Gibbs v. Tiffany
| Decision Date | 16 February 1897 |
| Docket Number | 37-1897 |
| Citation | 4 Pa.Super. 29 |
| Parties | Simon Gibbs, Almira F. Gibbs, Appellants, v. Nancy B. Tiffany, Wm. B. Tiffany and Julia A. Tiffany |
| Court | Pennsylvania Superior Court |
Argued January 19, 1897 [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER]
Appeal by plaintiffs, from judgment of C. P. Bradford Co.-1890, No. 241, on verdict for defendants.
Ejectment for lot in the borough of Athens. Before Dunham, P. J.
The facts are sufficiently disclosed from the charge of the court, which is in part as follows:
The plaintiffs in this case have brought an action of ejectment for a certain lot in the borough of Athens in this county, described in the writ of ejectment and designated as lot No. 11, and in support of their title they have shown, first, by the admissions of the plaintiffs, and the defendants, that John M. Pike was at one time the owner of that piece of land. They have produced a contract which has been given in evidence here, by which Mr. Pike agreed to sell to Mr. Gibbs lot No. 11, for the consideration of two hundred dollars. They have given evidence here showing that upon that contract there were indorsements made of payments, which the witness on the stand has testified to, and said that they were made about the date that the receipts bear, by which, if you believe the evidence, it is established that this land was paid for in full on the 19th day of January, 1883. They have also given in evidence a deed dated July 31, 1884, by which John M. Pike deeded lot No. 10 and lot No. 11 (), to Simon Gibbs and Almira F. Gibbs. This would make a perfect title in the plaintiffs in this case to lot No. 11, if there were no other question in the case, and establishes the plaintiffs' claim prima facie.
On the part of the defendants they have given in evidence a judgment against John M. Pike and C. W. Canfield, which was entered December 3, 1883, in favor of Grant and DeWaters of Elmira, N.Y. They have also given in evidence a scire facias upon that judgment, which is a proceeding to revive the judgment, upon which notice to Simon Gibbs and Almira F. Gibbs, as terre-tenants, was served upon them by the sheriff, and judgment was taken under the rules of court, for want of appearance, against the defendants in that judgment, John M. Pike and C. W. Canfield, and also judgment against the terre-tenants, Simon Gibbs and Almira F. Gibbs.
Some questions have been raised in this case as to the regularity of that judgment. That the judgment was not entered according to the act of assembly and the proper practice, there is no doubt, but we think that under the circumstances, there having been a sale of this property and the deed acknowledged without objections on the part of anyone, this revival of judgment against Pike and against Simon Gibbs and Almira F. Gibbs, as terre-tenants, revived the judgment so that it was a lien against the lands the same as the original judgment was. Whatever the original judgment was a lien against, the revival of the judgment was a lien against, and we think that the authorities that have been cited and commented upon in this case by the counsel upon both sides establish the proposition of law that the revival of a judgment against a terre-tenant who has been served with notice is binding upon the terre-tenant to the extent of establishing exactly the same judgment and the same lien that the original judgment held and bound. In other words, that when a person is summoned as a terre-tenant, it is his duty to come into court and show everything that has occurred since the rendition of the original judgment, either in the shape of the payment or release of that judgment or any other thing that would take his lands out from under the lien of the original judgment, and he is bound to show those things upon the scire facias to revive. But the entry of a judgment to revive against a terre-tenant does not revive the original judgment or make it a lien to any greater extent against the terre-tenant than the original judgment was, and it is only revived as against the interest of the defendants in the real estate which the first original judgment bound. So that when this judgment was revived against John M. Pike and C. W. Canfield, and Simon Gibbs and Almira F. Gibbs, as terre-tenants, it bound exactly the same thing and exactly the same interest of these terre-tenants which was bound by the original judgment when it was entered. If lot No. 11 had been bought by articles of agreement and paid for before the original judgment against Pike and Canfield was entered, then the original judgment was not a lien against lot No. 11, because the only interest that John M. Pike had in the real estate which he had contracted to sell to Simon Gibbs was the legal title which he held, and he held that in trust for his vendee, under the articles of agreement, to convey to that vendee whenever the vendee had complied with the terms of the contract, and if he had complied with the terms of the contract as to lot No. 11, then Pike had no interest in lot No. 11, and his judgment would not be a lien against it. So that if you find that Mr. Canfield testified truly when he said that the contract was paid in full January 19, 1883, then the judgment that was entered by Grant and DeWaters against Pike and Canfield, and Simon Gibbs and Almira F. Gibbs, as terre-tenants, would not be a lien upon, and they could not sell, lot No. 11 in that way.
