Mitchell v. Hamilton

• Decision Date: 01 January 1848
• Citation: 8 Pa. 486
• Parties: MITCHELL v. HAMILTON.
• Court: Pennsylvania Supreme Court

8 Pa. 486

MITCHELL v. HAMILTON.

Supreme Court of Pennsylvania.

IN error from the Common Pleas of Dauphin county.

Ayres and McClure, for plaintiff in error.—The ground taken below was that defendant was concluded by the judgment on the scire facias. But a person in possession is only terre tenant so far as he has title from the original defendant. Any other title is independent. It is plain, if he could not set up his paramount or independent title, he would not be concluded. And that he could not, is decided in Catlin v. Robinson, 2 W. 373. It is also plain that he may have a title under the defendant, and an independent one. The former is bound, but not the latter, as was decided in Mitchell v. Kinzer, 5 Barr, 216. The rule in Minier v. Saltmarsh, is based on the rule that want of title in defendant is a bar to an execution on the land; but this is not so here: Jarrett v. Tomlinson, 3 W. & S. 114. Hence, as no defence could have been legally made by Mitchell to the revival of the judgment on the ground of this title, it would be strange if he is concluded thereby.

Alricks, contrà.—The point was settled in Minier v. Saltmarsh, 5 W. 293; Heller v. Jones, 4 Binn. 61; Hines v. Jacobs, 1 Penn. Rep. 152; Kiehner v. Dengler, 1 W. 424.

GIBSON, C. J.

No man is more thoroughly convinced, than I am, of the wisdom of abiding by what has been decided. Want of stability in the law, is a public calamity which ought to be averted by almost any concession of opinion; yet in building up a new system in part on the model of an old one, it is better to incur the reproach of inconsistency than to perpetuate a false principle. Where we have not been following a beaten path, but have been exploring untrodden ground; and where we find that we have lost our way, as we sometimes must; it is certainly the part of wisdom to retrace our steps, rather than to persist in going wrong. I submit that in the present case, in which our own decisions afford no lamp to our feet, and in which the English decisions are misleading fires, the first determination of the point before us ought not to be conclusive. If a single decision were so, many of our first attempts to interpret our digested statutes, grown almost into a code, would do little more than impart immortality to error. Yet, notwithstanding our mixed system and peculiar laws, it will be found that we have adhered to our decisions with admirable constancy, when it is considered that of Professor Greenleaf's "Collection of Cases overruled, denied, or doubted," comprising almost three thousand in the English and American courts, no more than seventy were decided in this court; and that of these, only some forty were doubted by any of our own judges, the rest having been doubted by judges in our sister states. The number in which the point adjudicated has been overruled, is still much less. During thirty-two years in which I have sat in the court, I can recall not more than eight, certainly not a dozen; while the English judges seem, during the period, to have been playing at loggats with those contained in the old books of reports.

Though, to avoid a too frequent appearance of division, I suppressed my dissent from the opinion of the majority, in Minier v. Saltmarsh, I foresaw that however adapted to execution of land in England, the principle of that case could not be applied to execution of land here without injustice; and in that view of it, I think I was joined by Mr. Justice Huston. At the least, there was a want of unanimity on the bench, which detracts much from the force of a decision as a precedent. It was not denied then, nor is it now, that the principle of the majority is the English principle; but it is not conceded that it can become a part of our law of execution without violating the provisions of more than one of our statutes. There are two cardinal points of difference between execution of land under our acts of 1700 and 1705, and execution of it under the statute of Westminster, the second. For purposes of execution in England, a judgment binds a debtor's land as a specific thing, not, as with us, his title to it or estate in it, without regard to the question whether he was seised or disseised at the time of the rendition. There, an owner disseised, is not the tenant of the freehold, or, in contemplation of law, an owner at all, his estate being turned to a mere right, which cannot be bound as a subject of execution: here, whether the debtor was seised or disseised, a judgment binds every immediate interest vested in him, which amounts to an estate, perfect or inchoate. Again, land is taken in execution under the English statute and delivered specifically to the creditor to make satisfaction by the profits of it, without regard to the debtor's title to it: under our statutes, the sheriff SELLS, and not the land, as the incontestable property of the debtor, but his estate in it, or title to it, AS A CHATTEL, and at the risk of the purchaser, who takes his chance of recovering on it against whomsoever may be in possession under an adverse title. To show the value of these differences, it is necessary to look no further than Jeffreson v. Morton, 2 Saund. 6, where the terre tenant's plea was that the defendant in the judgment was not seised when it was rendered. That was an answer there, to a writ which demanded execution specifically of the land; but it would not be an answer here to a writ demanding execution of the debtor's estate in it or title to it. True, the scire facias does not demand execution of the debtor's estate or title in terms; but it demands a writ, which commands the sheriff to sell his goods and chattels; and land being a chattel for payment of debts, it demands execution of his estate or title in effect. It certainly does not demand execution of the estate or title of any one else; and it is the constant practice to sell the estate of a party out of possession. The sheriff therefore sold, in the present case, whatever the debtor had in the land, whether an estate in possession, a right of entry, or a possibility. The tenant in possession had pleaded that the land was not bound...