Arnold v. Gorr

Smith, J. In this .case the plaintiffs, on- the trial,, proved title in Jacob Gorr, by showing a precisely descriptive warrant to him, dated the 21st of October, 1818, the payment of the purchase money, and a survey, made in pursuance of the said warrant, on the 1st of October, 1823, which was accepted in the surveyor general’s office on the 26th of February-, 1824. . To show that this title had been transferred to them, they proved that there had been filed, in the prothonotary’s office of Northampton county, a transcript of á judgment obtained before a justice of the péace, at the suit of John Arnold, John Miller, and William Kester, against the said Jacob Gorr, for one hundred and ninety-six dollars and two cérits, and costs; a Fieri Facias from the Court of Common, Pleas of the said county to August Term, 1825; a levy, inquisition, and condemnation; a Venditioni Exponas to November Term, 1825; a sale by the sheriff, and a sheriff’s deed duly acknowledged to John Arnold and John Miller, two' of the plaintiffs in the. judgment, for the premises in dispute. The levy, the Venditioni Exponas, and' the conditions of sale, describe the premises by the same adjoiners mentioned in the sheriff’s déed, but state the contents to be one hundred and ninety acres; but the deed states the contents to be one hundred and thirty acres. This has [225] evidently been a mere clerical error in drawing the deed. It is not important, as the contents are mere matter of description. The plaintiffs then offered in evidence the conditions of- sale, to which the defendants objected;, the court, however, admitted them, and noted the'objection; and this forms one .of the reasons assigned for a new trial. I do not see that the conditions of sale were very essential'to the support of the plaintiffs’ cláim, but they were part of the res gestee, and certainly not irrelevant., I see nó error in their admission. The ejectment was only served on Jacob Gorr., But on motion to the Court of Common Pleas, “ Garbutt Fisher claiming to be landlord of the defendant, (Jacob Gorr) was admitted, and madecp-defendánt.” And on the trial he attempted to defeat the plaintiffs’ claim by showing a loosely descriptive application, No. 1806, dated the 21st of August, 1766, in the name óf John Keyser; a survey under it, on the 1st of October, 1823, five years after the date of Jacob Gorr’s warrant; and a patent, dated the 20th of December, 1824,-to Garbutt Fisher, which recited the above-mentioned application and survey, and certain intermediate conveyances from John Keyser down to Garbutt Fisher. He also offered the following matters in evidence, which the Chief Justice rejected, and noted. ' A deed poll from John Keyser to Joseph Galloway, dated the 15th of August, 1766, but made no proof of its execution; and a deed , poll, endorsed thereon, from Joseph Galloway to Robert Levers,. dated the Sth day of June, 1776. These deeds, were not provéd, or acknowledged; but to the latter there was a subscribing witness. The record of a judgment in the Court of Common Pleas of Northampton county of September Term, 1788, No. 97, at the suit of William Fisher, assignee of Thomas Ashton v. Mary Levers, and George Nevera, administratrix and administrator of Robert Levers, a sheriff’s sale under it, and a sheriff’s deed to , Thomas Fisher, from whom they proposed to deduce title to Gar-butt Fisher. The record of .an ejectment in the Circuit Court of the United States brought to April'Sessions, 1825j for the land in dispute by the lessee of Garbutt Fisher v. Jacob Gorr, in which the plaintiff obtained .judgment on the 27th of May, 1825,. and evicted the defendant under a Habere Facias Possessionem. And a lease, dated the 29th of ■ September, 1825, at the time of the service of the Habere Facias, from Garbutt Fisher to Jacob Gorr, for the lands in' dispute. , The rejection of the above stated evidence is urged in support of the motion for a new trial, as well as alleged misdirection in the court, who charged the jury, that the judgment .given in evidence was sufficient to support the executions, and that the defendant in - an execution, whose property has been sold by the sheriff, shall not defeat the purchaser in obtaining possession, by fastening himself to one who may have a good title. [226] The two deeds poll were properly rejected. They had not accompanied the possession, and therefore do not come within the rule, familiar to all which permits ancient deeds, which have come along with, and accompanied the possession, to be given in evidence without proof of their execution. See Gilb. Law of Evid. 94, 95. The record of the judgment of William Fisher, Assignee, &c. v. The Administrators of Robert Levers, the sheriff’s sale, sheriff’s deed to Thomas Fisher, and mesne conveyances under this judgment to Garbutt Fisher, were properly rejected, as no interest in the lands was shown to have existed in Robert Levers. The record of the action of ejectment in the Circuit Court of the United States, and the lease, were properly rejected, because the defendant in an execution, -shall not be permitted to defeat the purchaser at sheriff’s sale by such a proceeding. It would be opening the door to fraud and collusion. The purchaser has whatever estate the debtor had at the time of judgment rendered, and he must recover the possession where, as in this case, the defendant continues in possession, or the object of the law, the satisfaction of the debt, would be defeated. Here, too, the judgment in the ejectment was subsequent to the'judgment under which the property was sold, and even to the issuing of the Fieri Faciasj and the lease was subsequent to the levy and condemnation. . But one other matter remains to be considered. Was the judgment sufficient to support the executions'and sale? It is evident, that the judgment before the justice was rendered on the 11th of • August, 1823, by the defendant voluntarily appearing and confessing judgment for an amount exceeding one hundred dollars. A transcript' of this judgment .was filed in the Court of Common Pleas on the 20th day of the same month. ■ The plaintiffs subsequently took out an execution before the justice, which was returned, ctNo goods could be found to satisfy the demand;” a certificate, to which effect they carried to the- prothonotary’s office, together with a precipe for a Fieri Facias on the 7th of April, 1824. The prothonotary, instead of filing this certificate, with the- transcript already filed, filed and docketed it -as a new transcript, and marked the executions as having issued upon it. We sit here to do substantial justice, and not to catch parties in nets of form. We must make great allowances and large intendments in support of our judicial proceedings, which are generally not very formally kept;, and I would therefore be for connecting all these proceedings together, making a whole of all the parts. If so, they appear perfectly, regular. - But these proceedings cannot be overhauled collaterally. The defendant in the execution could have taken advantage of any error that actually existed, by motion to the Court of Common Pleas, before the sheriff’s deed was acknowledged. The filing of the transcript made the judgment, a judgment of the Court of Common Pleas for all purposes of proceeding against real estate. - That court [227] is one of general jurisdiction; and, therefore, the rule as to inferior tribunals and limited jurisdictions does not apply to it or to its proceedings.' - . I can see no difference, or reason for a difference, between the case of the plaintiff in the execution becoming the purchaser, and that of a stranger. The act of assembly is general in its provisions in protecting purchasers, and I see no reason for restraining it to strangers only. The dicta of Judge Yeates, in Samm’s Lessee v. Alexander, 3 Yeates, 268; and in Hiester’s Lessee v. Fortner, 2 Binn. 40, founded on Goodyer v. Junce,.in Yelverton, 179, much as I am disposed to respect his opinions generally, were not given on any points that arose in those causes, and without taking into consideration our act of assembly, which, I think, is decisive. On the whole, being satisfied with the verdict; and seeing no error, either in the decision as to the evidence, or in the charge of the court, I am for letting the verdict stand. The judgment of the Circuit Court is therefore affirmed. Judgment affirmed.