Davey v. Ruffell

• Citation: 162 Pa. 443,29 A. 894
• Decision Date: 11 July 1894
• Docket Number: 228
• Parties: Charles Davey v. C. Wesley Ruffell, Appellant
• Court: Pennsylvania Supreme Court

29 A. 894

162 Pa. 443

Charles Davey v. C. Wesley Ruffell, Appellant

No. 228

Supreme Court of Pennsylvania

July 11, 1894

Argued March 27, 1894

Appeal, No. 228, Jan. T., 1894, by defendant, C. Wesley Ruffell, from judgment of C.P. No. 4, Phila. Co., in favor of plaintiff, Charles Davey, on case stated. Affirmed.

Case stated.

The case stated was as follows:

"On Nov. 27, 1893, Charles Davey agreed to sell to C. Wesley Ruffell a vacant lot of ground in the city of Philadelphia.

"Subsequently in fulfillment of this contract, Charles Davey tendered to C Wesley Ruffell a deed in the usual form, duly executed and acknowledged before Christopher Fallon, duly commissioned a notary public for the commonwealth of Pennsylvania, to reside in Wayne, Delaware county, Pennsylvania, the said notary being a resident of said Delaware county. Said acknowledgment was taken in the county of Philadelphia, in which latter county the said notary did not reside. A copy of said deed is hereto annexed.

"Charles Davey had acquired title to said vacant lot of ground by deed from the Elmwood Mutual Land & Improvement Co., dated June 16, 1888, and acknowledged on the same day. This deed has never been recorded.

"Since June, 1888, the taxes against said lot have been assessed in the name of Charles Davey and paid by him.

"The lot being a vacant city lot has not been occupied by any one and nothing other than the payment of taxes has been done by Charles Davey to publicly indicate possession by him.

"There are no judgments against the Elmwood Mutual Land & Improvement Co. No conveyances or mortgages by it of the above lot have been entered of record. Charles Davey is unable to give to C. Wesley Ruffell any information as to whether, either on June 16, 1888, or at the present time, there are creditors of said company, not lien creditors, and has declined to indemnify C. Wesley Ruffell against attacks by such creditors.

"C. Wesley Ruffell declined to accept the tender of the deed above mentioned and to pay the purchase money. He alleges as the ground of his refusal that the title tendered is not marketable because:

"1. The deed from the Elmwood Mutual Land & Improvement Co. to Charles Davey, dated June 16, 1888, not having been recorded within ninety days from the passage of the act of May 19, 1893, is fraudulent as to any possible creditor of said company.

"2. The deed tendered to C. Wesley Ruffell, and which was executed Dec. 8, 1893, and acknowledged on the same day before Christopher Fallon, Jr., a notary public for the commonwealth of Pennsylvania, residing in Wayne, Delaware county, Pennsylvania, was not acknowledged before an officer authorized by said act of May 19, 1893, to take such acknowledgment, and the said deed, even if admitted to record, would be fraudulent or invalid as against any subsequent conveyance or mortgage made by grantor, or as against any of his creditors.

"If the court be of the opinion that neither of the objections made by C. Wesley Ruffell to the title of Charles Davey to the said property, and to the acknowledgment of the deed tendered, is sufficient to prevent the said title from being a good and marketable title, and that upon the facts above stated the said Charles Davey is entitled to recover the purchase money of said property on the said contract of sale, then judgment to be entered for the plaintiff for the amount of said purchase money.

"If the court be of opinion that both of said objections are valid, then judgment to be entered for defendant.

"If the court be of opinion that the acknowledgment of the deed, executed Dec. 8, 1893, and tendered to C. Wesley Ruffell is valid and that the title to said premises is not invalid or unmarketable on that account, but that the objection to the deed from the Elmwood Mutual Land & Improvement Co., dated June 16, 1888, is sufficient to render the title unmarketable because of the rights of possible creditors of said company not of record, then judgment to be entered in favor of plaintiff, conditional upon the plaintiff furnishing to defendant within ten days from said judgment, indemnity satisfactory to defendant against any claims of such creditors. The costs to follow the judgment and either party reserving the right to sue out a writ of error therein."

The court, in an opinion by ARNOLD, J., 3 Dist. R. 75, entered judgment for plaintiff on the case stated. Defendant appealed.

Error assigned was above order.

It results from this examination of the act of 1893 that it is effective to change the law as it stood before, in only one particular, viz, it reduces the time within which a purchaser must record his deed from six months to ninety days. In all other respects the law remains as it was before. The learned judge of the court below reached a correct conclusion upon the facts submitted to him. The plaintiff was entitled to judgment and the judgment rendered in his favor is now affirmed.

