Duncan research files of
"Pennsylvania state reports, containing cases adjudged in the Supreme Court during part of May term, July term, and part of September term 1846" by Robert M. Barr; Vol.3, pg.115 to 126 (California State Law Library, Sacramento, 1/2004)
EGE v. SIDLE et al; Supreme Court of Pennsylvania; 3 Pa. 115; June 11, 1846, Decided. Harrisburg, May term 1846.
Error to Common Pleas of Cumberland county.
June 5. This was an ejectment, brought by Mary Ege, surviving executor of Michael Ege, deceased, the plaintiff in error, and plaintiff below, against Henry Sidle and George F. Carl, to recover three hundred and fifty acres of land.
On the trial, the plaintiff gave the following evidence: --
Application, by Michael Ege, for four warrants, dated 23d of January, 1794; a warrant to Thomas Duncan, for four hundred acres, in Allen township, dated 23d of January, 1794; survey thereon, dated 21st of October, 1794, which was returned; application of John Duncan, dated 19th of January, 1793; warrant thereunder to him, of same date, and the survey thereon, dated 21st of October, 1794, for four hundred and thirty-eight acres seventy-seven perches; two certificates, one of which was dated the 21st of January, 1793, and the other 23d of January, 1794, for the payment of the purchase money by Michael Ege, for the land included in the above two warrants. It was proved, that the surveys on the warrants were made for Michael Ege, in 1794.
The plaintiff then called and examined Hugh Walsh, as a witness, who testified, in substance, as follows: -- "I have known this piece of land for twenty-eight years. I lived in a house, on this tract of land, twenty-three years ago. Lived under Michael Ege, and worked on the land, coaling it, twenty-five years ago. Ege has been coaling and mining that land, occasionally, ever since. I laid out lots of wood-chopping on the land in dispute, ten or twelve years ago."
Another witness swore, that he had been acquainted with the land from his boyhood; that, in 1815, or 1816, they were building a house, and that Philip Belman went into it under Ege; that Ege, since that time, continued to exercise acts of ownership over it, by cutting wood, at different times, on it; that, a long time ago, wood was cut on this land -- within five years of the time the cabin was built; and that it was better than one mile from the cabin to the county line. He then gave in evidence a deed, dated 3d of June, 1815, from Michael Ege, senior, to Michael Ege, junior, for the two tracts of land, and also the will of Michael Ege, dated 5th of March, 1827, under which, land was devised to his executors, to carry on works, and to sell, &c.
The defendants then gave in evidence a warrant to Henry Sidle, dated 20th of February, 1841, for two hundred acres of land; and also a survey made thereon, on the 14th of May, 1841, which was returned 5th of August, 1844, with a memorandum in these words: "N. B. The above described tract of land is claimed to be held on warrants, by Michael Ege's heirs."
They then offered the proceedings of the board of property. The plaintiff objected to the evidence offered, for the following reasons: --
"That no caveat ever was entered. That there is no proof that any notice was ever served on the heirs of Michael Ege, deceased, as ordered by the board of property. That neither the heirs, nor Mrs. Ege, were parties in any shape. That there were other heirs of Michael Ege than those mentioned in the notice. The whole proceeding is irregular and illegal. That there are no persons named in this caveat, if it be one. The heirs of Michael Ege do not mean anybody. These are all certificates of different things, and none of them certified to be an entire copy of the record of the board of property, or of the land-office. That they are certified by the surveyor-general, and are proceedings of the land-office."
The court overruled the objection, which was plaintiff's first bill of exception. The following proceedings were then read in evidence: --
"Surveyor-General's Office, Sept. 6th, 1843. I do hereby certify, that upon a survey made by Patrick Davidson, deputy-surveyor of Cumberland county, on a warrant dated the 20th of February, 1841, granted to Henry Sidle for two hundred acres of land, situate in Monroe township, in said county, there is the following note, viz.: 'N. B. The above-described tract of land is claimed to be held on warrants, by Michael Ege's heirs.'"
This certificate was signed by the surveyor-general, and addressed to the secretary of the land-office.
"Land-office of Pennsylvania, September 6, 1843. The 1st Monday (6th day) of November next is hereby appointed for a hearing of the parties in the above caveat, thirty days' previous notice being given. It is farther directed, that the parties give each other ten days' notice of the time, and of taking depositions intended to be read in evidence before the board of property. R. M. Crain, Deputy-Secretary of Land-office." "Land-office, November 6, 1843. George F. Carl, being duly affirmed according to law, doth say, that he served notice of the within citation on Frederick Watts, Esq., and Michael G. Ege, by handing the same to them individually, and says that they read it; and Mrs. Mary Ege, by leaving her a copy of the same. These services were made on the 22d day of September, 1843. George F. Carl." "Affirmed and subscribed, this 6th day of November, 1843, before me, Charles McClure, Secretary of Commonwealth." "I do hereby certify, the within are copies of a caveat, citation thereon, and of the proof of service on the heirs of Michael Ege, in the case of the heirs of Michael Ege v. Henry Sidle, now remaining in the office of the Surveyor-General of Pennsylvania. [Seal of Land-office.] In testimony whereof, I have hereunto set my hand, and affixed the seal of said office, this 10th day of August, 1845. For John Laporte, S. G. R. M. Crain."
