Colhoun ex rel. Zank v. Snider
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Opinion
Tilghman C. J.
The question in this case is, whether a judgment's a lien on lands purchased by the defendant after the' judgment, and aliened before execution issued. I am well satisfied that by the English common law such lands are bound. But it seems to have been differently understood in this state. In the case of Rundle and Murgatroyd v. Etwein, in this Court, (December Term 1795) it was the opinion of all the Court, as appears by a manuscript note .of Judge Teates, that after purchased land was not bound. I feel myself obliged to pay great respect to this opinion, particularly as the late Chief Justices MiKean and Shippen. were then on the bench, who from1 their age and long experience were well acquainted with the practice of early times. It is certain that in many instances the common law of England has been departed from in this country, from a sense of inconvenience, which has produced a silent practice, not now to be traced to its origin. In truth it is of no great importance how the point is settled, so that it be but settled; and I am induced to abide by the decision in Rundle v. Etwein, because I perceive that it has been acted upon in different parts of the state, so that to overturn it now might be injurious to purchasers who have relied upon its authority. I find by notes of the late Judge Smith, in my possession, that the law was laid down in conformity to Rundle v. Etwein, in the case of the Canal Company v. Nicholson in this Court, (March Term 1798,) and in Pleasants v. Boyer, Circuit Court, Westmoreland county, November 1802. There has been some difference of opinion respecting the common law on this point; but I have reason to suppose from a conversation which I once had with Judge Smith, that both he and Chief Justice Shippen founded themselves on the understanding which had long prevailed in this state. Be that as it may, my opinion is bottomed solely on the decisions which I have mentioned, and therefore I forbear from entering into any discussion of the common law principle.
I am of opinion that the judgment should be affirmed.
Yeates J.
The question before the Court is, whether lands purchased by a defendant after judgment had against him, and sold by him bona fide before execution, be bound [138]*138by the lien of the judgment, so that the same may be taken in execution, in the hands of the fair purchaser.
This subject has presented itself to my consideration, both at the bar and on the bench, and I have given it all the reflection in my power. I shall now consider it upon principle, upon the English authorities, and how far such lien would be consistent with our laws and customs.
Upon principle, it seems to me that* whatsoever may be the efficacy of a judgment per se, it must take place at the time the same is rendered. The lien attaches at the moment of entry, and I can have no idea of its shutting at one period and opening at another, so as to embrace, of itself merely, property not originally bound. Its effects are immediate, and must be known and ascertained, when the judgment is given, and cannot depend upon subsequent events, unless it has been so provided by positive law. In a writ of debt, a man shall not have recovery of any lands but of those which the defendant hath the day of the judgment yielded; and of chattels, a man shall have execution only of the chattels which he hath the day of the execution issued. Termes de la Ley, Voc. Execution.
In point of authority, I fully agree that several of the elementary writers lay down the law, that execution may be sued of any land which the defendant had by purchase after the judgment, though he had aliened it before execution. 1 Rol. Abr. 892. pl. 16.; 10 Vin. Abr. 563. pl. 16.; 3 Danv. Abr. 317. pl. 16.; Sugden’s Vendors 306. The position in the first three writers rests on the single authority of the Year Book of 30 Edw. 3.24. The note subjoined to Sugden has enumerated some other cases, none of which upon inspection will be' found to warrant the doctrine in the extent laid down. Rolle seems to have been followed by the other authors, but how far he is himself supported by the authority he relied on, must be collected from 30 Edw. 3. 24., a -literal translation whereof follows: “ A man had recovered “ a certain debt against Sir John de Moleyns, and had an “ ele git.The sheriff returned that he had nothing. Mowb.
' Now it appears to me that this case not only does not support the-inference of the abridgers, but is directly opposed thereto; because the Tear Book s.ays, if at the time of the judgment rendered, the defendant had lands, but had aliened aftertvards, of this you may have execution. If he had purchased lands afterwards, of this you may ihave execution by alias or pluries elegit. It cannot be denied that one may fairly sell his lands, pending a writ sued out against him, before judgment; but that he cannot defeat a judgment by a sale of the lands of which he was seized when the judgment was given. As to after purchased lands, the previous judgment in my idea does not affect them, but they are bound by the delivery of the writ to the sheriff.
Sir Nicholas Statham
“ Mich. 30 Edw. 3, one prayed éxecútion by elegit, and “ had it, to which the sheriff returned that he had nothing; “ wherefore he prayed a capias, and he could not have it. “ But it was said to him that he might sue sicut alias, if the “ tenant came to the lands or goods afterwards, but he shall [140]*140“ never have capias, nor fieri facias. And Thorpe
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Tilghman C. J.
