Lenox v. M'Call , 3 Serg. & Rawle 95 ( 1817 )

Tilghman C. J.

This is a proceeding under the act of 6th April, 1802, to recover possession of a house in the city of Philadelphia, sold by the sheriff, on an execution against Peter L. Berry. David Lenox was the purchaser at the sheriff’s sale, and Judith M<-Call was in possession, under a title derived from Berry. Aldermen Baker and Keppele, to whom complaint was made, by Major Lenox, summoned a jury agreeably to the act of assembly, who found for the complainant, with 360 dollars damages; for which sum and costs, judgment was given against Mrs. MlCall, and possession was delivered to the complainant. The proceedings were removed to this Court, by certiorari, and it is contended in the first place, by the counsel for major Lenox, the complainant, that the writ of certiorari is taken away by the 24th section of the act of 20th March, 1810. It is enacted, in that section, as follows “ No writ of certiorari, issued by, or « out of, the Supreme Court, to any justice of the peace, in “ any civil suit or action, shall be available, to remove the ' ¿‘proceedings had before such justice of the peace.” This act of assembly was made, for the purpose of amending, and consolidating the several acts for the recovery of debts and demands not exceeding 100 dollars, before a justice of the peace, without a jury; and the 24th section relates to such cases, and not to proceédings before two justices for the recovery of the possession of houses or land. These two justices must call a jury to their assistance, so that it can with no propriety be called a civil suit, or action, before a justice. It was mentioned in the argument, but not much insisted on, that the act of 6th April, 1802, on which the proceedings were founded, takes away the certiorari, because it declares, that the judgment of the two justices.shall be final and conclusive to the parties. But besides the settled principle, well known to the legislature, that these expressions do not take away the jurisdiction of this Court;.it is clear from the subsequent part of the same section, that it was positively intended, the proceedings should be subject to removal by certiorari; for it is expressly provided, “that no certiorari “which maybe issued, to remove such proceedings, shall be ‘< a supersedeas, or have any effect, to prevent or delay the “ execution, or delivery of possession.” The certiorari, therefore, was properly issued.

Having disposed of this preliminary question, the proceedings ■ are to be considered. -The counsel for Mrs. M'Call do not deny, that they Were properly commenced, but they say, that after putting in an affidavit, which I shall consider presently, and a tender of security, the proceedings ought to have been staid.' The act of 6th April, 1802, was made, to remedy an inconvenience which existed at common law. Where land was sold on an execution, if the person in possession refused to give it up, the purchaser was put to his ejectment- . This was hard and unjust, where the person himself, agáinstwhom the judgment was rendered, was in possession, or any other person, claiming under him, by title derived after the judgment. The 1st section of this act gives a summary remedy, where the possessson is in the defendant in the execution, or any person claiming under him.. ■ But in order to guard against the summary removal of persons hr possession, who might not derive title from the defendant in the execution, it " is provided, by the 2d section, that oath being made to that purpose, and security given for the prosecution of the claim of the person making such oath, with effect, at the next Court of Common Pleas, to be held for the county where the lands lie; the justices shall forbear to give judgment, &c. The 3d section relates to persons in possession, claiming by lease from the defendant in the execution, and Mrs. M'CalLs counsel have argued strenuously, that this section protects all persons from removal, who are in possession by virtue of a lease, made before or after the judgment. It is unnecessary to decide this point, because the case will turn on another act of assembly, supplementary to the act before-mentioned, passed 14th March, 1814. By this supplement, it is enacted, that any person in possession under the defendant in the execution on which the land has been sold, by title derived to him, from the said defendant, before the judgment rendered against him, shall be entitled to all the rights, privileges and benefits, contained in the second section of the original act j and such person shall not be dispossessed by virtue of the first section of the said act. The meaning of this supplement is too plain to be misunderstood. The person in possession, may stay the proceedings of the justices, on making oath, that he claims under the defendant in the execution, by title derived before the judgment; provided security be given, as directed by the second section of the original act. The question then is not, whether the title of Major Lenox is good, under the sheriff’s sale, but whether Mrs. M'-Call made the oath, and gave the security required by law. It is certified by the aldermen, that Mrs. M'-Call made an oath, and tendered security. The tender of security is equal to the actual giving of it. The aldermen refused to receive it, and nothing more could be done. The point then is narrowed to this. Was the oath such as the act of assembly requires ? Mrs. M'-Call swears, that “ she claim- “ ed to hold the premises in controversy, by title derived from “ Peter L. Berry, as hereafter stated, before the judgment “rendered against him, under which the plaintiff purchased. “That on the 5th May, 1814, the said Berry, in considera- “ tion of the sum of 1200 dollars paid to him by the depo- “ nent, demised the premises to the deponent for a term of “years, commencing at the expiration of the lease she then « held, and by virtue of which she was then in actual posses- “ sion of the premises, and ending the 1st May, 1817 ; and that “the deponent verily believed, she was legally entitled to “hold the premises,by virtue of the said lease, until the said “ 1st May, 1817.” The objection to'this oath is, that it is not positive, but argumentative. The date of the judgment is not mentioned, nor the time at which the last lease was to commence in possession. This is very true ; yet it appears to me, that there is a positive averment of the title being derived from Berry before the judgment, which is all the law requires. At what time the second lease commenced in possession, is not material, provided the contract wás made before the judgment. The title is derived from the time the lease Was executed; so that whether we consider-that part of the oath in which it is said, that the title was derived before the judgment, or the subsequent part which goes into the particulars of the title, it is, in substance, a compliance with the act of assembly. A number of- facts, not found by the jury,- have been mentioned in the record, drawn up by the aldermen; of thése the court can take no notice; so that it is to be understood, that we give no opinion upon the title of either party. It has been objected, that Mrs. Call’s oath was not offered at the proper time. There is nothing in that objection. In proceedings of this kind there are no formal pleadings. Every thing is done in a summary way. It appears, that the oath and recognisance were offered before the rendering of the judgment, and that is sufficient. The recognisance ought to have been taken, and then the title would have been tried in the Court of Common Pleas.

