The opinion of the Court was delivered'by
Gibson, C. J.—In
Auwater v. Mathiot, 9 Serg. & Rawle 402, we have the origin of a principle which resolves-all difficulties in cases like the present. It was there determined that the interest of a vendee, being in proportion to the amount of purchase money actually paid, is separately bound by a judgment, and may be separately sold on an execution, leaving the legal estate, and so much of the equitable estate as has not been paid for, untouched in the vendor. The converse of that proposition received the' sanction of this court in M’Mullen v. Wenner, 16 Serg. & Rawle 20, where it ivas determined thai.á judgment against the vendor binds the legal estate but to the ,valq,e of the uupaid purchase money, and consequently that just so much could be levied and sold. And in Purviance v. Lemmon, 16 [378]*378Serg. & Rawle 294, it was held that the purchaser under a judgment against either, like a purchaser from either by voluntary conveyance, succeeds but to the interest which the debtor had power to incumber or part with ; consequently that purchasers respectively front the vendor and vendee, succeed but to their rights and responsibilities, the one being entitled to call for the purchase money as the representative of the vendor, and the other being entitled to call for a conveyance as the representative of the vendee. These principles have been cast upon us by our want of a court of chancery, and consequent departure from a rule of the common law, by which a judgment and execution operate but upon legal estates. But neither of the original parties has a pretext to step between the other and his creditor who proposes to sell, not the land, but his debtor’s interest in ft, leaving the residue untouched. The nature of this ownership of distinct but concurrent interests which either party may incumber by judgment or mortgage without disturbing the ownership of the other, seems to have been strangely misconceived in the court below, else it would have been perceived that it is decisive of the cause. It seems to have been thought that a sale on a levari facias divests all minor and derivative interests, without considering that a judicial sale extinguishes but liens and not estates. A judgment against a tenant in common affects not the estate of his co-tenant; and here the parties had in fact an interest in common in proportion to the amount of the purchase money paid or withheld. When Mr Wallace conveyed these lands to Mr Binney on certain trusts, a part of them were incumbered with contracts of sale made with settlers upon them by the agent of the original proprietor, and ratified by Mr Wallace at the time of his own purchase. As a trustee with notice, Mr Binney held the legal title subject to these contracts ; and they might have been enforced against him on payment of the purchase money, or other performance of the conditions prescribed. What then did he part with when he sold to Mr Robinson, and what did he take back as a pledge 1 Exactly the estate he had received from Mr Wallace, incumbered with the contracts of sale as it was when he received it; and he could sell no more on his mortgage. A purchaser under the levari facias, with notice from the possession of the settlers, would take the legal title of the original proprietor subject to the contracts with which he incumbered it, and subject to the equities with which it was affected when Mr Wallace transferred it by the deed of settlement. How then can the settlers object to an execution of the mortgage, by which the vendee under the judgment is put in the place of the mortgagee % It is said that the substitution of another for Mr Robinson, who is alleged to have been authorised by the terms of his purchase to receive their money, might involve them in a mispayment. I am unable to see that. A payment that would exonerate the land in the hands of the mortgagee, would exonerate it also in the bands of a purchaser under his judgment. But what is the supposed authority of Mr Robinson to receive 1 Taking his written [379]*379declaration to be the act of both parties, it shows but a ratification of the preceding contracts, and an agreement to execute them, which was entirety proper as the legal title was in him as to third persons. But there is nothing so absurd in any part of the agreement as the reservation of an authority that would have converted the real into personal security, and deprived the mortgage of its intended effect.
The root of all the blunders in the cause seems to have been a notion that the settlers have a right to come in as terre-tenants, though they claim paramount the mortgage. The right of a bare occupant to interpose was considered in Chahoon v. Hollenback, 16 Serg. & Rawle 425, and Clippinger v. Miller, 1 Penns. Rep. 71, in which the English doctrine that none can be admitted to defend who would not be prejudiced by the judgment, was re-asserted on the foundation of authority and common sense: consequently he who may come in as a terre-tenant must have au estate from the incumbrancer, which might be bound by the incumbrance, whether judgment, mortgage or recognizance. Why must all the terre-tenants be warned 1 Simply because they are all bound to contribute to a common burthen. To the mortgage, therefore, the settlers had no defence to make. Not desiring to have tire land for nothing, it was indifferent to them whether the legal title were to remain in the mortgagee or to be united to the equity of redemption in the person of a purchaser, as their right under the contract with the original proprietor would be equally available against cither. Why (hen should the judgment have been opened to let them in 1 Of payments to Robinson, even conceding that such may have been made, they can have the benefit,, at the hearing of their bill, to enjoin the purchaser from proceeding on his judgment, in ejectment. Performance of their part of the contract may avail them there, but it cannot prejudice those who stand in the place of the mortgagee here.
