Gibbs v. Tiffany

Opinion by

Willard, J.,

This was an action of ejectment by Simon Gibbs and Almira F. Gibbs, his wife, to recover the possession of a lot of land designated as lot No. 11 on a plot or subdivision of land in the borough of Athens in the county of Bradford. The lot was purchased by Simon Gibbs on October 11, 1878, from John M. Pike by articles of agreement, the purchase money being fully paid on January 19, 1883. On December 3, 1883, judgment was entered in the court of common pleas of Bradford county against Pike in favor of Grant and DeWaters. Subsequently a writ of scire facias 'was issued on this judgment against Pike as defendant and Simon Gibbs and Almira F. Gibbs as terretenants, and duly served. On January 9, 1889, judgment was entered on the scire facias against all the defendants for want of appearance.

How did this judgment affect lot No. 11? When the original judgment was entered against Pike he had no interest in the land. He had sold it and received his pay in full. He oiyed a duty to his vendee of executing and delivering a deed as he had agreed to do, but the judgment did not attach to the duty unperformed so as to make it a lien upon the land. It is true that Gibbs and wife did not receive their deed until July 31, 1884, but when the judgment was entered against Pike they were in full possession, living upon the lot with articles of agreement with purchase- money fully paid thereon. Their possession was sufficient notice for the protection of the title, and the plaintiffs in the judgment and the subsequent purchaser at sheriff’s sale were bound by the notice as completely as though their deed had been recorded at the time: Rowe v. Ream, 105 Pa. 543; Hottenstein v. Lerch, 104 Pa. 454; White v. Patterson, 139 Pa. 429.

Gibbs and his wife were not terre-tenants. The defendant Pike, from whom they purchased, must have had some interest in the land at the time' of the entry of the original judgment to make them such. He had none. Therefore the judgment was never a lien upon the land and the judgment against them as terre-tenants did not make it a lien. They are not estopped by the judgment from claiming title against the purchaser at sheriff’s sale thereunder: Mitchell v. Hamilton, 8 Pa. 486; Dengler v. Kiehuer, 13 Pa. 38; Helfrich’s Appeal, 15 Pa. 382; Drum v. Kelly, 34 Pa. 415.

It follows that the sheriff’s sale of December 5, 1889, under the judgment passed no title to the property to W. B. Tiffany, and the trial judge substantially so instructed the jury. The deed from John M. Pike was made to Simon Gibbs and Almira F. Gibbs, and so recorded on September 30, 1885. By this conveyance they became vested with the title as tenants by entire-ties. It is claimed that the appellants are both estopped by their acts and conduct from questioning or denying the title obtained by Tiffany at the sheriff’s sale.

The evidence shows that on the day of the sheriff’s sale Simon Gibbs met W. B. Tiffany in the office of Mr. Maynard, who appears to have been acting as attorney for both parties at the time. The object of this meeting was primarily for the purpose of raising the sum of sixty-two dollars ($62.00), the balance of the purchase money owing by Gibbs on the contract with Pike for lot No. 10. After an-inspection of the record by the two parties and ascertaining the amount of judgments and mortgages against the property, Tiffany refused to advance the amount requested. Afterwards, it was arranged -that Tiffany should bid off the property in his own name subject to some future agreement to be entered into at a meeting between Gibbs and Tiffany in the office of Mr. Maynard, the attorney, which subsequent meeting for that purpose, the evidence shows never took place. The allegation that Simon Gibbs induced Tiffany to purchase the property rests upon a very slender foundation under the evidence. It is true that Tiffany bought the property at sheriff’s sale for the consideration of fifteen hundred and ten dollars ($1,510), which amount of money was ■applied by operation of law to the payment of mortgages and judgments against Simon Gibbs and his wife. From a careful consideration of the testimony in the case, there is absolutely no evidence that Almira F. Gibbs was present at the meeting between her husband and Tiffany, or that she knew anything that transpired between them. Nor is there any evidence that Simon Gibbs was acting by her authority, knowledge or consent. The learned trial judge instructed the jury that if the evidence was to be believed Simon Gibbs and Almira F. Gibbs both induced Tiffany to purchase the property at sheiiff’s sale. The jury were further instructed as follows : “ If you believe the evidence of the defendants, that there was such an arrangement made at the time of this sale, you would be justified in saying that at the time the summons in this case was issued, the plaintiffs were not entitled to recover, not having repaid to the defendants the amount of purchase money which they had induced the defendants to pay for them.” By this language the jury were instructed that there was evidence that Almira F. Gibbs induced Tiffany to purchase the property and they might have been misled as to the conduct of Mrs. Gibbs. As there was no evidence, as before stated, that Mrs. Gibbs took any part in the transaction or had any knowledge of it, the instruction was erroneous.

Almira F. Gibbs had joined in executing two mortgages with her husband upon lots Nos. 10 and 11. The two lots were sold on the judgment against Pike in which Gibbs and wife were named as terre-tenants. They were terre-tenants as to lot No. 10,. but not as to lot No. 11. When the scire facias was issued and served upon them as terre-tenants, there was unpaid purchase money due Pflce on the contract for lot No. 10, but not on lot No. 11. The sheriff’s sale conveyed a good title to Tiffany to lot No. 10, but no title as to lot No. 11. The fact that the money derived from the sheriff’s sale was used in payment of liens in their order as they stood upon the record, some of which were against Almira F. Gibbs, did not estop her from questioning the title under the sheriff’s sale to lot No. 11. The property was not sold by virtue of executions issued upon judgments obtained upon the mortgages, but upon a judgment which never was a lien upon lot No. 11. The mere application of the moneys in court to the payment of debts created by mortgages in which she was joined as a party with her husband, does not estop her from asserting title to her own property which did not pass by the sheriff’s sale. Tiffany, the sheriff’s vendee, had full notice of her title, and if he was misled it was no fault of Mrs. Gibbs.

The judgment of Grant and DeWaters against John M. Pike et ah, was properly admitted, and its effect and the sheriff’s sale thereunder, as explained by the court, did the appellants no harm. The admission of the testimony of PI. F. Maynard under the offer as made was unobjectionable and was properly admitted. The first and second assignments of error are overruled ; the third, fourth and fifth are sustained.

The judgment is reversed and a venire facias de novo awarded.