The question in this case is, whether a judgment's a lien on lands purchased by the defendant after the' judgment, and aliened before execution issued. I am well satisfied that by the English common law such lands are bound. But it seems to have been differently understood in this state. In the case of Rundle and Murgatroyd v. Etwein, in this Court, (December Term 1795) it was the opinion of all the Court, as appears by a manuscript note .of Judge Teates, that after purchased land was not bound. I feel myself obliged to pay great respect to this opinion, particularly as the late Chief Justices MiKean and Shippen. were then on the bench, who from1 their age and long experience were well acquainted with the practice of early times. It is certain that in many instances the common law of England has been departed from in this country, from a sense of inconvenience, which has produced a silent practice, not now to be traced to its origin. In truth it is of no great importance how the point is settled, so that it be but settled; and I am induced to abide by the decision in Rundle v. Etwein, because I perceive that it has been acted upon in different parts of the state, so that to overturn it now might be injurious to purchasers who have relied upon its authority. I find by notes of the late Judge Smith, in my possession, that the law was laid down in conformity to Rundle v. Etwein, in the case of the Canal Company v. Nicholson in this Court, (March Term 1798,) and in Pleasants v. Boyer, Circuit Court, Westmoreland county, November 1802. There has been some difference of opinion respecting the common law on this point; but I have reason to suppose from a conversation which I once had with Judge Smith, that both he and Chief Justice Shippen founded themselves on the understanding which had long prevailed in this state. Be that as it may, my opinion is bottomed solely on the decisions which I have mentioned, and therefore I forbear from entering into any discussion of the common law principle.
I am of opinion that the judgment should be affirmed.
Yeates J.
The question before the Court is, whether lands purchased by a defendant after judgment had against him, and sold by him bona fide before execution, be bound [138]*138by the lien of the judgment, so that the same may be taken in execution, in the hands of the fair purchaser.
This subject has presented itself to my consideration, both at the bar and on the bench, and I have given it all the reflection in my power. I shall now consider it upon principle, upon the English authorities, and how far such lien would be consistent with our laws and customs.
Upon principle, it seems to me that* whatsoever may be the efficacy of a judgment per se, it must take place at the time the same is rendered. The lien attaches at the moment of entry, and I can have no idea of its shutting at one period and opening at another, so as to embrace, of itself merely, property not originally bound. Its effects are immediate, and must be known and ascertained, when the judgment is given, and cannot depend upon subsequent events, unless it has been so provided by positive law. In a writ of debt, a man shall not have recovery of any lands but of those which the defendant hath the day of the judgment yielded; and of chattels, a man shall have execution only of the chattels which he hath the day of the execution issued. Termes de la Ley, Voc. Execution.
In point of authority, I fully agree that several of the elementary writers lay down the law, that execution may be sued of any land which the defendant had by purchase after the judgment, though he had aliened it before execution. 1 Rol. Abr. 892. pl. 16.; 10 Vin. Abr. 563. pl. 16.; 3 Danv. Abr. 317. pl. 16.; Sugden’s Vendors 306. The position in the first three writers rests on the single authority of the Year Book of 30 Edw. 3.24. The note subjoined to Sugden has enumerated some other cases, none of which upon inspection will be' found to warrant the doctrine in the extent laid down. Rolle seems to have been followed by the other authors, but how far he is himself supported by the authority he relied on, must be collected from 30 Edw. 3. 24., a -literal translation whereof follows: “ A man had recovered “ a certain debt against Sir John de Moleyns, and had an “ ele git.The sheriff returned that he had nothing. Mowb.
' Now it appears to me that this case not only does not support the-inference of the abridgers, but is directly opposed thereto; because the Tear Book s.ays, if at the time of the judgment rendered, the defendant had lands, but had aliened aftertvards, of this you may have execution. If he had purchased lands afterwards, of this you may ihave execution by alias or pluries elegit. It cannot be denied that one may fairly sell his lands, pending a writ sued out against him, before judgment; but that he cannot defeat a judgment by a sale of the lands of which he was seized when the judgment was given. As to after purchased lands, the previous judgment in my idea does not affect them, but they are bound by the delivery of the writ to the sheriff.
