Morton v. Weaver

• Decision Date: 07 November 1881
• Citation: 99 Pa. 47
• Parties: Morton <I>versus</I> Weaver.
• Court: Pennsylvania Supreme Court

99 Pa. 47

Morton versus Weaver.

Supreme Court of Pennsylvania.

October 27, 1882.

November 7, 1881.

October 27th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Armstrong county: Of October and November Term 1881. No. 177.

David Barclay, for the plaintiffs in error.—The record of the suit, by Weaver, against the administrator of Mrs. Helen Johnston, showed on its face that the judgment was void: its validity was therefore a legitimate subject of investigation. We also showed that it was procured by fraudulent collusion with Mrs. Johnston's administrator, who was appointed at the instance of the plaintiff, Weaver, and who, acting under the instructions of Weaver's counsel, made no defence, and allowed judgment to be taken by default. While a judgment, apparently regular, may not be attacked in a collateral proceeding, the rule does not apply where fraud is alleged, or the judgment is void on the record. And a judgment obtained on a scire facias, founded on a void judgment, is also void, having nothing to support it: Dorrance v. Scott, 3 Whart. 313; Caldwell v. Walters, 6 Har. 79, 83; Hoffer v. Wightman, 5 Watts 205. The evidence showing that Weaver was Mrs. Johnston's agent, and as such rented the property and retained the rents, should have been admitted, to show bad faith on his part in bringing the action. The heirs can defend in ejectment on the ground of fraud: Shields v. Miltenberger, 2 Har. 78; St. Bartholomew's Church v. Wood, 11 P. F. Smith 103; McCasky v. Groff, 11 Har. 326; Sharp v. Long, 4 Cas. 433; Brotherline v. Swires, 12 Wr. 68; Levick v. Brotherline, 24 P. F. Smith, 149. Mrs. Morton was a competent witness to prove the offer of agency. Mrs. Johnston was, in no sense, "the assignor of the thing or contract in action." Weaver's claim arose solely out of his own act, not under a sale or legal devolution of title from her. Both parties here were living, and on an equality: Waltman v. Herdic, 9 Norris 459.

E. S. Golden and Jos. Buffington, for the defendant in error.—The judgment against the administrator of Mrs. Johnston was legal and regular. The surviving husband was not a necessary party: Davidson v. McCandlish, 19 P. F. Smith 172. Because the claim showed that some articles were included that were not necessaries does not impair the validity of the judgment. If there was a single necessary it would justify the judgment, as a foundation for a scire facias against the heirs, which differs from a scire facias to revive. The heirs who were served had full opportunity for defence, and are concluded by the judgment on the scire facias: Chase's Ex'r v. Burkholder, 6 Har. 48; Atherton v. Atherton, 2 Barr 112; Murphy's Appeal, 8 W. & S. 165; Benner v. Phillips, 9 W. & S. 16; Buehler v. Buffington, 7 Wr. 293; Nace v. Hollenback, 1 S. & R. 540.

Mr. Justice STERRETT delivered the opinion of the court, November 7th 1881.

The plaintiff below claimed under Mrs. Helen Johnston, who formerly owned the lots in controversy and died seised thereof in 1859, and, for the purpose of tracing title to himself, he gave in evidence the record of a judgment, rendered June 10th 1863, in his favor against James Cunningham, administrator of Mrs. Johnston, and also the record of a scire facias thereon to September term 1863, with notice to the husband and all the heirs at law of the decedent, except one, as to whose interest he was not permitted to recover. In the latter proceeding judgment was entered November 8th 1865, on an award of arbitrators for $1,417.34, and by virtue of an execution based thereon the lots in controversy were sold by the sheriff and conveyed to Weaver, the plaintiff below.

The admission of the records and sheriff's deed aforesaid forms each a separate subject of complaint in the first, second and third assignments respectively.

The record of the original judgment exhibits a suit regularly brought against the personal representative of Mrs. Johnston for necessaries sold to her when a femme covert for the use of herself and family "at her special instance and request, and upon her own responsibility, promise and engagement to pay." The probated copy of book accounts, with the exception of a few items, is...