St. Bartholomew's Church v. Wood , 61 Pa. 96 ( 1869 )

The opinion of the court was delivered, March 8th 1869, by

Agnew, J.

The nineteen assignments of error in this case need not be noticed in detail, they can be classified. The 1st, 2d, 13th, 14th, 15th and 16th, relate to the judgment on which the property was sold. A judgment entered by the prothonotary under a power contained in the instrument, is a judicial act, and by the words of the Act of 1806, has the same force and effect as a judgment confessed by an attorney or given in open court in term time: Hevete v. Rapp, 7 S. & R. 306. By long usage the same effect is attributed to the entry of an amicable action and confession of judgment: Cook v. Gilbert, 8 S. & R. 568; McCalmont v. Peters, 13 Id. 196; Flanigen v. City of Philadelphia, 1 P. F. Smith 491. In Reed v. Hamet, 4 Watts 441, it was held that a defendant can appear in person before the prothonotary and confess a judgment, the reason assigned being that the power of the prothonotary to sign judgment rests on the statutory grant of it, when that officer was ex officio a judge of the Common Pleas, which has not been revoked. The instrument in this case contained an authority to confess judgment and being sealed with the seal of the corporation and signed by the rector and a warden, the judgment was therefore not void. Under the 9th section of the Act of 1705, the sheriff’s sale remained unaffected by the subsequent reversal of the judgment and restitution of the money or price only could be awarded. There was no error in the bill of exceptions and charge of the court referred to in these assignments of error.

The 4th and 5th, first half of the 7th, the 8th, 9th, 10th, 11th and 12th errors, refer to bills of exception to the rejection of offers of evidence. What was the purpose of the offer or the ground of objection appears nowhere. It is said that the purpose was to prove fraud, but it might have been to prove want of authority merely, or if the purpose was to prove fraud the objection might have been that there was no offer to show that the defendant bought with notice of the fraud.

