Young v. Taylor

Tilghman C. J. gave no opinion, having been of counsel in Furman's suit. Ye ates J. delivered the opinion of the court. Samuel Young has applied to the court to accept the sheriff’s acknowledgment of a deed for two lots of ground in the city of Philadelphia, levied on by the sheriff as the property of John M. Taylor, and sold at public vendue for 1050 dollars. It would be a matter of course to take the acknowledgment, if good ground is not shewn against it. Without this sanction of the court, the sheriff’s deed can have no legal operation; and it behoves the party who opposes the sale on the ground of irregularity, to make his exception, previous to the court’s approving of the deed. For it has often been decided, that on the trial of an ejectment instituted by the sheriff’s vendee, the court will not inquire into the formality of the proceedings on which the sale was founded; it amounting in fact to an attempt to reverse the process of one court in one cause, by another court collaterally in another cause. The counsel of Mr. Young have contended, that Taylor alone could except to the acknowledgment; and that Messrs. Wachsmuth and Fisher not being parties to the record, were incompetent to take the exception. They cannot be considered as mere interlopers, but are interested in the present application. There is some kind of privity between them and Taylor. They claim the lots of ground in controversy, both under a conveyance from Taylor and Mr, Joseph Ball his assignee, and under a prior sale of the premises as the property of Taylor by a former sheriff. If it clearly appeared on the representation of a mere stranger, that the proceedings had in the cause were erroneous, and the process of the court. abused, would the members of this court shut their ears against the information? There is now no appeal from the decisions of this court to another tribunal; and it' is particularly incumbent on us to see that justice is dispensed in its accustomed channels. — 228 — We desire to be fully understood in the present instance. Our uniform practice has been to refuse trying the title of lands, or the property in goods levied upon, under a writ of fieri facias. The reason is perfectly plain. It would deprive the adverse party of his constitutional right to a trial by j ury. We lay it down as a general rule; but do not however assert that there may not be exceptions to it, or that such a case might not occur, as would demand our immediate interposition. The circumstances must be strong indeed which would warrant it. We mean to insinuate no opinion whatever upon the conflicting titles here. 1st. The first objection made to the proceedings under the judgment of Young against Taylor, is, that no scire facias has issued against the terre-tenants of the premises, upon the change of title. We do not think this exception well founded. Neither the act of assembly of 1705, nor the practice which has obtained under it, demands such-process. In fact it would render the provisions of the act. illusory. A defendant might ón judgment obtained against him, and previous to the issuing of a fieri facias against him, alien his lands. When the scire facias issued against the terre-tenant, he might again alien and change the possession before judgment thereon, and thus the proceedings might be protracted by adroit management for an indefinite period of time, and the remedy of the creditor by execution against the lands of the debtor, be rendered fruitless. 2d. The second objection, founded on the act of assembly of 4th April 1798, “ limiting the time, during which judg- “ ment shall be alien on real estate,” seems without just grounds. The first section- of that law is alone applicable to the present case, as it respects judgments on record at the time of passing the act, It directs “ that no such judgments u shall continue a lien on the real estate of the defendant ■ “ during a longer term than five years, unless the person “ who has obtained such judgments,, or his legal representa- “ tives, or other persons interested, shall within the said term M of five years sue out of the court, wherein the same has cc been entered, a writ of scire facias to revive the same.” No change is contemplated in the law, as to the lien of judgments, excepting those unrevived within the five years; nor is the mode of keeping judgments alive by issuing an execu — 229 — tion within the year and day, superseding the necessity of issuing a scire facias under the statute of Westminster 2d,' abolished thereby. The scire facias operates as notice to the parties interested, and evidences the intention of the creditor to claim the lien of his judgment. But it will not be denied that the plaintiff taking out a fieri facias, levying on the goods and lands of the defendant, and condemning the lands by an inquest, are matters of notoriety, and in point of notice of the creditor’s pretensions, tantamount to a scire facias. Such I take it, has been the construction of this section of the act. 3d. I proceed to the third objection, which seems to us to be solid. Here it becomes necessary to take a summary view of the facts. Toung obtained his judgment against Taylor and Barron on the 14th March 1798, with a stay of execution of five months, which expired on the 14th August following. On the 11th July 1799, within the year, he issued his ca. sa. returnable to September term following, upon which the sheriff arrested Taylor on the 15th fuly, and had him in custody, but returned non est inventus as to Barron. On the next day viz. 16th fuly, Taylor applied by petition to the Chief Justice of this court, and gave bond with security, u conditioned that he should appear before this court at “ the, September term 1799, and surrender himself to prison, “ in case on his said appearance he did not comply with all “ things required by the act of 4th April 1798 to procure “ his discharge; or if the proceedings should be stopt by in- “ formation upon oath or affirmation, and in the