"Cumberland County, ss. I, Thomas H. Criswell, prothonotary of the Court of Common Pleas of said county, do certify, that I have carefully examined the indexes to the records of said court, and find no suit of ejectment entered upon said records, in which Michael Ege, or the executors of Michael Ege are plaintiffs, and Henry Sidle is defendant, since the year 1820. In testimony whereof, I have hereunto set my hand, and the seal of said court, at Carlisle, the 12th June, 1844. For Thomas H. Criswell, Prothonotary. John Main." "I do hereby certify, that the within is a true copy of the original remaining on file, in the surveyor-general's office of this Commonwealth. [Seal of Land-office.] "In testimony whereof, I have hereunto set my hand, and affixed the seal of said office, this 11th day of August, a. d. 1845. For John Laporte, S. G." "R. M. Crain."
"The Heirs of Michael Ege, v. Henry Sidle. On caveat.
"At a meeting of the board, November 7, 1843. Present, Charles McClure, Secretary of the Commonwealth; William Hopkins, Secretary of the Land-office; Jacob Sallada, Surveyor-General.
"In this case, the defendant appeared in person, and produced proof of service of the citation on F. Watts, Esq., attorney for the heirs of Michael Ege, and also on several of the heirs. No person appearing on behalf of the plaintiff, the board held over the case until this day, (7th November.) No person appearing for the plaintiff, the board directed the caveat to be dismissed, and directed the surveyor-general to accept the survey on Sidle's warrant."
"I do hereby certify, that the within is truly copied from minute-book, No. 10, page 103, now remaining in the office of the surveyor-general. [Seal of Land-office.] "In testimony whereof, I have hereunto set my hand, and affixed seal of said office, this 7th day of August, a. d. 1845; and that no other proceedings had before the board of property in the case. For John Laporte, S. G. R. M. Crain."
The defendant then offered in evidence the patent to Henry Sidle, dated 5th of August, 1844; to which the plaintiff objected, on the ground that it was dated after this suit was brought. Objection overruled and patent read; which was plaintiff's second bill of exception.
It was admitted by the plaintiff, that the heirs of Michael Ege were Michael G. Ege, Andrew G. Ege, Charles N. Ege, Peter F. Ege, Edward S. Ege, and Henrietta Watts, wife of Frederick Watts.
The plaintiff requested the court to charge the jury on the following points: --
"1. That the plaintiff has established a perfect legal title to the land embraced within the surveys in the names of Thomas Duncan and John Duncan, and that she is entitled to recover all that part of the land claimed by the defendants in their surveys, as exhibited by the drafts filed.
"2. If the jury believe that neither Mary Ege nor any of the heirs of Michael Ege, deceased, had any notice of the warrants and surveys of Sidle and Carl, or either of them; had never any notice of any note in writing made by the deputy-surveyor previous to the 6th November, 1843, on the surveys of Sidle and Carl, and never entered any caveat against the acceptance of those surveys, and never appeared before the board of property, or acquiesced in any way in any proceedings before that board, then their proceedings, as given in evidence, are illegal, and will not prevent the plaintiff's recovery.
"3. If the proceedings of the board of property, as given in evidence, do not show that notice was given to all the heirs of Michael Ege, deceased, they are not effectual, and will not prevent the plaintiff's recovery, at all events to that amount of the land which will be in proportion to the number of the heirs.
"That the proof in the cause shows, that the land covered by the warrant in the name of John Duncan was improved, a house built upon it thirty years ago, and was occupied by tenants of Michael Ege and his heirs, and used by them as their own ever since. It is not embraced by the act of 1792, and the proceedings of the board of property do not therefore bar the plaintiff's right to recover."
His honour, Judge Hepburn, then charged the jury thus: --
"There is no difficulty in the way of the plaintiff's recovery of that portion of the land in controversy, surveyed upon a warrant to George F. Carl; and for that she is entitled to your verdict. But for the tract surveyed upon a warrant to Henry Sidle, an insuperable legal difficulty seems to be in her way. In executing this warrant, the deputy-surveyor was required to note on his survey the claim asserted by Ege's heirs to the land embraced within its boundaries. This claim being noted on that survey, when returned to the surveyor-general's office, was in the nature of a caveat, and prevented the acceptance of it, as well as the issuing of a patent upon that warrant, until the expiration of the time limited by law after the return of the survey, without an order of the board of property.
"In order, therefore, to prevent this delay, a citation to the claimants was issued by the board of property, by which they were notified to appear before them, and a time prescribed as to taking notice for depositions to be read on the hearing. The case was then legitimately before that tribunal, of which the plaintiff, with others, the heirs of Michael Ege, had notice, but for some cause or other, neither the plaintiff, nor any one in her behalf, appeared there, and a decision was made in favour of the Sidle warrant, to whom, after the lapse of six months, a patent issued. This decision of the board of property, after the lapse of six months, without the institution of a suit by the losing party, became conclusive of their right; and the title of Sidle, though defective before, thereby became full and perfect.
