Duncan research files of
"Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district; cases decided at December term 1836 and March term 1837" by Thomas I. Wharton ("Wharton"); Vol.2 pgs.9 to 10 (California State Law Library, Sacramento, 1/2004; MAD's extract; see also 2 Wharton 365 and 6 Watts 140)
CHAMBERS against CARSON; Supreme Court of Pennsylvania, Eastern District, Philadelphia; 2 Whart. 9; December 12, 1836, Decided.
Mr. Bayard moved for judgment in this case, which was an alias scire facias sur mortgage, brought by Thomas Chambers, administrator cum testamento annexo, de bonis non of Thomas Duncan, Esq., deceased, against Charles Carson, surviving administrator of the goods, &c., of John Carson, deceased; the writ having been returned "nihil."
A doubt was expressed at the bar whether such judgment could be regularly obtained, since the act of 13th June 1836; the 39th section of which provides that "In every case in which a writ of scire facias may by law be issued, it shall be served and returned in the same manner as is provided in the case of a summons in a personal action, &c.; but.
(Opinion:) THE COURT said that the intention of the legislature must be supposed to have been to direct the method of serving a scire facias, when service can be made; and not to alter the return in cases where the writ cannot be executed, nor to interfere with the convenient practice of considering two nihils as equivalent to service. The practice of the court in these cases, is really a dispensation of service; and the reason of it is that the plaintiff having a debt of record in the very court apparently unsatisfied, which must be executed by the process of the court within the county, it would be unreasonable to require him to pursue process further, for the purpose of bringing the defendant in; for without such dispensation, it may happen that the plaintiff will be delayed inconveniently, if not indefinitely. The reason is applicable to the case of a scire facias upon a mortgage -- which can be brought only in the county in which the land lies; and it would amount to a denial of justice in some cases, to hold that service of the writ must be made upon the defendant personally, or at his place of residence, as in the case of a summons.
Judgment for the plaintiff.
"Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district; cases decided at December term 1836 and March term 1837" by Thomas I. Wharton ("Wharton"); Vol.2 pgs.365 to 375 (California State Law Library, Sacramento, 1/2004)
CHAMBERS against CARSON; Supreme Court of Pennsylvania, Eastern District, Philadelphia; 2 Whart. 365; February 18, 1837, Decided.
This case came before the court again (see ante, p. 9), on a rule obtained on the 14th of February, by Mr. McClure on behalf of the defendant, to show cause why the judgments upon the scire facias and a levari facias since issued to Dauphin county, should not be set aside.
On the hearing, the circumstances appeared to be as follows:
On the 10th day of July 1789, John Carson, the defendant's intestate, gave a mortgage upon certain lands in Dauphin county, to one Frederick Pigou of London, to secure the payment of 3781£. 5s. 4d. sterling. Upon this mortgage a scire facias was sued out in the Court of Common Pleas of Dauphin county, to September Term 1793, and this suit was removed by the defendant, into the Supreme Court in Philadelphia, to April Term 1794, where judgment was entered for the plaintiff by agreement of parties for 2156£. 7s. 4d., on the 30th day of December 1797. On the same day this judgment and mortgage were assigned to Thomas Duncan (the plaintiff's testator), who was the brother-in-law of the defendant, John Carson, for a full consideration; and the judgment was afterwards marked to his use upon the docket of this court.
Nothing further appears on the records of this court, until May 1834, when the present plaintiff issued a scire facias post mortem, and post annum et diem, upon this judgment, directed to the sheriff of Philadelphia county, returnable to the term of July 1834, when the sheriff made his return "nihil habet." An alias scire facias was then issued to December Term 1834, upon which a similar return was made; and on the 15th day of December 1834, judgment was entered on motion of C. Chauncey, Esq., for the plaintiff. On the --th day of February 1836, a scire facias post annum et diem was issued upon this judgment, directed to the sheriff of Philadelphia county, returnable to March term 1836, which was returned by the sheriff "nihil habet," and an alias was issued to July 1836, upon which the sheriff made a similar return, and on the first day of this term, judgment was entered for the plaintiff on motion, in open court. On this judgment a levari facias was issued on the 3d day of February 1837, to the sheriff of Dauphin county, with a clause stating that it had been suggested by the affidavit of the plaintiff, according to the provisions of the 76th section of the act of 16th June 1836, that there was no property on which the execution could be levied in Philadelphia. Under this execution, the mortgaged premises in Dauphin county, were levied upon by the sheriff, and advertised for sale on the 14th of March following.
The rule was obtained on the following affidavit of the defendant, viz.:
"Before me, a justice of the peace, in and for the county aforesaid, personally came Charles Carson, administrator of John Carson, deceased, who being duly sworn, doth depose and say, that his father died a number of years since in Dauphin county, and that administration of his estate was granted by the register to this deponent, and to his brother, John P. Carson, who is likewise now dead seven or eight years since. Deponent further says, that he has resided constantly in the county of Dauphin, and borough of Harrisburg for the last six years, and that no writ of scire facias, or citation, or notice of any kind has been served on him, or given to him by the sheriff of Philadelphia county, or any other person, of any proceeding being had in the Supreme Court of Pennsylvania, on the above judgment, which this deponent believes was settled and paid off many years before the death of his father. Deponent further says, that he knows among other things, of Thomas Duncan's getting 100 acres of land of his father, part of the old farm, which would at one time have sold for $100 an acre; and he believes he got deponent's mother's share in her father's Stephen Duncan's estate, of which Thomas Duncan was one of the executors. Deponent further says, that the first notice he had of this matter was a few days since, when the sheriff mentioned the fact of his having a writ of execution to this deponent; and further saith not."
