Handel & Hayden Building & Loan Ass'n v. Elleford

• Decision Date: 07 May 1917
• Docket Number: 197
• Parties: The Handel and Hayden Building and Loan Association, Appellant, v. Elleford et al
• Court: Pennsylvania Supreme Court

101 A. 951

258 Pa. 143

The Handel and Hayden Building and Loan Association, Appellant, v. Elleford et al

No. 197

Supreme Court of Pennsylvania

May 7, 1917

Argued January 15, 1917

Appeal, No. 197, Jan. T., 1916, by plaintiff, from judgment of C.P. No. 1, Philadelphia Co., Dec. T., 1914, No. 2158 striking off judgment in case of The Handel and Hayden Building and Loan Association v. William J. Elleford and Eleise H. Elleford, defendants, and Charles C. Wells terre-tenant. Affirmed.

Rule to strike off judgment. Before PATTERSON, J.

The facts appear by the opinion of the Supreme Court.

The court made absolute the rule to strike off the judgment. Plaintiff appealed.

Error assigned, among others, was in striking off the judgment.

The assignments of error are overruled, and the appeal is dismissed.

Joseph H. Sundheim, of Bernheimer & Sundheim, with him I. Lasker Greenberg, for appellant. -- Wells was properly joined as terre-tenant: West v. Nixon, 3 Grant (Pa.) 236; Mitchell v. Hamilton, 8 Pa. 486; Chahoon v. Hollenback, 16 S. & R. 425; McKee v. Gilchrist, 3 Watts 230; Statute of 13 Eliz. c. 5; Luther v. Luther, 242 Pa. 530; Weihl v. Distche, 34 Leg. Intell. 338; Dengler v. Kiehner, 13 Pa. 38; Miner v. Warner, 2 Grant (Pa.) 448; Saunders v. Wagonseller, 19 Pa. 248; Haak's App., 100 Pa. 59; Drum v. Kelly, 34 Pa. 415; Colwell v. Easley, 83 Pa. 31; Hulett v. Mutual Life Insurance Co., 114 Pa. 142; Gibbs v. Tiffany, 4 Pa. Superior Ct. 29; Buckby v. Sturtevant, 28 Pa.Super. 552; Hanhauser v. Penna. & New England R.R. Co. (No. 2), 222 Pa. 244; Boyer v. Rees, 4 Watts 201; Barrell v. Adams, 26 Pa.Super. 635.

W. Horace Hepburn, Jr., for appellee.

Before BROWN, C.J., MESTREZAT, POTTER, STEWART and FRAZER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

William J. Elleford and Eleise H., his wife, executed to the plaintiff corporation a mortgage in the usual building association form, secured upon real estate in the City of Philadelphia. Mrs. Elleford owned another piece of real estate, not covered by the mortgage, which, on October 15, 1914, the two defendants conveyed to Charles C. Wells. On December 31, 1914, a judgment by confession was entered in favor of the plaintiff against these defendants, upon the bond accompanying this mortgage. December 8, 1915, plaintiff filed of record a suggestion that the above-mentioned conveyance by Elleford and wife was made without consideration and with the intent to "hinder, delay and defraud the creditors of Eleise H. Elleford, particularly the plaintiff in this case." December 9, 1915, a sci. fa. to revive the judgment issued against the two defendants and Charles C. Wells, the latter being named as terre-tenant of the property conveyed to him by the former; and, January 8, 1916, judgment was entered generally against all three, for want of an affidavit of defense. April 4, 1916, Mr. Wells obtained the allowance of a rule to show cause why the judgment against him should not be stricken from the record; and, on May 5, 1916, this rule was made absolute. The plaintiff has appealed.

Sections 2 and 3 of the Act of April 4, 1798, 3 Sm. L. 331, and 2 Purd. Dig., 13th Ed., 2042-4, covering the subject of the lien of judgments upon real estate and their revival, provide, inter alia, that writs of scire facias to revive "shall be served on the terre-tenants or persons occupying the real estate bound by the judgment." There is some conflict in the earlier decisions of this court concerning the meaning of the term "terre-tenant," as used in this act; but it is not necessary to review our cases chronologically. It is sufficient to cite the last one touching the point under consideration, which conclusively settles it in favor of the appellee. In Hulett et al. v. Mut. Life Ins. Co. of N.Y., 114 Pa. 142, 146, we said: "A terre-tenant, in a general sense, is one who is seised or actually possessed of lands as the owner thereof. In a scire facias sur mortgage or judgment, a terre-tenant is, in a more restricted sense, one, other than the debtor, who becomes seised or possessed of the debtor's lands, subject to the lien thereof. Those only are terre-tenants, therefore, in a technical sense, whose title is subsequent to the encumbrance." Here, whatever title Mr. Wells may have to the real estate, sought to be covered by the proceedings to revive, came to him before and not "subsequent to the encumbrance"; hence, he is not a terre-tenant within the meaning of the act depended upon by the plaintiff, and should not have been named as such.

Under some of our cases, where one is prima facie a terre-tenant in that he took title to the real estate in question subsequent to the judgment sought to be revived, a plaintiff has a right to name him as such, even though the lien of the judgment may have expired; and, when so named, the terre-tenant may defend under a plea that the judgment is not and never was a lien upon his land: Hulett v. Mut. Life Ins. Co., supra; Hanhauser v. Penna. & New England R.R. Co. (No. 2), 222 Pa. 244, 247; Colwell v. Easley, 83 Pa. 31. In a case like the present, where the record depended upon by the plaintiff clearly shows that the person named as terre-tenant derived his title eleven weeks prior to the date of the original judgment, the fact that he is not a terre-tenant within the meaning of the Act of 1798, as construed in our latest rulings, is so apparent that, upon application, a judgment of revival entered against him by default may properly be stricken from the...