But dismissing all further consideration of the error committed in respect to the parties and the substance of the proposed defence, it would be sufficient, to show the illegality of the proceeding, that the judgment was opened after the power of the court over it was at an end. It was rendered at November term 1326; and the premises were sold on a levari facias to the succeeding term. At November term 1829, the settlers obtained a rule to show cause why the judgment should not be opened and they let into a defence, which was made absolute at the next, term, the purchaser having in the interval recovered in ejectment against them on his legal title, which it was their object to destroy. Now it is in vain to say that, this was done in the exercise of a judicial discretion which is not a subject of revision here. The day of discretion was past. It is undoubtedly true in the abstract, that the opening of a judgment is not a matter for correction on a writ of error ; but it is also true that for excess of power the act may be annulled. This seems to have been recognized in Bailey v. Musgrave, 2 Serg. & Rawle 220, where an amendment after verdict was held not. 1o be cognizable on writ of" error, only [380]*380because the court had not exceeded its power; and the principle was still more distinctly announced in Huston v. Mitchell, 14 Serg. & Rawle
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The opinion of the Court was delivered'by
Gibson, C. J.—In
Auwater v. Mathiot, 9 Serg. & Rawle 402, we have the origin of a principle which resolves-all difficulties in cases like the present. It was there determined that the interest of a vendee, being in proportion to the amount of purchase money actually paid, is separately bound by a judgment, and may be separately sold on an execution, leaving the legal estate, and so much of the equitable estate as has not been paid for, untouched in the vendor. The converse of that proposition received the' sanction of this court in M’Mullen v. Wenner, 16 Serg. & Rawle 20, where it ivas determined thai.á judgment against the vendor binds the legal estate but to the ,valq,e of the uupaid purchase money, and consequently that just so much could be levied and sold. And in Purviance v. Lemmon, 16 [378]*378Serg. & Rawle 294, it was held that the purchaser under a judgment against either, like a purchaser from either by voluntary conveyance, succeeds but to the interest which the debtor had power to incumber or part with ; consequently that purchasers respectively front the vendor and vendee, succeed but to their rights and responsibilities, the one being entitled to call for the purchase money as the representative of the vendor, and the other being entitled to call for a conveyance as the representative of the vendee. These principles have been cast upon us by our want of a court of chancery, and consequent departure from a rule of the common law, by which a judgment and execution operate but upon legal estates. But neither of the original parties has a pretext to step between the other and his creditor who proposes to sell, not the land, but his debtor’s interest in ft, leaving the residue untouched. The nature of this ownership of distinct but concurrent interests which either party may incumber by judgment or mortgage without disturbing the ownership of the other, seems to have been strangely misconceived in the court below, else it would have been perceived that it is decisive of the cause. It seems to have been thought that a sale on a levari facias divests all minor and derivative interests, without considering that a judicial sale extinguishes but liens and not estates. A judgment against a tenant in common affects not the estate of his co-tenant; and here the parties had in fact an interest in common in proportion to the amount of the purchase money paid or withheld. When Mr Wallace conveyed these lands to Mr Binney on certain trusts, a part of them were incumbered with contracts of sale made with settlers upon them by the agent of the original proprietor, and ratified by Mr Wallace at the time of his own purchase. As a trustee with notice, Mr Binney held the legal title subject to these contracts ; and they might have been enforced against him on payment of the purchase money, or other performance of the conditions prescribed. What then did he part with when he sold to Mr Robinson, and what did he take back as a pledge 1 Exactly the estate he had received from Mr Wallace, incumbered with the contracts of sale as it was when he received it; and he could sell no more on his mortgage. A purchaser under the levari facias, with notice from the possession of the settlers, would take the legal title of the original proprietor subject to the contracts with which he incumbered it, and subject to the equities with which it was affected when Mr Wallace transferred it by the deed of settlement. How then can the settlers object to an execution of the mortgage, by which the vendee under the judgment is put in the place of the mortgagee % It is said that the substitution of another for Mr Robinson, who is alleged to have been authorised by the terms of his purchase to receive their money, might involve them in a mispayment. I am unable to see that. A payment that would exonerate the land in the hands of the mortgagee, would exonerate it also in the bands of a purchaser under his judgment. But what is the supposed authority of Mr Robinson to receive 1 Taking his written [379]*379declaration to be the act of both parties, it shows but a ratification of the preceding contracts, and an agreement to execute them, which was entirety proper as the legal title was in him as to third persons. But there is nothing so absurd in any part of the agreement as the reservation of an authority that would have converted the real into personal security, and deprived the mortgage of its intended effect.
