Rittispaugh v. Lewis

Mr Justice Sterrett delivered the opinion of the court, This feigned issue was directed by the court, for the purpose of determining whether certain mortgage creditors of Mrs. Yorscheimer, or the judgment creditors of her husband, are entitled to the proceeds of real estate sold by the sheriff on a mortgage given in 1878 by her and her husband to George Henning. The plaintiffs in the issue were M. W. Hewitt and George Henning, mortgagees, and B. W. Lewis, terre-tenant of the land thus sold; and the defendants therein were the present plaintiff in error and other judgment creditors of Emil Yorscheimer, whose judgments antedated the mortgages. It was contended by the plaintiffs below that by the deed of Dewitt and wife, executed in July 1878, the title to the land sold by the sheriff became vested in Mrs. Yorscheimer, and hence her mortgagees should be first paid out of the proceeds, and the residue should be awarded to Lewis, her subsequent vendee. On the other hand, the contention of the plaintiff in error and other defendants below was that, at the date of their respective judgments against Emil .Yorscheimer, he,.and not his wife, was the owner of the land in question, and consequently their liens took precedence of the mortgages subsequently executed by Yorscheimer and wife to Dewitt and Henning, and should be first paid out of the fund, in the order of their respective dates. For the purpose of maintaining the issue on their part, the [5] plaintiffs, after showing title in Dewitt in 1860, gave in evidence his deed of July 27th 1878, to Mrs. Yorscheimer, the mortgages of July 27th and November 19th 1878, to Dewitt and ílenning respectively, the deed of January 1880 to Lewis, the record of the scire facias on the Henning mortgage, judgment thereon, execution and sale by the sheriff, from which the fund for distribution was realized. To rebut the prima facie case thus presented, the defendants below mallo the several offers of evidence, contained in the first seven specifications of error, for the purpose of proving, inter alia, that the land in question was conveyed in September 1872 by Dewitt and wife to Emil Yorscheimer, their judgment debtor, and that the consideration of one of the judgments held by plaintiff in error was purchase money, and the other was money loaned on the faith of the title thus acquired and held by Emil Yorscheimer. The judgment last referred to was entered in 1873, and the lien thereof was regularly continued by scire facias and judgment thereon in 1878. It is conceded that in 1872, prior to the entry of the original judgment, the property in question was conveyed by Dewitt to Emil Yorscheimer; hut in 1878 a hill in equity was filed by Mrs. Yorscheimer against her husband and his vendor, Dewitt, alleging that the equitable title to the land was in her, and praying, inter alia, that the deed to her husband be cancelled and declared void as to her, and that Dewitt he required to convey or cause to be conveyed to her the whole or such portion of the premises as might be adjudged to belong to her. Notwithstanding the rights of the plaintiff in error and other judgment creditors might be affected by the decree prayed for, they were not made parties to the proceeding. Perhaps, if they had been, the defence might have been more vigorous and the result somewhat different. In his answer, Emil Yorscheimer substantially admitted all the material allegations of the bill, and, in the most accommodating spirit, assented to any decree the court might see fit to make. The case was so proceeded in that a decree was made, declaring the deed of 1872 from Dewitt to Emil Vorscheimer void, and directing its cancellation, and ordering Dewitt to execute and deliver to Mrs. Yorscheimer a deed, in fee simple, for the premises in dispute. When the defendants below offered the deed of 1872, to Emil Yorscheimer, to he followed by other evidence, for the purpose of showing title, in their debtor, which was bound by the lien of their judgments, and that the subsequent mortgagees and vendee took their securities and conveyance, respectively, with knowledge of that title and the liens thereon, they were met by the objection that the deed had been so completely annihilated by the decree that it cannot now he regarded as ever having existed; that the decree is absolutely [6] conclusive of the question of title and cannot bo inquired into collaterally. These objections would be unanswerable if defendants below had been parties to the equity proceeding ; but they wore not. As to the questions involved in that proceeding, so far as their personal rights might be affected thereby, they never had a day in court until they were called upon to defend in the feigned issue ; and, hence it follows they were not concluded by the decree. They had aright to prove, by way of defence in the feigned issue, such facts and circumstances as would have been relevant in the equity case, if they had been made parties thereto. As was said by Mr. Justice Thompson, in Morrison v. Mullin, 10 Casey 12 : “It contravenes the tirst principles of justice to hold a man bound by a judgment, against which ho has. neither an opportunity to defend, nor notice in any way that he was to be involved in its consequences.” The same principle is recognized in Taylor v. Cornelius, 10 P. F. Smith 187; Mackey v. Coates, 20 P. F. Smith 350, and other cases. The general rule that judgments conclude only parties and privies is illustrated in the case’of terre-tenants not made parties to a sci. fa. sur mortgage. They have a right to take the same defence in an after suit that they might have made if they had been warned by service of the scire facias: Mather v. Clark, 1 Watts 491; Schnepf’s Appeal, 11 Wr. 37; Kramph v. Hatz, 2 P. F. Smith 525. But, it is said, the court would have received the testimony if defendants could have visited the plaintiffs in the issue with notice of the prior conveyance to Emil Yorscheimer and the circumstances connected with the judgments represented by plaintiff in error and others. As to the mortgagees, Dewitt and Henning, the testimony offered would have been quite sufficient to have carried that question to the jury; and we think it was also sufficient as to Lewis, the terre-tenant. He served as master in the equity suit, and was therefore fully advised of the conveyance to Emil Yorscheimer several years before. The facts and circumstances, necessarily brought to his notice in that case, were sufficient to put him on inquiry, as to whether the property was conveyed or incumbered by Yorscheimer while the legal title was in him. The proper prosecution of that inquiry, before he took a conveyance from Mrs. Yorscheimer, would have led to a knowledge of the judgments in favor of plaintiff in error and, in all probability, the circumstances under which they were obtained. In that event, it would have' been the duty of the court to submit the case to the jury. Judgment-reversed and a venire facias de novo awarded.