Weaver v. Lutz , 1883 Pa. LEXIS 106 ( 1883 )

Chief Justice Mercur

delivered the opinion of the court, October 1st 1883.

If, while Miller was in possession and owning the equitable title, he alone caused the building to be erected without the co-operation of Lutz, who held the legal title, a mechanics’ lieu for such erection would not bind any other or greater estate than that held by Miller. The 24th section of the Act of 28th April 1840, Pur. Dig. 1027, pi. 18, would control the case.

On such facts the joining of Lutz with Miller in the claim filed, would be improper. Upon application of the former the claim as to him should have been stricken off, or after scire facias issued, the facts would have constituted a good defense for him in a proper issue. The case of Van Billiard’s Administrators v. Nace, 1 Grant 233 ; nor Leiby v. Wilson, 4 Wright 67, will not prevent such defence.

If, however, such facts did exist in regard to Lutz, he wholly neglected to allege or prove them at the proper time. The claim was filed against both of them in due form ; it charged Miller, as contractor, and Lutz as owner or reputed owner. The scire facias thereon was duly served ; judgment was regularly obtained against them. Execution issued and the property was sold to one of the plaintiffs in error. He appears to have been a purchaser in good faith, relying on the correctness of the averments of record. The claim of record charged the estate of Lutz with liability for the erection of the building as owner thereof. That averment was confirmed by the judgment. Whether it was a fact admitted or previously-in dispute, the judgment finding it to exist, was conclusive: Rockwell v. Langley, 7 Harris 502; Philadelphia v. Girard’s Heirs, 9 Wright 9. This fact was not one incidentally cognizable in that action but was directly in issue. The judgment could not have been rendered against Lutz on any other grounds than the affirmance of the liability of his estate in the premises, or his ownership of the building. That judgment has not been set aside nor reversed. Legal effect must be given to the facts on which it must necessarily have been founded: Farrington v. Woodward, 1 Norris 259. In the absence of covin or collusion it cannot be attacked collaterally: Postens v. Postens, 3 W. & S. 127; Sheetz v. Hanbest, 31 P. F. Smith 100.

The title which passed at the sheriff’s, sale does not rest solely on the correctness of the claim originally filed as a mechanics’ lien. The subsequent judgment confirmed prior averments, and the claim became res adjudicata. If improperly entered against Lutz before, thenceforth the debt became a good and valid lien and supported a sale of the whole estate of the defendants in the judgment. Moreover, Lutz having permitted a judgment to be recovered against him in the form stated, having suffered it to stand unchallenged, and a sale to be made based thereon, should not now be allowed to aver a claim in opposition to the judgment, to the prejudice of a purchaser who relied on the record averring the truth. The first and third assignments of error are sustained. There is no merit in the second.

Judgment reversed, and a venire facias de novo awarded.