I am of opinion that the judgment was improperly entered, and therefore the proceedings should be quashed;

Gibson J. concurred.

Duncan J.

This is the case of a certiorari calling on two aldermen of the city of Philadelphia to certify their proceedings to this Court. The motion to quash the certiorari having been disposed of, the Court having declared that the superintending power of this Court is not taken away by any law, nor could it be taken away but by negative words, it is to be considered whether the judgment rendered by the aldermen is erroneous or not. In other words, whether the aldermen should, or should not, on the oath of Mrs. M'Call, and tbfe offer to become bound by recognisance, have, in the words of the act which gave them jurisdiction, forborne to give a judgment.

I put out of view all the extraneous matter introduced into the return of this certiorari; inserted no doubt from the purest motives, and confine the inquiry to the precept, to summon the jury, and the party; to the affidavit of Mrs. M'Call, and the offer to enter into recognisance; the finding of the jury and aldermen ; the assessment of damages by the jury, and the judgment rendered, and writ of possession ; for this is all the record. The complaint of the purchaser at sheriffs’ sale, and the finding of the jury and aldermen, bring the case within the provisions of the act of 6th April., 1802; and the purchaser is entitled to the summary relief afforded by that act, unless the tenant, under the act of 14th March, 1814, has brought himself within the benefits of the 2d section of the original act. “ Any person or persons, in possession under the defendant or defendants, in the execution on which the lands and tenements have been sold, by title derived from the defendant or defendants, before the judgment rendered against him or them, under which the purchase may have been made, shall be entitled to all the rights, privileges, and benefits, contained in the 2d section of the act of the 6th March, 1802; and the said person or persons shall not be dispossessed, by virtue of the first section of that act.”

It is stated in the whole proceedings, that Mrs. M'Call came into possession under the defendant in the execution on which the house and lots were sold; indeed, if this were not the case, all would be void. For it is only in such case this tribunal had jurisdiction. The inquiry before the aider-men could only be of this fact, and of the damages. The title of Mrs. McCall formed no part of the inquiry. Whether derived before or after the judgment, was not for them to decide. Title was not for them to determine. This proceeding is in the nature of a summary ejectment. The original act intended to prevent delay in the tedious process of ejectment against the defendant, and all coming into possession under him. The deed of the sheriff duly acknowledged was made conclusive evidence; and the purchaser holding this deed, was, on giving three months notice, to be put in possession. But, if under the original act, the tenant in possession interposed a claim, .on oath to be made by himself, that he did not come into possession, and doth not claim to hold under, the defendant in the execution, and that the title is disputed and claimed by some person (other than the defendant), whom he shall name, and if such person, so claiming, shall forthwith or upon a summons immediately to be issued, returnable within 30 days, appear before the justices, and on oath or affirmation declare, that he verily believes he is legally entitled to the premises, and that he doth not claim by, from, or under the defendant in the execution, but by a different title, and shall become bound with one or more sufficient securities by recognisance to the complainant.before the jus® tices, sufficient to cover the value of the rents or mesne profits, and all costs and damages which may be expected to accrue, before the final decision of the said claim, conditioned, to prosecute his claim with effect at the next Court of Common Pleas, or in case of failure, to surrender the premises, and pay the .full value of the rents and mesne profits, then, and in such case, but not otherwise, the justices shall forbear to giv.e judgment. It is provided,, that if the claim is not' prosecuted according to the recognisance, the recognisance shall be forfeited to the use of the complainant, and .the justices shall proceed to give judgment, and cause the lands to be delivered to the complainant.