"This suit was not brought within the six months required by the 11th section of the act of 3d April, 1792, and in accordance with the decisions of the Supreme Court upon that statute. We instruct you, that the decision of the board of property in favour of the Sidle warrant, is a bar to the plaintiff's recovery of the land embraced within that survey."
The plaintiff excepted to the charge.
Jury found for the plaintiff, one hundred and nine acres and one hundred and fifty-six perches, which was that portion of the land in controversy surveyed to George F. Carl; the remainder for defendants.
The record was removed to this court by the plaintiff, and the following errors assigned: -- (MAD: Errors and syllabus omitted here)
COUNSEL: Biddle and Watts, for plaintiffs in error. -- The 1st section of the act of 1782 was to quiet the doubts which remained with the different officers, touching their power of determining many controversies on caveats; and it is enacted by the 2d section of the same act: "And the secretary of the land-office is empowered and directed to receive and enter caveats in his said office, copies whereof to be transmitted to, and entered in the surveyor-general's office. And the secretary of the land-office shall grant citations," &c. The act of April 3, 1792, sec. 11, enacts: "where any caveat is determined by the board of property, in the manner heretofore used in this Commonwealth, at the end of six months, if no such suit is entered, a patent shall issue, &c., and shall be a full and perfect title against all parties and privies to said caveat." In this case no caveat was entered in the land-office, but a mere note on the survey by the deputy-surveyor in the surveyor-general's office: a mode of bringing parties before the board of property not recognised by the act of 1782, nor that of 1792, which speaks of caveats, in manner heretofore used. Now, to bar parties or privies, the caveat must be entered according to the act of 1782, by a party, in the land-office. The act of January 22, 1802, provides for notes on survey, and writings in the nature of a caveat, which shall not bar the issuing of a patent during a longer period than two years, unless the party interested in the land shall take out a citation, &c., and recognises the entering of caveats and notes on surveys in either of the offices. Surveyor-generals or secretaries of the land-office, distinguishing between caveats and notes on surveys, making no limitation of six months, but requiring proceedings before the board of property within two years. Under the acts of 1782 and 1792, when a party enters a caveat in the land-office, he has chosen his own tribunal, and cannot complain that he is bound by those acts. But a note on survey by a deputy-surveyor does not make the owner of the land an actor; it is not done at his instance, and the act of 1802, and not that of 1792, is applicable.
But if the proceedings are regular, the notice is insufficient. No person is named; the heirs of Michael Ege mean nobody, and but two of six heirs were served with notice. Mrs. Ege, the executrix, was not notified as executrix, but as an heir. She being entitled to the land as executrix, a notice to her that the heirs of Michael Ege claimed the land, was a notice that they claimed adversely to her. The face of the proceedings show that they are not full and correct. The proof in the land-office is of the service of notice on F. Watts, M. G. Ege and Mrs. Ege, whereas the minute of the board is, that notice was given to F. Watts, as attorney, and to some of the heirs. In the proceeding before the board, between Sidle and the heirs of Michael Ege, Mrs. Ege, as executrix, was not bound to appear, and not being a party, could not be concluded by the proceedings.
If the note on the survey was a caveat, it was only such as to the heirs of Michael Ege, who may be supposed to have claimed adversely to the executrix, on the ground that she claimed the land adversely to the heirs; she may therefore have well concluded, that the proceeding before the board of property was one adverse to hers; and adopting the character which Sidle had given to the proceeding, she came to the conclusion that she was not bound to take any notice of the service upon her of a pendency of a proceeding, in which the interests of both parties were adverse to hers.
Reed, for defendant in error, after referring to, and examining the several acts of Assembly in relation to the powers and duties of the board of property, the course of proceeding prescribed in entering caveats, &c., to be found under the caption of "Board of Property," in Purd. Dig. ed. of 1841, 134, 135, and 136, contended, that the proceedings were entirely regular, and conformable with the acts of Assembly. The secretary of the land-office was bound to receive the caveat, as certified to him by the surveyor-general. The secretary of the land-office and surveyor-general are authorized to certify copies of all papers in their offices respectively, which are made evidence by act of Assembly. Caveats certified into the surveyor-general's office, under the act of April 5, 1782, the papers remain there.
The first question, then, which presents itself, is, was this a caveat? "Note on survey," recognised and called a caveat in the act of 1802. It is therefore a caveat in terms; and is so decided in Harper v. The Farmer's and Mechanic's Bank, 7 Watts & Serg. 204. Was the notice served sufficient in law? It was served upon the executrix and some of the heirs.
The fact of Mary Ege, executrix of Michael Ege, being the plaintiff, and claiming a right to recover in this ejectment, shows her right to be a party before the board of property, or otherwise she has no right here. Executors may take as special occupants. An executor may take a freehold estate as special occupant. The freehold estate, in this case, was expressly vested in the executors by the will, to be held and occupied, until sale was made. It was not a mere power to sell, in the executors; but it was an interest, an estate in them. It was not allowed to descend to the heirs in trust, until a sale were made. This occupancy of the land was provided for by the will. The heirs had no estate, no interest in the land; they were to take money, not land. They had neither the possession, nor the right. It could only be in the executors; and it was in them by the appointment of the testator. They only could receive notice; they only can bring ejectment.
