Tryon v. Munson

• Decision Date: 10 May 1875
• Citation: 77 Pa. 250
• Parties: Tryon <I>et al. versus</I> Munson <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 250

77 Pa. 250

Tryon et al. versus Munson et al.

Supreme Court of Pennsylvania.

January 28, 1875.

May 10, 1875.

January 28th 1875.

At Philadelphia. Before AGNEW, C. J., SHARSWOOD, WILLIAMS, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Columbia county: No. 14, to September Term 1874.

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J. W. Ryon and F. W. Hughes (with whom were A. C. Smith, O. P. Bechtel and Black), for plaintiffs in error.

J. E. Gowen and F. B. Gowen (with whom were R. F. Clark, G. DeB. Keim, S. P. Wolverton, C. R. Buckalew and Woodward), for defendants in error.

Chief Justice AGNEW delivered the opinion of the court, May 10th 1875.

Without following the order of the assignments of error, this case may be discussed, so far as needful, under four heads, viz.: —

1. Was there a valid mortgage by James Wilson of the land surveyed on the warrant to Philip Miller?

2. Was the proceeding by scire facias against the administrator valid, and was it binding on the heirs of Judge Wilson?

3. Was the record in evidence sufficient to support the sheriff's sale?

4. Did the sale extinguish the title of these heirs?

The objection to the validity of the mortgage of Judge Wilson to Charles Wollstonecraft and others is, that it bore date on the 14th of June 1794, sixteen days before the survey on the warrant of Philip Miller, made on the 30th of June 1794. This warrant was indescriptive, and the particular land to be appropriated was unascertained until survey. It is contended, therefore, that there was at the time of making the mortgage no title in James Wilson which he could mortgage. The argument is founded on the authority of Heath v. Knapp, 10 Watts 405, and other cases, deciding that there can be no valid sheriff's sale of an unexecuted warrant. This is true, because the sheriff must levy on the land when the real estate is intended to be sold under execution. An indescriptive warrant gives no title to any particular land until survey, and therefore, none can be seized. But a warrant, upon which the purchase-money has been paid, is an authority from the Commonwealth to survey vacant land to the person taking it out. It is issued by virtue of law to the surveyor-general, who is bound to execute it. It usually runs in these or similar words: "These are, therefore, to authorize and require you to survey, or cause to be surveyed, unto the said Philip Miller, the quantity of acres by him applied for, &c., if not already surveyed or appropriated, and to make return thereof into the said Land Office, for which this shall be your warrant." It is, therefore, evidence of a contract between the state and the warrantee, to permit him to elect unappropriated land to be surveyed where he shall designate. Though as a contract or permission, paid for, to elect, it is not subject to an adverse levy, either as land or a chose in action; it confers on the owner of the warrant a power to take land where he shall elect to have it. When the election is consummated by a survey, return and acceptance, the title is consummated, and has, according to several cases, the effect of a legal title, the patent being of course. What, then, was there to prevent Judge Wilson from mortgaging the warrant, as the representative of real estate, and covenanting to locate it, and thus render certain the land to be taken under it? It is true no land passed instantly under the mortgage, but the right to take and define land did, with a covenant of the mortgagor to define it, for the use of the mortgagee. The right to have and locate land was not a mere inchoate thing, incapable of enforcement, but a valid legal right to have the warrant located and the land set apart. Hence, when the survey was made, the title enured at once to the use of the mortgagee, by virtue of Wilson's covenant to survey, equity treating that as done, which, in equity, ought to be done. By the terms of the mortgage Judge Wilson granted, bargained and sold, "all those several tracts of land surveyed, and to be surveyed, by virtue of the warrants issued from the Land Office, in consequence of the several payments mentioned in the receipts hereunto annexed, numbered from one to fourteen." He also assigned and transferred "the said receipts and the said warrants." Habendum "the said several tracts of land, with the appertenances," and "the said receipts and warrants." The words "to be surveyed" constituted a covenant to survey the lands not already surveyed: Penn v. Preston, 2 Rawle 14; Blank v. German, 5 W. & S. 36. Thus a covenant to define the land to be elected, and to pass under the mortgage, followed the grant of the purchase-money and the warrant, which, on principles of estoppel, as well as equitable performance, would prevent Wilson or his heirs from holding the land adversely to the mortgage, after location under the warrant: Brown v. McCormick, 6 Watts 60; Tyson v. Passmore, 2 Barr 122; Root v. Crock, 7 Id. 378. This reasoning derives strength also from the doctrine of election, recognised in Coxe v. Blanden, 1 Watts 533, in which it was held that a treasurer's sale of a part of a tract of land, by quantity, and not by locality, is good, and confers an unrestricted choice of locality. For instance, a sale for taxes of 10 acres in a tract of 400 acres gives the purchaser a right to locate it on any part of the whole tract. A warrant to survey 400 acres of land, upon unappropriated land, in a certain county, is very analogous, with this difference in favor of the warrant, that it confers a contract or authorized election, whereas the treasurer is invested with no such express authority. The act of the treasurer is an adverse official act, and that was the strain of the case in Coxe v. Blanden. At common law, the absolute owner of land — and the state is such — may sell on terms of unrestricted election, but it was a question whether an officer could so sell. The principle of Coxe v. Blanden has been recognised in a number of cases: McCord v. Bergautz, 7 Watts 490; Krider v. Lafferty, 1 Whart. 303; Brotherton v. Livingston, 3 W. & S. 334; Beegle v. Wentz, 5 P. F. Smith 369. We are of opinion that the mortgage of James Wilson was valid to carry the title to the land surveyed under the Philip Miller warrant.

