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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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review in such cases the decisions of inferior tribunals. On issues
of nul tiel record, points are frequently involved of the greatest
nicety and difficulty, on which- the right to property of great amount
may depend. It has been the policy of this state to give every
facility to the settlement of such questions in the court of the
highest resort ; and it would answer no beneficial purpose now to
retrace our steps, merely for the purposes of harmony with our
sister states. But it is insisted that although a writ of error may
be taken to such judgment, we have here no judicial knowledge of
the identity of the record, on which the parties went to issue, and
that the proper course was to put it on the record by bill of excep-
tions, or to make it part of the proceeding by craving oyer, or by
consent. The case in 4 Yeates 497, was the exemplification of a
record of a foreign state, which was adjudged by the Common Pleas
incompetent testimony of a foreign judgment, on the plea of nul
tiel record. The decision of the court on this point was reversed
by the Supreme Court ; and on the argument, the counsel on both
sides considered the exemplification accompanying the record as
the identical paper offered in evidence to the court below. After
the decision of the court overruling the opinion of the Common
Pleas, the defendant's counsel objected to the Supreme Court taking
any notice of the paper alleged to be the exemplification of the
Connecticut judgment, the same not being certified by a bill of
exceptions or any agreement of counsel. After taking time to
advise, the Chief Justice delivered the opinion of the court, that
having theretofore determined that the exemplification of the judg-
ment in Connecticut was good and legal evidence, the judgment
of the Court of Common Pleaa was reversed, and the record
remitted thither for further proceedings thereon. No reason was
assigned by the court, and the only written opinion is by Judge
Breckenridge, who enters very fully into the point, the result of
which is, that a paper could not be known judicially, but as coming
up under a bill of exceptions or tacked to the record on a profert,
to the plea, after oyer, or to the replication, before issue joined ;
that it must appear to be the identical paper that was overruled,

I! 1 2 Mason 22. 1!



351 SUPREME COURT [March Term,

[Crutcher v. Commonwealth ]

by other evidence than what is dehors the record. But the

#qci-i *majority of the court do not concur with these views, but

* decided that a bill of exception was not required, and that

evidence short of record evidence would suffice to identify the paper.

In Pennsylvania the bill of exceptions in such cases is unknown.
The record is brought into court on a day given, as was done here,
and the trial is on the record. When the cause is removed by writ
of error, the record is certified by the court without bill of excep-
tions, or making the record brought into court for inspection a
formal part of the proceeding. It must be admitted that the prac-
tice on this head is not in strict accordance with the practice of
other tribunals, 2 Mason 22 ; and most probably the error in the
practice took its rise from the case of Fry v. Executors of Harvey,
4 Yeates ; on which the defendant in error relies. The court in
the commencement of the case was impressed with the difficulty of
considering what was not formally attached as part of the record,
and proposed sending the cause back to the District Court, that it
might be tacked to the record by a certificate from the court. But
this course the counsel for the defendants very properly rendered
unnecessary by producing an exemplification of the record, and con-
senting that it should be considered a part of the proceedings.
After this, we have as satisfactory proof of the identity of the paper,
as was conceived sufficient in Fry v. Harvey, to warrant the court
in rendering judgment.

To avoid difficulty hereafter, it would be well for the profession
to attend to having the record on which issue is joined, attached to
and made part of the record returned, either by bill of exceptions,
or in some other mode, by consent or otherwise.

Judgment reversed; and judgment for the defendants.

Cited by counsel, 2 W. & S. 316 ; 7 Id. 407 ; 1 Barr 25 ; 1 Jones 404 ; 1
Casey 220 ; 1 P. F. Smith 208 ; 7 Id. 333 ; 11 Id. 487 ; || 2 W. N. C. 208 ; 11
Norris 187. ||

Cited by the court below, 5 Wright 371.

Cited by the court, 1 Barr 412; 1 Casey 220; 11 Id. 488 ; 2 Wright 14.

See, also, 3 W. & S. 235 ; 7 Id. 200; 3 Harris 181.

|| In Mullen's Appeal, 15 Norris 477, Paxson, J., cites the principal and
other cases, to the points that the judgment docket was intended as record
notice of existing liens of judgments; that it alone need be consulted
with this view ; but actual notice of liens, independently of the docket, is
sufficient. As to that docket being the record presumed to be observed by
third parties, see Leonard's Appeal, 13 Id. 185 ; Kimmel's Appeal, 10 Id. 473,
s c. 8 W. N. C. 124. Quaere if it is a record in the sense that forbids an
adverse averment: Polhemus's Appeal, 8 Casey 328. In Meyer v. Verner
(C. P.), 10 W. N. C. 138, the appearance docket is said to be a minute-book,
and the narr, &c., the record.