COUNSEL: Mr. McClure now contended that the judgment should be set aside, as entered improvidently, and contrary to law, for several reasons. First, The scire facias post mortem, &c., on the original judgment of 1797, was in the name of Thomas Chambers, administrator, &c., without any notice of F. Pigou, the original plaintiff. Second, That this proceeding had been had after the lien of the judgment had expired. By the act of 1799, establishing the Circuit Courts, it is declared that no judgment shall be a lien upon lands, except in the county where it is given; and by the act of 1705, proceedings by scire facias on a mortgage, must be in the county where the land lies. But here the proceeding was had in a distant county, and that too more than thirty-five years after the judgment was rendered, when it must, on the face of the record, be presumed to have been satisfied. And by the rules of this court, 5 Rawle 364, no judgment can be entered on a warrant of attorney more than 20 years old, without notice given to the defendant, if he be within the state of Pennsylvania; and by the acts of 1798 and 1836, judgments do not continue liens on real estate, longer than five years, unless renewed. Again, these judgments were erroneous, because the scire facias was not in accordance with the 34th sec. of the act of 21st February 1834, which requires that the widow and heirs, or devisees of a decedent, shall be made parties to any action by which it is intended to charge the real estate of the decedent. And finally, that the scire facias in this case was not served in the manner prescribed by the 39th sec. of the act of 13th of June 1836, directing the service of writs of scire facias to be in the same manner as in cases of summons. As to the execution, if the court had jurisdiction of the case, they might perhaps frame a writ of execution, but they had no jurisdiction, and therefore could not issue execution to Dauphin county; and there was no precedent for a testatum levari facias. On these grounds he contended, the judgments and executions should be set aside, and the plaintiff remitted to his remedy by suit on his bond, or ejectment on his mortgage, if the claim were not really and in fact satisfied.
Mr. Bayard and Mr. Sergeant (with whom was Mr. Chauncey), for the plaintiff -- first showed the facts of the case, which were not on the record, viz.:
That on the 3d of February 1808, John Carson, the defendant's intestate, by a written instrument of that date, recognised the assignment of the judgment and mortgage to Thomas Duncan, on the 30th December 1797, on which Thomas Duncan was to give him credit as of the 14th March 1798, for one hundred acres of land, at £1500. ($4000), and for a horse at £35. ($93.33) -- and he, John Carson, agreed that the judgment should be considered as revived, and the mortgage renewed to Thomas Duncan. That in November 1820, Charles Carson, the present defendant (his father then being dead), recognised the existence of the mortgage in a letter to his uncle, Thomas Duncan, requesting his assistance in procuring a loan from one of the city banks, upon this property; and on the 4th of January 1821, executed an instrument acknowledging that Thomas Duncan had agreed that his mortgage should be postponed to the mortgage then to be given to one of the banks for such loan. That in 1824, an adjustment of the claim of Judge Duncan, upon John Carson's estate, under this mortgage, was made by James Duncan, acting on behalf of his brother Thomas, and John M. Foster, Esq., on behalf of Charles Carson, the defendant; when it was agreed by these gentlemen, that after giving credit for 100 acres of land at $4000, and a horse at $93.33, the sum of $5143.04, was due to Thomas Duncan on the 14th of May 1824. And finally, that a writ of scire facias was sued out upon this mortgage, in the Circuit Court of Dauphin county, to December Term 1828, by the executors of Thomas Duncan (he being then dead), against the present defendant, and his late brother, administrators of John Carson, to which they pleaded (among other things), "a former recovery," by the judgment entered in this court in December 1797; whereupon that suit was discontinued in the year 1833, and the scire facias in this county, issued in 1834, in the name of the present plaintiff, who had been substituted for the executors of Thomas Duncan, who had been regularly discharged. They also exhibited a deed, executed by John Carson, on the 6th of March 1802, conveying all his wife's interest in her father's estate, to James Duncan, for the sum of $2000, acknowledged to be received by him. From these facts the plaintiff's counsel said it was evident that the defendant had no merits -- as he did not pretend that he had paid anything himself, but swore that he believed the whole had been paid in his father's lifetime; which was contradicted, not only by the father's acknowledgment in 1808, but by his own repeated recognitions since his father's death; and the suggestions as to the 100 acres of land, and his mother's share of her father's estate, were both fully answered by the facts before the court. In applications of this kind there are two questions. 1st. Does the party come forward in time? 2. Does he show good cause for setting aside the judgment? In neither of these respects, has the defendant entitled himself to the interference of the court? There was a judgment regularly entered in 1797, on which the defendant never asked to have satisfaction entered. Two years also have elapsed since the judgment in 1834; during which the defendant might have asked the action of the court; and it is not competent for him to say he did not know of it, for it was his duty to know it; knowing as he did, that there was a judgment here on which a scire facias might be issued, and especially after his plea of "a former recovery," to the suit in Dauphin county. But even if he had been in time, the defendant has not shown good cause for setting aside these judgments. As to merits, he has none clearly, from the facts of the cause; and there is no irregularity in the proceedings. The scire facias was properly issued in the name of the present plaintiff, under the provisions of the act of twenty-third of April 1829, reciting the original judgment in favor of Pigou, and the assignment to Thomas Duncan. Then, as to the act of 1834, referred to: -- in the first place, it cannot control this case, for it did not go into effect until the 1st of October 1834, whereas the first writ of scire facias was issued in May, and returned to July 1834; and the alias necessarily conformed to it. But if any part of the act could apply, it would be the 23d sec., which requires a scire facias to issue to the personal representatives, as was done in this case, and not the 34th sec., which applies only to cases of actions originally brought against executors, &c., whereby the land of a decedent is to be charged; and not to the case of a scire facias on a judgment obtained against the decedent, in his lifetime, or upon a mortgage given by him. Neither does the 39th section of the act of the 13th June 1836, apply to this case. That directs the mode in which a scire facias is to be served when the defendant can be found within the county, but does not affect the practice of entering judgments upon two returns of "nihil," which is in fact a dispensation with service, from the necessity of the case; for the record being within the county, the plaintiffs cannot follow the defendant to any other place, and therefore he, having been once within the jurisdiction of the court, must continue so until the judgment is satisfied. As to the alleged presumption, that the judgment of 1797 was satisfied; in the first place there is no such presumption, in opposition to the evidence before the court; and in the next place, that judgment never was a lien, but an order of this court, authorizing a sale of the land, under the mortgage; which was, and still continues to be a lien upon the land, recorded in the county where the land lies, and remaining unsatisfied to this day. The writ of execution, though called a testatum levari facias, was in fact, an original levari facias; and the clause suggesting that there is no property of defendant in this county, was introduced from caution, but does not affect the character of the writ. The court had a right to issue it, in order to carry into effect the judgment obtained in 1797, which by the act of 1799 remained in this court, and must be executed by its own process.