(opinion) June 11. Rogers, J. -- In Shoenburger v. Becht, 5 Watts 194, and French v. Seely, 6 Watts 292, it is ruled, "that the decision of the board of property upon a caveat, is final and conclusive of the rights of the parties, unless an ejectment, which is in the nature of an appeal, be brought by him against whom it was made, within six months; and this, whether the parties claim under warrants or improvements." So in Harper v. The Mechanics' Bank, 7 Watts & Serg. 204, it is said, that it is the duty of the deputy-surveyor to note on his surveys any interference, or adverse claim, and that such entry operates as a caveat against accepting the survey, and prevents the surveyor-general, without notice to the parties claimant, from granting a patent. In this case, on the survey, or the warrant to Henry Sidle, the deputy-surveyor made the following note: "The above described tract of land is claimed to be held on warrants by Michael Ege's heirs." On this note or memorandum, the proceedings were had in the board of property.
It is said, in the first place, that the decisions above cited do not apply to a caveat issued on a return of a deputy-surveyor. But this is a distinction not warranted by the acts, and for which no reason is perceived. The duty of the deputy-surveyor to note an interference, or adverse claim, did not take its rise out of the act of 1802, but that act is a recognition of a practice which had obtained before. The act of January 22, 1802, has no operation, so far as it regards the limitation of the appeal to six months, but is intended to guard against the inconveniences which arise to warrantees and purchasers from delay in completing titles to land, by suffering caveats of any description to remain as a bar for an indefinite period, without any process therein. In remedy whereof, it provides, "that it shall not continue a bar to the issuing of patents for a longer period than two years." Under the act of 1802, there is no hearing or action by the board of property, and, of course, there is no room for the operation of the limitation created by the act of 1792.
The proceedings in the land-office, previous to the action of the board of property, are not open to the objections made to them. The return of the deputy-surveyor is made to the surveyor-general. By him it is certified to the secretary of the land-office, and when in the land-office, a day is appointed for hearing the parties on the caveat. The 7th of August, 1845, the board of property directed the caveat to be dismissed, no person appearing for the plaintiff. The prothonotary of the county of Cumberland, where the land lies, having certified that no action of ejectment had been brought, a patent was issued to the caveatee. So far, there is nothing wrong or irregular in the proceedings of the land-office; but beyond this, they do not deserve commendation. The return of the deputy-surveyor, that "the land is claimed by the heirs of Michael Ege," without naming them, is too general: for although, in such a shape, it may be received by the surveyor-general, the practice ought to be discountenanced. The board of property, at any rate, should not sanction an irregularity so palpable, by stating the case in the same loose way. Before that tribunal it assumes the form of an action, or adversary proceeding, to which there ought to be proper parties. And if ordinary care and diligence be observed, no difficulty can arise from such a cause; for in the case in hand, it would have been an easy matter for Henry Sidle to ascertain the names of the heirs of Michael Ege. And unless this were done, it was not in a fit state for a hearing.
Form cannot be altogether disregarded. In some cases, as here, it is a matter of substance. The want of some little attention in putting the case into proper form, has given rise to this controversy, for we cannot avoid seeing that the blunders that have been committed have arisen from this cause. The proceedings are, the heirs of Michael Ege v. Henry Sidle, on caveat. The party serves notice on Mary Ege, on Frederick Watts, and Michael Ege. And on this notice, the caveat is dismissed and a patent issues; whereas, it appears Mary Ege is not an heir, and that the heirs of Michael Ege are, Michael G. Ege, Andrew G. Ege, Charles N. Ege, Peter F. Ege, Edward J. Ege, and Henrietta Watts, wife of Frederick Watts, none of whom, save two, have had any notice whatever.
The mere statement of the case shows the evils, inconvenience, uncertainty and injustice, to which such a loose practice must necessarily lead. We cannot help thinking, that if the proper parties had been notified in proper form, the case would have assumed a different shape; for it cannot for a moment be supposed, that the board of property would have dismissed the caveat, unless service had been proved on all the heirs. It strikes at the root of the right of property, liberty and life, to condemn any man without giving him an opportunity of being heard. There is, indeed, some uncertainty as to whom the decision applies. Can it be extended, contrary to every principle of justice, to those who never have been served, and who had no notice to appear? Is it good in part, and bad in part? This cannot be. Had all the heirs, or Mr. Ege appeared, the irregularity would have been cured. But were those who were served, in a proceeding so irregular, bound to appear, when they knew that no attempt was made to give notice to all the heirs? Can Henry Sidle take advantage of a proceeding which may be defective from design, the notice perhaps carefully served on those who had no special interest to attend the hearing? It will be readily perceived, to what injustice, trick, and artifice, the practice may lead, unless checked in time.
This case has been so far treated as if the heirs of Michael Ege were plaintiffs in the ejectment; but how does the case stand? The matter decided by the board of property, is in a proceeding in which the heirs of Michael Ege are the parties on one side, and Henry Sidle on the other. The ejectment is between Mary Ege, surviving executrix of Michael Ege, plaintiff, and Henry Sidle and George F. Carl, defendants. There is no necessary connection between them; the heirs and executrix claiming under different rights.