Sir Nicholas Statham
“ Mich. 30 Edw. 3, one prayed éxecútion by elegit, and “ had it, to which the sheriff returned that he had nothing; “ wherefore he prayed a capias, and he could not have it. “ But it was said to him that he might sue sicut alias, if the “ tenant came to the lands or goods afterwards, but he shall [140]*140“ never have capias, nor fieri facias. And Thorpe
The plaintiff’s counsel have urged another argument from the usual form of writs of elegit, which directs the sheriff to deliver one half of the defendant’s lands which he had at the time of the judgment given, or ever after, (or at any time since) upon a reasonable price or extent. At common law, lands could not be taken in execution on a judgment for debt or damages, unless in special cases. The Stat. of Westm. 2. c. 18. (13 Edw. 1,) was the first act which subjected lands to the execution of a judgment or a recognizance. 3 Co. 11 b. 12 a., Wright’s Tenures 170, 171. The statute directs that “ Cum debitum fuerit recupe- “ ratum, quod vicecomes libe ret ei medietatem terree sues, “ quousque debitum fuerit levatum per rationabile pretium “ vel extentam, et si ejiciatur de illo tenemento, hdbeat re- “ cuperare per breve novee disseisince, et postea per breve “ redisseisince si necesse fuerit.” 1 Ruff. Stat. 93. Ed. Coke in his 7 Rep. 39 a, states that by construction of law the medietatem terree is of all the lands which the debtor had at the time of the judgment given, or at any time after. If either he or the writ had gone further, and said “ though “ the lands after acquired, had been sold by the debtor sub- “ sequent to the judgment,” I should hatfe thought the argument conclusive as to the law of England; but as I have before asserted, I understand the law to be, that the after purchased lands of which the debtor stood seized at the time of the delivery of the elegit to the sheriff, became thereby [141]*141subject to the debt, in the same manner that all his personal property would then become. Lord Coke too, in his 2 Inst. 395, commenting on the words medietatem terree suce in the statute, lays it down expressly “ this is to be understood of “ such lands as the defendant had at the time of the judgment “ given, or of the recognizance knowledged, unless it be coiv u veyed away by fraud and covin to deceive his creditors.” So in Co. Litt. 102 a. upon judgment in debt, the plaintiff shall not have execution but only of that land which the defendant had at the time of the judgment, for that the action was brought in respect of the person, and .not of the land. And again in 7 Co. 171 a. the freehold and inheritance which a common person has at the time of judgment, is bound thereby, but in the king’s case from the time the party becomes the king’s debtor. It has been objected by the plaintiff’s counsel, that these different passages in Lord Coke’s works, mean nothing further than that lands sold bona fide pending the writ, are not bound by the judgment, but that his intention did not extend to after purchased lands. I cannot accede hereto, thinking as I do, that it would be using an unwarrantable freedom with plain language.
Sir W. Blackstone likewise, in his 3 Comm. 418. 419., speaking of the stat. of 13 Ed. 1. c. 18, says, if the goods are not sufficient to pay the debt, then the moiety or one half of the defendant’s lands which he had at the time of the judgment given, is also to be delivered to the plaintiff. And to this point he cites 2 Inst. 395, above stated.'
On a recovery in personal actions, execution shall be of any land which the party had on the day of the judgment rendered; but for chattels, only those which he had the'^day of the execution sued. Finch of Law, 471. If debt be brought at common law on a recognizance, he shall have only judgment of the lands die judicii redditi on the original writ; but if by scire facias founded on the record, then he shall have execution of the lands which the conusor had on the day of making the recognizance. Dyer 306. a. b. Execution shall only issue of the lands had at the time of the judgment rendered. 6 Edw. 3. fol. 15. pl. 14. Scire facias.
Per Shard; you shall have execution but of the lands which he had on the day of the judgment rendered. 6 Edw. 3. fol. 17. pl. 23. Scire facias.
[142]*142Besides the several authorities which have been already ’ cited, many Others may be shewn, restricting the liens of judgments under the Stat. of 2 West. c. 18.; but I shall refer generally to 2 Bac. Abr. 363. 364., Wood's Inst. 607 (edit. of 1738.), Cro. Car. 149., Cro. Fac. 451, 452., Keilw. 87 a., F.N.B. 267.fol. 597., 2 Hen. 4. 14 a.
It is moreover worthy of observation that though Id. Ch. Bar. Corny ns, in his 3d Dig. 307. (1st edit.) tit. Execution, D. 1., cites the case of 30 Ediv. 3. 24., in two instances, yet he wholly omits the deductions drawn from it in 1 Roll. Abr. 892. pl. 16, and confines the liability of the lands to •those which the defendant had at the time of the judgment rendered.