The opinion of the court was delivered by KENNEDY, J. -- Upon a rule to show cause why the writs of scire facias, together with all the proceedings thereon, including the judgments of revival, should not be set aside, it is objected,--
First. That the writs of scire facias to revive the original judgment in the scire facias on the mortgage, ought to have been sued out of the Court of Common Pleas of Dauphin county, inasmuch as the mortgaged land lies in that county, and the original scire facias upon the mortgage was sued out from that court. That this course ought to have been adopted and pursued, because the act of 1705, authorizing the proceeding by scire facias upon a mortgage, requires the writ to be sued out of the Court of Common Pleas, in which the mortgaged land lies; and again, because the act of 1799, establishing the Circuit Courts, and abolishing the Courts of Nisi Prius, in the several counties of the state, except the county of Philadelphia, seems to provide for and authorize it.
The original writ of scire facias upon the mortgage here, was sued out of the Court of Common Pleas of Dauphin county, in strict conformity to the act of 1705; but this act has no reference to and contains no direction for suing out writs of scire facias, for the purpose of reviving judgments obtained in the writs of scire facias thereby authorized to be sued out upon the mortgages themselves. As to the court from which the scire facias to revive the judgment should be sued out, in case it became necessary, this was left to be regulated and directed by the principles of the common law, which require that it shall be from the court where the judgment shall be obtained, and still remains. At the time when the scire facias was sued here upon the mortgage, it was competent for either party, before the trial in the Common Pleas, to remove such cause for that purpose into the Supreme Court. This continued to be the case until the act of 1799, above alluded to, was passed. Anterior to this, the Supreme Court was held only in the city of Philadelphia, but had jurisdiction over the whole state. Courts of Nisi Prius, however, were held by the judges thereof, in the several counties throughout the state, for the purpose of trying all issues of fact joined in causes removed therefrom, and receiving the verdicts of juries thereon. The prothonotary of the Supreme Court attended in person or by deputy, the courts of Nisi Prius, with all the papers on file in his office, appertaining to the cause, which might be wanting on the trial of it by the jury; and took charge of the verdict when given in at Nisi Prius, which was produced by him to the Supreme Court, when sitting in banc, where it was acted upon by the court, in either setting it aside and granting a new trial, in arresting the judgment, or entering the judgment of the court upon it. If the verdict and judgment happened to be in favor of the plaintiff, he was entitled, if he chose, to have execution upon the judgment, which was sued out of the Supreme Court holden at Philadelphia, directed generally in the first instance to the sheriff of the county, whence the cause had been removed; and, in such case as the present, could not, at any time, be directed to the sheriff of any other, as it could only be against the mortgaged land, which could not be sold under the levari facias, by the sheriff of any other county than that in which the land lay. So, when the plaintiff sued out a ca. sa. with a view to proceed afterwards against the special bail, I take it that it was requisite, that the ca. sa. should be directed to the sheriff of the county, from which the cause had been removed into the Supreme Court, as it was fairly presumable the defendant resided there, and would not be found elsewhere. If the plaintiff, however, neglected taking out execution for the space of a year and a day, after obtaining his judgment, he could not regularly do so then, without reviving it first, by scire facias quare executionem non. This being a judicial writ, could only be sued out of the court where the judgment remained upon which it was to be grounded. But it is argued, that by the act of 1799, the judgment in the scire facias upon the mortgage, ought to have been transferred to the Circuit Court of Dauphin county, as soon as this latter court came into being, and upon the annihilation of it, then to the Court of Common Pleas thereof, from which the writs of scire facias quare executionem non, ought to have been sued out. This act, however, only provided for the transfer of actions pending and undetermined in the Supreme Court at the close of the December Term thereof, in 1799, to the Circuit Courts of the counties respectively, from the courts of which they had been removed, thence into the Supreme Court. And the 12th section of that act, provides expressly, "that in all actions or suits in the said Supreme Court, where judgments shall have been rendered, or decrees passed before or during the said December Term next, and in all cases there depending before the said Supreme Court, for their decision on law points, the records, dockets, declarations, and other papers respecting the same, shall be, and remain in the custody of the Prothonotary of the Supreme Court, and be proceeded on in the said Supreme Court, by execution or otherwise, as to justice shall appertain." Now the original judgment in the present case having been obtained at December Term 1797, in the Supreme Court, two years before, was of course according to the provision of the section just recited, to remain in the Supreme Court for execution, to be had of it by the plaintiff, in the usual form theretofore practiced. Accordingly it became necessary to sue out the writs of scire facias, for the purpose of having execution of it; and not as has been suggested by the defendant's counsel, in his argument, to renew or to continue the lien of it. The judgment here, never created any lien upon the lands or real estate of the defendant, so that there was no lien to be renewed or continued, by reviving it. The only lien existing here upon land belonging to the intestate of the defendant, was created by virtue of the mortgage, and not by force of the judgment obtained in the scire facias, sued out upon it. The acts of assembly, therefore, referred to and relied on by the counsel for the defendant, directing the course of proceeding by writs of scire facias, for the purpose of continuing the liens of judgments upon the real estates of the defendants therein, have no application to this case. The acts of assembly limiting the liens of judgments to five years, unless continued by writs of scire facias, sued out and served in the manner therein prescribed, do not extend to, or embrace the lien here, which cannot be considered as arising from a judgment in any way.
