Hecker v. Haak

• Decision Date: 06 January 1879
• Parties: Hecker <I>versus</I> Haak et al.
• Court: Pennsylvania Supreme Court

88 Pa. 238

Hecker versus Haak et al.

Supreme Court of Pennsylvania.

November 28, 1878.

January 6, 1879.

November 28th 1878.

Before AGNEW, C. J., SHARSWOOD, GORDON, PAXSON and TRUNKEY, JJ. MERCUR and WOODWARD, JJ., absent

Error to the Court of Common Pleas of Crawford county: Of October and November Term 1878, No. 186.

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J. B. Brawley, for plaintiff in error.—The record shows no service, no appearance or judgment against Mrs. Haak, and there is nothing in the transcript which authorized the prothonotary to enter judgment.

In an action against husband and wife, brought with a view of charging the wife's separate estate, the plaintiff must set forth in his pleadings such facts as bring the case within some one of the exceptions contained in the Act of April 11th 1848: Murray et al. v. Keyes et ux., 11 Casey 384; Caldwell v. Walters, 6 Harris 79; Cumming et ux. v. Miller et al., 3 Grant 146; Dorrance v. Scott, 3 Wharton 309; Parke et ux. v. Kleeber & Bro., 1 Wright 251; Graham et ux. v. Long, 15 P. F. Smith 383; Swayne v. Lyon, 17 Id. 436; Berger et ux. v. Clark, 29 Id. 340; Lloyd et ux. v. Hibbs, 31 Id. 306; Dearie et ux. v. Martin, 28 Id. 55.

A sheriff sale of the real estate of a married woman on such a defective judgment conveys no title to the purchaser. Caldwell v. Walters, 6 Harris 79; Graham et ux. v. Long, 15 P. F. Smith 383.

D. C. McCoy and C. M. Boush, for defendants in error.—The jurisdiction of the justice appears on the face of the record, and is binding until reversed in a legal mode: Buckmyer v. Dubs, 5 Binn. 29; Stewart v. Thompson, 2 Ash. 120; Fisher v. Nyce, 10 P. F. Smith 107; Sloan v. McKinstry, 6 Harris 120. A transcript thereof filed in the Common Pleas is in effect a judgment of that court, and as such cannot be treated as a nullity: Walker v. Lyon, 3 P. & W. 98; Sloan v. McKinstry, supra. The acknowledgment of the sheriff's deed covers all irregularities in the proceedings and process: Shields v. Miltenberger, 2 Harris 76; McFee v. Harris, 1 Casey 102.

The plaintiff is a stranger to the judgment, and cannot impeach it collaterally: Wood v. Bayard, 13 P. F. Smith 320. No one but the defendant in an irregular execution, can take advantage of its irregularity: Wilkinson's Appeal, 15 P. F. Smith 189; Drexel's Appeal, 6 Barr 272; Hauer's Appeal, 5 W. & S. 473; Yaple v. Titus, 5 Wright 195; Warder v. Tainter, 4 Watts 270.

Mr. Justice TRUNKEY delivered the opinion of the court, January 6th 1879.

Defendants' counsel urged that the plaintiff is a stranger, and that Sarah A. Haak is not complaining. Both parties claim under her, and as rightly as if each had actually contracted with her for the land. Had she given the defendants a deed in which her husband did not join, it would be useless; but if, by virtue thereof, they should claim title it would be under her. Her deed lawfully executed to the plaintiff, at a later date, would enable him to recover the land. Like principle governs when each claims under a sheriff's sale. The holder of real estate under a valid sheriff's deed succeeds to all the rights and estates of him for whose debt the same was sold, that the debtor had or could have at and before the taking thereof in execution: Act 1836, sect. 66, Purd. 651, pl. 82.

Conceding for the present that the plaintiff's second point was well refused, then the defendants' right depends on the validity of the judgment, as against Mrs. Haak, which is the base of their title. If that judgment is merely voidable their title is good. Its reversal, after the sheriff's sale, would not prejudice the purchaser: Act 1705, Purd. 651, pl. 84. But if void her title continued as if there had been no sale. Acknowledgment of a sheriff's deed cures mere irregularities which do not render the officer powerless but does not bar the right of any person when there was no judgment or execution whereon to ground the sale: Shields v. Miltenberger, 2 Harris 76. A vend. ex. must be supported by a previous levy or the sale is void: Burd v. Dansdale, 2 Binn. 80. Sale by process on a void judgment vests no title in...