Gloninger et al. v. Hazard et al.

• Decision Date: 21 April 1862
• Citation: 42 Pa. 389
• Court: Pennsylvania Supreme Court
• Parties: Gloninger <I>et al. versus</I> Erskine Hazard and Thomas Earp.

42 Pa. 389

Gloninger et al. versus Erskine Hazard and Thomas Earp.

Supreme Court of Pennsylvania.

April 21, 1862.

APPEAL from the Common Pleas of Philadelphia. In Equity.

W. A. Porter and B. Johnson, for appellants, contended that the title of John W. Gloninger to the land in question was clear and complete, and that the allegation of the appellees of a title outstanding in an assignee of John K. Hassinger was insufficient to justify their withholding an account of moneys to which they can make no claim of ownership.

The title of John K. Hassinger was acquired May 30th 1837. Judgment was duly entered against him on May 4th 1839, while he still held the property, and within five years thereafter a scire facias to revive the same was duly issued, and judgment thereon entered November 11th 1844, and also in a modified form on November 22d 1848. Each of these judgments was duly entered upon the judgment docket. The sheriff's sale, at which John W. Gloninger became the purchaser, took place about six weeks after the entry of the last-mentioned judgment. The record shows the judgment of May 4th 1839 was regularly and promptly revived and kept alive until the day of sale, and even if this were not the case, the sale was perfectly good and effectual as against the defendants, and a mere assignee for the benefit of creditors, who stands in no better position than the debtor himself, holding no interest in the land except in a representative capacity, and not occupying the position either of purchaser, mortgagee, or lien-creditor, nor to be regarded as owner or terre-tenant. There is no allegation that the assignee ever took possession or entered on the management of the estate, but it may be inferred from the answer that the assignment has remained unacted upon from the time of its execution. One tenant in common cannot impugn the ownership of his co-tenant upon any mere inference, or without some positive decided act, of which there should be distinct allegation and clear proof. The answer on this point is altogether negative. His title, or his reversionary interest under the assignment, is not questioned.

The bill shows "that the defendants, or one or more of them, being tenants in common as aforesaid, entered and took possession, and ever since have retained the possession and control of the property." There is no denial by the respondents of this fact. Even if the assignee for creditors could be held to be a purchaser for value, and had taken possession, he ought still to be affected with the consequences of full notice of any subsequent proceedings respecting the judgment, because it laid upon record in the track of his title, and he took the land charged with the encumbrance.

They called the attention of the court to the following propositions: —

I. The lien of the judgment entered on the 11th of November 1844, had not expired at the time of the sheriff's sale, so far as the defendant himself was concerned, and the land levied on.

II. The assignee for creditors of the defendant in the judgment stands in the same legal position as his assignor.

III. The lien of the judgment of 3d May 1839 was preserved as against all persons claiming under J. K. Hassinger, by the action of sci. fa. entered 3d May 1844, and by the entries upon the judgment docket of 11th November 1844 and 22d November 1848.

IV. If any irregularity occurred in the entry by the court of the judgment under which the sale was made, the execution was only voidable, and all informalities were cured by the acknowledgment of the sheriff's deed without objection.

V. The validity of the judgment and execution cannot be inquired into by the respondent in the present proceedings.

VI. After this lapse of time, the court will presume the trust arising under Mr. Hassinger's assignment for the benefit of creditors to be satisfied and extinguished.

1. A judgment became a lien upon the land of the debtor because of a right conferred by statute to take it in execution; which lien has ever since been held an incident of the judgment, extending to every estate or interest in realty vested in the debtor. As against the debtor himself and his representatives it does not expire in five years, nor does the mere running of time, however long, short of a period necessary to raise a presumption of payment, interpose any obstacle between the creditor and the estate of the debtor as a source whence satisfaction of the judgment may be drawn: Hinds v. Scott, 11 Penna. Rep. 19.

The court below state that the common law lien of a judgment, and the right of the plaintiff to take the lands of the defendant in execution, was perpetual against all the world, and refer to the case of Bellas v. McCarty, 10 Watts 31. In partial regulation of this lien, the Act of 1798, as was held in Fetterman v. Murphy, 4 Watts 427, affected the operation of the lien, but not of the judgment, and restricted merely the right to take the land from those who afterwards acquired an estate in it by lien upon it. The words of the act, "that no judgment shall continue a lien," &c., have no relation to the defendant in the judgment; it leaves the right of the plaintiffs as to him precisely as they would have stood before 1798; but it limits the right of a creditor (unless he revives the judgment according to the act and its supplement) to five years, as respects those who purchase or acquire subsequent liens on lands bound by the judgment. See Aurand's Appeal, 10 Casey 151; Konigmaker v. Brown, 2 Harris 269; Brobst v. Bright, 8 Watts 125; Wells v. Barrd, 3 Barr 351; Minor v. Warner, 2 Grant's Cases 450; McMillan v. Red, 4 W. & S. 237, as authorities which preserve the lien of a judgment for more than five years against the defendant himself, and all other persons, except subsequent purchasers and encumbrancers.