This being a proceeding upon the mortgage according to the act of 1705, it is also, therefore, considered as not coming within the provisions of the 25th, 33d and 34th sections of the act of the 24th of February 1834, which have been referred to by the counsel of the defendant, in order to show that the course adopted and pursued here, falls greatly short of what is required by these sections.
It has also been alleged, that the writs of scire facias quare executionem non, ought not to have been sued out after so great a lapse of time, without a previous allowance or order of the court. But we have no rule of practice, restraining a party from suing out a scire facias quare executionem non, after any length of time, without such order. It is very possible it might be expedient to have a rule on the subject. In the King's Bench and Common Pleas of England, they have rules, making it necessary in certain cases, to obtain a rule first, for suing out the writ. And in either court, if the judgment be above twenty years old, there must be a rule first obtained to show cause, and served on the defendant.
It has been urged likewise that according to the 39th section of the act of 13th of June 1836, (Pamph. L. 579), the last writ of scire facias, at least being sued out subsequently thereto, ought to have been served on the defendant, as therein directed; and that without this, no judgment of revival ought or could have been regularly entered. This section declares, that "in every case in which a writ of scire facias may be issued, it shall be served and returned in the same manner as is therein provided, in case of a summons in a personal action, and judgment for default of appearance, may be taken at the same time, and in the same manner, as in case of a summons as aforesaid, unless it be otherwise especially provided." This merely prescribes the manner generally, in which a writ of scire facias shall be served; making it a sufficient service, without the presence of two or more witnesses, to read the writ in the hearing of the defendant, or by giving him notice of its contents, and a true and attested copy thereof; or if he cannot conveniently be found, by leaving such copy at his dwelling-house, in the presence of one or more of the adult members of his family; or if he resides in the family of another, with one of the adult members of the family in which he resides. But there is no alteration of the law here, as it stood before, in respect to the effect of the return of two nihils to the first and second, or alias writs of scire facias, which have ever been deemed equivalent to a return of scire feci. And in Ratcliffe's case, two nihils returned upon two writs of scire facias issued to have a charter of pardon of outlawry allowed, were held sufficient, notwithstanding the words of the statute, 5 Ed. 3, c. 12, be that no charter shall be granted, until it appear to the Chancellor by certificate, that the person outlawed, has rendered himself to prison in the court out of which the exigent issued; and he shall not be allowed until the plaintiff be warned, and the warning certified, to make the plaintiff plead upon the original, if he choose, &c. Thus making the return of two nihils equivalent to a service, even where the statute positively required that the party should be actually warned. So in Bromley v. Littleton, where the defendant in error died pending the writ of error, her executors were held to be made parties to it, by the return of two nihils to the writs of scire facias, because it amounted to a garnishment. And in like manner with us, two nihils have ever been held sufficient so authorize an award of execution by the court, either upon a mortgage, or upon a judgment post annum et diem.
We feel perfectly satisfied that the application to set the writs of scire facias and the proceedings thereon aside, or to open the judgments of revival, has no merits or good ground whatever to support it.
In regard to the grounds and merits of the defence set up here against the claim of the plaintiff, it may be proper to make some remarks. The original judgment in the scire facias on the mortgage itself, being obtained in December 1797, and nothing appearing from the record to have been done on it, till July 1834, a space of upwards of thirty-six years, when the first scire facias quare executionem non was issued, one might well presume it had been paid or settled in some way; and might feel at a loss if it were not so, even to conjecture the reason of such great delay and forbearance to have anything entered upon the record, tending to show that it was not satisfied. The presumption of payment, however, strong and violent as it may seem to have been from the great length of time when the first writ of scire facias was sued out in 1834, has been most effectually and satisfactorily rebutted by documentary or written evidence of agreements between the parties in relation to the original judgment, that has not been denied, or attempted to be avoided by any thing that is even colorable.
