Rector of the Church of St. Bartholomew v. Wood , 80 Pa. 219 ( 1875 )

Mr. Justice Woodward

delivered the opinion of the Court,

The strain of this case begins at the very outset of its history. It was provided by the fourth section of the charter of St. Bartholomew’s Church, that.“ the said corporation shall not, by deed, fine or' recovery, or by any other means without the assent of the convention of the Protestant Episcopal Church of the State of Pennsylvania, or of the standing committee of the diocese, previously had and obtained, grant, alien, or otherwise dispose of any lands, messuages, tenements or hereditaments in them vested, nor charge or encumber the same to any person or persons whomsoever.” In erecting their church building, the plaintiff incurred debts, on one of which a judgment was obtained by the creditor, John Gibson, on the 20th of May 1865. A writ of fieri facias was issued on the 13th of June 1865, to which an agreement was attached, signed “for the church” by Isaac Norris and George M. Taylor, styling themselves churchwardens, with an impression of the corporate seal of the church affixed, and waiving any inquisition and condemnation, and requesting the sheriff to sell on his writ. As to the facts connected with this paper, there is no dispute. It was executed without the authority of the vestry of the church; Mr. Norris, although a member of the vestry, was not a warden; and the seal was irregularly and improperly in his possession when it was impressed upon the instrument. There can be no doubt that if application had been made by the defendants in the judgment, the present plaintiffs, to the proper court at the proper time, the agreement, fabricated as it was in so exceptional a way, would have been stricken from the record. Even after the acknowledgment of the sheriff’s deed, if the first purchaser had retained the property, it is probable that the hands of court would have been laid upon the process on the ground that irregularities so gross would be held to amount to fraud. The position of the defendants, however, is far in advance of this. The land was sold to James Otterson on the 3d of July, and the sheriff’s deed to him was executed on the 8th of July 1865. On the 25th of September 1865, Mr. Otterson sold and conveyed the property to Bishop Wood. The ground is taken that the defect in the record was vital, and of a nature to defeat the title in the hands of a purchaser for a valuable consideration without notice, because the' waiver was a step in the alienation of the property, and the charter restrictions by which the power of the corporation was fettered forbade that any such step should be taken. The first and most material question, therefore, is whether this agreement, if it had been duly made, was within the scope of the corporate authority. If not, the grantee of Otterson can assert no equity under the alleged acquiescence of the plaintiffs, for the record of the charter was notice of its provisions to all the world, and the entire proceeding was simply void. If the act, legally performed, was intra vires, as the instrument was regular on its face, the defendants would seem entitled to the ordinary rights of an innocent purchaser, and the plaintiff's would seem subject to the ordinary principles of equitable estoppel. Under the facts admitted, and the facts found by the jury, it is manifest that the determination of this question is the determination of the cause.