In Johnson . Boyer, 3 Watts 376, a temporary stay of execution, in con-
sideration of a confession of judgment, was held not to discharge special
bail. Whenever the surrender of the principal has become impossible, by
the act of God or of the law (act abolishing imprisonment for debt), the



1841.] OF PENNSYLVANIA. 351

[Crutcher v. Commonwealth.]

special hail are discharged : Kelly v. Anderson, 1 Barr 495 ; semble, as since
act 20 March 1845, P. L. 189, Purd. 721, bail to dissolve a foreign attachment
is absolute, and not special, the recognisors on such bond are not discharged
by the entry of bail in error : Keyser v. Dialogue, 4 W. N. C .10 ; sed quaere,
is there not a substitution of securities : Johnson . Boyer, svpra.

A judgment entered by clerical mistake for a lesser sum, can be amended
after execution executed, if there is anything to amend by : Smith v. Hood,
1 Casey 218; but semble, an error of judgment cannot be so remedied after
the term : Ullery . Clark, 6 Harris 148. It is never too late to amend the
record merely for the purpose of correcting a misprision of the clerk. It
will be done after error brought on account of it : per Kennedy, J., Maus v.
Maus, 5 Watts 319. Such amendment cannot affect third parties: Zimmer-
man v. Briggans, 5 Id. 186; Peck's Appeal, 11 W. N. C. 31. In Kendig's
Appeal, 1 Norris 68, s. c. 2 W. N. C. 681, the Supreme Court refused to
review the lower court's refusal, on the application of one creditor, to cor-
rect an improper entry in the index of another's judgment. ||



[PHILADELPHIA, APRIL 3, 1841.] [*352

Case of the State Road from HowelFs Mills.

CERTIORARI.

Where a petition for a road was missing, and there was no minute in the
clerk's book, either of the presentation of the petition or of the appointment
of viewers, and a new petition was prepared, and a certificate was signed by
two of the associate judges during vacation, setting forth, that at the pre-
ceding term they had appointed H. S., &c., viewers : to which they added,
" and being informed that the petition was mislaid, we hereby authorize
you to make out an order for the purpose," whereupon an order was made
out by the clerk, and the viewers made the report ; this court quashed the
proceedings.

CERTIORARI to the Quarter Sessions of Monroe county, to
remove the record of the proceedings in the matter of the State
Road from Howell's Mills, by way of Stroudsburg to Conyngham.

It appeared by the return that a petition for the appointment of
viewers of this road was presented to the court on the nth of Feb-
ruary 1839, and that six persons were appointed for the purpose.
No minute of the proceedings was made, and when the clerk of the
court was called upon to make out the order, he was unable to find
the petition. A new petition was drawn up and signed by some of
the former petitioners ; and two of associate judges in vacation,
signed the following certificate :

"To John Keller, Esq., Prot'y of Monroe county.

Sir : We certify that at the February term of our court, we
appointed Henry Smith, John V. Bush, James Postens, John Over-
peck, Andrew Storm and John Boys, to review that part of the
State Road from Howell's Mills to Conyngham, between Cherry



353 SUPREME COURT [March Term,

[State Road from Howell's Mills.]

Creek Bridge, at Dutotsburg and Stroudsburg, and parts adjacent,
and make return to the next court ; and being informed that the
Q^Q*T petition *for that purpose is mislaid, we hereby authorize
J you to make out an order for that purpose.

JNO. T. BELL,
JACOB BROWN.
March 18th 1839,"

An order was accordingly made by the clerk of the court, and
the viewers made their report ; to which exceptions were filed, and
on the 7th of May 1840, the court directed the following entry to
be made nunc pro tune.

" That on the 5th day of February 1839, upon the petition of
sundry inhabitants, Henry Smith, Esq., John V. Bush, James
Postens, John Overpeck, Andrew Storm, and John Boys, were
appointed to review that part of the State Road from Howell's
Mills to Conynghamtown, between Cherry Creek Bridge, at Du-
totsburg, and Stroudsburg, and adjacent, and make return to next
court. Counsel for exceptants objected to said entry. Upon hear-
ing of the cause, the report of the reviewers was confirmed by
the court."

The proceedings were then removed to this court.

Mr. Hepburn and Mr. Maxwell, for the appellants.
Mr. Reeder, contra.