In the first place it appears that on the very day that the original judgment was entered, the 30th of December 1797, the late Judge Duncan, whose administrator is the real plaintiff here now, being the friend and brother-in-law of the then defendant, John Carson, who was intermarried with a sister of the judge, paid the plaintiff, Frederick Pigou, Jr., the amount of the judgment, in consideration whereof the latter assigned it to Judge Duncan by writing under his hand. In 1808 the defendant, John Carson, by his writing under his hand, recognised Judge Duncan as the assignee of the judgment, and in consideration of his obtaining a credit thereon for 1500£., the price of one hundred acres of land, and 35£., the price of a horse, to be entered as of the year 1798, he obligated himself to convey the hundred acres of land to Judge Duncan. In 1820 John Carson, the original defendant, having died during the interim, Charles Carson, the present defendant, and then as well as now, the acting administrator of his father, the original defendant, made application by letter in writing to Judge Duncan, to aid him in borrowing a certain sum of money of some of the banks in the city of Philadelphia, to pay off other debts owing by and pressing upon his father's estate, by pledging the mortgaged land for repayment of it; and wishing to know of Judge Duncan, at the same time, upon what terms he would release the land from the lien of his mortgage, so as to make it a good security to the bank that might loan the money wanted. Accordingly a loan of money was procured from one of the banks of the city, through the interference of Judge Duncan, upon the defendant's giving a mortgage upon the land for the repayment of it, and upon Judge Duncan's agreeing that the payment of his mortgage should be postponed to that given to the bank. And again, in May 1824, Mr. James Duncan, a brother to Judge Duncan, on behalf of the latter, and Mr. Foster, a gentleman of the bar of Harrisburg, the residence of the defendant, on his behalf, jointly made out a statement in writing, signed by them, ascertaining and setting forth a balance of five thousand one hundred and forty-three dollars and four cents to be due on the judgment at that time to Judge Duncan. Thus all presumption of payment arising from mere lapse of time has been most completely repelled. And as to the oath of the present defendant, stating his belief that the judgment was paid by his father in his lifetime, by the sale of the hundred acres of land, which, he thinks, would have sold for a hundred dollars per acre, without saying when, and by his mother's portion of the estate of her father, Stephen Duncan, deceased, which the defendant thinks Judge Duncan got; it is shown by the written agreement between the parties, that the one hundred acres of land were taken and to be credited on the judgment at forty dollars per acre as of 1798; and by a deed of conveyance duly executed in 1802, by John Carson, the original defendant, and his wife, it appears that all her interest in the estate of her deceased father was conveyed and transferred to her brother, James Duncan, in consideration of two thousand dollars received of him, so that the present defendant seems to be under a misapprehension in believing or supposing that Judge Duncan got it. In short, it may be true, that the present defendant believed, as he states in his affidavit, that the judgment was paid or satisfied by his father in his lifetime, and yet it does not, in the slightest degree, after the production of the written evidence on the part of the plaintiff, tend to prove that the judgment has been paid or satisfied in any way whatever, further than the plaintiff's evidence shows it to be so. Neither does the deposition of Mr. Fisher, in the least, disprove or contradict the written evidence of the plaintiff, as to the balance still due and claimed by him on the judgment. Mr. Fisher heard, at one time, a dispute between Judge Duncan and Mr. John Carson, the original defendant, about some land which the latter wanted the former to relinquish his claim to, or, as he said, if the judge did not, he would not convey the one hundred acres to the judge as he had bound himself to do; which, as Mr. Fisher understood, was to be credited and to go towards paying the judgment: but whether the price of the one hundred acres was to be, in full or only part, satisfaction of the judgment, he does not know, nor did he hear them say; so that admitting all he says to be true, it is still perfectly consistent with the plaintiff's claim. The rule is therefore discharged.
"Reports of cases argued and determined in the Supreme court of Pennsylvania from May to September 1837" by Frederick Watts; 2nd edition; ("Watts") Vol.6 pgs.140 to 148 (California State Law Library, Sacramento, 1/2004)
CARSON'S Sale; Supreme Court of Pennsylvania, Middle District, Harrisburg; 6 Watts 140; May, 1837, Decided.
In the supreme court, motion to set aside the sale by the sheriff to Thomas Chambers, Esq., of the real estate of John Carson, Esq., deceased, made upon a testatum levari facias, issued out of the supreme court at Philadelphia, to the sheriff of Dauphin county, at the suit of Frederick Pigou, for the use of Thomas Chambers, administrator, cum testamento annexo of the Hon. Thomas Duncan, deceased, against the administrators of the late John Carson, Esq., deceased.
The exceptions to the confirmation of the sale, are noticed in detail, in the opinion of the court.
The opinion of the Court was delivered by KENNEDY, J. -- Under a testatum writ of levari facias sued out of the supreme court at Philadelphia, upon a judgment sur mortgage, at the suit of Frederick Pigou, for the use of Thomas Chambers, administrator, cum testamento annexo of the late Thomas Duncan, Esq., against the administrators of the late John Carson, Esq., deceased, directed to the sheriff of Dauphin county, within this district, commanding him to levy the amount of the money therein mentioned, by a sale of the land therein described; the sheriff, after having given due, and timely notice of the time and place of sale, returned the land sold by him to Mr Chambers, the plaintiff, for 6410 dollars, he being the highest and best bidder therefor. An application has been made by the defendants, the administrators of Mr Carson and Ellis L. Updegrove, who claims a small part of the land sold, under a purchase made from Mr Carson in his lifetime, subsequently to the execution of the mortgage, to have the sheriff's sale set aside.
Five exceptions have been filed against it, which will now be considered and disposed of.
The first and third, being in part the same, will be considered together. The first is, that "the plaintiff in the execution, Thomas Chambers, who became the purchaser, having the control of the mortgage in favour of the Farmers and Mechanics' Bank, the first lien on the property sold, and to which it was supposed to be sold subject, did not communicate the fact that interest had been paid on that mortgage, until within about a year of the time of sale. The concealment of this fact, by the purchaser, was a fraud on the other bidders, and enabled him to get the property at a sacrifice." And the third exception alleges, "that it was the duty of the plaintiff, claiming the control of the mortgage in favour of the Farmers and Mechanics' Bank, to have made known its amount to the bidders on the day of sale, if the property was sold subject to it, and whether the property was selling subject to it or not."