The general theory of the plaintiffs is, that in view of their charter disabilities, they were not sui juris, and that for any purpose of alienation or encumbrance of their property, they held the precise position which a married woman holds in relation to her estate. Adopting the analogy thus suggested as apt and accurate, it is necessary to ascertain the exact rule deducible from the authorities as to the power and disabilities of parties hot sui juris in Pennsylvania. It has been held that a parol partition of lands between tenants in common who derive their title by descent, when fair and equal, and followed by a due execution of it, is binding upon all, whether they be femes covert, their husbands joining them, or minors, with the assent of their guardians or not: Calhoun v. Hays, 8 W. & S. 127. An agreement by feme covert making partition of her real estate, is binding without a separate examination and acknowledgment: Peter Rhoads’s Estate, 3 Rawle 420. In Wightman’s Appeal, 5 Casey 280, a wife had not only given her separate bond with confession of judgment for purchase-money of lands, but had confessed a separate judgment for the price of materials furnished and work done for its improvement, and in the distribution of the proceeds of the sale of the land, the fund was applied, after payment of the purchase-money lien, to the lien of the creditor by whom the improvements had been made. A peculiarity of the same case was, that the wife alone waived inquisition and confessed condemnation in -the execution on which the land was sold. A married woman bought land, received the deed and gave a bond and mortgage in her own name alone for the .balance of the purchase-money, to be paid on the death of two annuitants, to whom the interest was to be paid annually during life. By a condition in the bond, the principal could “ be collected as if fully due” on default for six months in paying the interest. It was held that upon such default the principal could be collected by suit on the mortgage: Glass v. Warwick, 4 Wright 140. Brunner’s Appeal, 11 Id. 67, was a case in which Magdalena Byler, a single woman, had executed a judgment bond to Owen B. Good. After her marriage, it was entered against her in her maiden name on the 7th of November 1855, and was revived by the agreement of herself and her husband on the 9th of February 1860. After a sale of her estate under an order of the Orphans’ Court, the amount of his judgment was distributed to Mr. Good, the court deciding that the wife was competent to execute the agreement to revive it. A married woman, her husband not joining, conveyed her land to Levick, Avho went into possession ; she and her husband afterwards conveyed to Brotherline for $500, on the representation that he was perfecting the title of Levick. In the opinion of Williams, J,, it was held that if the grantors executed the deed of relying on the representations, it was void, notwithstanding the money consideration, and that in an ejectment for the land by Brother-line against Levick, the latter could set up the fraud in avoidance of the deed: Levick v. Brotherline, 24 P. F. Smith 149. The general result of the authorities would seem to be that an act by a party not sui juris will be sustained, which amounts only to a recognition of a liability which the law has already imposed. Although no fresh contract liability may be created, and any waiver of the party’s rights in original process may be absolutely prohibited, yet no legal principle and no rule of public policy forbids any step that may be taken in facilitating the execution of mesne process to which a final-judgment or decree has declared the party to be subject.

In the present case, the judgment was in existence. It was competent for the plaintiffs to waive legal formalities in the execution, and if the waiver, which was in due apparent form, had been duly authorized, the validity of the entire record would have been free from doubt.

The actual facts relating to the execution of the waiver of the inquisition, established the absence of all authority in the persons who signed it, the improvident use of the corporate seal, and the assumption by Mr. Norris of an office whose functions he had no right to exercise. As to the plaintiff in the judgment, the sale on application would have been set aide. As to the purchaser, if he were defendant here, it may be assumed for present purposes that he would be affected by the defect of process. But the relation to the record which Bishop Wood, who had been neither party nor privy to it, acquired by his purchase of the property, was widely different from that borne either by the plaintiff in the judgment or the purchaser at the sheriff’s sale. The agreement for the sale on the fieri facias was on its face free from all indications of defect. It was one which the church authorities were competent to make; Mr. Taylor, who signed it, was actually a warden, and Mr. Norris was described as one; and it was stamped with the genuine seal of the church, whieh implied, prima facie, antecedent authority for its use. Without notice, or means of knowledge, or the existence of facts to suggest the duty of inquiry, Bishop Wood was bound to look no further. It has been held that a person who effects a policy of insurance with a life assurance company in the ordinary course of business, is not bound to inquire whether the persons signing the policy as directors have been legally appointed directors, or are empowered to use the seal of the company: County Life Assurance Co., Law Rep. 5 Ch. 280. Looking at the transaction in its worst possible aspect as a contrived and premeditated fraud, the purchaser, who was ignorant of it, would be still protected. Fetterman v. Murphy, 4 Watts 424, and Irwin v. Nixon’s Heirs, 1 Jones 419, in both of which cases the same title was involved, decided that a sheriff’s sale of an intestate’s land on a judgment fraudulently obtained, to the attorney who obtained it, was void as to the owners ; but if it had been subsequently conveyed to an innocent purchaser, he would not be affected by the fraud, and would have a good title.