PER CURIAM. The origin of the irregularity in these proceed-
ings is the clerk's omission to state in his minute book the pre-
sentation of the original petition, with its contents, and the
appointment of viewers, preparatory to the regular docket entries.
Had that duty been attended to, there would have been no occasion
for recurrence to the recollection of the judges for the existence of
a proceeding which ought to be matter of record. There was a
time, indeed, when the recording of judicial proceedings was a
matter of official routine; but for some cause possibly the want
of that skill in affairs of this nature which experience alone can
give it has come to pass that many of our judicial entries are suf-
fered to rest in memoranda endorsed on loose papers, which, by
want of system in the offices occasioned by accelerated rapidity in
official rotation, and by the practice of putting the originals into
the hands of counsel to suit their convenience, are exposed to a
fearful risk of being lost. And when a loss occurs, as it not only
must, but very frequently does, how is it to be repaired ? Surely
not by individuals in vacation, but by the solemn act of the court
en due investigation. In this instance, the subsequent petition,



1841.] OF PENNSYLVANIA.

[State Road from Howell's Mills.]

with the order endorsed on it, was a fabrication ; and the best
thing that can be said of it, is, that it proceeded from no improper
motive. Is the order of the two judges any better? Of the power
of a court to replace its lost record, or supply an omission of its
officer, it is unnecessary to speak. The direction to issue *an r*oc^
order to view, was an act done by individuals in vacation, ^
and not an act of the court. But it wanted that foundation which
could have authorized even the court to make such an order there
was no record evidence of the petition and appointment of viewers,
and the want of it had not been supplied. The order to view
having been unauthorized, all the proceedings are irregular.

Proceedings quashed.



[PHILADELPHIA, APRIL 3, 1841.]

Miller and Another against Musselman and Others.

IN ERROR.

Although a mortgage given to indemnify a surety may not have been dis-
charged by a sheriff's sale made prior to the act of 1830, under a junior
incumbrance, yet if the mortgage was absolute upon the face, and contained
no notice of its having been given for such purpose, it was discharged by
such sale.

ERROR to the Common Pleas of Northampton county.

The action below was a scire facias on a mortgage given by
David Musselman to Jacob Bauer, Jacob Miller and George Kern,
to secure payment of the sum of $2500, on the first day of April
1820. The mortgage was dated the 20th day of March 1820,
and was duly recorded two days afterwards. It was admitted and
agreed that though the mortgage was given for the payment of
money simply and absolutely, yet that in fact it was intended to
indemnify the mortgagees against any losses which they might
sustain in consequence of having on the 20th of August 1816,
become bound in a bond of indemnity to Peter Roth and John
Roth in the *sum of $3962.69, which cited " That whereas r+ocr
the said David Musselman, by seven obligations, bearing L
even date therewith, together with the said Peter Roth and John
Roth stood bound unto the heirs of Conrad Roth, deceased, in the
above sum of $3962.69, to be paid by the said David Musselman,
his heirs, &c. , Now the condition of the above obligation is such,
that if the said David Musselman shall pay or cause to be paid
the above mentioned debt of $3962.69 to the said heirs of Conrad
Roth, and if the said Bauer, Miller, and Keim, their heirs, &c.,
shall from time to time, and at all times hereafter, keep harm-



355 SUPREME COURT [March Term,

[Miller v. Musselman.]

less, and indemnity the said Peter Roth and Jonn Roth, their
heirs and assigns, &c., of and from all suits, judgments, costs, and
charges, of and on behalf of the said above mentioned seven obliga-
tions, &c., &c."

This suit was brought on the 15th of August 1839, and the scire
facias was made known to David Musselman and John Lahr, and
Jacob Kaske, administrators of John Roth, deceased, Elizabeth
Roth, his widow, and William Roth and others, children of the
said John Roth, and Jacob Vogel and wife, terre-tenants. The
plea was payment with leave, &c., and the cause came on for
tria 1 before Banks (President), on the 1st of February 1840,
when the plaintiffs, to maintain the issue on their part, gave in
evidence the mortgage aforesaid, and then proved various payments
made by them to the heirs of Conrad Roth, deceased, in the
years 1838-39.

The defendants then gave in evidence a judgment obtained by
Catharine Roth, widow of Conrad Roth, deceased, against David
Musselman for her dower, on the 23d of August 1824, in the Court
of Common Pleas of Northampton county ; also a fieri facias on the
same for $488.04, which was returned " levied on a tract of land
in Bushkill township, containing 120 acres, more or less," also a
venditioni exponas, and return thereon " Sold to Catharine Roth,
for $25, subject to a mortgage, a certificate of which is hereunto
annexed, and the yearly payments of $66 each and every year
during the life of Catharine Roth."