In order, however, to determine whether these exceptions or any of the others filed, ought to have any effect upon the sale, it may be proper to state first, the circumstances attending the giving of the mortgage therein spoken of, to the Farmers and Mechanics' Bank. In the latter end of 1820, or beginning of 1821, some time after the death of John Carson, Esq., the mortgagor to Frederick Pigou, the personal estate of Mr Carson not being sufficient for the payment of his debts, his administrators were desirous of raising money, by giving a mortgage on the real estate of the deceased, to meet the payment of the claims of some of the creditors who were pressing it; and accordingly obtained an order of the orphans' court of Dauphin county in which the real estate lay, empowering them to do so. The real estate, which the administrators were thus authorized to mortgage, consisted of about three hundred and eighty-three acres of land, two hundred and twenty-eight acres of which, were included in the prior mortgage given to Frederick Pigou, upon which the judgment was had, and the sale complained of here, was made by the sheriff. The late Judge Duncan, being then the owner and assignee of the Pigou mortgage, for the purpose of accommodating the administrators and other children and heirs of Mr. Carson, who were all the children of his sister, and facilitating the procurement of the money, on the 30th of January 1821, agreed in writing under his hand and seal, that the mortgage and judgment of Frederick Pigou, against John Carson, late of Dauphin county, deceased, assigned to him by Thomas Stewartson, as attorney in fact of Pigou, should stand postponed to any mortgage that might be executed to the Farmers and Mechanics' Bank of Philadelphia, by the administrators of John Carson, deceased, in pursuance of a decree of the orphans' court, and that such mortgage should have a preference to any lien he might have by virtue of the Pigou mortgage and judgment thereon. The Farmers and Mechanics' Bank of Philadelphia, upon this preference being given, on the 1st of February 1821, advanced to the administrators of John Carson, 6360 dollars, taking from them, at the same time, their bond and a mortgage upon the real estate of their intestate, consisting of the three hundred and eighty-three acres before mentioned, to secure the repayment of the money, with interest thereon. The mortgage thus given to the Farmers and Mechanics' Bank of Philadelphia, afterwards became the property of Mr Arthur Harper, of Philadelphia, to whom it was assigned by the bank. He held it till his death, when it came into the hands of his executors. Shortly before the sale in question, Mr Chambers, the plaintiff, made an arrangement with Mr Charles Waters, of Philadelphia, one of the executors of Mr. Harper, by which Mr Chambers was to have the control and direction of the bank mortgage; and a few days thereafter, he procured the amount of the mortgage, with the interest due thereon, to be paid to Mr Waters, in consideration whereof, the latter assigned it to the Hon. George Chambers, brother of the plaintiff.
Now it is complained of in the first exception, that Mr Chambers, the plaintiff, knowing the amount that was due upon the mortgage given to the bank, was bound to have made it known to the bidders at the time and before the property was sold; and because he did not do so, it is imputed to him as a fraud committed on the other bidders, that enabled him to get the property at a sacrifice, and, therefore, vitiates the sale. And again, by the third exception, that it was not only his duty to have made known to the bidders the amount due on the bank mortgage, but likewise, to have advised them whether the property was then about to be sold subject to it or not, and how it was to be sold in that respect.
It is difficult to conceive how a party having become a purchaser of property at auction, can be said to have practised a fraud upon other bidders attending the sale, by his having either done or omitted to do, that which had a tendency to prevent them from bidding as much for it as otherwise they might or would have done. That the owner of the property or other persons interested in its bringing a price equal to its value, might very well be considered as defrauded by such conduct, can be readily comprehended; because they are thereby injured in having their vested rights reduced and diminished. But that other bidders, as such merely, who have no right or interest of any kind whatever, in the property can be injured or affected in their rights by it, is quite a novel idea, if not altogether incomprehensible. That a fraud may be committed on bidders at an auction, is doubtless practicable, but I believe it has never been supposed that it could be effected by doing that, which, in its nature was calculated to depreciate the value of the property, being sold, and consequently tend to prevent a fair price from being obtained by it. It would rather seem to be, that it can only be perpetrated by doing something of a directly opposite tendency; as for instance, by recommending the property, for and on account of some valuable qualities that may not be of a nature discoverable by the eye, upon mere inspection, with a view to induce bidders to give more for it than otherwise they would do; or by bidding, as has been held in some cases, without any intention or wish to buy, but merely for the purpose of inducing others to bid more than the real value of the property or more than otherwise it would have been sold for; a practice that has been condemned and denominated puffing.
But can the forbearance of Mr Chambers to mention, at the time of sale, the amount then due on the bank mortgage, be considered a fraud upon any one interested or concerned in the matter? What right have the administrators of Mr Carson to make this objection? The bond and mortgage were given by them, they were personally bound for the payment thereof; and who had a better right to know what was paid and how much still remained unpaid than they? They must be presumed to have known the precise amount due with more certainty than Mr Chambers can be supposed to have known it. One of them was present attending the sale, and yet he now sets up this objection to it. It would not seem to come with much grace from him seeing it was in his power to have told himself, how the matter stood, had he deemed it material to the interest of himself or the other heirs, better than either Mr Chambers or his attorney could. It is, therefore, perfectly idle, if not worse, to talk of Mr Chambers' being bound to proclaim at the time of sale the amount actually due on the mortgage; and that because he did not do so, to charge him with a fraud on account of it.
