McClelland v. Herron

Bíjrnside, J. This was an -action, of ejectment for a tan-house .and lot of grofind on. Diamond Alley, in the city'of Pittsburgh. " • - On the trial below, it was admitted the legal title of the premises' in question was in Doctor Herron, the defendant in error ;■ -ánd'that he'held the property in trust, for Eve Hámshire and .her issue,-who intermarried with- George Anshutz, jun; On the 7th January, 183.3," Anshutz leased the property to Robert'McCullough for the term of six years, from the 1st of April following; at a rent qfi four hundred dollars per annum. McCullough proceeded.to build, a tan-.house on-the premises, and on- the 7th August, 1833, James Aberp'rombie filed a mechanic’s lien 'against Robert McCullough.for $618.67, for materials furnished and labour done on a brick.tan-house. A scire facias issued on this lien, No. '84, October Term, 1833.' James Abercrombie v. Robert McCullough’. March the 18th, 1834;-judg-ment for’$643 41. No,.312, March Term,- 1834,-</i.t/m_COinm.and-ing the sheriff to levy of .the goods and chattels, lands and tenements of Robert McCullough,.-See fi On this execution the sheriff returned, «By virtue of this writ, I have seized and taken in execution all the right, title, and interest, and. claim of the defendant of,.in, and to a certain two-storied brick tan-house,” See. . 21st March, 1834, Robert McCullough endorses on the' execution a-waiver of inquisition, and agrees to-"a condemnation. June Term, 1834, venditioni exponas, commanding-.thé .sheriff to sell all the right',-title, interest, &c. of ■ Robert McCullough in the brick tan-house, following the description in the levy. • The sheriff on this -vend. exp.,, sold ’all the right, title, -aiid interest of. Robert McCullough to James Abercrombie,, the. plaintiff in the. .execution, for four hundred dollars. 2.1st March, - 1’834, sheriff’s deed poll to James Abercrombie.' • There, was evidence that Anshutz assentéd to the erection of the. building, and that Doctor Herron- permitted -him to take care of'the property. No doubt this was so ;; but .there is no' evidence in the case that Dr. Herron had notice of the mechanics lien filed, against McCullough, or of the purchase by Abercrombie. '. [68] • In this proceeding, what did Abercrombie purchase ? He brought no party on the record but McCullough. His scire facias was against him, and hi's fi.fa., levy and sale was of:all the right, title, interest, and claim of McCullough. That title, interest, and claim was a six years’ lease. The counsel for the plaintiff in error contends that the opinion of this court, as delivered by Mr. Justice Kennedy, in the case of Ho'Idship against Abercrombie, 9 Watts, 52, being a former ejectment for the same premises, determines this case in favour of the. defendant in this ejectment. I have looked carefully into the record in that case. I find that that ejectment was brought in the Common Pleas on the 25th March, 1837; tried on the 1st June,’ 1838. The lease to McCullough did not end until the 1st April, 1839. In that case, the title was in the plaintiff. It was impossible to resist a recovery, if the point had been made. The title of McCullough by the sheriff’s sale was vésted in Abercrombie, and that title was then in full force. . An ejectment in Pennsylvania is a possessory action, and Abercrombie was entitled to the possession beyond all question, until'the 1st of April, 1839. Nor was the’point in that case made, that although the proceeding was thought to be in rertv, the holder of the legal title was not brought on the record, and that, after the lien filed, the whole proceeding against McCullough was as' in the ordinary case of debt. Such a proceeding cannot divest him in remainder. It had no operation on the title of Doctor Herron. Although inadequacy of price is no ground to set .aside a sheriff’s sale, yet it is manifest from the price, that every person knew and supposed that only the title of McCullough was selling, when a productive property in the heart of the city of Pittsburgh only brought what was equal to one year’s rent, and that, before the brick tan-house was erected. It is said, many sales will be affected unless the court hold that the fee passed in this case. I doubt this. But, if it were true, that is no reason why a wrong construction should be given to'our mechanics’ lien law. If such construction has been given in a case that did not require it, it is our duty to correct it. What is this case ? A lien filed against a mere tenant who is putting up a building for his own convenience; no other person brought upon the record no notice by scire facias, or otherwise, to the owner of'.the premises.; a levy and sale of all the right, title, and interest of that tenant. Nothing passed by the sheriff’s sale but the title levied. Nothing more was sold and conveyed by the sheriff. This has been determined in many cases. I need only refer to Carpenter v. Cameron, 7 Watts, 51, and McCormick v. Harvey, 9 Watts, 482. The judgment is affirmed.