Tyrone & Clearfield Railway Co. v. Jones

• Decision Date: 24 May 1875
• Citation: 79 Pa. 60
• Parties: Tyrone and Clearfield Railway Co. <I>versus</I> Jones.
• Court: Pennsylvania Supreme Court

79 Pa. 60

Tyrone and Clearfield Railway Co. versus Jones.

Supreme Court of Pennsylvania.

May 18, 1875.

May 24, 1875.

May 18th 1875.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Centre county: Of May Term 1875, No. 9.

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A. Hay and Edmund Blanchard (with whom was Evan Blanchard), for plaintiffs in error.—The writ of scire facias to revive and continue a lien and show why execution should not issue is interlocutory, and not on a footing with a scire facias on a mortgage: Edwards' Appeal, 16 P. F. Smith 90; Sinkett v. Wunder, 1 Miles 362. A scire facias to revive a judgment against a terre-tenant cannot be maintained on a judgment on a scire facias against the original lien debtor, obtained after the terre-tenant's title had accrued: Zerns v. Watson, 1 Jones 260; Little v. Smyser, 10 Barr 383. A terre-tenant must be a purchaser mediately or immediately, whilst the land is bound by the judgment: Dengler v. Kichner, 1 Harris 41; Cahoon v. Hollenback, 16 S. & R. 432; Dohner's Assignees, 1 Barr 104. A scire facias cannot be sustained against a dead corporation: Mumma v. Potomac Co., 8 Peters 285; Farmers' & Mech. Bank v. Little, 8 W. & S. 207. The Acts of 1843 and 1862 do not create liens expressly, and implied or latent liens are against the policy of our laws: Kauffelt v. Bower, 7 S. & R. 64; Commonwealth's Appeal, 4 Barr 165; Hendrickson's Appeal, 12 Harris 365; Patterson v. Forry, 2 Barr 456; Hepburn v. Snyder, 3 Id. 78; Hiester v. Green, 12 Wright 96; Mann's Appeal, 1 Barr 24; York Bank's Appeal, 12 Casey 458; Smith's Appeal, 11 Wright 128. The Act of 1843 being in restraint of alienation, must be construed strictly: Dwarris on Statutes 750; Braddee v. Brownfield, 2 W. & S. 280. The power to mortgage, taken away by the Act of 1843, was restored by the Act of April 28th 1857, Pamph. L. 351, and its supplement April 11th 1859, Pamph. L. 494, authorizing the Tyrone and Clearfield Railroad Company to mortgage. When a subsequent affirmative statute introduces a new rule, it repeals a former statute on the same subject-matter by implication: Johnston's Estate, 9 Casey 511; Somerset & S. Road, 24 P. F. Smith 61; Bartlet v. King, 12 Mass. 546; King v. Cater, 4 Burrows 202; Commonwealth v. Cromley, 1 Ashmead 181. Where there is a repugnancy in two statutes the latter repeals the former pro tanto: Opdyke's Appeal, 13 Wright 379; Nusser v. Commonwealth, 1 Casey 126 J. A. Beaver and J. Macmanus, for defendant in error.—A scire facias on a judgment is not strictly an action, but a demand for execution: Fries v. Watson, 5 S. & R. 220; Morton v. Croghan, 20 Johnson's Rep. 106; Clippinger v. Miller, 1 Penna. R. 71. The plaintiffs in error appeared to the original suit and were bound by the judgment, and also by the scire facias on it, which was served on them; they appeared and made defence: Himes v. Jacobs, 1 Penna. R. 152; Heller v. Jones, 4 Binney 61. The lien of the contractor is indefinite in duration: Knorr v. Elliot, 5 S. & R. 49; Amer. F. Ins. Co. v. Pringle, 2 S. & R. 138.

Judgment was entered in the Supreme Court, May 24th 1875, PER CURIAM.

Under the resolution of 1843, the mortgage in this case was invalid to affect the debt of the plaintiff. The Act of 1857, authorizing the company to mortgage its road, franchises and property, conferred an authority upon the railroad company to execute the mortgage, but was not a repeal of the protection the resolution of 1843 gave to debts for the construction of the road. The Act of 1862 furnished a remedy to make this protection effectual. The form of the scire facias is not directed by the act. The form adopted was therefore not inappropriate. The opinion of Justice Strong in Fox, Ex'r of Fox, v. Seal, Workman and Hughart, Trustees of the Hempfield Railroad Co., decided in the Supreme Court of the United States, is so full and satisfactory, and covers the ground of this case, it is referred to as fully vindicating the decision in this case.¹

Judgment affirmed.