The second exception, however, is of a still more extraordinary character, if possible, than the two already noticed. By it, it is alleged, "that it was the duty of the sheriff to have made known the fact, whether he was not selling the property, subject to the mortgage in favour of the Farmers and Mechanics' Bank, for 6360 dollars, and interest, which was not done." I think it likely, that it never was before heard of, that it was the duty of the sheriff to examine into and to know before he sold real estate taken in execution by him, whether there were any incumbrances upon it or not, besides the one for which the sale was about to be made; and then not only to make them known at the time of sale, but to decide and give notice to those in attendance, who may be disposed to bid, what will be the legal effect of his sale; whether it will discharge the property from all or any of the other incumbrances in case such exist; or whether it will still remain liable to them, and if to any and not all, which of them. If such were his duty it would require him to decide questions occasionally, which few, if any of our sheriffs would be competent to pass upon. But at no time, either before or after the sale, can he be called on to decide on any such matters; for after the sale, when he has received the money, he may bring it into court and demand of the court an order or decree, directing how it shall be paid and distributed among those, who, in the opinion of the court, are by law entitled to it; and thus protect himself from all responsibility in respect to the disposition made of it. Bidders, therefore, must look out and take care of themselves. It is their business to examine beforehand; and after having made themselves acquainted with the facts and circumstances in relation to incumbrances, if any exist, then to decide for themselves as to what will be the legal effect and operation of the sale upon them. It is true that in doing this, questions may arise occasionally of no little difficulty; such indeed as may require the best legal advice that is to be had, in order to bid safely; but this, generally, is not without the reach of those who are able to buy; and caveat emptor, as was said by the attorney of the plaintiff at the time of the sale, when he was asked to say, "whether it was to be understood, the property was to be sold, subject to the bank mortgage or not," is certainly the rule that must govern and determine the rights and liabilities of those who become purchasers at sheriff's sales. The sheriff, in making the sale, acts merely as a ministerial officer. His duty is limited and prescribed by law. Before the sale he is required to give previous notice thereof, in the manner prescribed by the act of assembly, describing the property correctly, and appointing the time and place of sale. Having done this, he is next, at the time and place of sale, to sell it by auction, to the highest and best bidder. And this may be considered the sum of his duty until he comes to execute and acknowledge his deed, conveying the property to the purchaser. But certainly neither the sheriff nor the plaintiff in the execution has any authority to cause the property to be sold differently from what the law prescribes; nor yet to declare what shall be the legal effect and operation of the sale, when made in due conformity to the law, so as to affect the rights of others in a manner different from the legal effect; nor is the plaintiff bound to make any declaration or statement of his intention, that might compromit his own, so as to deprive himself of what the law has secured to him.
The fourth exception is, "that if the property was not sold, subject to the payment, by the purchaser, of the mortgage in favour of the Farmers and Mechanics' Bank in addition to the sum bidden, there was a mistake and misapprehension among the bidders, of the amount they would be liable to pay for the property, which deterred them from bidding a sufficient price for it." In answer to this, it is sufficient to say that if any misapprehension, such as is here mentioned, existed on the part of any persons disposed to buy the property, it is very clear that it does not appear to have been caused or produced by any thing that was either said or done by the plaintiff, who is the purchaser, nor yet by the sheriff who made the sale. This being the case, it cannot be pretended that such misapprehension would be any reason, whatever, for setting the sale aside. But it is said that Mr Grimshaw interfered at the sale, and proclaimed that his sister-in-law had a mortgage, meaning the bank mortgage, as it would seem, for 6000 dollars, on the property; and that during the progress of the sale, he announced, repeatedly, in the hearing of the bidders, as he thinks, that the proportion of the said mortgage, which would be a lien on the property then selling, would be about 4000 dollars; and that they should add that to the bid. This is Mr Grimshaw's own statement of the matter; and as an apology for doing so, he says, he was under the impression that his children, in consequence of their relationship with Mr Harper, the assignee of the bank mortgage, might have a contingent resulting interest in the amount of it. Though it may seem strange that he should have thought his interference necessary, after having received a letter, but two or three days before, from Mr Waters, the executor of Mr Harper, advising him, that he, Mr Waters, "had made such arrangement, as to the Carson mortgage, as to render it unnecessary to interfere at all with the proceedings of sale in the suit of Mr Chambers, the representative of Judge Duncan; and that in accordance with that arrangement, Mr Chambers was fully charged with his (Mr Waters) instructions, and had his authority to act on his behalf, as executor to Mr Harper's will, as he should think proper in the case." But Mr Grimshaw also says, "that immediately previous to any bid being given, as he thinks, and after a great many notices of a cautionary nature had been read by the sheriff or crier, he asked Mr Rawn, who, he understood, was attending the sale as the attorney of Mr Chambers, in a loud and distinct tone of voice sufficient to be heard by all the bystanders, whether it was to be understood the property was to be sold, subject to the mortgage of 6000 dollars, of his sister-in-law or not." To which Mr Rawn replied, "caveat emptor," in a voice also sufficiently loud to be heard by all the bystanders. Now this goes to repel most effectually the inference, that has been attempted to be drawn by the counsel of the administrators of Mr Carson, that because Mr Rawn, the attorney of Mr Chambers, the plaintiff, did not follow Mr Grimshaw around, upon the auction ground, and contradict every thing which he was pleased to say upon the occasion, that he must, therefore, be considered as having assented to and affirmed all that he did say. Mr Rawn's reply to Mr Grimshaw proves most clearly, that he intended the law should determine the effect of the sale, and resolve the question put by Mr Grimshaw; and that every one present who felt disposed to buy, must protect and take care of himself, by consulting the law; and regulate his bidding for the property accordingly. For he, Mr Rawn, was not willing to risk a direct answer, lest he might err, and thereby injure the interests of his client. Certainly no one had the slightest reason to complain of this; and it appears to have been the only safe course, perhaps, that could have been adopted and pursued in order to effect a sale that should be free from any valid exception. And as to the effect, which the sale made here, will have in law on the bank mortgage or on the mortgage under which the sale has taken place, it is unnecessary for us to determine now. Indeed it has not been argued, nor does it necessarily arise and we therefore intimate no opinion in regard to it. If the party claiming to recover the amount of these mortgages wishes to obtain legal advice he must be left to seek it elsewhere.