The case of the King v. Death, Cro. Jac. 513. Mich. 15 Jac. in the Exchequer, which was not cited upon the argument, has been put into my hands by a learned friend, who observed that it required an answer. It is short, and runs thus: — “ It was found by inquisition that one York had reco- “ vered in an action upon the case for words against John “ Allen, five hundred pounds. Afterwards John Allen and Ed- “ ward Allen purchased land in fee, and aliened it to John “ Death. York was outlawed, and so his debt became for- “ feited to the king. The question was, whether the king “should have execution of the moiety of the moiety of “ John Allen, or the entire moiety; and it was resolved, that “ he should have the entire moiety, although York should “ have had but the moiety of the moiety; but the debt com- “ ing to the king, he shall by prerogative have execution of “ the entire moiety. And it was adjudged accordingly.”
This case is supposed to bear upon the question now before the Court, in as much as after stating the recovery, it proceeds to say, that afterwards the two Allens bought the lands, and aliened them. Of this circumstance no notice whatever is taken by the Court.
It will be found, that this case is incorrectly reported; and that the only particular wherein it may be supposed to be analogous to that under consideration, is stated differently in other books, and even by Sir George Croke himself. I have endeavoured to trace it through all its different branches, and will give the full result of my'researches.
It first appears in Cro. Eliz. 50, under the names of Allen v. York, 28 and 29 Eliz. in B. R., wherein it is stated [143]*143that York had recovered 4000/. damages against Allen, and had died, having been satisfied of 1000/. part thereof; and the question raised was, whether his executor could support a scire facias for the residue of the judgment. Of this the Court doubted, and no decision is stated to have been given.
It then in the following year in the same book, page 72, assumes the shape of a scire facias upon a recognizance by Mary York v. Allen; when it was resolved, that if a pardon relates back to a day before the exigent was awarded, the outlawry is thereby discharged.
It appears again in the Exchequer, Pasch. 36 Eliz. Saville 133; and it is there stated that York had recovered 5000/. damages against Allen, that York was outlawed, and the queen had granted to Francis Anger the profits due on the outlawry; and it was held that the patentee might sue in his own name, or in the name of the queen at his election. Attaint having been brought in C.B. of the verdict in B. R., the record was removed into B. R., and there affirmed; and it was resolved that B. R. should award execution on the first verdict. Cro. Eliz. 371. Hil. 37 Eliz.
In Lane 20. Pasch. 4 Jac. in the Exchequer, York and Allen is exhibited with very different features from those disclosed in the report in Cro. Jac. 513. It is there said that a man recovered damages in an action upon the case against B, who at the time of the judgment was jointly seized in fee with C; and that after that, B and C aliened, and the king eight years after the outlawry extended the moiety for the damages recovered against B. And the barons were clear in opinion that the king should have it in extent; for it was liable to the extent of the party outlawed before the alienation, and when it comes to the king by the outlawry, although it be after the alienation, it continueth extendable to the king, although the alienation was before the outlawry.
The reasoning of the Court here, strongly fortifies the sentiment I have adopted. Why should the barons rely on the liability of the lands to the judgment previous to the alienation, if independently thereof, the premises in the hands of a fair purchaser were legally subject to the extent?
The King v. Twine and others, in the Exchequer, Trin. & Jac, Cro. Jac. 179., furnishes the fullest detail of the [144]*144whole case. It contains the recovery of 4000/. damages, the outlawry of Tork in a personal action, the grant to' Anger by queen Elizabeth of all his goods, chattels, and debts to the use of Mary Tork, 34 Regni sui, and the assignment by Anger of that debt and judgment to Twine, and then proceeds thus: And notwithstanding, an extent issued in the king’s name, to extend all the lands which the said fiohn Allefi had at the time of the judgment, and the lands in the possession of Ttvine (which he purchased after the judgment) were extended. The terre-tenant pleaded the assignment made by the queen, and that he was not chargeable to the king. Upon demurrer thereto, it was adjudged, that the king might by his prerogative assign a chose in action, and that the assignee might sue either in his own name or the king’s, and that the land should remain in extent for the king. In 2 Rol. Abr. 807. pi. 7, the same case is shortly mentioned, and ruled that if a recoveror of damages be outlawed in a personal action, the king shall have them, and. shall have execution on the judgment. Mich. 5 Jac. in Exchequer inter Tork and Allen. Per Cur.
