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should be paid by Mr Moore, and an assignment thereupon taken
of it to himself, that he might by means thereof make himself secure.
This proposition, as Judge Line thought, came first from Mr Ma-
hon himself, and was agreed to by Mr Moore; and they, in order to
make some preparations for the accomplishment of it, agreed to set
oft' the next day for Philadelphia, where Mr Evans resided, to see
him on the subject. The evidence of Judge Line has been objected
to by the counsel on behalf of the bank or the defendants, because,
as they contend, it goes to alter and change materially the effect of
the written agreement between the parties, as also the deeds exe-
cuted by them to each other, in pursuance of it. The rule, how-
ever, which prohibits parol evidence from being admitted and
taken into consideration, when its tendency is to alter, vary, contra-
dict, add to, or impair, a deed or written instrument, is not appli-
cable here: because the utmost the counsel for the defendants in error
can claim, is, that from the written agreement and deeds executed
in fulfilment thereof, when taken together with the subsequent pay-
ment made to Mr Evans, of the amount of the mortgage by Mr
Moore, notwithstanding it was thereupon assigned to the latter by
the former, that a presumption of law arose, that it was paid by
Mr Moore in discharge of an obligation imposed upon him by his
written agreement, and that the mortgage thereby became extin-
guished. But this being a presumption merely, may, in most cases,
I apprehend, be rebutted by other evidence, either written or parol.
It may be, however, and it would soem as if there are cases in
which it was held, that the law produced a merger even in opposi-
tion to the intention of the parties as it appeared upon the face of
the deed or written instrument itself; as where a lease for years
and a remainder for life were limited to the same person by the
deed, the estate for years was held to merge in the estate for life.
1 Inst. 54 b. Uthen v. Godfrey and others in note to Dyer 309;
Clark v. Sir John Sydenham, Yelv. 85. But it has been said and
contended since, that there is no rule or case in which a merger

148 SUPREME COURT [Harrisburg

[Moore v. Harrisburg Bank.]

shall be permitted to take place when the several estates may stand;
and that merger only takes place when it is necessary to preserve
the intention of the parties. Stevens v. Bretridge, Ld Ruym. 36;
1 Lev. 36. And, though this may not be altogether true or strictly
correct, yet it will be found that there are many instances in which,
with a view to carry the intention of the parties into effect, the law
of merger has been held inapplicable; and where, as Sir William
Grant, master of ihe rolls, in Forbes v. Moffatt, 18 Ves. 390, says,
"A court of equity is not guided upon this subject by the rules of
law. It will sometimes hold a charge extinguished, where it would
subsist at law; and sometimes preserve it, where, at law, it would
be merged. It is also very clear, that a person becoming entitled
to an estate, subject to a charge for his own benefit, may, if he
chooses, at once take the estate and keep up the charge. The
question, in such case, is upon the intention, actual or presumed, of
the person in whom the estates are united. In most instances it is,
with reference to the party himself, of no sort of use to have a
charge on his own estate; and, when that is the case, it will be
held to sink, unless something shall have been done by him to keep
it on foot." And, in conformity to this doctrine, he held, in that
case, that a mortgage was not merged or extinguished by becoming
united in the same person with the fee; because it was to be pre-
sumed that such was the intention of the party from the greater
advantage being against merger in favour of the personal repre-
sentatives; it not appearing from the acts or declarations of the
party, what his actual inteniion was in regard to it. But in the
case under consideration there is no room nor occasion to presume
what the intention of Mr Moore was in paying to Mr Evans the
amount of his mortgage, and taking an assignment of it to himself,
after having become the owner of the fee; because it was expressly
avowed and agreed that it should not sink, but be kept on foot for
the purpose of indemnifying him against subsequent incumbrarices
existing against the estate, when he accepted of the deed conveying
to him the fee in it. Hence this case does not rest on mere pre-
sumption, which would doubtless be also sufficient to prevent a
merger of the mortgage, but is much stronger against it than the
case of Forbes and MafFett. And Sir William Grant also further
says, in that case, that "upon looking into all the cases in which
charges have been held to merge, I find nothing which shows that
it was not perfectly indifferent to the party in whom the interests
had united, whether the charge should or should not subsist; and
in that case I have already said it sinks." But here it is perfectly
obvious that it made all the difference imaginable to Mr Moore,
whether the mortgage was kept on foot by him or not, as long as
the incnmbrances created subsequently to it on the estate existed;
and held to them by those who are now seeking to take the estate
from him, in order to have their claims under those irncurnbrances
paid; so that if keeping the mortgage on foot will protect or save