In either case we cannot say there was error, and we might do injustice both to the party and the court by reversing upon grounds not taken below. It is said these offers were but single steps in the evidence of fraud. But this should be made manifest to the mind of the judge. We have said in Davenport v. Wright, 1 P. F. Smith 295, “ While it is true that evidence in a cause, especially in proof of fraud, proceeds step by step, and a party need not state in a single offer everything he intends to prove,' it should appear to the judge that the evidence has some relevancy to the issue trying; and if he is not informed of the connection it has, we cannot say he has committed a clear error in rejecting it.” These errors are therefore not sustained. The 3d, 6th, latter part of the 7th and 17th and 18th errors, relate to the effect of the sale on the fi. fa. The propositions contained in the bill of exception referred to in the 3d, 6th and latter part of the 7th assignments of errors are in substance to prove that the corporation did not authorize the waiver of inquisition and that the paper purporting to be a waiver was fraudulent and void, the seal being placed to it by a person having no right to its custody and no authority to affix it, and the persons signing the paper having no authority to do so. According to the terms of the 45th section of the Act of 16th June 1836, it is the owner only of the estate taken in execution on the fi. fa. who can waive the inquisition, and so the decisions run: Wolf v. Payne, 11 Casey 97; McLaughlin v. Shields, 2 Jones 289; Hudson v. Clark, 2 Grant 110. The evidence offered was to prove that the waiver was a fraud and inoperative, and that the sale was in fact made without a waiver of inquisition and void. That a sale on a fi. fa. without a waiver of inquisition is without authority and void is firmly established by repeated decisions. It was held so expressly in Baird v. Lent, 8 Watts 422; McLaughlin v. Shields, 2 Jones 289; Wolf v. Payne, 11 Casey 97; and Gardner v. Sisk, 4 P. F. Smith 506; and directly recognised in Shoemaker v. Ballard, 3 Harris 94, Rogers, J.; Wray v. Miller, 8 Id. 115, Woodward, J.; and Kelly v. Creen, 3 P. F. Smith 304, Strong, J. The only thing set up against this stream of authority is the reasoning of the judge delivering the opinion in Spragg v. Shriver, 1 Casey 282, a case not involving the question cited in Wolf v. Payne, supra, and commented on and distinguished in Gardner v. Sisk, supra. In Spragg v. Shriver, besides the entry on the docket of a waiver of inquisition referring to another execution, and the sale being made on a vend. exp. and not on a fi. fa. the defendants offered to prove that the defendant in the mean time released his title to the purchasers at the sheriff’s sale and ratified the sale, that he surrendered his possession to them, and the purchase-money was applied to his debts, and that he told the purchaser from them that the title was good and that he had waived inquisition to save costs. The court below overruled the offer and held that the sale was absolutely void and incapable of ratification. This was assigned for error and was the case before the mind of C. J. Lewis in that opinion, and justified all he said in its application to the case before him. The sale was on a venditioni exponas, which, as remarked by Judge Bell in Crawford v. Boyer, 2 Harris 384, is in legal contemplation issued by the court itself. It is the express command of the court to sell, is under its seal and cannot be questioned or disobeyed by the sheriff. The reasoning of C. J. Lewis was not intended to show that a sale on a fi. fa. without a waiver of inquisition was but a mere irregularity, and if it were, it is obiter dictum incapable of overturning the long line of cases preceding it, and is itself overturned by Wolf v. Payne and Gardner v. Sisk. The latter was decided but two years ago by all the judges except Read, J., who was absent from sickness, and determined that a sheriff’s sale on a fi. fa. without a waiver of inquisition is void, as wanting in authority, and is not confirmed by the acknowledgment of the deed or the distribution of the proceeds of sale. The-acknowledgment of a sheriff’s deed cures irregularities on the process or proceedings, but not a want of authority to sell. This was very fully proved'by Gibson, C. J., and decided in Cash v. Tozer, 1 W. & S. 527, and again considered in Shields v. Miltenberger, 2 Harris 78, where Judge Bell, in an exhaustive opinion, discusses all the authorities and arrives at the same conclusion, that the acknowledgment affirms a voidable but not a void sale. This case was followed by McFee v. Harris, 1 Casey 102, delivered at the same term with Spragg v. Shriver, and the same judge (Lewis, C. J.), citing 2 Harris 79, says: “After acknowledgment of the sheriff’s deed in open court, the title of the sheriff’s vendee cannot be affected by mere irregularities, however gross, nothing but fraud in the sale, or a want of authority to sell, can defeat his title.” This makes it very clear Judge Lewis did not intend, in Spragg v. Shriver, to impute to the acknowledgment the effect sought now to be drawn from his opinion in that case. Gardner v. Sisk announces the same doctrine, and it certainly should be regarded as now the settled law of the state. We think the court erred, therefore, in rejecting the evidence offered to show that no waiver of inquisition was made or authorized by the defendants in this writ of fi. fa. and that the paper filed was in fact a fraud.

But we do not regard the sale void because it was made on the return-day of the writ and not before. Cash v. Tozer, 1 W. & S. 515, decided that a sale made on a fi. fa. after the return-day was void, but the 2d section of the subsequent Act of 16th April 1845, provides that all sales of real estate by sheriffs and coroners, shall be made on or before the return-day of the writs respectively, or within six days thereafter. Since that act the practice has been to sell on any writ, fi. fa., vend. exp. or levari facias, at any time not later than Saturday of the first week of the term.

It is proper to notice an aspect this case may assume on a retrial, in order to prevent a misconstruction of the extent to which this opinion reaches. There was evidence tending, perhaps, to show that Bishop Wood bought from Mr. Otterson, the purchaser at the sheriff’s sale, with the knowledge of the plaintiffs below, that possession was voluntarily surrendered by them, that a large part of the price paid by the bishop was applied to the payment of debts of the plaintiffs, who lay by until he had completed his purchase, and that he was an innocent purchaser, without notice of any defect in the sale.

In connection with these facts, if established, is the fact also, that the waiver of inquisition filed had the genuine seal of the corporation affixed to it, thus tending to mislead, and to produce the belief that the waiver was a valid act. We do not mean to decide on this state of facts, or how far they will afford protection to the purchaser. The facts are not before us, and indeed were not submitted to the finding of the jury, for this part of the case was never reached, in consequence of excluding the evidence which tended to prove that the waiver of inquisition was a fraud and was invalid. It would be improper now to anticipate the state of the facts as they may be found in another trial, and this part of the case is necessarily left open for the decision of the court below, upon whatever aspect the facts shall assume before him.

Judgment reversed, and venire facias de novo awarded.

Shabswood, J., dissented and filed a dissenting opinion.