McCray v. Clark

Mr. Justice Mercur delivered the opinion of the court, January 2d 1877. • This was an action of ejectment. Both parties claimed under Columbus Reed. On the 4th of May 1861 the defendant in error, Clark, obtained a judgment against Reed. A sci. fa. was issued thereon March 2d 1866, and service accepted by Reed. At the May Term following judgment was duly taken for want of an appearance. By virtue of executions issued thereon, the land in question was levied on, condemned, and sold to Clark, to whom, in December 1868, a deed was executed, acknowledged, and delivered by the sheriff. Mr. McCray purchased the land of Reed, by articles of agreement, on the 29th of December 1864, and paid the purchase-money in full, which is acknowledged in the agreement. He was not served with the sci. fa. He had not placed the articles of agreement on record, nor had he taken actual possession of the premises by himself or tenant. The defendants in error now claim that inasmuch as McCray had failed to bring himself within the requirements of the eighth section of the Act of 16th April 1849 (Pamph. L. 664), the lien of the judgment was continued against his land by the revival against Reed alone. The act declares, “In all cases where a judgment has been or shall be regularly revived between the original parties, the period, of five years during Avhich the lien of the judgment continues, shall only commence to run in favor of the terre-tenant from the time that he or she has placed their deed on record: Provided, that this act shall not apply * * * when the terre-tenant is in actual possession of the land bound by such judgment, by himself or tenant.” It is urged that this statute has prescribed the only ways by which the land of a terre-tenant can be discharged from the lien of a judgment duly revived against the original defendant. The correctness of this view may be tested by considering the object and spirit of the act. Its object was to protect the plaintiff in a judgment against the title of a third person of which he had no notice. Its spirit was to require one who desired to continue beyond five years the lien of his judgment on all the lands originally bound thereby, to revive it, [461] against all persons who he knew had purchased any of them after the recovery of the judgment. This section however deals with constructive notice only. The terre-tenant who relies on constructive notice to the plaintiff in a judgment to protect his land from a continued lien by a revival against the defendant therein, must show that he has either put his title on record, or that he was in the actual possession of the land, by himself or tenant. It leaves untouched the question of actual notice. Notice may be either actual and positive, or it may be implied and constructive. Actual notice is knowledge brought directly home to the party. Constructive notice is in its nature no more than evidence of notice, the presumption of which is so violent that the court will not allow-of its being controverted: 1 Story’s Eq., § 399; Lessee of Billington v. Welsh, 5 Binn. 134. The rule is well established that a purchaser of land having notice of a prior unrecorded deed from his vendor, will not be permitted to set up his title against that prior conveyance. Such purchaser with notice is not considered a boná fide purchaser; but as one acting in bad faith, a particeps criminis, taking the place of his vendor; and to permit him to hold against the first purchaser would be to convert the statute into an instrument of fraud: 1 Story’s Eq., § 397 ; Brightly’s Eq., § 113; Jacques v. Weeks, 7 Watts 270 ; Garrard v. Pittsburgh & Connellsville Railroad Co., 5 Casey 154. So in York Bank’s Appeal, 12 Casey 458, it was held, that if a- subsequent encumbrancer have actual notice of a judgment defectively entered, before his rights attached, it is equivalent to the constructive notice given by statute to a proper entry on the judgment docket. That actual notice is as effectual as constructive notice is affirmed in Smith’s Appeal, 11 Wright 128 ; Speer v. Evans, Id. 141; Meehan v. Williams, 12 Id. 238. A purchaser at sheriff’s sale is protected by the recording acts against an outstanding title of which he has neither actual nor constructive notice: Morrison v. Funk, 11 Harris 421. But if he is acquainted with an adverse claim of title, it is not necessary that the claimant should give notice of his claim at the time of sale, to protect his rights: Owens v. Myers, 8 Harris 134. Where land on which a judgment is a lien has been aliened by the defendant, an amicable revival by the terre-tenant, to which the original defendant is not a party, will continue the lien of such judgment on the land: Sames’s Appeal, 2 Casey 184. But the revival by agreement to which the terre-tenant is not a party will not continue the lien as to him, although his deed was not recorded: Armstrong’s Appeal, 5 W. & S. 352. The terre-tenant was there in possession by his tenants on whom service could have been made. In the present case the offer was to prove not only that Clark had notice of McCray’s title at the time the sci. fa. issued and service was accepted by Reed, but, if we correctly understand the [462] offer, that he expressed a willingness to revive the judgment against Reed’s other lands alone. We think actual notice may be as effectual as constructive notice to affect Clark, who was both plaintiff in the judgment and purchaser. The learned judge therefore erred in rejecting the evidence. Judgment reversed, and a venire facias de novo awarded.