Hinds v. Scott

• Decision Date: 25 May 1849
• Citation: 11 Pa. 19
• Parties: The heirs of STEPHEN HINDS <I>v.</I> BENJAMIN SCOTT and ______ BELL.
• Court: Pennsylvania Supreme Court

11 Pa. 19

The heirs of STEPHEN HINDS v. BENJAMIN SCOTT and ______ BELL.

Supreme Court of Pennsylvania.

May 25, 1849.

May 25.

ERROR to the Common Pleas of Mifflin, being a special court held by President HEPBURN.

Benedict, for the plaintiff in error.—1. The lien of a judgment is indefinite. At common law judgment is no lien on lands, because they were not liable to execution. They were made partially liable on elegit. The liability to execution on judgment makes what is called the lien of the judgment-creditor. It is the right of the plaintiff to follow the land of defendant that is affected by the act of 1798: Fetterman v. Murphy, 4 Watts, 424.

2. Lien of execution: Commrs. v. Stauffer, 1 Watts, 300; Boal's Appeal, 2 Rawle, 37; Packer's Appeal, 6 Barr, 277; Shaffer v. Child, 7 Watts, 86 3. Lands are chattels in Pennsylvania for payment of debts: Bellas v. McCarty, 10 Watts, 13.

4. Sheriff had authority to sell, &c.: Strobel v. Smith, 8 Watts, 280; Patterson v. Stewart, 10 Watts, 472; Small v. Mechley, 1 Rawle, 95; Hartman v. Stahl, 2 Pa. R. 231.

J. T. Hale, contrà.—The deed was not admissible. 1. Because the receipt for the purchase-money was not signed, and no evidence of payment of purchase-money. Without payment, purchaser at sheriff's sale takes no title: Hamilton v. Callender, 1 Dall. 420.

2. No authority shown for making the sale, and sheriff's deed cannot be given in evidence without producing the judgment and execution under which the sale was made: Wilson v. McVeagh, 2 Yeates, 86; Weyand v. Tipton, 5 S. & R. 332; Hamilton v. Speckenagle, 9 S. & R. 212; Porter v. Neelaw, 4 Y. 108, 1 Peters, C. C. R. 67.

3. The lien of the judgments on which it is alleged the sale was made, had expired before the sale: Robins v. Bellas, 2 Watts, 359; Meason's Est. 4 Watts, 342; Ebright v. The Bank, 1 Watts, 397, Purdon, 660, 661, last ed.; Dietrich's Appeal, 4 Watts, 208; Jameson's Appeal, 6 Barr, 280; Penn v. Hamilton, 2 Watts, 53.

The opinion of this court was delivered by BELL, J.

The sheriff's deed, offered in evidence by the plaintiffs, was objected to and rejected on two grounds: first, because it was not shown the officer had authority to make sale of the land he professed to convey; and, secondly, that the lien of the judgment, upon which the process offered was founded, had expired by lapse of time. As the latter objection goes to the very root of the plaintiffs' title, it will be convenient first to consider it.

The land in dispute was sold by the sheriff, as the property of George Bell 2d, and, for the purposes of the present inquiry, must be so regarded. The judgment, under which the sale was made, was recovered against him on the the 24th of September, 1829. A writ of fieri facias sur this judgment, was issued to November Term, 1829, and levied on the land, which was afterwards condemned by an inquisition held on the 4th of December, 1834. On the 8th of the same month, a vend. ex. was issued, by virtue of which the plaintiffs allege the land was sold on the 9th of January, 1835. On the next day a deed was duly executed to Stephen Hinds, the purchaser; and this was acknowledged on the 5th of August, 1835. From this brief statement, it will be perceived that more than five years elapsed between the rendition of the judgment and the date of the sheriff's sale. Had subsequent encumbrances intervened in the mean time, they would, undoubtedly, have taken precedence of the first judgment, which, notwithstanding the levy, must have been postponed in their favour. This, and no more, was decided in Jameson's Appeal, 6 Barr, 280, as is shown by the subsequent case of Packer's Appeal, Ib. 277. But when the contest is, simply, between the debtor and creditor, the mere running of time, short of the period necessary to raise a presumption of payment, is not permitted to interpose between the latter and the estate of the former, as a source from whence satisfaction of the judgment may be drawn. In this respect there is no distinction recognised between real and personal estate. Both are equally subject to respond in payment of the recorded debt, when called to do so by legal process, for both are regarded as chattels in reference to their liability to be levied in discharge of judgments recovered against their owner. This point has been more than once considered, and, as I had thought, settled by this court. It will, therefore, be little more than necessary to refer to the cases in which the doctrine has been reviewed, with some slight notice of the reasoning upon which it is based.

