Wheelock v. Harding

Opinion by

Beaver, J.,

This is an action of ejectment in which both parties claim title through deeds made in pursuance of sheriff’s sales made at different times. The deed of the defendant is dated December 4, 1891, and, in point of time, is the older of the two. The allegation of the plaintiff is that the sale made by the sheriff in pursuance of which this deed was made did not divest the lien of a mortgage given by Milton Penrith, the then owner of the land, to one Chauncey Benson. This mortgage was entered and filed for record December 28, 1886. A mechanic’s lien was entered against a building erected upon the same land in the lien sufficiently described. The judgment, upon which the sale was made, was subsequent to the mechanic’s lien. In answer to the allegation of the plaintiff that the lien of the mortgage was not divested by the first sale, the defendant replies: true it is that the mechanic’s lien was actually filed January 22, 1887, but, upon the face of the lien, it appears that the materials were furnished for the erection of the building referred to December 18, 1886, ten days before the entry of the mortgage. It is conceded that the plaintiff, who purchased the property in controversy at the second sale, is bound by the records as they existed on November 11, 1893, the date of the last sale, his duty to examine the records being emphasized by a notice given by the defendant at the time of the sale that “ the mortgage judgment and levari facias upon which the same (the land in controversy) is advertised for sale are not a lien thereon.”

Five distinct questions are. raised by the fifteen assignments of error which are disclosed by the record. 1st. Was parol evidence admissible to show the date of the commencement of the building described in the mechanic’s lien? And, if not, 2d. Did the mechanic’s lien on its face show that it antedated the mortgage, so that a judicial sale made upon a writ issued on a judgment whose lien was subsequent to both would divest the mortgage? 3d. Was the judgment entered on the scire facias issued upon the mortgage such as would support a levari facias and a sale thereunder? 4th. Did the neglect of the prothonotary to furnish the recorder with a certificate of the issuing of the scire facias upon the mortgage for entry on the record of the mortgage in his office affect the title acquired by the plaintiff under the sale on the judgment entered in the said scire facias? 5 th. Was parol evidence admissible to show that the deed by which the mortgagor acquired title was delivered to him, before the mortgage was recorded ?

The first two propositions are, we think, fully answered in the case of Reading v. Hopson, 90 Pa. 494. The facts of that case are so entirely similar to the one under consideration that we are not left in doubt as to our duty in the premises. We are not called upon to explain or to justify the decisions of the Supreme Court. Our duty is simply to follow them, and this duty is emphasized by the fact that this case has been fully and distinctly followed in Hilliard v. Tustin, otherwise quoted as Wilson’s Appeal, 172 Pa. 354. It is alleged by the appellant that these cases have been modified by Reynolds v. Miller, 177 Pa. 168. An examination of the latter case, however, discloses the fact that Reading v. Hopson, supra, is distinctly followed and approved therein and the lien in that case was held to antedate the mortgage, although entered subsequently, because the mortgage itself specifically describes tbe building erected on tbe land against which the lien was filed. The recital in the mortgage gave distinct and express notice to the purchaser at sheriff’s sale, and upon this ground the case is distinguished from Reading v. Hopson and Wilson’s Appeal, supra. It is true, as claimed, that the mechanic’s lien filed in this case did show that materials were furnished prior to the date of the lien of the mortgage, but whether the building was commenced before or after that time or whether the materials were delivered upon the premises at the time at which they were charged does not appear, and the entry of this date, therefore, conveyed no notice of any kind as to commencement of the building to the plaintiff, who was the purchaser at the last sheriff’s sale.

It has been seriously and strenuously urged by the appellant that the judgment entered in the scire facias upon the mortgage would not support a writ of levari facias and a sale made in pursuance thereof, and that the plaintiff’s title must, therefore, fail. The record shows that a writ of scire facias upon the mortgage, dated December 28, 1886, and recorded in the office for the recording of deeds in Wyoming county, in mortgage book No. 3, page 693, etc., was issued. The writ of scire facias is set forth in extenso in the appellant’s paper-book, and contains a description of the land described in the mortgage. The writ was returned served on January 17,1891, judgment was allowed in open court; same day prothonotary finds due $342.12 and costs; thereupon judgment. Subsequently, on February 23, 1891, Milton Penrith, the mortgagor, agreed with Mary B. Marcy, to whom the mortgage and judgment had been assigned “that the judgment entered in the above case shall be as binding and valid as if entered on a verdict of a jury, and I hereby ratify the same.” The objection which the appellant makes to this judgment is, that it is not entered in accordance with the provisions of the 6th section of the act of 1705,1 Sm. L. 57, which prescribes the form of judgment to be entered in such cases. The early case of Coyle v. Reynolds, 7 S. & R. 328, m which a judgment had been rendered generally in short form against terretenants who had been summoned in a scire facias, seems to be in point, and is applicable to the present case. There has been no departure from the practice recognized in that case in Pennsylvania. In general, that is certain winch is capable of being rendered certain, and there is upon the record of the scire facias of the mortgage in this case sufficient to show what the judgment entered by the prothonotary means, and what the effect of it should be. If the plaintiff in that judgment were endeavoring to enforce its provisions against the defendant therein, she would doubtless be restricted, upon application by the defendant to the proper tribunal, to the lands described in the writ of scire facias. The appellant quotes and strongly insists upon the case of Wilson v. McCullough, 19 Pa. 77, as modifying the doctrine of Coyle v. Reynolds, supra, but an examination of that case shows that the praecipe for the scire facias did not describe the land, and that no writ of scire facias did in fact ever issue. There was nothing upon the record, therefore, by which the judgment which was general could be limited, and for that reason it was held that it would not support a levari facias. This is a very different state of facts from that which exists in the present case. Here the scire facias was regularly issued, and the land bound by the mortgage is fully described therein. There is, therefore, in the record of this scire facias the materials out of which the judgment can be entered at length, and the sale made upon the levari facias issued thereon is, in our opinion, valid.

The Act of April 3, 1860, P. L. 630, “ Relative to proceedings upon mortgages and recognizances,” is not difficult of interpretation. The 2d section clearly shows its object. It is to provide for the benefit of the defendant in the action a satisfaction of the mortgage or recognizance, without a formal entry thereon by the mortgagor or other person interested. That a failure on the part of the prothonotary to make such a return, or of the recorder to enter it upon the record of the mortgage, if made, should affect the title to real estate, certainly did not enter into the mind of the legislature, and we are entirely unwilling to give such effect to its provisions. It imposes no duty whatever upon the purchaser at a sheriff’s sale. The duty imposed by the act is purely clerical. The defendant- in the suit upon the mortgage or recognizance would seem to be the only person interested in having it done, and the only penalty which could be visited upon the prothonotary or recorder for a failure to comply with the provisions of the act would seem to be the loss of the fees which are therein provided for the discharge of the duty.

There was no error in admitting parol evidence to prove the time of the delivery of the deed from Mary A. Wall to Milton Penrith. In what other way could it be proved ? The delivery of a deed is an act. The fact of its delivery does not appear upon the deed itself, nor can the record of it show the time of its delivery. If necessary to be proved, it can in general be done only by parol.

A careful examination of tbe whole case reveals no error in the trial, and the assignments of error are, therefore, all overruled, and the judgment is affirmed.