May 1839.] OF PENNSYLVANIA. 149

[Moore v. Harrisburg Bank.]

him, it shows how important it was for him to do so. In the case
of Helmbold v. Man, 4 Wluirt. 410, this court recognised the prin-
ciples and doctrine here mentioned in its fullest extent, and in
deciding that case carried them much further than it is necessary to
do here, in order to decide against a merger. Parol evidence to
prove the intention against merger was also admitted to a greater
extent there than here.

It has, however, been argued that Mr Moore, under his written
agreement with Mr Mahon, for the purchase of the estate, was
bound to pay off' the mortgage of Mr Evans; but it is clear also
from that agreement that he was not bound to do so until Mr
Mahon should first discharge and relieve the estate from all the
other incumbrances upon it. Mr Mahon's covenant, in this behalf,
was not that he would make a deed containing a covenant on his
part to discharge the estate from the incumbrances resting upon it, but
that he would convey the estate by a deed with general warranty,
and f)ee from all incumbrances; that is, as I take it, freed and dis-
charged from all incumbrances, and not with general warranty
and covenant that is free from all incumbrances, with the excep-
tion of the mortgage to Mr Evans. If it had not been the under-
standing of the parties in making their agreement that the estate
should be freed and discharged from all incumbrances at the time
when it should be conveyed, the phrase "and free from all incum-
brances" was not, according to its ordinary acceptation, at all suited
to express the meaning of the parties; but, according to its usual
acceptation, was well adapted to convey the idea that the estate
was not only to be conveyed with a covenant of general warranty
on the part of Mr Mahon, but that it should, at the time of his
doing so, be free from all incumbrances whatever, excepting the
mortgage of Mr Ev;ms. Had it been the understanding of the
parties that the incumbrances were not to be paid off and the estate
released from them before it should be conveyed, but to allow a
future day for that purpose, upon the faith merely of a covenant
on the part of the grantor to do so, the time would have been men-
tioned and fixed. This, however, not having been done, it is clear
that the import of the original agreement is, that the estate was to
be conveyed freed and acquitted from all incumbrances, except
the Evans mortgage. But Mr Mahon afterwards not being able
to do this, Mr Moore refused to accept of the deed of conveyance
from him; and then the verbal agreement, testified to by Judge
Line, was made by the parties before Mr Moore would accept of
the deed by which he was, upon paying the mortgage to Mr Evans,
to take an assignment of it and to have the benefit of it for the pur-
pose of protecting him in the estate against the other incumbrances,
which are the same, that it is now claimed by the defendants in
error, the estate ought to be made liable for without regard to the
mortgage or the sale of the estate which was effected by a judicial
proceeding upon it. Mr Moore and Mr Mahon had a right to

150 SUPREME COURT [Harrisburg

[Moore v. Harrisburg Bank.]

change and alter the original agreement, in this respect, as they
pleased. The lien creditors of Mr Mahon were not parties to it;
and would not be said to have any interest in it. It was not com-
petent for Mr Moore and Mr Mahon to make any agreement that
would prejudice them in their rights; nor could they claim to con-
trol Mr Moore and Mr Mahon in changing their agreement, or in
releasing each other from obligations created by it. They might
have rescinded it in tolo if they had pleased; and the creditors of
Mr Mahon could not have objected thereto; nor would they have
any cause to complain of it now.

