 41 Pa. 169; Brown's App., 91 Pa. 485; McCahan v. Elliott, 103 Pa. 634; Shannon v. Newton, 132 Pa. 375; Colenburg v. Ventler, 173 Pa. 113; Shearer v. Brinley, 76 Pa. 300; Baxter v. Allen, 77 Pa. 468; Fidelity Ins. Trust & Safe Dep. Co. v. Sampson, 209 Pa. 214.
Before FELL, C.J., BROWN, MESTREZAT, PORTER, ELKIN, STEWART and MOSCHZISKER, JJ.
The plaintiffs are the heirs-at-law of Robert Henderson, who at the time of his death in 1878, was a resident of the county of Allegheny. He died intestate, seised of the tract of land in controversy here. One year prior to his death a judgment by confession upon warrant of attorney waiving condemnation, inquisition and exemption, was entered of record in Allegheny county. About one year subsequent to his death an exemplification of this judgment was entered of record in Greene county, where the land involved in this action is located. In 1884, more than five years after the death of Robert Henderson, against whom the original judgment had been entered, a writ of scire facias was issued upon it against Robert Henderson, Caroline Henderson, Robert Watson and Mary Watson, his wife, formerly Mary Henderson, described as "heirs of Robert Henderson, deceased." To this writ the sheriff made return nihil. In 1885, an alias writ of scire facias issued against the same defendants, described in the same way, and to this writ there was another return of nihil. Two months later the court, on motion in writing, entered judgment on said two returns of nihil for $14,500. In 1890, before the expiration of the lien of the judgment revived in 1885, a writ of scire facias was again issued to revive the judgment and continue the lien. To this writ there was also return of nihil. On the same day a writ of fieri facias was issued on the judgment entered by the court in 1885, by virtue of which the land in dispute here was taken in execution and sold at public outcry to the plaintiff in the judgment, who became the purchaser. The sale was completed by the acknowledgment and delivery of a sheriff's deed in the manner provided by law. The deed was duly recorded so that all parties interested in the land had record notice of the title in Bell, the purchaser, since 1890. In 1900 Bell, for a consideration of $13,500, sold and conveyed the property to the present defendants, who have held title and possession of the same from that time to the present. This action of ejectment was brought in 1910 by the heirs-at-law of Robert Henderson, who died in 1878. In other words, the heirs now claiming made no effort to protect their interest in the land, or to question the proceedings under which it was sold, or to assert title to it, for a period of thirty-two years after the death of their ancestor, under whom they claim title. The defendants are bona fide purchasers for a large consideration, and if this judgment be reversed, their property will be swept away from them without recourse so far as the record discloses. It is contended for appellants that the sale by the sheriff to Bell in 1890 conveyed no title, it being absolutely void, and if he took no title under that sale, he had nothing to convey. This position can only be sustained, if at all, upon the theory that the sale was absolutely void. This is the controlling question raised by the assignments of error and the principal one to be considered here. While there was an offer to prove that letters of administration upon the estate of Robert Henderson had been granted in Allegheny county in 1878, the exemplification of the judgment entered in Greene county contained no suggestion of his death, nor was there any substitution of his personal representatives in any of the subsequent proceedings to revive the judgment so entered. At no time was there a garnishment of personal representatives in Greene county, and if this fact renders the judgment subsequently entered upon the writs of scire facias, and the sale made pursuant thereto, absolutely void, there would be convincing force in the argument of the learned counsel for appellants. In this connection it should not be overlooked that Robert Henderson was not a resident of Greene county at the time of his death, nor perhaps at any other time, and had no personal representatives in that county. Prior to his death he had taken the benefit of the bankruptcy law and made a settlement with his creditors, so that whatever estate he had accumulated after the proceedings in bankruptcy, was administered in Allegheny county. Whether there were any general creditors claiming against his estate is not disclosed, but it does appear that the only creditor who asserted any rights in Greene county was the plaintiff in the judgment upon which the land in dispute was sold. Henderson had no other property in Greene county, and the judgment entered upon the exemplification there was to all intents and purposes a judgment in rem, against the land in controversy here. When that judgment was revived in 1885, his estate having been administered, and all other liens, if any there were, having expired, the only persons in interest to be served with notice, or who could question the validity of the proceedings, were the heirs named in the writs of scire facias. The land had descended to these heirs impressed with the lien of a judgment against their father, and they at any time after five years from his death, could have sold the property discharged of liens. This they did not do, but still held the title when the writs of scire facias issued. They took this title cum onere, and the proceedings against them were in effect de terris. The judgment bound the land, and the heirs-at-law, upon whom the title devolved, were the only parties in interest at the time of the revival to be affected with notice. Under these circumstances there was no purpose to serve by raising up personal representatives of Robert Henderson, deceased, with no duty to perform, and no creditors to protect, simply to be affected with notice in order to give validity to the judgment of revival. The law looks to the substance and not to the form, and the substance of the thing to be done in this particular case was to give notice to the real and only parties in interest at the time the judgment was revived. That the proceedings were irregular, must be conceded; but that the judgment was absolutely void, we cannot agree. It is strongly urged that this view is in conflict with Cadmus v. Jackson, 52 Pa. 295, upon which appellants rely. ...
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