Whether the property has been sold for as much money as might be had for it, on a resale to be made by the sheriff, it is impossible to say: for it does not appear from the depositions of the witnesses, that any higher price would have been given by any in attendance upon the sale, under any disclosure of facts and circumstances, that could have been made, or knowledge that could have been possessed in respect to them, on the subject. No one certainly has testified that he would, in such case, have given more. Nor has any one testified, that he would give a higher price on a resale. The counsel for the applicants, to be sure, has asserted that a much higher price would be obtained. Counsel, however, not infrequently enter into all the feelings of their clients, and thus permit their wishes, sometimes to deceive their judgments; and think it cannot fail of being so, because they wish it. We know from some experience, that second sales of the same property, for the same cause, have perhaps, more frequently brought less, than more money, excepting in cases where the first have been set aside for, and on account of fraud. But in the present case, there is not the slightest pretence for making the imputation of fraud; and it was rash, to say the least of it, to indulge in it here. We feel ourselves bound in justice to the plaintiff, who is the purchaser in this case, as well as to the sheriff, to say that the sale on their parts, appears to have been conducted and made with all perfect fairness.
This being the case, then, even if the price obtained for the property were inadequate, it would not be a sufficient ground for setting the sale aside. If a sheriff's sale be fairly made, though the price may be inadequate, it is our duty notwithstanding, if the purchaser, who has thereby acquired a vested interest, require it, to enforce the perfecting of the title by compelling the sheriff to execute and acknowledge the deed of conveyance. In the Les. of Murphy v. M'Cleary, 3 Yeates 405, where the lessor of the plaintiff claimed through a sheriff's sale made under an execution against the former owner of the land, and on the trial it being objected against the sale, that the land was struck off at a great under-value, not one-sixth of what it should have produced, it was held by the court to be no ground of relief, if the sale was fairly conducted, and due notice was given. Where the sheriff had made a sale of the land to B, under a levari, at the suit of A, but at the instance of A's attorney, returned it "unsold for want of buyers; B, having made default in payment;" when an alias levari was sued out to a subsequent term, under which, the land was sold to A, without any notice having been given to B to pay the money, though ready to do so, the court ordered the second sale to A to be set aside, and directed the sheriff to amend his return on the first levari in favour of B, and to make a deed accordingly to B. In Coles v. Trecothick, 9 Ves. 234, Lord Eldon lays it down, that unless the inadequacy of price, is such as shocks the conscience and amounts in itself to conclusive and decisive evidence of fraud in the transaction, it is not a sufficient ground for refusing a specific performance. Now, although this, as a rule, may be thought to impinge upon the distinction, which seems long since to have been recognized, and to have obtained in courts of equity, between decreeing a recision of a contract, and a specific performance thereof, yet the principle has ever been admitted as strictly applicable to the rescinding of contracts, which is perfectly analogous to the case of setting aside sheriff's sales of land; for where the application is made to the court for that purpose, the action required of the court, is in effect to rescind the contract for the purchase, by setting the sale aside. And it is clear, if the sale be once set aside on the ground of fraud, that no suit can be sustained afterwards for the recovery of damages upon the contract by either party, as it may be after the mere refusal of a court of chancery to decree a specific performance of a contract of sale, made voluntarily by the owner of land. It is laid down by Mr Justice Yates, in Livingston v. Byrne, 11 Johns. 555, that "a sale made at auction, and under process of law, ought not to be invalidated for mere inadequacy of price, without additional circumstances to justify it. This principle, he says, is stated by Lord Eldon, on the rehearing of the case of White v. Damon, 7 Ves. 34, and the case of Burrows v. Locke, 10 Ves. 474." To which he very justly adds, "it is necessary to secure the proper confidence on the part of purchasers at sales of this description, and to render titles, if fairly obtained, certain, and not liable to be impeached by the various opinions as to its value."
The fifth exception has been abandoned, in consequence of an agreement in writing filed by the purchaser in favour of the persons therein named.
The application to set the sale aside, is therefore refused, or the rule, if one has been entered to show cause why it should not be done, is discharged; and the sheriff is permitted to acknowledge his deed to the purchaser.
Go to the Dauphin Co. PA Court Records Part 1
M'ELEAR against ELLIOT and others; Supreme Court of Pennsylvania, Lancaster District, Lancaster; 14 Serg. & Rawle 242; November 14, 1826, Decided.
DUNCAN against DUNCAN; Supreme Court of Pennsylvania, Lancaster District, Lancaster; 1 Watts 322; May, 1833, Decided.
EVANS against DUNCAN; Supreme Court of Pennsylvania, Middle District, Harrisburg; 4 Watts 24; May, 1835, Decided.
ISAAC M. FISHER, Appellant, v. JOHN HALDEMAN, JACOB S. HALDEMAN, RICHARD J. HALDEMAN, and ROBERT J. HALDEMAN, Executors of JACOB HALDEMAN, Deceased, and THOMAS CHAMBERS, Administrator de bonis non of THOMAS DUNCAN, Deceased; Supreme Court of the United States; 61 U.S. 186; 15 L. Ed. 879; 20 HOW 186; February 22, 1858, Decided; December 1857 Term.
Go to the Dauphin Co. PA Court Records Part 3
GALBRAITH against ELDER; Supreme Court of Pennsylvania, Middle District, Harrisburg; 8 Watts 81; May, 1839, Decided.
Go to the Dauphin Co. PA Court Records Part 4
The Heirs of BARTRAM GALBRAITH against DETRICH; Supreme Court of Pennsylvania, Middle District, Harrisburg; 8 Watts 104; May, 1839, Decided.
MOYER's Appeal; Supreme Court of Pennsylvania; 16 Pa. 405; June, 1851, Decided.
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