J. Willis Martin, John Houston Merrill with him, for appellant. -- Statutes are to be so construed as best to effectuate the intention of the legislature, which should be followed with judgment and discretion, although such construction may seem contrary to the letter of the statute: Howard Association's Ap., 70 Pa. 344; Weister v. Hade, 52 Pa. 474; Com. v. McCloskey, 2 Rawle, 374; Gyger's Est., 65 Pa. 311; Bradbury v. Wagenhorst, 54 Pa. 180; Rich v. Keyser, 54 Pa. 86.

If two statutes on the same subject are mutually repugnant and irreconcilable, the later act, without any repealing clause, in the absence of expressed intention, operates as a repeal of the earlier: Johnston's Est., 33 Pa. 511; Fries v. Null, 154 Pa. 573.

The act of 1893 repeals the act of 1775 as to notaries.

Notice is the whole object of the recording acts. They furnish creditors with notice of the title to real property and the incumbrances thereon. Land in this country, no less than other property, has always been held liable to execution for the payment of debts. Even prior to the passage of the act of 1893, fraudulent conveyances intended to place property beyond the reach of creditors were held void. This act made a further extension of this policy, and the proviso is reasonable which requires that prompt notice be given, to those who deal with the owner, of transfer of title to the land: List v. Rodney, 83 Pa. 483.

The claim of creditors, since the passage of this act, is similar to that which exists against decedent's estates: Bruch v. Lantz, 2 Rawle, 392; Graff v. Smith, 1 Dall. 481.

The penalty for failure to record is that the deed shall be considered fraudulent and void as to subsequent creditors, etc.

John G. Johnson, for appellee. -- The amending act of 1893 does not repeal the system of legislation enacted between 1775 and 1893, which provided a method of acknowledging within this state deeds of Pennsylvania realty: Acts of March 18, 1814, P.L. 144; Aug. 10, 1864, P.L. 962; May 19, 1893, P.L. 108; May 25, 1893, P.L. 136; June 6, 1893, P.L. 323; Share v. Anderson, 7 S. & R. 43.

If the act of 1893 means what appellant says, it is unconstitutional by reason of its defective title: Luzerne Water Co. v. Toby Creek Water Co., 148 Pa. 571; Brown's Est., 152 Pa. 401.

If the act of 1893 was not an amendment, but was an independent act, it did not disclose, with any clearness, an intention to repeal the system of acknowledgment provided between the years 1775 and 1893: Smith v. Wehrly, 157 Pa. 411; Pennock v. Hart, 8 S. & R. 378; Jaques v. Weeks, 7 Watts, 269; Hendrix's Account, 146 Pa. 289.

The act of 1893 is an amendment of the act of 1775, and, for any purpose of repeal by implication, must be considered as an act of 1775.

A failure to record a deed within ninety days of its execution does not entitle the simple contract creditors of the grantor to treat the same as fraudulent and void: 20 A. & E. Ency. L. 577; Webb on Record of Title, § 10; Martin v. Dryden, 1 Gilman, 213; Mellon's Ap., 32 Pa. 129.

Before GREEN, WILLIAMS, McCOLLUM, MITCHELL and FELL, JJ.

OPINION

MR. JUSTICE WILLIAMS:

The important facts in this case are few. They have been relieved of all uncertainty by the agreement of the parties embodied in the case stated. The legal questions raised by them relate to the construction and effect of the act of assembly of May 19, 1893, P.L. 108.

Prior to the passage of that act we had a system for the acknowledgment of deeds and mortgages, and for recording the same, which was the outgrowth of more than one hundred years of experience and legislation. It was well understood by the public, and titles were made under its provisions with ease and with reasonable certainty. This act has introduced confusion and uncertainty to such an extent that cautious conveyancers are advising purchasers that no title can be said to be secure until fortified by a decision of the courts of law. This case is one of a multitude made up to determine whether the buyer of real estate can safely pay his purchase money and take his vendor's title, since the passage of the act of 1893.

It is important therefore to examine this piece of legislation in order to determine, if possible, the legislative intent, and the manner and extent to which such intent has been effectuated by the several provisions of the act. We may gather the intent of the legislature from the title to the act and from the preamble. Since the adoption of the constitutional provision that requires that every bill shall relate to but one subject and that subject shall be clearly expressed in its title, the title alone should disclose the legislative purpose. The title to this act is as follows "An act to amend an act entitled a supplement to the act entitled an act for acknowledging...