The next question is upon the legality of the proceeding by scire facias. In recording the mortgage, the lists were omitted containing the receipts of the receiver-general for the payment of the purchase-money — the names of the warrantees, number of acres, and purchase-money of each tract. It is contended that the mortgage was, for this reason, defectively recorded, and to be treated as an unrecorded mortgage, and that a scire facias lies not in an unrecorded mortgage. But it must be observed though, that while the instrument as recorded was itself defective, in that it contained no description of the land conveyed, it was not defectively recorded; on the contrary, it was fully proved and entitled at law to be recorded — could not be refused by the recorder, and was in fact recorded.

It cannot be said, therefore, that the scire facias issued upon an unrecorded mortgage. On the trial of the scire facias, another and a more serious question might arise, upon the effect or operation of the instrument as recorded, inasmuch as it did not describe or identify the warrants and receipts referred to in the granting clause. Yet it would be going too far to say that the defect in the description would prevent jurisdiction being taken by the court on the scire facias. But treating it as an unrecorded mortgage in effect, still we are of opinion that the scire facias was a proper remedy. The 6th section of the Act of 1705, which gives the remedy by scire facias, nowhere refers to the record of the mortgage. It provides, that where default is made by the mortgagor to pay or perform according to the tenor and effect of his mortgage, the mortgagee may, after a specified time, sue forth a writ of scire facias, directed to the proper officer, to notify the mortgagor to show cause why the mortgaged premises should not be taken in execution for payment of the mortgage money. This is a statutory remedy, given to every mortgagee, without exception, upon his mortgage and not upon the registry: Roberts v. Halstead, 9 Barr 34; Lancaster v. Smith, 17 P. F. Smith 427; Frear v. Drinker, 8 Barr 520. It furnishes an answer also to the learning of the books introduced into the able argument for the plaintiff in error, upon the writ of scire facias, as judicial process, founded upon some matter of record. The scire facias on mortgage, thus given by statute, is original process, provided as a remedy for the default of the mortgagor, and therefore lies on all mortgages recorded or unrecorded. The distinction between the scire facias as original, and this writ as judicial process, is shown in Chambers v. Carson, 2 Whart. 370, 371. The effect of an unrecorded mortgage, as against the heirs, will be considered hereafter, and for the present it will be sufficient to cite on the point before us, Hosie & Longstreet v. Gray, 21 P. F. Smith 198. The proceeding by scire facias was, therefore, proper. The second branch of this question is, whether the scire facias against the administrator of James Wilson bound his heirs, and this involves a primary inquiry, whether the proceeding was regular as against the administrator? That it was so is clear. The Act of 1705 expressly authorizes the writ to be issued against the executors or administrators, and such has been the constant practice. This case occurred before the passage of the Act of the 24th of February 1834, and yet it has been held that a scire facias upon a mortgage, even since its passage, does not fall within the 34th section of that act, requiring notice to be given to the widow and heirs: Chambe...