The root of all the blunders in the cause seems to have been a notion that the settlers have a right to come in as terre-tenants, though they claim paramount the mortgage. The right of a bare occupant to interpose was considered in Chahoon v. Hollenback, 16 Serg. & Rawle 425, and Clippinger v. Miller, 1 Penns. Rep. 71, in which the English doctrine that none can be admitted to defend who would not be prejudiced by the judgment, was re-asserted on the foundation of authority and common sense: consequently he who may come in as a terre-tenant must have au estate from the incumbrancer, which might be bound by the incumbrance, whether judgment, mortgage or recognizance. Why must all the terre-tenants be warned 1 Simply because they are all bound to contribute to a common burthen. To the mortgage, therefore, the settlers had no defence to make. Not desiring to have tire land for nothing, it was indifferent to them whether the legal title were to remain in the mortgagee or to be united to the equity of redemption in the person of a purchaser, as their right under the contract with the original proprietor would be equally available against cither. Why (hen should the judgment have been opened to let them in 1 Of payments to Robinson, even conceding that such may have been made, they can have the benefit,, at the hearing of their bill, to enjoin the purchaser from proceeding on his judgment, in ejectment. Performance of their part of the contract may avail them there, but it cannot prejudice those who stand in the place of the mortgagee here.
But dismissing all further consideration of the error committed in respect to the parties and the substance of the proposed defence, it would be sufficient, to show the illegality of the proceeding, that the judgment was opened after the power of the court over it was at an end. It was rendered at November term 1326; and the premises were sold on a levari facias to the succeeding term. At November term 1829, the settlers obtained a rule to show cause why the judgment should not be opened and they let into a defence, which was made absolute at the next, term, the purchaser having in the interval recovered in ejectment against them on his legal title, which it was their object to destroy. Now it is in vain to say that, this was done in the exercise of a judicial discretion which is not a subject of revision here. The day of discretion was past. It is undoubtedly true in the abstract, that the opening of a judgment is not a matter for correction on a writ of error ; but it is also true that for excess of power the act may be annulled. This seems to have been recognized in Bailey v. Musgrave, 2 Serg. & Rawle 220, where an amendment after verdict was held not. 1o be cognizable on writ of" error, only [380]*380because the court had not exceeded its power; and the principle was still more distinctly announced in Huston v. Mitchell, 14 Serg. & Rawle 310, where the court below had opened a judgment at the term succeeding the verdict. “ I shall give no opinion,” said the chief justice, with' his characteristic caution, “ on the power of the common pleas to set aside a verdict and judgment, and order a new trial on a motion not made till the second term after the entry of the judgment. But granting, for the sake of the argument, that they have the power, is the order made in this case lawful.'?” It was held to be unlawful, because it did not amount to a judgment for the defendant, and yet left the plaintiff without the means of proceeding in his suit. Here, then, was an order in the nature of afinal judgment, reversed for excess of power in the exercise of a discretionary function. In respect to the power to set aside a judgment on verdict, and award a new trial at a subsequent term, when the record had ceased to be in the breast of the court, not to speak of my own recollection of the sentiments of the judges when the cause came up at consultation, it is not difficult to say what ground would have been taken had the cause required it; and I mention this to show that the guarded terms in which the chief justice delivered the opinion of the court were not dictated by any doubt of the principle. I will not say that a judgment by default; or bn confession, may not. be opened at a succeeding term on the ground of a defence arising subsequently, provided it do not interfere with rights acquired under the judgment by third persons ; but if. must be obvious that it would be attended with extreme danger, if the security of titles founded on judicial proceedings might be invaded by the exercise of an arbitrary and uncontrollable discretion of the courts over their own records. The act imposing a limitation on writs of error would be of little account if an inferior court might do at discretion what the court of the last resort dare not do by an exercise of its legitimate prerogative. Nor would the act to prevent purchasers at sheriff’s sales from being dispossessed on reversal of the judgment, afford that perfect protection it was intended todo, if the foundation of the title might be expunged from the record by an act of power. The palpable object of the settlers is to destroy the title which passed to the purchaser under the judgment on the mortgage ; and any order or proceeding t,o produce that effect violates the spirit of the statute. It is considered, therefore, that the order to open the judgment for the plaintiff, and the judgment thereupon rendered for the defendants,‘be reversed ; and that the judgment originally rendered for the plaintiff be affirmed.
Judgment accordingly.