By the will of Michael Ege, the real estate is devised to his executors for a special purpose. They have a power over the real estate, coupled with an interest, and a right to the possession of the estate, beyond the control of the heirs. The executrix has a freehold estate in the land. The land being ordered to be sold for the payment of the debts, the interest of the heirs is money, not land. It is therefore clear, that as the proper party to the caveat should have been the executrix, on her, notice should have been served, quasi executrix. It is true, that in a proceeding in which the heirs were parties, she was served with notice; but this she had a right to disregard. If she had appeared, the question would be entirely changed. But this she properly refused to do. If the deputy-surveyor returns, that A. claims the land, and the proceedings in the board of property are in the name of A., can it be, that when B., who is the real owner, is served with notice, he is bound to make himself a party, on the penalty of losing his land by a decision of the board, adverse to his right, unappealed from in six months? But, it may be inquired, what is the duty of the owner of the warrant and survey in such a case? The course is plain and simple. When the owner refuses to appear, change the form, or rather substance of the proceedings making the owner a party, and give him notice.
By some little attention to form, justice will be more likely to be done, and inconveniences which must result from any other practice avoided. For these reasons, we are of opinion that the proceedings of the board of property are no bar to the action.
Judgment reversed, and a venire de novo awarded.
"Pennsylvania state reports, containing reports of cases adjudged by the Supreme Court of Pennsylvania" by George W. Harris, Vol.VII ("Pennsylvania Reports"); Vol.19, pg.77 to 87 (California State Law Library, Sacramento, 1/2004)
WILSON v. McCULLOUGH; Supreme Court of Pennsylvania; 19 Pa. 77; July 20, 1852, Decided.
Error to the Common Pleas of Cumberland county.
This was an action of ejectment, to November Term, 1848, by Thomas S. Wilson, Ann D. Wilson, and others, against David W. McCullough, John T. Green, and Thomas C. Miller, for two thousand and fifty acres of land.
The plaintiffs and defendants claimed title through Eliza Wilson, formerly Eliza Ege; the plaintiffs in interest claiming as her children, and the defendants claiming by reason of a sheriff's sale of the lands in dispute, by means of a writ of levari facias, &c.; the said writ being issued on a mortgage executed by James Wilson and Eliza, aforesaid, his wife, dated 12th December, 1821.
Eliza Ege, afterwards Eliza Wilson, was born on 29th December, 1796. She was the daughter of Michael Ege, who died in 1815. On 12th September, 1815, Thomas Duncan and Thomas Carothers were appointed her guardians. She was seised in fee simple of the land in question, and during her minority, and previous to her marriage with James Wilson, an agreement under seal was entered into between the said James Wilson of the one part, and Thomas Duncan and Thomas Carothers, as guardians of Eliza Ege, of the other part, dated 21st July, 1817. By the said articles of marriage settlement, Wilson covenanted that, on the solemnization of the marriage, and after the said Eliza arrived at lawful age, he and she will settle one-half of her personal and real estate for her use during life, with remainder to her offspring, by her then intended, or any future husband, and in default of issue, then to such persons as may, at her decease, be her heirs under the intestate laws of Pennsylvania. If she survived the said James Wilson, or any future husband, and had no issue, she should have the right, by will, to dispose of the whole or any part of the said moieties. The rents and profits of the said moieties to be settled as aforesaid, were to accumulate during the marriage for the benefit of the wife if she should survive her husband; and, if not, then for the benefit of her children or heirs. The trustees had power, with the consent of the husband and wife, to convert the trust property into other property, and they might, in their discretion, expend the rents and profits for the support of the said husband and wife; but the husband was to have no estate in the trust property.
Eliza Ege was one of the witnesses to the execution of the marriage articles, and it was stated in them that she was present and consenting thereto. She came of age in December, 1817. She died about 1835, '36, or '37, leaving five children, the plaintiffs in this suit. Her husband, James Wilson, died afterwards. The marriage articles were recorded on 22d or 23d July, 1823.
On the part of defendants was given in evidence a mortgage dated 12th December, 1821, by James Wilson and Eliza his wife, to the Harrisburg Bank, for $10,968, conditioned for the payment of $5484. The mortgage was recorded 21st December, 1821. This was objected to on the part of the plaintiffs,
1st. Because it is a mere security for payment of money, and cannot be executed by a feme covert under our Acts of Assembly, where it is intended as an encumbrance of the wife's property for the husband's debts.
2d. Under the marriage settlement the husband could not join in the mortgage, as the settlement was binding on him as to one-half of the property in controversy, and he was bound in conscience not to aid her in defeating it, and not to prevent her from doing any act to confirm it; and without his joining, it would be ineffectual. Admitted, and exception by plaintiffs.
Mortgage read. Satisfaction entered of record on 21st Feb., 1837, in pursuance of resolution of the Board of Directors of the Harrisburg Bank, in January, 1837.
Also gave in evidence the docket entry of January Term, 1828, No. 49, in the case of Harrisburg Bank v. James Wilson and Eliza his wife. The record with all proceedings thereon was offered. The proecipe was simply "issue scire facias sur mortgage." No writ of sci. fa. issued.
