Shortz v. Quigley

• Decision Date: 18 September 1807
• Citation: 1 Binn. 222
• Parties: SHORTZ v. QUIGLEY.
• Court: Pennsylvania Supreme Court

1 Binn. 222

SHORTZ v. QUIGLEY.

Supreme Court of Pennsylvania.

September 18, 1807

IN ERROR.

A bill of exceptions does not lie to the opinion of the Court in receiving or rejecting testimony upon a motion for summary relief.

THIS cause came before the court on a writ of error to the Common Pleas of Crawford county. A motion was made to the Common Pleas on behalf of Shortz the defendant below, to open a judgment entered against him by Quigley, on a bond with warrant dated 4th December 1800, conditioned for payment of 133 dollars 33 cents on the 15th October 1801. The judgment was entered as of October term 1803.

On this motion it appeared by evidence given to the court below, that by articles of agreement dated 14th August 1800 Quigley contracted to sell to Shortz a tract of land for which he was to give him a good deed conveying the land free from all incumbrances; and Shortz was to give a mortgage for the unpaid part of the purchase money. Shortz having paid part of the purchase money, a second agreement was made on the 4th December 1800, by which, after reciting that Shortz had paid part and given bonds for the residue of the purchase money, Quigley engaged to convey by good and sufficient deed, clear of incumbrance, by the 15th October 1801; in default thereof he was to refund the money he had received, and the bonds of Shortz, upon one of which the judgment in question was entered, were to be void. Quigley did not convey by the 15th October 1801; but on the 23d March 1803, he procured at his own expense a patent to be issued to Shortz, and on the 27th July 1803 he executed a release to him. The patent and release were tendered to Shortz who refused to accept them although he was in possession of the land, and remained so at the time of the motion.

After this evidence had been given to the court, the counsel of Shortz offered to prove that Quigley's title was founded on an actual settlement of the land under the act of 3d April 1792; and that the settlement improvement, and residence, not having been completed according to that act, his title was defective notwithstanding the issuing of the patent. The court refused to hear this evidence, or to open the judgment; on which the counsel of Shortz tendered a bill of exceptions, to which the court affixed their seals.

A. W. Foster, and S. B. Foster for the plaintiff in error, contended that on a motion to open a judgment, the court was bound to receive the same evidence that would be competent upon a trial by jury; and that for any error in opinion in receiving or rejecting testimony upon such a motion, a bill of exceptions might be tendered. In this case the plaintiff in error had no other remedy for an obvious injury. There was nothing in the statute against it, and although the motion was to the discretion of the Court below, it was to a sound discretion influenced and governed by the rules of law. The ground of the motion was this: that the articles of agreement executed by Quigley on the 4th December 1800, were in fact a part of the condition of the bond executed by Shortz on the same day. That by those articles the bond was void upon an event which had occurred since the date, and which the parties originally agreed should have that effect if it did occur, namely, if a certain time elapsed before Quigley made Shortz a good title. Shortz wished to shew that Quigley never had made such a title, and never could make it, notwithstanding the patent; that is, he wanted to shew the true meaning of the condition, which under existing circumstances, avoided the bond; and of course proved that the judgment was erroneous. 1 Esp. Digest. 248. 345. The evidence, though parol, was perfectly competent by all the decisions in Pennsylvania. Field for the use of Oxley v. Biddle. ^[a] The patent was merely presumptive evidence of title.

Baldwin for defendant in error, said that it was an attempt on the part of Shortz to keep the land without paying for it; inasmuch as a claim adverse to that of these parties was never heard of; so that the plaintiff in error had very little equity. But at all events, the case presented by the bill of exceptions was out of the question; for a bill was never before thought of being tendered for refusing to hear evidence on a motion to the court. Lord Coke says that the exception extends " not only to all pleas dilatory and peremptory & c. to prayers to be received, oyer of any record or deed, and the like, but to all challenges of any jurors, and any material evidence given to any jury, which by the court is overruled." 2 Inst. 427. But when the matter was proposed to the court alone, they might hear what evidence they pleased. There would otherwise be no end to delay. As to the judgment itself, there was no error in it, it was entered under a valid power, and not until the title had been tendered.

TILGHMAN C. J. after stating the case, proceeded as follows:

It is first to...