The defendants then gave in evidence a deed from John Carey,
Jun., sheriff, to Catharine Roth, for the same premises, dated Jan-
uary 25, 1825.

The defendants then offered in evidence a judgment of April
term, 1829, Elizabeth Wind, to the use of John Wind, against
David Musselman, Daniel Roth, Peter Roth, and John Roth, exe-
cutors of Conrad Roth, deceased. Transcript of a judgment before
Adam Daniel, Esq., rendered February 16, 1824, for $85.89 debt,
and $1.37 costs. Judgment revived before Adam Daniel, Esq.,
May 4, 1829, for debt and costs. Entered here July 24, 1829.
Also a fi. fa. to August term, 1829, thereupon " levied on land in
#qc-i Bushkill *township, containing 125 acres, more or less ; ''
-" also inquisition and condemnation ; also a venditioni exponag
and return thereto, "Sold to Catharine Roth for $175;" also a deed
from Jacob Kern, sheriff, to Catharine Roth, for 125 acres of land
in Bushkill township, late the estate of Conrad Roth, deceased, dated
the 23d of May 1829.

To all which the plaintiffs' counsel objected; whereupon the court
overruled the offer, and rejected the evidence; to which decision the
defendants' counsel excepted.

The defendants then gave in evidence a deed from Catharine



1841.] OF PENNSYLVANIA. 356

[Miller v. Musselman.]

Roth to John Roth for the premises dated the 15th of April 1830,
for the consideration of $175, and the payment of $36 annually to
the widow, &c.

The evidence being thereupon closed on both sides, the defend-
ants' counsel requested the court to charge the jury, that the
property claimed under the plaintiffs' mortgage having been sold
under a judicial sale by the sheriff, the plaintiff could not recover in
this action,

The learned judge charged the jury as follows :

The evidence in this case entitles the plaintiffs to a verdict against
Musselman, the mortgagor, but not against the terre-tenants ; you
will, therefore, return your verdict accordingly.

The jury found for the plaintiffs against David Musselman
$1952 with costs, and in favor of the terre-tenants, Lahr, Kaske,
and others.

The plaintiff then took a writ of error, and assigned for error
the charge of the court, that their verdict should be in favor of tho
terre-tenants.

Mr. Ihrie, for the plaintiffs in error.

The plaintiffs were back bail, and took this mortgage to secure
themselves. They were not called upon to pay until after the sale
on the widow's dower. The only question is, whether the sheriffs
sale in 1825, divested the lien of this mortgage. We say that it
was merely a mortgage upon a contingency, for an indemnity which
might be recoverable or not according to circumstances. I admit
the rule as it existed before the act of 1830; but there were
exceptions, and this case comes within one of these excep-
tions. In Fisher v. Kean, 1 Watts 259, a judicial sale was held
not to divest the widow's lien. One reason given was that the
amount was not known. In Knaub v. Esseck, 2 Watts 282, a
mortgage conditioned for paying an indefinite number of annual
instalments, depending for their continuance on a life in being, was
held not to be divested by such a *sale. To the same effect r^ocy
are Loan v. Snively, 4 Watts 397, Helman v. Helman, 4 *
Rawle 447, Mentzer v. Bruner, 8 Watts 296. In Willard v. Mor-
ris, 3 Rawle 109, the exception is recognised. There were two
mortgages upon the premises in this case, and it is not certain to
which the conditions of sale refer. The other mortgage was to the
widow. She bought for only $25, and could not have been igno-
rant of the circumstances.

Mr. Maxwell, contra.

There is nothing to distinguish this case from the repealed decis-
ions upon this point from McLanahan v. Weyant, 1 P. & W. 112,
t Corporation v. Wallace, 3 Rawle 109. The sale in this case

6 WHARTON 23



357 SUPREME COURT [March Term,

[Miller c. Musselman.]

was subject to the mortgage of the widow's dower only. The
mortgage is absolute on its face, and there is nothing to show that
it was merely cautionary. Is a purchaser at sheriff's sale bound to
go round and ask the holders of mortgages whether there is any-
thing behind ? In Bank v. Douglass, 4 Watts 95, the principle
is settled that a judgment given to a surety is available before the
surety is damnified. The mortgagees here could, therefore, have
come in upon the money in the sheriff's hands, and the purchasers had
a right to insist on their doing so. Stewart v. Stock er, 1 Watts 135.