Parker appeared to the cause "for defendants without service of writ, with the same effect as if a writ had been issued and served but no other." The proecipe was filed 4th January, 1828.
There was no description of the property in the proecipe, or filed in the cause. The case was arbitrated, and on 12th May, 1829, the award of the arbitrators was filed, finding for the plaintiff $7915.25, with costs of suit. From this award, James Wilson, for himself and as agent for his wife, appealed on the 1st June, 1829. Afterwards, to wit, on the 23d January, 1830, the case came on for trial in Court (the same being at issue on the plea of payment with leave and replication), when the plea of payment, &c., was withdrawn as to Eliza Wilson, and a special plea entered for her, setting forth that she ought not to be charged with the said debt in her lands in the same set out and sued, in and by virtue of the mortgage on which the scire facias has issued in this suit, because that the lands and tenements therein embraced were originally, and before the intermarriage of the said Eliza with the said James, and at the time of making said mortgage, part of her own freehold and estate; and that she, the said Eliza, at the time of execution of the said supposed mortgage, was and still is the wife of the said James Wilson, &c. To this the plaintiff demurred generally, and the said James Wilson joined in the demurrer, when the Court below entered judgment on the demurrer in favor of the said Eliza Wilson. Then follows the memorandum in the notes of the Court: "Jury now sworn between the plaintiffs and the other defendant, James Wilson, by consent of both parties."
Verdict was rendered for the plaintiff for $8649.31.
A writ of error was taken on the part of the Bank to October Term, 1830, and the Supreme Court on 13th October, 1832, reversed the judgment, and entered judgment for the plaintiff. The entry on the record being, "Judgment reversed and judgment for plaintiff." See reference to the case in 3 Wharton 472.
To January Term, 1833, an amicable scire facias issued to revive judgment No. 49 of January Term, 1828, in the name of Harrisburg Bank v. James Wilson and Eliza Wilson. The docket entry was to this effect: "Defendants by their agreement in writing dated 30th March, 1833, appear and revive judgment for $10,302.76, &c., with release of errors." Search was made for the agreement, but it was not found.
A levari facias was issued to April Term, 1833. On the 18th July, 1833, the judgment on which the levari facias issued was assigned to Jacob Albert. A pluries levari facias was issued to April Term, 1835, which was, in July, 1836, returned sold on 22d April, 1835, for $13,700. The sheriff's deed to the purchaser acknowledged 18th September, 1835. The purchaser, in April, 1836, conveyed to Miller and Cooper; afterwards Cooper conveyed to Miller; and Miller and Wife, in December, 1848, conveyed to Green and McCullough.
Defendant's counsel also offered in evidence a mortgage by James Wilson and wife to Jacob Albert, dated 17th July, 1833, in order to show that the wife repudiated the marriage settlement after attaining legal age. This was objected to, was rejected, and exception taken on the part of defendants. Defendants rested.
On the part of plaintiffs, John Forster was examined. He testified that he was Cashier of the Harrisburg Bank when the mortgage from Wilson and wife was taken. That the Harrisburg Bank had a claim against the Greencastle Bank, and upwards of $5000 of that claim was transferred to James Wilson, and formed the consideration of the mortgage by Wilson and wife. That he came to a knowledge of the marriage settlement before the mortgage was taken; it was spoken of at meetings of the Board before the mortgage was taken. It was understood by the Board and himself that there was such an instrument. He did not hear the terms of the marriage settlement spoken of, nor whether it related to real or personal estate.
The case was tried before Durkee, J., holding a special Court. He observed that the plaintiffs claimed one-half of the land under the marriage articles, and the other half as her heirs at law. That the defendants under the proceedings under the mortgage have established their right to one undivided half of the land. That if the marriage articles were binding on Mrs. Wilson so that after she came of full age she could not encumber the other half by joining in a deed with her husband, that then the defendants cannot prevail against the plaintiffs as to such undivided half part, unless they are innocent purchasers, without notice of the articles of marriage settlement. He charged, that notwithstanding such agreement, Mrs. Wilson had the right, after she came of age, to mortgage her real estate, and that the mortgage by herself and husband to the Harrisburg Bank was a valid instrument unaffected by the said agreement.
He stated that it was not denied that the scire facias and other judicial proceedings were founded on the said mortgage; and he instructed the jury that the title, through the sheriff's sale, was not affected by any uncertainty or want of description in the record. In answer to points submitted on part of the plaintiffs, he charged, viz.: to the 1st, That the marriage articles had no effect against the mortgage to the Bank; 2d. That the articles did not prevent the wife from mortgaging the property; 3d. That though the Bank had notice of the articles, it was not material in the case. The 4th point was, That there was no judgment for any sum of money against Eliza Wilson, and the judgment has no validity. The 6th was, That there was nothing on the record of suit No. 49, January Term, 1828, to show that the proceedings were on the mortgage or against the land described therein, and that the purchaser at sheriff's sale derived no valid title under such mortgage.