trial of the “ issue he should be found guilty, he should immediately “ surrender himself to prison'to be charged at the suit of “ Toung.” Taylor was thereupon discharged out of custody; but did not apply for the benefit of the insolvent act at the September term. On the 28th December 1799 he did apply by petition to this court as an insolvent debtor, but took no further step to comply with the law. It seems clear that Taylor was liable to be charged in execution at the suit of Toung, for not appearing in court in September term 1799, and complying with the terms of the law agreeably to the condition of his bond: but instead of charging him in execution, Toung took out a fieri facias returnable to September term 1800, which in the month of May was levied upon — 230 — goods as per inventory, a lot on Centre Square No.'2176, two lots in question No. 1776 and 1777 on Market and Twelfth-streets, and a ground rent of thirty dollars, and the lands were condemned by inquisition on the 30th August 1800. On the 13th December 1800, Toung by his attorney Mr. Hallowell issued an alias ca. sa. on his judgment, returnable the 27th December 1800, on which the sheriff arrested Taylor and had him in custody, and returned that service had been forbidden as to Barron. Taylor again applied, and on the 16th of the same month he gave a new bond with other sureties, conditioned as before, which was accepted by Mr. Hallowell and filed in court. On the next day he filed his petition in court with the proper schedules, and the court adjourned the consideration thereof to the 19th January 1801, with leave to add the names of two creditors to his list; and finally he was discharged by the court on complying with the terms of the act of 4th April 1798, and Nathan Baker was appointed assignee. Afterwards, upon a venditioni exponas returnable to December term 1806, the ground-rent of thirty dollars was sold to Toung for two hundred and eighty dollars; ánd upon an alias venditioni ex-ponas to July term 1808, the two lots in question were also sold to him for 1050 dollars, and a deed having been executed therefor, this court are called upon to receive the sheriff’s acknowledgment thereof. On this statement of facts, it appears that Toung electéd his remedy in the first instance against the person of Taylor to September term 1799, who was thereupon in custody, and having forfeited his bond by not complying with the terms of the law, he was liable to be charged in execution at the suit of Toung. It seems highly questionable whether, under the discharge of Taylor by the Chief Justice., he could withdraw his ca. sa. and issue a fieri facias to September term 1800, without the sanction of the court. But while the fieri facias was in full operation, he certainly could not legally proceed' to arrest the body of his debtor upon a ca. sa. A plaintiff may take out one execution against the body of a defendant, and another against his goods at the same time, but both cannot be served. The cases adduced on the argument fully shew this; and it is admitted on both sides, that issuing of the alias ca. sa. was erroneous, though they differ in one particular, whether it — 231 — was merely void, or only voidable. There can be no doubt but that Taylor might have avoided it by writ of error to another tribunal, or by motion to the court. But the question is, whether Taylor having submitted thereto, and the proceedings on his ultimate discharge being founded thereon, it is competent to Toung at the distance of nine years to annul his own act, and thus remove an obstacle to his fieri facias, to the manifest injury of strangers to his proceedings? It is not necessary for us to determine in this stage of the business, whether the court would interfere on the application of Toung to set aside the alias ca. sa. It is sufficient for us to decide, that upon inspection of our records as they now appear, the alias ca. sa. being a continuance of the original ca. sa., and the fieri facias having issued pending the operation of the ca. sa., the fi.fa. was irregularly issued, and on the motion of Taylor would then have been set aside, and necessarily must now be set aside. Such is the irregularity of the proceedings in our view of the case, that we do not deem ourselves warranted under such circumstances to receive the acknowledgment of the sheriff’s deed. Mr. Toung is not precluded by our decision from trying the title of his adversaries. Ah action may be instituted in the name of Mr. Baker the assignee under the acts of insolvency; or, if his counsel shall judge it to be most advisable, he may endeavour to make his proceedings more regular, and then, by a purchase at another sheriff’s sale bring the suit in his own name. We forbear expressing oúr sentiments on one point warmly pressed by Mr. Raxvle. Whether a sale of lands under a later judgment can in any degree affect the lien of a prior judgment; whether such first sale can vest the title of the lands in a purchaser, so that the same cannot be again sold under a prior judgment, being considered as analogous to the sale of goods in England under a later execution; or whether ány subsequent acts of the oldest judgment creditor, such as the receipt of a part of the purchase money in discharge of his debt upon a sale under a third judgment, will take away all recourse to the lands from the intermediate judgment creditor, are questions of much public moment, which deserve great consideration, but which it is unnecessary to decide at present. It is sufficient to state that differ — 232 — ent opinions have been entertained by professional gentle.men of great respectability on these points, and that it will be time enough to determine them when they come directly before us. I again repeat that we say nothing of the title to these lots of ground; but we are fully satisfied on the grounds of irregularity and abuse of the process of this court, that this sheriff’s deed should not receive the sanction of our court. Acknowledgment refused.