The opinion of the court was delivered by

ROGERS, J. A judicial sale, as is shown by the cases cited,
divests all liens, whether general or specific ; and in Willard v.
Morris, 2 Rawle 56, and in the Corporation v. Wallace, 3 Rawle
109, the same rule was extended, so as to divest the lien of a prior
mortgage. Yet, although this is the general rule, it is not without
exceptions ; as for example, when the amount of the lien is un-
certain, and is incapable of being reduced to a certainty. Whether
this case falls within the latter class, we do not decide, although it
is not altogether unlike Knaub v. Esseck, 2 Watts 282. We are
of opinion that the cause is clearly with the defendants in error on
another ground. The mortgage, which it now appears was given as
an indemnity to the plaintiffs as security, stands on the record as
an absolute mortgage for the payment of a specific, ascertained,
certain sum of money. And as there i& nothing to put the vendee
on his guard, he has a right to consider the mortgage, what it pur-
ports to be, subject to all the rules which apply to that species of
lien. At the time of the sale, the sheriff's vendee had no reason
to suppose that further search would lead to any other result than
that which is apparent on the record. It seems from the evidence
that the mortgagees omitted to have the mortgage drawn in proper
form, to entitle them to claim the benefit of the exception ; but the
loss consequent en the omission, cannot with any propriety be vis-
ited on the innocent vendee. The principle which governs this
^oro-i case has already been ruled *in McLenegan v. Reeside, 9
I Watts 510, and in Freedley v. Hamilton, 17 S. R. 70.
In McLenegan v. Reeside, it is decided that whatever may be the
transaction between the immediate parties, a third person is not
bound to look further then the recorded conveyance. A vendee
can only judge of it as it appears on the face of the title. And in
Freedley v. Hamilton, that, although an absolute deed and defea-
sance, made at the same time, constitute a mortgage, yet, if the
defeasance is not recorded, it is to be considered as an unrecorded
mortgage, and posponed to a judgment creditor of subsequent
date, notwithstanding the absolute deed has been duly reco/ded.
The reason of these decisions, and in which alone they can be sup-



1841.] OF PENNSYLVANIA. 3f>8

[Miller v. Musselman.]

ported, is, that the deed recorded is notice of nothing but what it
purports to be ; and that a third person, whether creditor or ven-
dee, is not bound to look beyond it, as there is nothing to put him
on any further inquiry. And because a different rule would sub-
ject a creditor or vendee to a certain loss, which he could by no
legal diligence prevent, and where, consequently, he is in no
default whatever.

It is proper to remark, that the sheriffs sale, here, took place
before the act of the 6th of April 1830, and, of course, is unaf-
fected by the provisions of that act, which saves the rights of mort-
gagees in certain specified cases.

Judgment affirmed.

Cited by counsel, 1 W. <fc S. 323 ; 12 Harris 373.

[J Where the encumbrance is incapable of computation, or stands in the
title and can be discharged only by the court undertaking to administer the
fund by investing it, in order to fulfil the purposes of the charge, it will not
be discharged by a judicial sale on a junior encumbrance : Wertz's Appeal,
15 Smith 306, and cases cited; Cowden's Estate, 1 Barr 267 ; Dewart's App.,
7 Wr. 325. But though an encumbrance be fixed and incapable of divesti-
ture, yet arrears of interest, &c., due on it at the time of such judicial sale,
being ascertainable with certainty in amount, are discharged thereby : Dick-
inson v. Beyer, 6 Norris 274 ; unless there be another fixed encumbrance
between the first fixed encumbrance and the junior encumbrance on which
the sale is made, in which case the arrears due on the first fixed encumbrance
are not discharged: Hacker v. Cozzens, 11 Norris 461. Again, where a dis-
charge of such arrears would work the discharge of a mortgage otherwise
protected under the act of 1830, (according to the rule that "liens, the exist-
ence of which prior to a mortgage will cause it to be divested by a sheriff's
sale, must be such as are themselves divested by the sale and thrown upon
the fund,") such arrears are not discharged: Wertz's Appeal, supra. ||



'[PHILADELPHIA. APRIL 3, 1841.] [*359

Frost against Roatch.

IN ERROR.

1. In an action before an alderman, after judgment against the defendant,
J. F. signed the following entry upon the alderman's docket. " I become
special bail in $90." Held, that this was a sufficient recognisance for a stay
of execution under the 9th section of the act of 1810; there being no entry
of an appeal.

2. The Court of Common Pleas of Philadelphia county had a right to
make the rule respecting appeals from a magistrate, called " the four term
rule." (See ante, p. 166.)

ERROR to the Common Pleas of Philadelphia County, in which
court this was an appeal from the judgment of Alderman Binns, in



359 SUPREME COURT [March Term,



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 40 of 75)