The Court answered the 4th and 5th points: That the judgment was not void, but was sufficient to sustain the proceeding; 6th, That if the mortgage on which this suit was brought was the one that was given in evidence (viz. the one executed by Wilson and wife to the Harrisburg Bank), that the plaintiffs were not affected by the want of a more particular description of the mortgaged property on the record. The 7th point was to the effect that if the marriage settlement was known to the Harrisburg Bank when considering as to the taking of the mortgage; and if the defendants, and all the persons under whom they claim, acquired claim to the said property which was the subject of the settlement, after the recording of the settlement, the Bank, the defendants, and other persons under whom they claimed, were affected with notice of the settlement, and the plaintiffs were entitled to recover the undivided half of the premises claimed in the suit.
In reply to this, the Court instructed the jury to lay aside the marriage articles in determining the case. That if the defendants have made good their title under the mortgage according to the instructions of the Court as to the law, they were entitled to a verdict.
Verdict was rendered for the defendants.
Error was assigned to the charge and to the answers to the points submitted. (MAD: syllabus and arguments of counsel omitted here)
The opinion of the Court, filed July 20, was delivered by Lowrie, J. -- The defendants claim title under a levari facias, and a sheriff's sale and deed made in pursuance thereof. But if there was no judgment upon which such a writ could issue, then the writ and the proceedings thereon can have no efficiency in transferring this title.
The action on which the writ was issued is called a sci. fa. upon mortgage. This is purely a proceeding in rem; for, when the proceeding is in proper form, the party is summoned merely to show cause why certain land, described in the sci. fa., should not be taken in execution for the payment of the mortgage money and interest. It is in no sense in personam, for no other writ can issue but one to sell the land, and the short judgment entered for the plaintiff, when formally set out, is that the land, described in the sci. fa., or so much thereof as is necessary, be sold for the payment of a certain sum of money due on the mortgage in the said sci. fa. described.
We find no such judgment here, and no materials out of which it can be framed. It is certainly essential to a record that it should contain within itself all that is necessary to its completeness. But here is a proceeding to have a thing sold, and the thing is nowhere described. No writ was issued, and in the agreement waiving the writ, in the judgment, and in its revival, no land is described. The only thing that can be made out of such a judgment is, that something, or, which is the same thing, nothing, is to be sold to pay the debt. The affirmance of such a judgment on error does not increase its value; for it merely declares that the errors assigned were not sustained.
And how can we pass over such a defect? What is the use of records, if their very essence may be omitted without risk? If this defect can be now supplied, what may not be? If it can, then records are worthless as evidence of the judgment of the Court. If it can, then what advantage have skilful over blundering practitioners? The order of nature is changed, and care and carelessness are of equal merit.
No argument is presented that the irregularity is cured by the acknowledgment of the deed in Court. But we do not see that such an argument could have availed. The lev. fa. was not only irregular but void; for the Court never had jurisdiction over the land, as it is not once mentioned in the case, and of course it could issue no writ to sell it. It cannot be treated as an irregular writ on a judgment in personam; for the whole proceeding shows that the case was intended as an action upon a mortgage, and we shall not be correcting, but perverting, the intended judgment of the Court, if we treat it as a judgment in personam, in order to cure the negligence of the party.
This error is, therefore, well assigned, and on it this judgment must be reversed; and this saves us from considering the question, whether a married woman's rights can be affected by such a judgment, on an appearance by attorney, or by her consent, without service of process; a point that was scarcely noticed in the argument. But as the point now decided is not conclusive of all the points in this cause, we must now consider the principal question, as to the effect of the alleged marriage settlement.
On the 21st July, 1817, a marriage was in contemplation between James Wilson and Eliza Ege, she being then a minor, and thereupon articles of marriage settlement were entered into, wherein James Wilson and the guardians of Eliza Ege were named as the formal parties, and the said Eliza was not declared a party in the premises, but is treated as one in the body of the instrument, and it is attested by her, and concludes in the following words: "the said Eliza being present and consenting thereto, and subscribing the same as a witness, the contents being first read and explained to her."
A presumption of fact is always legitimate when founded upon the ordinary course of transactions; and, therefore, when we find the guardians of Eliza Ege, and her intended husband, in treaty as to the terms of the contemplated marriage, we presume that she is advised of what is going on. And when the articles are drawn and attested by her, and they declare that she knows their contents, and consents to them, we presume that the facts are so. She is, therefore, a party, so far as an infant could be, consenting to the arrangement made in her behalf.
The following is a sufficient summary of the articles of settlement. They recite the intended marriage, that Eliza Ege is the owner of real and personal property, and that the intended husband desires to settle an adequate provision for the maintenance of his wife and her offspring; and then, in consideration of the premises, Wilson covenants that, on the marriage, and when his wife shall arrive at age, he and she will settle one-half of her fortune for her use during life, with remainder to her offspring by her then intended or any future husband, and in default of offspring then to her heirs. If she survived her intended or any future husband, and had no issue, she should have a right to dispose of the property by will. The rents and profits of the property to be settled were to accumulate during the marriage for the benefit of the wife, should she survive her husband, and if not, then for the benefit of her children or heirs. The trustees had power, with the consent of the husband and wife, to convert the trust property into other property, and they might, in their discretion, expend the rents and profits for the support of the said husband and wife, but the husband was to have no estate in the trust property.
