Lessee of Heister v. Fortner

• Decision Date: 08 July 1809
• Citation: 2 Binn. 40,4 Am.Dec. 417
• Parties: Lessee of HEISTER v. FORTNER.
• Court: Pennsylvania Supreme Court

2 Binn. 40

4 Am.Dec. 417

Lessee of HEISTER v. FORTNER.

Supreme Court of Pennsylvania.

July 8, 1809

The registry of a deed defectively proved or acknowledged, is not constructive notice to a subsequent purchaser, although the registry be made in the proper county.

On the 28th April 1788, A assigned to trustees for the benefit of creditors all his lands in the county of N & c. and the same day acknowledged the deed before a judge of the Common Pleas of the county of M, who at that time had no authority to receive an acknowledgment of deeds for lands out of his proper county. On the 26th February 1790, the assignment was recorded in the county of N.

On the 25th March 1789, B obtained judgment against A in the county of M. On the 15th March 1792, he executed an instrument recognizing the assignment of A, and agreeing to be bound by its terms. To February term 1796, B's executors issued a scire facias on the judgment, and upon return of one " nihil " signed judgment. To August 1797 they issued a test. fi fa. to the county of N, and a test. vend ex. to November 1797, upon which certain of the lands assigned by A were sold to C the lessor of the plaintiff.

Held, that although the judgment upon one " nihil " was erroneous, and actual notice of the assignment was brought home to B, which made the subsequent proceedings upon his judgment a fraud upon the creditors, yet as the assignment was defectively acknowledged, the record in N was no notice to C, who being a bona fide purchaser at sheriff's sale without notice, was therefore entitled to recover.

A judgment creditor is not a purchaser or mortgagee within the meaning of the act of 18th March 1775; but a purchaser at sheriff's sale under that judgment is.

A judgment after one " nihil " upon a scire facias post annum & diem, may either be set aside for irregularity, or reversed on error; but the irregularity cannot be noticed collaterally in another suit and even if the judgment be reversed or set aside, a purchaser at sheriff's sale, to whom a deed has been made, will hold the land.

IN this action of ejectment, a verdict was entered by consent for the plaintiff in the Circuit Court of Northumberland county, subject to the opinion of this Court upon a case which stated in substance as follows:

The title in fee of the lands for which the ejectment was brought, was in Thomas Rees on the 28th April 1788. On that day, Thomas Rees of Montgomery county, and Hannah his wife, in consideration that Rees was indebted to Charles Massey, Christopher Marshall, and others, in several sums of money which he was unable to pay, and also in consideration of five shillings, conveyed to Charles Massey, Christopher Marshall, Israel Jacobs, and others their heirs & c. all and singular his lands & c.; upon trust to sell the same in such convenient time as should seem meet to them, and to apply the money arising therefrom to the payment of all the just debts payable by Rees, to such creditors as should sign and agree to certain conditions in a certain instrument contained; the surplus money to be for the grantor after paying all debts.

This indenture contained a reservation to Rees of full power and perfect liberty to enter upon, occupy, and enjoy all or any part of the said lots, lands & c. situate in the county of Northumberland, and to take and receive the yearly rents issues and profits thereof, for and during the term of four years from the 1st of April 1788; and also in his own name, or in the name or names of his said trustees, or the survivor or survivors of them, at his own cost, to prosecute suits for the recovery of all or any of the said lands & c. within the said four years, as fully and absolutely as if the assignment had never existed. The grantees, at the same time, were at liberty to sell all or any of the lands in Northumberland county within the four years, notwithstanding the above reservation.

On the same day the deed was acknowledged before Frederick A. Muhlenberg, a justice of the Court of Common Pleas for Montgomery county; and on the 26th February 1790 it was recorded in Northumberland county.

On the 29th April 1788, Israel Jacobs and others, twenty in number, creditors of Thomas Rees, recognizing the above stated indenture, in consideration thereof did agree to suspend all demands against Thomas Rees for four years from the 1st of April 1788, yet not so as to debar them from demanding a dividend of such money as should come to the hands of the trustees within that period; they also released to Rees his household furniture, and ratified and confirmed the agreements made by the trustees with Rees.