But it has been said, that from the face of the written agreement
and the circumstance of Mr Moore's having placed the deed, con-
veying the estate in fee to him, upon record, the creditors of Mr
Mahon were justified in drawing the conclusion which, as they
contend, the law made therein, that the Evans mortgage was paid
and extinguished when taken up by Mr Moore; arid having thus
been induced to believe that it was so, they, therefore, became
entitled to the benefit of a merger of it. It may be that a person

: who has become a creditor, f>r has parted with his rights upon the
faith of a legal presumption of the merger of a mortgage, fairly
raised by the acts of the party in whom the right to the mortgage
and the estate in fee has become united, all of which is placed upon
record, shall be entitled to have the mortgage considered merged
as respects him, and that the holder of it shall not be permitted to

, gainsay it; yet it is clear here, that the persons claiming to have
the benefit of a merger of the mortgage parted with nothing upon
the faith of any such legal presumption. They had been creditors
of Mr Mahon and obtained their liens upon the estate before; their
condition was not made worse than before, by keeping the mort-
gage alive. Mr Moore having become the owner of the estate in
fee, with the mortgage upon it as a charge, did not use their money
or means in obtaining an assignment of the mortgage; he procured
it with his own means, and not with theirs, nor yet with those of
their debtor, Mr Mahon. In short, in no way whatever did either
they or Mr Mahon contribute to the payment of the consideration
upon which Mr Moore obtained an assignment of the mortgage
from Mr Kvans, and have therefore no colour, even of pretence,
in equity, for claiming that Mr Moore should not have the same
benefit and advantage from it that Mr Evans would have been enti-
tled to, had he not parted with it to Mr Moore.

But this is not all; they had no ground whatever for making
such presumption of the mortgage being merged, as is alleged.
Because they, being themselves the holders of the incumbrances on
the estate, must have known, if they looked at the original agree-
ment, that by it Mr. Mahon was bound to discharge them before
Mr Moore could be required to pay Mr Evans' mortgage. But
knowing that their claims, under the incumbrances, were not paid,
they consequently, so far as the written agreement went, had no

May 1839.] OF PENNSYLVANIA. 151

[Moore v. Harrisburg Bank.]

right to presume that it was in pursuance of it, that Mr Moore
had paid and taken an assignment of the mortgage; because, until
the incurnbrances were satisfied and the estate freed from them,
Mr Moore was not bound to pay the mortgage. If they, then,
have lost any thing by lying by, because they believed the mort-
gage was extinguished, that otherwise they would have gained, it
is chargeable entirely to their own mistake, or want of vigilance in
not inquiring into the matter, so as to ascertain correctly the reason
and object of Mr Moore's taking an assignment of the mortgage,
when he paid it to Mr Evans.

But it is also said that the sale, made by the sheriff, of the estate,
under the judgment obtained upon the mortgage, in the name of
Griffith Evans, after his assignment of it to Mr Moore, is so irre-
gular and repugnant to truth, as to be void and of no effect what-
ever. It is contended that the writ of scire facias, commencing
the suit upon the mortgage, instead of being sued out in the name
of Griffith Evans, ought to have been sued out in the name of John
Moore, he having become previously the assignee of it; that then
the irregular and anomalous character of the proceeding would
have appeared, and been such as that the court would not have
entertained it, because it would have appeared that the same person
was plaintiff and defendant in the suit. And if this would have
been its fate, had the proceeding been commenced and carried on
without disguise, it ought not to avail the party himself any thing
for having thus imposed upon the court. There is nothing in this
objection. The writ of scire facias was well sued out in the name
of the mortgagee; and it may be questionable, at least, whether it
could have been sustained in the name of the assignee; because
the claim in the action of scire facias is for money, and therefore
a bare chose in action, arid consequently not assignable at common
law; and I am not aware that we have any statute expressly
making it so. If it can be maintained at all, it must be by a con-
structive inference drawn from the act of 1705, proceeding for and
directing the proceeding by scire facias upon a mortgage, when a
year or more has run after it has become payable, for the purpose
of obtaining payment of the mortgage-debt by a judicial sale of the
estate granted by the mortgage. The scire facias being an action
for the recovery of the debt, is altogether different from an action
of ejectment founded upon a mortgage, which is brought for the
recovery of the possession of the mortgaged premises, and rests en-
tirely upon the right to the possession of the estate which is derived
from the mortgage, and considered as transferable at common law.
Upon this ground, it has been held that the assignee of a mortgage
may maintain ejectment in his own name; but I am not aware
that it has ever been held that he may maintain a scire facias in
his own name.