Even this summary may, however, be reduced; for the power given to the trustees to convert the property, and to expend the income in support of the husband and wife, and the provision, that in default of issue her property shall be disposed of by will, or go to her heirs, being restrictions of the absoluteness of the settlement, and, therefore, concessions to the usual rights of ownership, are not objectionable as a restraint of the legal rights of the infant about to be married. This leaves, as the only material part of the arrangement, a covenant on the part of the intended husband with his intended wife and her guardians, that the half of her estate, real and personal, shall be settled upon her and her issue, and that the profits thereof shall accumulate during the marriage, for the purposes of the trust, and that he shall have no estate in the property.
She gives up nothing to her husband, and relinquishes no claim that she might have on his estate as wife or widow. Even the provision in favor of her children by any future marriage was intended to make the settled property more effectually her own. The articles could not bind her if her husband should die without issue; for then she would be free from the law of her husband, including these articles, which could have no other office than to define the proprietary relations of the husband and wife to each other and their joint issue. If there is any contract on her part, it is an implied one, that in case she survives her husband, and has children by him, those children shall have the property, or their share of it in common with any other children by a future husband.
And here we assume the point to be unfounded, which the counsel for the defendants think is so erroneously contended for by Mr. Atherly, in his work on Marriage Settlements, 29-49, that an infant may, in consideration of marriage, and with the consent of parents or guardians, bind her real estate by articles of marriage settlement. Then what have we? Simply a covenant on the part of the intended husband in consideration of marriage, that trustees shall have a conveyance of a portion of his wife's property, to hold to her separate use, and that he shall have no interest in it, and on the faith of this covenant the marriage takes place.
In violation of this agreement, Wilson procured his wife to join him in a mortgage of the land, included in the settlement, to secure a debt due by him. Does such a mortgage to one having notice of the marriage settlement, affect the wife's equity in the land?
This question is most distinctly answered in the negative in 2 Roper on Hus. and Wife 27, in Atherly on Mar. Set. 49, in Macqueen on Hus. and Wife 252, and in Macpherson on Infants 522. Macqueen thus states the principle: "Where the infant wife's property consists of land, an ante-nuptial agreement binds neither the wife nor her heir. But it will bind her adult husband; who, accordingly, will not be allowed to aid the wife in any attempt to defeat the uses of the articles. Thus as a married woman she cannot, even after attaining majority, dispose of her estate, without her husband's consent. And he cannot consent, because the articles prevent him from doing so. This, therefore, is but another example of an agreement binding on the adult husband, but not binding on the infant wife; for the restraint upon her arises, not from the articles, but from her coverture."
Macpherson states it thus: "A woman may, if she thinks fit, accede, when of full age, to a settlement made during her infancy. If she does not so accede, the conscience of her husband is bound not to aid her in defeating it, nor to do any act to prevent her confirming it, and any conveyance by them both will enure to the benefit of the settlement. The wife, therefore, cannot effectually dispose of her real estate during the coverture, otherwise than according to the settlement." (MAD: case citations omitted here)
We decide nothing as to how far a female infant may bind her real estate in this way. We simply declare that the adult husband is bound by his covenant not to assume any power over the settled estate, and that, in equity, and, therefore, at law, in Pennsylvania, he has no interest in it, inconsistent with the settlement. He cannot join his wife in aliening or encumbering it; and as she cannot do so without him, therefore the settlement is necessarily operative during his life, not by her contract, but by reason of her marital, and his contract disability. The Court below should therefore have instructed the jury, as requested by the plaintiff's counsel, that the articles of settlement were binding on James Wilson, and rendered the mortgage ineffectual as a charge upon the undivided half of the land.
Judgment reversed and new trial awarded.
Gibson, J., took no part in the decision of this case.
Go to the Cumberland Co. PA Court Records Part 1
JOSEPH DUNCAN Administrator of DINAH DUNCAN deceased, against Administrators of DANIEL DUNCAN deceased; Supreme Court of Pennsylvania, Lewiston; 3 Yeates 203; May, 1801, Decided.
DUNCAN and wife against FORRER; Supreme Court of Pennsylvania, Southern District, Chambersburg; 6 Binn. 193; October 9, 1813, Decided.
STILES against NELLY, a Mulatto; Supreme Court of Pennsylvania, Chambersburg District, Chambersburg; 10 Serg. & Rawle 366; October, 1823, Decided.
FOULK against BROWN; Supreme Court of Pennsylvania, Middle District, Harrisburg; 2 Watts 209; May, 1834, Decided.
Go to the Cumberland Co. PA Court Records Part 3
HARPER against BLEAN; Supreme Court of Pennsylvania, Middle District, Harrisburg; 3 Watts 471; May, 1835, Decided.
WILSON v. McCULLOUGH; Supreme Court of Pennsylvania; 23 Pa. 440; July, 1854, Decided.
MAHON v. DUNCAN; Supreme Court of Pennsylvania; 13 Pa. 459; May, 1850, Decided.
McCUNE'S Appeal; Supreme Court of Pennsylvania, Harrisburg; 65 Pa. 450; May 11, 1870, Argued; May 26, 1870, Decided.
Return to the Cumberland Co. PA Research File
Return to Index to Duncan Research Files in Pennsylvania
Return to The Genealogy Bug's Home Page