As early as the agreement, called fundamental laws, settled in England, between William Penn and the freemen and planters of the province of Pennsylvania, it was established — That all lands and goods should be liable to pay debts, except where there is legal issue, and then all goods and one-third of the lands only. In 1682, the liability was extended, by the legislature of the infant community, to one-half the lands, purchased before the debts were contracted, where there was issue. This principle of liability was further extended in 1688, when it was enacted that all lands and houses of a debtor should be liable to sale upon judgment and execution; with a saving of one year, after judgment obtained, in favour of the mansion tract of the debtor. This statute, which was limited to one year, was re-enacted in 1695, without limitation, and again repeated in substance by the act of 1700, when, I believe, for the first time, the sheriff making the sale was directed to convey the lands sold, under his hand and seal, to the purchaser. The subject was revised, with the addition of many details, by the act of 1705, and subsequent enactments, but without any alteration of the principle upon which the original law was based. Most of these statutes will be found collected in the very elaborate opinion delivered by the late Mr. Justice Kennedy, in Bellas v. McCarty 10 W. 31, to whose researches I am indebted. Under them, 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. In partial regulation of this lien, statutes were from time to time ordained. Among these, were the statute of frauds and perjuries, of 1772, which, as against bonâ fide purchasers for value, took away the common-law relation of the judgment to the first day of the term, and confined it to the time of signing; the act of April, 1791, providing for the entry of satisfaction, on the call of the defendant or of a subsequent purchaser; the act of 1794, discharging lands sold by order of the Orphans' Court from the lien or the debts of the intestate; and perhaps some others. Then followed the act of April, 1798, the preamble of which has been supposed to refer to the statutory provisions just cited. It recites that "the provision heretofore made by law for preventing the risk and inconvenience to purchasers of real estate, by suffering judgments to remain a lien for an indefinite length of time, without any process to continue and revive them, had not been effectual," and by its second section enacts, "that no judgment to be thereafter entered in any court of record, shall continue a lien for a longer term than five years from the first return day of the term of which it was entered, unless revived by sci. fa. within the said five years. Much difficulty was felt in construing this statute, in reference to the persons and interests to be protected by it. In 1807, Judge Washington, who then presided in the Circuit Court of the United States for this district, after much deliberation, looking to the preamble and the prior state of the law, held that it extended only to the protection of subsequent purchasers for value, and did not include posterior encumbrances. (Hurst v. Hurst, 3 Bin. 347, in note.) In 1811, the same question arose in this Court, in The Bank of North America v. Fitzsimmons, 3 Bin. 342. After a very able argument, the court, looking to the generality of the enacting clause, and conceiving it to be unrestricted by the language of the preamble, held that the intention was to protect younger judgment-creditors, as well as purchasers. Brackenridge, J., grounds his conclusion on the position that a judgment-creditor, who has trusted his money on the faith of the security, is to be deemed a special purchaser, having an equitable interest in the land. Throughout the discussion by the bar and the bench, no one broached the notion that the act would operate to discharge the land, in favour of the defendant alone. It is true, the case did not call for the expression of an authoritative opinion upon that point. But had it been supposed the statute worked an entire dissolution of the lien, under all circumstances, the...