Henry v. McClellan

Opinion, Me. Justice Stereett : In refusing to set aside the judgment of nonsuit, the court below held that the sale on the fieri facias was illegal and void as to the defendants, and that neither of them had done or omitted to do anything that would estop them from interposing the invalidity of the sale as a defence to this action of ejectment. For reasons which appear in his opinion, the learned judge was clearly right in thus disposing of the controlling questions in the case. As the basis of his title, the plaintiff gave in evidence the [40] will of William McClellan, through, whom both parties claim; by which it appears that the land in dispute was .devised to his son, Frank McClellan, one of the defendants, for life, and then to Frank’s wife for life, with the further provision that, upon the decease of said life-tenants, the land should be sold, and the proceeds divided equally among their children. In November, 1882, Frank McClellan, together with his wife and some of their children, executed a mortgage of the land to the Beaver Valley Building & Loan Association, to secure a debt evidenced by the judgment bond therein recited. Default having been made in payment of said debt, judgment was confessed against the obligors in said bond by virtue of the warrant therein contained; and, a fieri facias having been issued thereon, the mortgaged premises were sold and conveyed by the sheriff to James A. Barrett. By sundry mesne conveyances, the title of the sheriff’s vendee, whatever it was, became vested in the present plaintiff. The net proceeds of sale were applied to the execution, leaving a small balance which was subsequently paid in full. Afterwards, upon request of defendants, the mortgage and judgment were both satisfied on the record. The defendants have been in possession since the mortgage was given, and, having refused to surrender to the plaintiff, this action of ejectment was brought. On presentation of plaintiff’s evidence, the judgment of nonsuit was entered. The plaintiff must recover, if at all, on the strength of his own title. It cannot be doubted that under his father’s will Frank McClellan had merely a life-estate in the land, and unless that was divested by the sheriff’s sale or otherwise, he is rightly in possession of the land. That sale was illegal and void, because it was contrary to the spirit as well as the letter of the act, which specifically prescribes the manner in which life-estates shall be disposed of by adverse proceedings for the benefit of the life-tenant’s creditors. The law of the remedy must be pursued, otherwise no title passes. If a scire facias had been issued on the mortgage and prosecuted to judgment, and the land had been sold on a levari facias, a very different question would have been presented. Then the principle of Datesman’s App., 127 Pa. 848, would be applicable. In that case, attention was called to the difference between the sale of a life-estate under proceedings on a mortgage thereof, and an [41] attempted sale on an ordinary fieri facias; It was there held that the act of 1849 does not apply to the former, and hence such a sale passes the entire interest of the life-tenant; but, as to the latter, the act is specifically applicable, and a sale of a life-estate on a fieri facias, contrary to its provisions, is simply void, and passes no title. The defendants were not actors, either in the sale of the property or in the application of the proceeds. It does not even appear that they had notice of the former, or in any manner interfered with the latter. The proceedings were adverse, and were conducted by the plaintiff alone. The application of the proceeds was the act of the law, and nothing that the defendants could have done would have prevented it. The principle which appears to be recognized in some of the cases cited by appellant, that the receipt of the proceeds of a sale is an implied admission of its validity, etc., is inapplicable to the facts of this case. In Gardner v. Sisk, 54 Pa. 508, Mr. Justice Strong said: “ Notwithstanding some obiter dicta in Mitchell v. Freedley, 10 Barr 198, and Crowell v. Meconkey, 5 Barr 168, it is not the law that a void sale is confirmed by a distribution of its proceeds among the judgment creditors of the debtor whose land has been thus sold, and neither those cases, nor Spragg v. Shriver [25 Pa. 284], decide any such thing.” The law having rightly, applied the proceeds to the mortgage, the debt secured thereby was to that extent discharged; and, the defendants having paid the residue, the mortgagor was legally bound to satisfy the mortgage and judgment in full. We find nothing in the record that can possibly operate as an estoppel. Judgment affirmed. Mr. Justice Mitchell noted his dissent.