Roberts v. Williams

• Decision Date: 16 January 1840
• Citation: 34 Am.Dec. 549,5 Whart. 170
• Parties: ROBERTS v. WILLIAMS.
• Court: Pennsylvania Supreme Court

5 Whart. 170

34 Am.Dec. 549

ROBERTS v. WILLIAMS.

Supreme Court of Pennsylvania.

January 16, 1840

IN ERROR.

1. A parol agreement, made at the time of a sheriff's sale of land under a judgment, between a person holding a mortgage upon the land prior to the judgment, and one who contemplated purchasing the land at the sale, that the mortgage might remain a lien on the land, and that the latter should be required to pay to the sheriff only the surplus of purchase-money beyond the amount of the mortgage, is not binding upon one who derived title from the purchaser at the sheriff's sale, without notice of the agreement.

2. An alias scire facias on a mortgage was issued against A., as administrator of the mortgagor, and terre-tenants. The sheriff returned " Nihil," as to A., and " made known," to B., C., D. & E., terre-tenants. F was admitted, on petition, to defend pro interesse suo; and at the trial offered to put in a special plea which was refused by the Court: C., D., and E. also offered to put in special pleas, which were also refused. D. and E then filed disclaimers. The jury were sworn as between the plaintiff and A., B., C., and F., and a verdict was given for the plaintiff: after which the Court ordered judgment to be entered against A., as administrator, for the amount of the verdict. Held, 1st. That it was error to reject the pleas offered by F. and the other terre-tenants. 2d. That the jury ought to have been sworn as against all the parties who appeared, notwithstanding the disclaimer of two. 3d. That judgment ought to have been entered against A. by default in the first instance; and that it was error to give judgment against him on the verdict.

THIS was a writ of error to the Court of Common Pleas of Montgomery County.

Upon the return of the record, it appeared that John Williams brought a writ of alias scire facias to November Term, 1834, of that Court, against George S. Roberts administrator of the goods, & c., of Richard Roberts deceased, and the terre-tenants, upon a certain mortgage, given by Richard Roberts to John Williams, of certain messuages, lots and lands, situate in Upper Merion township, Montgomery county.

The sheriff returned " Nihil, as to George S. Roberts, and made known to John Freedley, James Wells, Thomas Lowry, and James Steel, terre-tenants."

The record stated that " the defendants" pleaded payment, with leave, & c.; to which the plaintiff replied non solvit; and issues were joined.

On the 25th of August, 1837, the petition of Jacob Freedley was presented, setting forth that the title to the real estate mentioned in the scire facias is now in the petitioner, and was so at the time of the issuing of said writ. He therefore prayed the Court to admit him to come into Court, and take defence in this suit, and to plead in the same manner as if the original scire facias had been served upon him. Whereupon the Court granted a rule upon the plaintiff to show cause why the petitioner should not take defence, agreeably to the petition; which rule was afterwards made absolute by consent.

On the 30th of May, 1838, the cause was called up for trial--Jacob Freedley, who was admitted to plead pro interesse suo, tendered the following plea; which was objected to by the plaintiff's counsel, and overruled by the Court.

" And now, to wit, May 30th, 1838. The said Jacob Freedley, by leave of Court, here comes and defends, & c., and pleads payment with leave, & c.