2. The voluntary assignee of the defendant in a judgment, for the benefit of creditors, is not a purchaser, owner, or terre-tenant, and his title is no better than that of the defendant: Vandyke v. Christ, 7 W. & S. 375; Twelves v. Williams, 3 Whart. 485; Dingler v. Kichner, 1 Harris 41; Cahoon v. Hollenback, 16 S. & R. 425; Catlin v. Robinson, 2 Watts 373; Clippenger v. Miller, 1 Penna. Rep. 71; Dohner's Estate, 1 Barr 104; Silverthorn v. Townsend, 1 Wright 263; Knowles v. Lord, 4 Wh. 500; In re Roberts, Rossiter's Appeal, 2 Barr 372; Foulke v. Harding, 1 Harris 242; Luckenbach v. Brickenstein, 5 W. & S. 145; Ludwig v. Highley, 5 Barr 137, 138; Okie v. Kelly, 2 Jones 326; Mellon's Appeal, 8 Casey 121.

3. The original judgment, entered 3d May 1839, was kept revived, and judgment of revival was duly entered and standing on the judgment docket at the time of the sheriff's sale.

The Act of 4th April 1798 does not provide, nor do the decisions require, that service of the scire facias to revive shall be different from the original summons, except in the case of terre-tenants. If there are any such, they, or the tenants in possession under them, are entitled to an opportunity to make defence, if they have any.

The judgment was entered the second time on the judgment docket, on 11th November 1844. Subsequently the defendants in the judgment, by application adversely to the plaintiffs, obtained a rule to open the said judgment. During the pendency of this litigation, the plaintiff doubtless considered his sci. fa. already issued to revive, &c., as still pending, and he could introduce no new or additional proceedings until final judgment thereon. The suit was ended by judgment de terris, entered by the court on 22d November 1848. Between this time and the sale on 5th January 1850, the plaintiff was not required to take any further steps, because the judgment had been revived within a short time and entered on the judgment docket, so as to be notice to all subsequent purchasers or encumbrancers. See Clippinger v. Miller, 1 Penna. Rep. 72; In re Dohner's Assignees, 1 Barr 104. Geiger v. Hill, 1 Barr 511, was not the case of an assignment for creditors.

4. The sheriff's sale on 5th January 1850 was under a fi. fa. and vend. ex. issued upon a final judgment, entered by a court of competent jurisdiction, and the sheriff's deed was acknowledged without objection. The executions were, at most, only voidable: Vastine v. Fury, 2 S. & R. 426.

It is irregular to issue a fi. fa. and vend. ex. on the same day and to the same term, and it will not be allowed if objected to before the sale, but will be cured by sale, acknowledgment, and delivery of the deed, and payment of the money. After acknowledgment of a sheriff's deed in open court, the title of the sheriff's vendee cannot be affected by mere irregularities, however gross: McFee v. Harris, 1 Casey 102; Wilson v. Howser, 2 Jones 109; Patterson v. Stewart, 10 Watts 472; Crowell v. Meconkey, 5 Barr 168. See Shields v. Miltenberger, 2 Harris 80.

5. The defence set up, respects matter in which the respondents have no interest. The alleged claim is only an imaginary or possible one in the assignee for creditors of J. K. Hassinger. The assignee is now deceased, and is no party to the suit. Neither the validity of the judgment entered by the court under which the sale was made, nor the regularity of the process, can with any propriety be attacked in the present proceedings: Hinds v. Scott, 1 Jones 19; Dougherty's Estate, 9 W. & S. 189.

6. In any event, the trust arising under the assignment made by Mr. Hassinger must, after this lapse of time, be presumed satisfied and extinguished. Nearly twenty-three years have elapsed since it was made. It is not alleged, in the answer, that an inventory was ever filed or security given. It is believed that the facts are otherwise. It is believed, further, that the assignment passed little or nothing; that the assignee never filed an account and never did an act under the trust, and that no claim was ever made upon by him by creditors. He has been dead for many years, and no successor was appointed. If there were...