It is contended on the part of the tenant, that- she holding under a lease is-not subject to 'this summary process ; that in the country this would lead to' most mischievous consequences, and be highly prejudicial to agriculture; that it' would lock up from use all th'e property owned by the person against whom judgment would be obtained, as the lessee might be turned out at an unreasonable time, be deprived of his crop, and lose the labour of a whole year, and be without a habitation to receive him. The answer to this is, that no contract between him and the debtor can deprive or delay the creditor of-the benefit of his judgment, or the purchaser at sheriffs’ sale of the benefit of his purchase; that alease can no more deprive them of their rights- than a conveyance in fee simple ; that a debtor after judgment might give a lease for any number of years, receive the whole rent in advance, and thus deprive the purchaser of all benefit from his purchase, until after the expiration of a long lease.

But the case of a lessee is not distinguished, by any of ' these statutes, from any other person who has come into possession under the defendant. All persons are included in the first section. The second section protects from dispossession in this summary mode, persons who come into possession and claim to hold under others than the defendant. The act of 1814 protects those who come into possession under title derived from the defendant before judgment rendered. Lessees are therefore subject to the operation of these laws. If this were not the case, these wise provisions might be easily evaded. Indeed, they appear to be expressly included ; for the purchaser is entitled to the rents accruing from the time of the purchase.

By the counsel for the complainant it is contended, that this oath, and the offer of security, and to enter into recognisance, were improperly made; made at an improper time, and at a time when the aldermen were bound to proceed. If the tenant was bound down to a particular time, it might puzzle the soundest lawyer to say what that time was. Is it to be instantly before the jury are empannelled, that the - objection is to be made to the jurisdiction ? Is it to be after and before the finding of the facts ? Is it to be after the facts found, and before the assessment of the damages ? Or, is it to be after the assessment of damages and before judgment ? It is evident that the interposition of the claim does not prevent the inquiry and assessment of damages ; for all that is to be completed, that the justices, on failure of prosecution of claim by the- tenant, may proceed to give judgment, and cause the possession to be delivered to the complainant. And it is equally .clear to me, that if this interposition of claim on oath, and offer of recognisance, is made any time before judgment, it is the duty of the justices to forbear giving judgment, as it is expressed in the second section of the original act; and, as it is expressed in the supplement, such person shall not be dispossessed by virtue of the first section of the act of 6th April, 1802.

This is not a matter of special pleading ; here is no oyer, essoin, or imparlance ; here is neither plea in abatement, to the jurisdiction, in bar, or after the last continuance.

The objection would have great weight, and be unanswerabl if the tenant did not make it in time ; íl he waited till after the judgment. But here it is, not that it was made too late, but that it was made too soon. The aldermen and jury should have gone on and completed the inquisition ; ~ and then the aldermen should have forborne to give the judgment, and dispossess the party. It would be placing parlies too much in the power of justices of the peace, if this were not the law. The party, after the testimony has closed, withdraws; he .is not present at‘the finding or assessment of damages: directly after this the judgment is rendered, and his lips are sealed. If he makes the oath and offer of recognisance before the finding, he is too soon ; if he waits but a little time after, he is too late. All the facts are stated to have been found when the oath- and recognisance were offered; and the aldermen, after this, ordered the proceedings to go on.

But objections are' likewise made to the oath — that it is not sufficiently positive, but argumentative.

1. It does not state that she came into possession under the defendants. That was unnecessary. The complainant stated that; it is contained in the finding. Without the establishment or admission of that fact, all .was coram non judice. Besides, the act of 1814 does not require that the tenants should come into possession under the defendant before the judgment, but any person in possession under the defendant by title derived before the judgment. It is not required that the possession shall be before the judgment, but the title. One who had a lease, bona fide, before the judgment, who entered after the judgment, is within the protection of this act.

2. The oath is objected to, because of its reference to the manner in'which the title was derived. Mrs. McCall deposes' that she claims to hold the premises by title derived from the defendant in the execution, before the judgment rendered. This is positive. She then proceeds to state how;, “that on the 5th May, 1814, Peter L. Berry, the defendant “ in the execution, in consideration of 1200 dollars, to him “ in hand paid, demised the premises for two years, com- “ mencing at the expiration of the lease she then held, and “ by virtue of which she was then in possession, and ending “on the 1st May, 1817.” This title was derived from Peter L. Berry, on the 5th May, 1814, before the judgment, which was on the 4th February, 1815. This is sufficiently certain, nothing can be more so. She states, positively, the fact of claiming to hold under title derived from Berry before the judgment. She then states, that the title is founded on a lease of 5th May, 1814; which lease was to expire on the 1st May, 1817. It was not necessary for her to state that she came into possession before the judgment; her title must be derived before the judgment. She was in possession at the time of the sale, the notice, the inquisition, under Berry; and her title was derived from Berry before the judgment rendered against him. It was not required by the act, that the possession should be before, but that the title should be derived from the defendant before. I am therefore of opinion, that the judgment rendered by the aldermen be re-versed.

Proceedings quashed.