In the next place it is proper to observe, that a scire facias upon
a mortgage is not an action or proceeding in personam, but in

152 SUPREME COURT [Harrisburg

[Moore v. Harrisburg Bank.]

rem. And notwithstanding the scire facias, sued out in the name
of Griffith Evans, was served upon Mr Moore, it was only because
the sheriff found he was the terre-tenant of the estate in the mort-
gage, that he served the writ upon him. It was the estate, and
the rights of those who had claims or liens upon the estate, that
were to be affected by the proceeding, and not the personal rights
of any one. Mr Moore was willing, though the owner of the estate
in fee, to give it up to be disposed of by the proceeding upon his
mortgage; and if he were willing to do so, upon what principle of
equity or justice could any other object to it? I confess I can dis-
cover none. The proceeding by scire facias upon a mortgage, in
this state, may be regarded as a substitute for a bill of foreclosure
in a court of chancery. Having no court of this kind, the legisla-
ture adopted and authorised the scire facias to be sued out of our
common law courts, and the proceedings directed to be had thereon,
as an expedient for the bill of foreclosure. This being the purpose
which the legislature intended, no doubt, to subserve by such writ,
it would seem to be right, in order to attain the end, that whenever
the party would be entitled to have the aid of a court of chancery
to render a mortgage, of which he had become the holder, effectual,
and to give him the full benefit of it when he desires it, though it
be against his own estate, to permit him to maintain his action by
suing out and prosecuting his writ of scire facias. It can not be
pretended that John Moore would not have been entitled to the aid
of a court of chancery, if we had had such, when he caused the
writ of scire facias to be sued out and prosecuted upon the mort-
gage assigned to him by Mr Evans; or, if it should, the cases
referred to above show conclusively that he would, for the purpose
of having his mortgage made available to him, by relieving his
estate from the subsequent charges upon it, so far as it might prove
insufficient to pay them, after satisfying the amount of his mortgage
first. We therefore think that the proceeding by scire facias upon
the mortgage in the name of Mr Evans, and the sale of the estate
which followed in pursuance thereof, were valid, and discharged
the estate from all liens created subsequently to the recording of the

Judgment reversed, and a venire de novo awarded.

May 1839.] OF PENNSYLVANIA. 153

The Commonwealth against McCoy.

In an action upon the official recognizance of a sheriff, to entitle a plaintiff to
recover, he must prove that he has sustained damage by his misconduct. It is
not sufficient that he shows a misconduct in the officer or omission of his general
duty as sheriff, such as not returning a fieri facias: he cannot, upon such proof,
recover nominal damages.

It is the duty of a sheriff, in executing a fieri facias, to be governed, in the
amount to be levied, by the sum endorsed upon the back of the writ, and not to
follow that which is contained in the body of it. The writ and endorsement
are the official acts of the prothonotary, and must be taken to be right and proper,
until the contrary is shown.

In an action by the plaintiff in a judgment against the sureties of a sheriff, to
recover the moneys collected on an execution, the fees of the officers are not re-
coverable, except when they have been previously advanced by the plaintiff.

When a sheriff has had a writ of fieri facias in his hands for several years
without return, the presumption is that he has collected the amount thereof, and
the burthen of proving that he did not, and why, devolves upon him and his

ERKOR to the common pleas of Mifflin county.

The Commonwealth, for the use of John Hahn, against Francis
McCoy. This was an action of debt upon the official recognizance
of sheriff Stuart, against the defendant, who was one of his sureties.

The plaintiff gave in evidence the record of a suit of Samuel
Eisenbise's administrator against John Hahn, in which a judgment
was rendered for the defendant, and a fieri facias against the plain-
tiff for costs, which went into the hands of sheriff Stuart, and was
never returned. The costs on the writ were all due to officers of
the court: attorney, sheriff and prothonotary.

Also another fieri facias on a judgment in favour of the said
John Hahn, for costs. Endorsed on this writ, besides the officers'
costs, there was, " Defendant's bill of costs at May term 1830, 7
dollars 30 cents." This amount was not included in the body of
the writ.

The court below instructed the jury that the plaintiff was not
entitled to recover any part of the officers' fees included in the exe-
cutions: that the sheriff was bound, in executing the fieri facias, by
what was contained in the body of the writ, and not by the en-
dorsement; and that the plaintiff was not entitled to recover nominal
damages for the mere re ison that the sheriff did not return his writs
according to law: nor unless he had sustained actual damage by
the misconduct of the officer.

