Middleton's Executors v. Middleton , 1884 Pa. LEXIS 183 ( 1884 )

Mr. Justice Stekrett

delivered the opinion of the court,

The general question presented by the case stated is, whether the plaintiffs’ title to certain real estate, of which John W. Middleton died seized, is such as the defendant is bound to accept.

In February, 1873, Allen Middleton, plaintiffs’ testator, obtained judgment against John W. Middleton, the then owner in fee of the real estate in question. Within five years thereafter, a scire facias to revive, &c., was issued against the defendant in the judgment, to which he pleaded payment, and the issue joined thereon was pending and undetermined at the time of his decease in December, 1878. No further proceedings were had in that case; but, in February, 1879, a scire facias, to revive et quare executionem non was issued on the original judgment, served on Sarah Middleton, administratrix of John W. Middleton; and, in default of appearance, judgment was entered and amount liquidated at $>49,282.23. By virtue of a fieri facias issued on the judgment the real estate in question was levied on, condemned and afterwards sold by the sheriff on a venditioni exponas, and by him conveyed to plaintiffs.

It is claimed by the plaintiffs, on the authority of Fetter-man v. Murphy, 4 Watts, 424, Brobst v. Bright, 8 Id., 124, Wells v. Baird, 3 Barr., 351, Konigmaker v. Brown, 2 Harris, 269, Baxter v. Allen, 27 P. F. Smith, 468, and a long line of kindred cases, that the judgment on the scire facias against the administratrix and subsequent sale by the sheriff were sufficient to invest the purchasers with a good marketable title. It is virtually conceded by the learned counsel for defendant that this would be so, were it not for the fact that an issue on the former scire facias was pending and undetermined at the death of the defendant in the original judgment. We are of opinion, however, that this feature of the case can make no difference — that it is insufficient to distinguish the case in principle from those above cited. Notwithstanding the pendency of the issue in the first scire facias and the fact that more than five years had elapsed since the entry of the original judgment, as between the judgment creditor and his debtor, the judgment was a valid, subsisting lien on the land at the date of the defendant’s death in December, 1878: Brown’s Appeal, 10 Norris, 485. According to well settled principles it was therefore unnecessary to make his widow and heirs parties before proceeding to execution against the real estate of the intestate bound by the lien of the judgment recovered in his lifetime: Shearer v. Brindley, 26 P. F. Smith, 300, and cases there cited. The administratrix might have appeared and defended the issue on the scire facias against her intestate, but she did not do so: nor did she appear to the scire faeias issued against herself. The judgment in default of appearance and the, subsequent proceedings were not irregular.

The estate conveyed by the sheriff’s deed was not limited by the omission of words of inheritance. The Act of June 16, 1836, provides that real estate sold by the sheriff shall be held and enjoyed by the purchaser, his heirs and assigns, as fully and amply, and for such estate or estates as the defendant had therein.

The error in describing the land sold and conveyed by the sheriff is immaterial. The erroneous courses may be corrected by the description contained in the deed, and thus the land intended to be conveyed may be readily located with reasonable certainty. In the case of descriptive errors, where no one is shown to be injured thereby, the rules of construction, applicable to deeds inter partes, apply also to sheriffs’ deeds: White et al. v. Luning, 93 U. S., 514.

Upon due consideration of the facts presented in the case stated we are of opinion that the deeds therein referred to, in connection with the proceedings resulting in the sheriff’s sale, vested in plaintiffs a good and marketable title in fee simple to said tracts of land, and hence they are entitled to judgment.

Judgment reversed, and judgment on the case stated is now entered in favor of the plaintiffs and against the defendant for thirty thousand ($30,000) dollars with interest from March 1, 1883, and costs; said judgment to be satisfied of record upon the defendant paying the amount thereof, with costs, and plaintiffs giving him a deed, in fee simple, clear of all incumbrances, for said tracts of land.