Mclaughlin v. Shields

• Decision Date: 01 January 1851
• Parties: MCLAUGHLIN v. SHIELDS.
• Court: Pennsylvania Supreme Court

Page 283

12 Pa. 283

MCLAUGHLIN v. SHIELDS.

Supreme Court of Pennsylvania.

IN error from the Common Pleas of Westmoreland.

COPYRIGHT MATERIAL OMITTED

Burrell, for plaintiff in error.—The attorney was incompetent; he was interested, and he made the tender with his own money. The sheriff could reserve nothing, and he was bound to sell all the defendant's estate: 2 Penn. 340; 2 W. & S. 399. An inquisition was not essential, for as there could be no delivery under a liberari, there could be no profits to pay the debt: 1 Yeat. 427; 2 Ib. 150; Act 1705, § 2; an inquisition at this time must be presumed: 1 S. & R. 92. But here the defendant acquiesced, knowing the description, and he is bound by it: 1 Rawle, 155; 9 Watts, 482. Nor have the words "as tenant by the curtesy," any force; whether they are treated as qualifying the antecedents, or as a false or mistaken description, the entire estate passes: 4 Mass. 196; 7 Johns. 216; 1 Pick. 27; 4 T. R. 74. The Court should have left the question whether the description was furnished by Shields to the jury upon the weight of the evidence. Under that charge, such a fact could never be proved at this distance of time.

But the right was lost by lapse of time. He had but an equity at first, and eighteen years have been permitted to elapse without attempting to enforce it. Now that the land has risen in value, he would speculate on it: Sug. Vend. 279-81, and cases there cited; 9 John. 466; 3 John. Ca. 60; 1 S. & R. 375; 2 Penn. 63; 2 Ala. 425; 1 Story, 422; 1 Madd. Ch. 407; 8 Watts, 374; 9 Ib. 49; 1 W. & S. 533; 5 Watts, 451; 8 S. & R. 484.

Foster, contrà.—The levy controls all subsequent proceedings: 1 Rawle, 155; 4 Watts, 244. If the defendant has a less interest than is there described, it will pass, but never if a greater, any more than if half a tract were levied on would the whole pass: 7 Watts, 51; 9 Ib. 482. Extraordinary words introduced into a levy must have a meaning given them; and what other effect can be given to these but as descriptive of the thing or right sold? The jury having found defendant had no agency in producing this error he was entitled to the inquest. It would be strange to waive that because of the limited quantity of the estate levied on, and then hold the entire estate passed. Nor was he bound to interfere and prevent a mere nullity and thing forbidden by the law being done, 9 S. & R. 156, and so have been the recent decisions as to sales of life-estates, which are held merely void, being prohibited by statute: 1 Barr, 201; 2 Ib. 485. As to the laches, it is immaterial; more than half the price was paid, and there was a judgment for the residue. The rent overpaid the interest, and there has been no increase of value through improvements. In such case the time limiting an ejectment would be the only bar to our equity: 1 Stor. Eq. § 64, a; 4 W. & S. 24; 2 Ch. Ca. 18; 1 Mad. Ch. 218.

ROGERS, J.

There is nothing exceptional in the admission of E. Covan, Esquire, as a witness. He was duly competent; for, although at one time he had an interest in the event of the suit, yet at the time he was sworn his interest was divested by a subsequent contract. An attorney may be a witness in a cause in which he is counsel, although it ought in all cases to be avoided, if possible. The practice of assuming the office of a witness without relinquishing that of counsel, cannot be too much discountenanced. The testimony was no further material than to prove a tender which was thought essential to the maintenance of the action, although it may be doubtful whether, under the circumstances, a tender was requisite. But, be this as it may, he was clearly competent. That it was his own money which was tendered can make no difference, for it was of no consequence to the Craigs to whom it belonged, whether to the attorney or his client. But it is said the Court erred in not charging the jury that the sheriff's sale passed the entire interest of Shields in the land; in charging that if the misdescription in the levy was made by the sheriff himself, or at the instance of plaintiff, the sale passed nothing, although Shields knew of the erroneous levy and acquiesced in it; and in charging that the fact that Shields gave the description of his interest to the sheriff could be found only upon clear, distinct, and satisfactory evidence. The propositions above stated are so blended that they may be profitably considered together.