But there is another thing that comes into this case, which has been testified to upon the part of the defendants by Mr. Maynard, and that is, at the time the sheriff's sale was made of the real estate of Mr. and Mrs. Gibbs an arrangement was made between Mr. Gibbs for himself, at least, with Mr. Tiffany, by which Mr. Tiffany was to buy that property and pay the debts not only of Mr. Gibbs but of Mr. Gibbs and wife, and to hold the property in trust for Mr. Gibbs until Mr. Tiffany had been repaid the amount that he had advanced or was compelled to pay, and they claim that that estops Mr. Gibbs from setting up the want of regularity and the want of lien as against Mr. Tiffany, the purchaser at sheriff's sale. On the other hand it is claimed by the plaintiffs in this case, that by this conveyance of land to Mr. and Mrs. Gibbs each one of them was not only seized of each and every part of the land, but that they were seized in such a way that upon the death of one the whole title went to the other. That they were seized of each and every part of it per my et per tout. That they were tenants in such a way that at the death of one the whole estate would survive to the other, and the purchaser of the right of one of these tenants would only get the right of that tenant during life, and that if he or she died before the other then the purchaser of that interest would get no interest whatever. But we say to you that if these plaintiffs were in possession and these defendants were attempting to obtain possession of the lands under that sheriff's sale, that they could not be allowed to obtain possession, because the judgment was not a lien against them. [But in this case they are seeking the offices of the court to compel these defendants to yield to them the possession of lands which, if the evidence in this case is believed, they induced the defendants to purchase, and we say to you that you could not give a judgment which would allow one of these plaintiffs, Mrs. Almira F. Gibbs, to come in and obtain possession without also allowing Simon Gibbs, the other plaintiff, to come in and have possession, the same as his cotenant; and if you believe the evidence of the defendants, that there was such an arrangement made at the time of this sale, you would be justified in saying that at the time this summons in this case was issued the plaintiffs were not entitled to recover, not having repaid to the defendants the amount of purchase money which they had induced the defendants to pay for them.] We say to you that if you find that there was no such arrangement made, and that this property was paid for before the entry of the original judgment, you should find for the plaintiffs the land in controversy. [If, on the other hand, you find that the property was paid for before the judgment was entered, but that at the time the sheriff's sale was made there was that arrangement between Mr. Gibbs, one of the plaintiffs, for himself and for his wife, and he secured the debts of himself and wife to be paid in that manner, then he would be estopped from setting up the want of lien of this judgment upon the land, and then you should find for the defendants.]
We have been requested by the counsel for the plaintiffs to charge you that under the evidence the verdict must be for the plaintiffs. This we refuse, and leave it to you, under the evidence.
We have also been requested by the counsel for the defendants to charge you that under the evidence in the case your verdict should be for the defendants. That we also decline, and leave it to you, under the general instructions that we have already given you.
Verdict and judgment for defendants. Plaintiffs appealed.
Errors assigned were in admitting in evidence transcript of judgment dated December 3, 1883, -- Grant et al. v. Pike et al. from the docket of justice of the peace, which was objected to on the ground that the judgment offered was long after the land was sold and paid for by the plaintiffs in this case; in admitting the following offer of evidence, the witness H. F Maynard, being on the stand: Mr. Evans: We offer to prove by the witness on the stand that he was present at an arrangement between W. B. Tiffany, the original defendant in ...
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