The record in this case establishes two facts incontestably: that when the conveyance was made to Bishop Wood, he had no knowledge of the defect in the waiver, and that the plaintiff had at that time had notice of the sheriff’s sale. The first of these facts is a direct result of the verdict, for without it, as the cause was tried, that could not have been rendered. The second fact is to be inferred from the acknowledgment of the sheriff’s deed apart entirely from the general finding of the jury, and from the evidence, which was undenied, that the possession of the church building had been surrendered to Mr. Otterson, and that the key was in his hands. It is true that the acknowledgment by a sheriff of a deed executed by him is not such res adjudicate/, as precludes an inquiry into the legality of the proceedings by which the sale was made: Braddee v. Brownfield, 2 W. & S. 271. And the absence of authority, or the presence of fraud, utterly frustrates the operation of a sheriff’s sale as a means of transmission of title, and may be insisted on after the acknowledgment: Shields v. Miltenberger, 2 Harris 76; while Spragg v. Shriver, 1 Casey 284, might justify some doubt on the question in the case of a sale under a venditioni exponas, it is clear that an acknowledgment will not cure the want of a sufficient inquisition or a waiver of it in the case of a sale under a writ of fieri facias: Gardner v. Sisk, 4 P. F. Smith 506. But it cures all defects of the process or its execution which the court has power to act upon: Thompson v. Phillips, 1 Bald. 246, and mere irregularities of every kind: Blair v. Greenway, 1 Browne 219.

It is sufficient to raise the presumption, in the first instance, that the statutory requisites for notice to parties have been complied with, and this presumption must prevail until it is rebutted by satisfactory affirmative proof, and no such proof was given here. From the 8th of July to the 25th of September 1865, these plaintiffs had acquiesced in the disposition of the property which had been made by the sheriff’s sale. The validity of the judgment had not been assailed, and the regularity of the execution process had not been questioned. They knew their title had passed to Mr. Otterson, and they suffered him to transfer it to Bishop Wood without objection or remonstrance. It is claimed that the rights of the defendants must rest on the facts existing at the time when Mr. Otterson’s deed was delivered, and that the defence of estoppel cannot be helped by acts done subsequently by the plaintiffs. It is not necessary to enter on the discussion of this claim. It is enough to say that the evidence of the subsequent acts was legitimate, for they were done by the parties who were directly in interest, and in relation to the subject-matter of the controveisy, and the evidence tended to throw light on the facts actually existing when Mr. Otterson executed and delivered his deed. If a reasonable motive for it existed, there had been reasonable time for action. Acquiescing as the plaintiffs did up to and long after the purchase by Bishop Wood, of what was apparently an unimpeachable title, they have no right in law, equity or good conscience to mantain a claim to the property now.

There is nothing shown by the report of this case in 11 P. F. Smith 96, that is in conflict with the conclusion which has been reached. Evidence had been offered on the first trial in the court below to show that the waiver of inquisition had been signed by persons who had no authority to act for the corporation, and that the paper purporting to be a waiver was fraudulent and void. All that was decided was, that the evidence was admissible. All questions as to the effect on the rights of the parties of the facts which the jury have now found, were expressly reserved in the opinion of the court.

It is objected that the view that has been taken of the questions presented is a departure from the principles adopted in disposing of the cause in the court below. But is not the objection more formal than substantial? All the facts relating to the waiver of the inquisition are on the record. They were not controverted on the trial, and are now asserted by both parties. The knowledge by the plaintiffs of the sheriff’s sale, and the purchase by Bishop Wood without notice, in good faith, and for valuable consideration, are established by the verdict and the record proofs. All the elements of fact are here that are necessary to support a final judgment. To send it back to the court below to secure to admitted facts the application of a series of principles differing more in order and statement than in effect and force from those applied on the former trial, merely in order to produce a second verdict identical with the first, would seem to be imposing on that tribunal functions, for the exercise of which the law holds this court responsible.

Judgment affirmed.