Maus v. Wilson

• Decision Date: 01 August 1850
• Citation: 15 Pa. 148
• Court: Pennsylvania Supreme Court
• Parties: Maus <I>versus</I> Wilson.

15 Pa. 148

Maus versus Wilson.

Supreme Court of Pennsylvania.

August 1, 1850.

ERROR to the Common Pleas of Union county.

Bellas and Pollock were for the plaintiff in error.—It was contended

that the court had no power to pronounce the judgment a nullity because all the matters recited in the process were not proved.

In the plaintiff's effort to recover in ejectment through a judicial sale to him, no claim having even been set up for fifty years, by Ellinckhuysen or his heirs, and no shadow of title shown by defendants, the court had no power thus collaterally to pronounce the judgment, execution, and sales a nullity.

Even if the sale proceeded from a voidable judgment, the purchaser will hold: Warder v. Tainter, 4 Watts 270; 16 Ser. & R. 431; 2 Bin. 40; 3 Cranch 307; 5 W. & Ser. 473.

A judgment entered without authority can be set aside only at the instance of the defendant himself: 6 Barr 272; 7 Barr 257.

If judgment be erroneous, it must be reversed by writ of error: 5 Ser. & R. 211.

A purchaser is not bound to look beyond the judgment docket: 1 Barr 408; 4 id. 165.

Miller, for defendant, with whom was Hickok.—There was no offer of power of attorney from Carl Ellinckhuysen to Hilborn, authorizing him to mortgage the real estate of Ellinckhuysen. The power of an agent to sell land must be in writing, and cannot be proved by his own testimony: 2 Dal. 246; 2 Yeates 48; 14 Ser. & R. 331.

A party claiming by purchase must show the authority by which the sale was made: 7 W. & Ser. 403. See 10 Ser. & R. 160, Griffith v. Lawshe, where the plaintiff claimed under a deed purporting to be from Ellinckhuysen, by his attorney. The deed recited the power of attorney, but it was rejected. The exemplification of the power of attorney recorded in the rolls office was objected to because the power of attorney was not so proved as to authorize its being recorded, and it was rejected.

But the record was inadmissible, as it showed a judgment against Hilborn, and not against Ellinckhuysen.

It was not offered to be proved that Lewis Maus ever had possession of the lots in controversy.

The opinion of the court was delivered August 1, by GIBSON, C. J.

The scire facias on the mortgage appears to have been somewhat anomalous. Hilborn, as the attorney in fact of Carl Ellinckhuysen, a merchant of Rotterdam, executed a mortgage of one hundred and four lots in Lewisburg; which, in 1798, was put into the hands of counsel learned in the law, to be enforced; and this...