And for further plea in this behalf the said Jacob Freedley, by leave of the Court here for this purpose first had and obtained, according to the form of the statute in such cases made and provided, says, that the said plaintiff ought not to have execution of the said debt to be levied of the lands in the said plaintiff's writ mentioned, whereof the said Jacob Freedley is owner and terre-tenant, because he says that after the making of the indenture in the said plaintiff's writ mentioned, to wit, on the 21st day of January, A.D. one thousand eight hundred and nineteen, Joseph Lukens and John Iredell, executors of the last will and testament of Joseph Williams, deceased, went into the Court of Common Pleas of Montgomery County, and then and there, agreeably to the act of assembly in such case provided, entered a judgment against the said Richard Roberts, for the sum of five thousand seven hundred and sixty dollars, conditioned for the payment of two thousand six hundred and eighty dollars on a bond, dated the 22d of November, A.D. 1818, and payable the first day of April, A.D. 1819, with interest; as by the record of the said judgment remaining in the said Court, fully appears. And the said Jacob further avers that afterwards, to wit, at the term of August, A.D. 1819 of the said Court, the said judgment being wholly unsatisfied, the said Joseph Lukens and John Iredell prayed, and had of the said Court the award of a certain writ of fieri facias upon the said judgment, which said writ was directed to the sheriff of the said county, and was made returnable to the term of November of the said Court, in the year last aforesaid; and the said Jacob further avers that the said Joseph Lukens and John Iredell, for want of sufficient personal assets of the said Richard Roberts, whereof the said moneys of the said judgment could be made and levied, did then and there direct the said sheriff to levy and execute the said writ upon the said lands and tenements in the said plaintiff's writ now mentioned, and in pursuance of the said directions the said sheriff did by virtue of the said writ seize and take in execution the said lands and tenements, and afterwards, to wit, at the return of the said writ, made return of the said levy to the said Court; as by the record of the said writ and return remaining in the said Court, more fully and at large appears. And the said Jacob further avers, that afterwards, to wit, at the said term of November of the said Court, the said Joseph Lukens and John Iredell, executors as aforesaid, prayed the said Court to award upon the said judgment a certain writ of venditioni exponas, which was accordingly awarded, by which writ the said sheriff was commanded to expose the lands and tenements to sale, and sell the same, and make his return thereof at the next term of the said Court; as by the said writ more fully and at large appears; at which last term of the said Court, to wit, on the 19th day of February, A.D. 1820, the said sheriff made return of the said writ, that he had sold the said lands to Thomas Lowry, for the sum of twelve thousand nine hundred dollars, which moneys he had ready before the judges in said writ named, as by the said writ he was commanded; which by the said writ and return in the said Court remaining fully appears: and therefore the said sheriff did seal and deliver to the said Thomas Lowry, his certain deed-poll of bargain and sale, conveying the said lands and tenements to him the said Thomas and his heirs forever, in consideration of said sum of twelve thousand nine hundred dollars, and in open Court did acknowledge the said deed poll; as by the record thereof remaining in said Court appears: by means whereof the title, interest and estate of the said Richard Roberts in the said lands and tenements became vested in the said Thomas Lowry, clear and free from the lien of the said indenture of mortgage in the said plaintiff's writ mentioned; and the said Jacob further avers, that the said messuage, grist-mill and tract of land, with the appurtenances in the said writ of scire facias mentioned, have since the sale by the sheriff as aforesaid made, and before the issuing of the scire facias in this suit, by virtue of divers good conveyances and assurances in the law duly had, upon good and valid considerations, become vested, and are now vested in the said Jacob, clear, free and discharged from the lien of the said indenture of mortgage recited in the plaintiff's writ of scire facias --all of which he is ready to verify-- Wherefore he prays judgment if the said plaintiff ought to have execution of the said premises, to satisfy his said debt and interest as he has demanded.

And for further plea in this behalf, the said Jacob Freedley, by leave of the Court here for this purpose first had and obtained, according to the form of the statute in such case made and provided, says, that the said plaintiff ought not to have execution of and for the debt and interest aforesaid to be levied of the lands and tenements in the said writ of scire facias mentioned, and whereof the said Jacob is terre-tenant, because he says that the said Richard Roberts in the said writ of scire facias named, nor any other person in right of the said Richard, or to the use of his estate, at the time of issuing the said scire facias, or ever after, had nothing in the said premises, or in any part or parcel thereof which might be charged or bound by reason of the said indenture of mortgage, either in law or equity, but that the lien of the said mortgage was at that time and is now entirely discharged and divested, and that the said premises are in no way chargeable with the same; and this he is ready to verify: wherefore he prays judgment if the said plaintiff ought to have execution of the said debt and interest, to be levied of the lands and tenements whereof he the said Jacob is terre-tenant, & c."

James Steel, T. Lowry, and J. Wells, terre-tenants, likewise asked leave to plead special pleas of similar tenor, which was objected to; and these pleas were likewise overruled and rejected.

Thomas Lowry and James Wells then filed disclaimers, as follows:

" Thomas Lowry, who was served by the sheriff with the alias scire facias in this case, being duly affirmed, saith, that he hath no interest in the land and premises described in

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