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1. Mr. Justice STRONG delivered the opinion of the court.

We think there was error in the rejection of the evidence offered by the plaintiff. Some of it may have been immaterial to the issues pending, but the court directed that all the record and documentary evidence be embraced in one offer, and then rejected it all. In effect the objections urged by the defendants were treated as a demurrer, and the offer was overruled because the evidence was regarded as insufficient in law to sustain the action.

If the rights of the plaintiff have not been lost by failure to prosecute them in the proper mode, and in due time, the joint resolution of 1843, in our opinion, protects him against the mortgage, and all persons claiming thereunder. * * * That the plaintiff's testator was a contractor with the Hempfield Railroad Company, and that the debt due to him was incurred by the company for the construction of their railroad, it was the direct tendency of the evidence offered to prove, and these facts are uncontroverted now. That debt, therefore, was within the protection, whatever that may be, of the resolution. What, then, was the nature and extent of that protection? It is unnecessary to assert that the company was rendered incapable of making a mortgage or any transfer of its property, so long as the debt due to its contractor remained unpaid. But the language of the resolution is too clear to admit of question that the legislature intended to give to an unpaid contractor a priority of claim to the company's property, over every right that could be acquired by a mortgagee, or acquired under a mortgage, if the mortgage was made after the debt to the contractor was incurred. It was at least intended that the property, into whosoever hands it might come, should remain subject to a paramount claim of the contractor so long as the debt due to him remained unpaid. That this was substantially giving to him a lien of indefinite duration seems quite plain. It was not a "jus in re," nor a "jus ad rem," but it was a charge upon the property, a right to prevent any disposition of it, by which it could be withdrawn from the creditor's reach, and therefore in a very legitimate sense an equitable lien. The resolution in effect declared that while his claim against the company exists, a subsequent mortgage or transfer cannot be set up to defeat the contractor's resort to the property and his superior right to have it applied to the payment of the debt due him. It is true the mode of that resort is not prescribed. It can only be by suit, judgment and execution, but whenever judgment and execution are obtained, the lien is made to precede the lien of any mortgage, or the effect of any conveyance; more accurately, it has the effect it would have were there no mortgage or conveyance in existence. The property may be levied upon and sold, and the proceeds of the sale may be applied to the satisfaction of the debt due the contractor, without possible interference by the mortgagee, though the mortgage preceded the judgment in time. We cannot regard the resolution as no more than a partial re-enactment of the Statute of 13th Elizabeth invalidating mortgages and transfers only when there is an actual or constructive intent to hinder, delay or defraud creditors. If that was all the resolution intended it was unnecessary and unmeaning. But it declares null and void every mortgage the effect of which is to defeat, postpone, endanger or delay contractors, laborers and workmen. The mortgage may be good as against other creditors, but it is a nullity as to them.

It has been argued that it is against the policy of Pennsylvania to allow secret liens, or liens not of record, or liens on land created by parol, and undoubtedly there are evils attendant upon the allowance of such encumbrances. But that is a matter for legislative consideration. The supposed policy of the state cannot, in a judicial tribunal, prevail over a plain statute. And notwithstanding the disinclination judges have manifested to sustain liens not of record, there are many such liens known to the statute laws of that state and upheld by the courts. A mechanic or material man, is given a lien, and he is not required to put his claim on record until within six months after his work has been done, or his materials have been furnished. Yet his lien has priority over every lien (other than a mechanic's) which attached to the building or curtilage subsequent to the commencement of such building. So liens are given by statutes to laborers, miners and clerks, and they are valid against subsequent mortgages, though the liens do not appear upon any record: Act of March 30th 1859, P. L. 318. It is not, then, against the policy of the state to create a statutory lien in favor of laborers or workmen.

And if we have correctly interpreted the legislative resolution of 1843; if the debt due from the Hempfield Railroad Company to the plaintiff's testator was a lien upon the property of the company from the time it was created, so far, at least, as to have priority over any subsequent mortgage or conveyance, it is plain the lien would have continued a prior...