J. ?. Fisher, for plaintiff in error.
Hale, for defendant in error.


154 SUPREME COURT [Harrisburg

[The Commonwealth v. McCoy.]

The opinion of the Court was delivered by

SERGEANT, J. By the act of assembly of the 28th of March
1803, the condition of the sheriff's recognizance is, well and truly
to serve all writs and process, and, on request, to pay over moneys
coming to his hands, and well and faithfully to perform all the trusts
and duties of the office. By the fourth section, authority to institute
actions of debt, or of scire facias, is given to the commonwealth or
individuals who shall be aggrieved by the misconduct of the sheriff,
and upon such writs it shall be proved what damage hath been
sustained, and a verdict, judgment and execution are to be given
for so much with costs: which suits may be instituted, and the like
proceedings be thereupon had, as often as such damage shall be
sustained. It is necessary, therefore, under this act, for any person
suing upon a sheriff's recognizance, to show that he is aggrieved
by the misconduct of the sheriff, and that he has sustained damage
by reason thereof, before he can recover. This official security, like
other official bonds and securities required of officers under our laws,
was intended, so far as respects individuals, for their indemnity. It
is not sufficient to entitle an individual to recover upon it, that he
shows a misconduct in the officer, a violation or omission of his
general duty as sheriff, such as not returning a fieri facias. He
cannot, for that alone, recover nominal damages in this suit. The
sheriff can only be proceeded against for it by the commonwealth,
either by indictment, (Dull. Sheriff, 493,) or by the courts where
he is in contempt, by attachment. To sustain a civil action, the
party suing must show some loss or damage which he sustained by
the acts or omissions of the sheriff in the performance of his duty.

The question then arises, in this case, whether the plaintiff below
showed that he had sustained loss or damage under this act by the
neglect of sheriff Stuart to return the two writs of fieri facias put
into his hands. Those writs were issued, one in 1832, and the
other in 1833, and had never been returned at the trial of this suit
in the court of common pleas, but were produced by the present
defendant at the trial on notice.

Regularly, it is the bounden duty of the sheriff to return all writs
to him directed, at the time and place commanded in the body of
the writ. This return is his answer to the writ: and it is highly
important for his own protection and that of his sureties, as well
for the interest and security of the commonwealth and of suitors,
that sheriffs should, in all cnses, strictly comply with this duty. By
the ancient oath, at the common law, the sheriff, amongst other
things, swore well and truly to serve and return the writs directed
to him: and we see many mischiefs and inconveniences daily grow
from a neglect of this duty, on the part of sheriffs, to themselves
and others. At the common law, the remedy seems to hare been
to amerce the sheriff for his neglect in this particular: for it is said
that when a writ is delivered to the sheriff to execute, he ought to
receive it, and not deliver it to the party that delivered it to him,


[The Commonwealth v. McCoy.]

back again, but must execute it, and then return it into court, for so
he is commanded by the writ; and if he doth riot so, upon complaint
made thereof, the court will set a fine upon him. Da It. Sheriff \QZ.
And now on the return day of a fieri facias, the sheriff may be
called on by rule to return the writ, and if he neglect to do so, or to
offer a reasonable excuse, the court will grant an attachment against
him. 1 H. Black. 543; Bing. Ex. 258. It would seem, however,
to be held, that for merely not returning a fieri facias, an action
does not lie against the sheriff at common law; Bing. Ex. 251;
Wats. Sheriff 82; but the party ought to proceed by rule and
attachment. There are some authorities that look the other way, cited
Dalt. Sheriff '493. LordCoke,in 2 Inst. 452, comments on ihe statute
of Westminster the 2d, which enacts that if any man doth fear the
malice, indirect dealing or negligence of the sheriff, in the execution
of any writ, he may deliver it in open court, or may take of the
sheriff a bill containing the names of the demandants and tenants,
and require the sheriff to put his seal to it, and if he refuses, others
present may put their seals as witnesses to it, and if the sheriff or
undersheriff make not a due return of the writs delivered or offered
unto him, upon complaint to the justices of the one bench or the

Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 8) → online text (page 18 of 70)