Dengler v. Kiehner

• Decision Date: 20 April 1849
• Citation: 13 Pa. 38
• Parties: Dengler <I>versus</I> Kiehner.
• Court: Pennsylvania Supreme Court

13 Pa. 38

Dengler versus Kiehner.

Supreme Court of Pennsylvania.

April 20, 1849.

ERROR to the Court of Common Pleas, Schuylkill county.

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The case was argued by Hughes, for plaintiffs in error, the heirs of Dengler. In the case reported in 1 Watts 424, the court deliver no opinion, and from the whole report of the case, it appears that the point was not noticed, that at the time of the sheriff's sale to Kiehner and Filbert, there had been no judgment of revival, and that, as against George Dengler, there was no lien whatever on the land sold. How could the judgment of revival be retrospective in its operation? How could the sheriff's sale divest Dengler's title, when no process in the sheriff's hands bound such title? But the whole point stated in the syllabus in Kiehner v. Dengler, 1 Watts 424, has been overruled by two recent decisions, viz: Mitchell v. Hamilton, 8 Barr 486, and Helfrich v. Byler, decided at December term 1849, not yet reported.

Loeser, for defendant in error, Kiehner. That the scire facias was properly served on Dengler, who claimed to have the title in fee of the debtor, in the judgment. Dohner's Appeal, 1 Barr 101; Geiger v. Hill, 1 Barr 509-10; Kiehner v. Dengler, 1 Watts 424. That Mitchell v. Hamilton did not apply to this case; that there, defendant claimed under an independent title; and that in Helfrich v. Byler, the scire facias was quare executio non, and not to revive, as in this case.

The opinion of the Court was delivered April 20, by GIBSON, C. J.

This case is simple in its elements. A judgment creditor has a right to call on a terre-tenant of land, purchased by him from the debtor, while it was bound by the judgment, to show why the debt ought not to be levied of it; and the terre-tenant having slipped his time, being warned, is concluded as to everything he might have made matter of defence to the scire facias. But the creditor must, at least, have made a primâ facie case: he must show that he, whom he calls a terre-tenant, actually stood in the relation of one; else there will not have been such privity between them, as would estop the latter by the judgment. But who is a terre-tenant? Not every one who happens to be in possession of the land. There can be no terre-tenant, who is not a purchaser of the estate, mediately or immediately, from the debtor, while it was bound by the judgment; and when he has taken a title, thus bound, he must show how the lien of it has been discharged,...