On the 25th March 1789, Abraham Weitner obtained a judgment in Montgomery county against Thomas Rees and another, in an action of debt instituted to December term 1787.

On the 15th March 1792, Weitner, by an instrument of that date, recognized the deed of Thomas Rees of 28th April 1788, and also the deed of the 29th April 1788, and bound himself, his heirs & c. to abide by the conditions of the last mentioned deed, in consideration of the former, as fully as if he had executed the same.

A scire facias upon the judgment obtained by Weitner in March 1789, was issued by his executors, returnable to February term 1796, in Montgomery county, to which the sheriff returned " nihil. " On the 9th February 1796, a judgment nisi was entered for the plaintiffs. A testatum fi. fa. issued to Northumberland county, returnable to August 1797, upon which there was no return of a levy and condemnation although both were made. A testatum venditioni exponas then issued to November 1797, and upon this writ the land in question was sold by the sheriff to Gabriel Heister, the lessor of the plaintiff, and a deed made accordingly.

If this court should be of opinion in favour of the plaintiff, judgment to be entered for him in the Circuit Court nunc pro tunc; but if in favour of the defendant, then in the same manner a nonsuit to be entered.

The case was argued at July term 1808, by Duncan on the part of the plaintiffs, and by D. Smith and Watts for the defendant; and was held under advisement until this day, when the judges delivered their opinions.

The Chief Justice did not sit upon the argument, having been of counsel with the defendant.

YEATES J.

The first question which presents itself for consideration in this case, is, whether the deed of assignment from Thomas Rees and wife to Charles Massey and others, dated 28th April 1789, not being recorded in Northumberland county within six months from its date, is not merely void to all intents and purposes, except as between him and his trustees?

This depends upon the words of the 8th section of the act, " for acknowledging and recording of deeds," passed in 1715, (1 St. Laws 112) which are as follow: " " no deed or mortgage, or defeasible deed, in the nature of mortgages, hereafter to be made, shall be good or sufficient to convey or pass any freehold or inheritance, or to grant any estate therein for life or years, unless such deed be acknowledged, proved, and recorded, within six months after the date thereof, where such lands lie, as herein before directed for other deeds." It has been contended that this is a defeasible deed; because, if Rees, or any one in his behalf, had paid the debts intended to be secured thereby, or if part of the lands conveyed had been found sufficient for those purposes, equity would have decreed a reconveyance to Rees, and of course in our state the uses would have enured to his benefit. It is said, that the section under consideration is similar to sec. 1. of the statute 27 Hen. 8. c. 16, the words of which are, " that no manors, lands & c. shall pass, alter, or change from one to another, whereby any estate of inheritance or freehold shall be made or take effect & c. except the same bargain and sale be made by writing indented, sealed, and enrolled & c. within six months next after the date of the same writings indented & c." Under this statute it has been resolved, ^[a] that no estate passes until the deed be enrolled; but when enrolled, it relates to the time of its execution, if no act has been done to prevent it. But it has never been considered under the recording act of 1715, that all deeds were to be recorded within six months, the words in the nature of mortgages, in the plural number, being construed to relate to all the preceding words in the sentence; and the point has been so adjudged in this court upon argument. Assuming this then as the true construction of the law, the only question is, whether this be a mortgage for securing the payment of money, within the intention of the act, or an absolute conveyance. It is certain that the debts due to the creditors formed the consideration of the deed, and with the nominal sum of five shillings, is so expressed therein; but it is also clear, that the trustees were vested with the complete legal estate, and were empowered to sell all or any of the lands in Northumberland county, in such convenient time as to them should seem meet, either by public or private sale, without the control or interference of the grantor.

I fully admit the maxim, once a mortgage always a mortgage ^[a] and that every mortgage is a conditional sale. ^[b] But mortgages are distinguished from defeasible purchases subject to a repurchase. ^[c] In this government, where a mortgagee would recover the money due to him, after default made by the mortgagor, the old act of 1705, " for taking lands in execution for payment of debts," prescribes the mode of recovery by suing out a scire facias, " after the expiration of twelve months next ensuing the last day whereon the mortgage money ought to be paid, or other conditions performed," and then proceeding upon the...