It is an exceedingly clear proposition, that as the estate of Shields was a fee-simple, nothing less than a fee could be legally sold by a judicial sale without his consent. It would lead to the most disastrous results if the sheriff is permitted at his will and pleasure to carve a less estate out of a fee-simple to sell in satisfaction of the debt, where the debtor is the owner of the fee. His duty is plain, which is, to sell the interest of the debtor in the estate, without troubling himself to ascertain what that interest may be, whether a term of years, an estate for life, or a fee. In considering the question now raised, it must be borne in mind that the jury have found that the sheriff of his own will and at the instance of the plaintiff or his counsel, made the misdescription, and sold the interest without inquisition. And the question is what interest, if any, passed to the sheriff's vendee. That a fee did not pass, would seem to be indisputable. It is easy to understand that where, as in Hitchcok v. Hotchkiss, 1 Ca. R. 476, and Althers v. Bears, 14 Mass. 405, a fee is levied on and sold, a life-estate will pass, but it is difficult to comprehend the converse of the proposition. A greater estate may include the less, but it does not follow that the less should include the greater. In Carpenter v. Cameron, 7 Watts, 51, it is ruled that a sheriff's sale of the undivided half of a tract of land will confer title upon the purchaser to no more than that quantity; although at the time of the levy, inquisition, and condemnation, the defendant's testator was seised of two-thirds of the land. And the same principle is held in McConnell v. Harvey, 9 Watts, 482. These authorities are decisive of the first point; and no distinction is perceived between a variance in the quantity of the land and of the estate. But it is said the levy and sale is of all the right, title, and interest of Shields, and if the levy stopped here, no difficulty could arise. But, unfortunately, the levy is on all the debtor's right, title, and interest, as tenant by the curtesy; which is but life-estate. This is a clear violation of duty. The sheriff is bound to sell the debtor's whole interest in the land, as is ruled in Reigle v. Seager, 2 P. R. 340; Fritz v. Heller, 2 W. & S. 399. We are not at liberty to strike out the words, "as tenant by the curtesy," as surplusage. It is not mere description, but an essential part of the levy and sale, indicating the quantity of the estate sold, and evidencing beyond all question that it is levied on as a life-estate, and sold as such. The vendee, at any rate, cannot have more than a life-estate, because that is all he purchased. Had the misdescription been in the levy, and had the deed conveyed all the right, title, and interest of the debtor, perhaps a different aspect would be given to the case; but by the acceptance of the deed which conveys but a life-estate, he estops himself from insisting on a fee. But, it is contended there is error in denying that if the misdescription in the levy was made by the sheriff himself, at the instance of the plaintiff, the sale passed nothing, although Shields knew of the erroneous levy and acquiesced in it; that although a fee may not have passed, yet the sheriff's vendee acquired a life-estate in the premises. But we are of opinion the sale passed no title whatever. If the sheriff, of his own head, or at the instance of the plaintiff, or his counsel, misdescribes the land and sells the interest without an inquisition, why should it affect in any degree the debtor's title? They act in their own wrong, without his agency or co-operation. And when they undertook to sell an estate less than the debtor has in the land, it is a palpable violation of the law regulating sheriffs' sales; and whether they act wilfully or ignorantly, they have no person to blame but themselves. The mere passive acquiescence of Shields, even if he knew of the levy, would not vary the principle. His knowledge, without more, will not excuse a plain and palpable wrong. The creditor undertakes to judge for himself, without putting himself to the trouble of inquiring as to the nature of the estate the debtor has in the premises. If he had inquired (which, by the bye, was totally unnecessary, as...