I have been thus minute, and I fear tedious, in recapitulating all the views wherein this case presents itself in the different books,' from being told that it is much relied upon by the advocates opposed to my doctrine. I think it will be found, upon the most careful examination, that the case in Cro. fac. 513, decides no other principle, than what must be admitted upon all hands to be clear law, vizNthat where a subject is outlawed, the king shall seize all the land of the conusor or obligor to such outlaw, although a private individual upon a judgment can take only a moiety. The distinction is founded on the prerogative of the crown. 5 Co. 56 a. Plowd. 243. In no ramification whatever of the case, which I have been able to discover, in any book, has any stress been laid either by the bar or Court, on the doctrine that a judgment per se will bind lands, purchased afterwards, though aliened bona fide. Under this review then of the different authorities, I trust, that without hazarding too confident an opinion, I may venture to assert, that the doctrine contended for by the plaintiff in error, is at least highly questionable in the English law.
I now proceed to consider the subject upon another ground, [145]*145which appears to me more material in our present inquiry, how far that doctrine would be consistent with our munici-' pal laws and customs, and conducive to the public weal.
We have two acts of assembly in force, directing the taking of lands in execution for the payment of debts; the first passed in 1700, (1 Smith’s Laws 7.) the other in 1705, (Ib. 5 7.) which as to the point before the Court pursues the words of the first law. It recites that “ to the end that no creditors “ may be defrauded of their just debts, due to them from “ persons who have sufficient real if not personal estates to “ satisfy the same, Be it enacted that all such lands, tene.- “ merits and hereditaments whatsoever, within this province, “ when no sufficient personal estate can be found, shall be u liable to be seized and sold upon judgment and execution “ obtained.” And by the 4th section it is provided, “ that “ the vendee of the sheriff shall hold and enjoy the lands “ sold as fully and amply, and for such estate and estates, u and under such rents and services, as he or they for whose “ debt or duty the same shall be sold, might, could, or ought u to do at or before the taking thereof in execution.”
It is the obvious meaning of the legislature herein, that the lands directed to be sold, should be such lands as the debtor had at the time of the judgment, in defect of his personal property. But it is also a reasonable construction, that if the lands to which the debtor was then entitled, should be insufficient to pay the debt and costs, other lands which he might acquire afterwards either by descent or purchase, should be subject to the execution of the creditor; provided that no injury was done thereby to third persons, and that the lands belonged to the debtor at -the time of the taking thereof in execution. If after purchased lands should happen to be sold by the debtor, before an execution issued upon the judgment, they would no longer be his property, and would cease to be such lands as were subjected to his execution. No creditor could rely on lands as a fund for the payment of his debt, which did not then belong to his debt- or. In 3 Black. 418, 419, before cited, it is said that if the goods are not sufficient to pay the debt, then the moiety of the defendant’s freehold lands, which he had at the time of the judgment given, whether held in his own name, or any other in trust for him, are also to be delivered to the plain[146]*146tiff to hold till the debt be levied: And yet we find in Hunt v. Coles et al. Comy. Rep. 226, that when a trustee had conveyed lands before execution issued, though he was seized for the defendant at the time of the judgment, the lands could not be taken in execution. According to my apprehension, there is a much stronger ground for the exemption of after purchased lands, from the lien of a judgment, under the words and spirit of our law of 1705; for such lands are not the defendant’s property, either at the time of the judgment, or the execution sued out.
Our local circumstances differ materially from those of an old settled country, where lands being improved for many years, their prices are not subject to great fluctuation. In Great Britain the transfers of lands are comparatively few to what they are amongst us. There through the rights of primogeniture, the instrumentality of strict settlements, and other local causes, real estates continue in ancient families for generations. It is much otherwise here, where lands rapidly rising in price, are treated as a specious of merchandize. Admit for argument’s sake the position of the plaintiff’s counsel to be correct, as to the law of England., where the moiety of the land is held by the creditor until his debt be paid, the land is afterwards restored to the fair purchaser from the defendant; but if that principle was adopted here, the whole estate would pass to the sheriff’s vendee, freed and discharged from all claim or pretence of right by such purchaser.
. The strong ground however, upon which I rely as to this branch of the case is, the practical construction of our acts of assembly, since they were passed, by the common usage of the country. I have never known or heard it suggested, that upon sales of lands the public offices have been searched for judgments against the purchasers prior to the sale, or against, the sellers, except from the time that their title commenced. It is observed in Sugden 306, that it is not usual to search for judgments against the vendor, except from the time he purchased the estate: which by the by furnishes proof of the general opinion in England.as to the point in question. If the rule should be adopted here, that judgments themselves bind after purchased lands, though transferred bona fide, the situation of both seller and buyer is [147]*147rendered most highly perilous, under the usual mode of transacting such business. Judgments against the seller antecedent to'his acquisition of the property, are let in against the unsuspicious buyer; and as to the seller, he is not rendered secure as to his consideration money, by taking either a mortgage or judgment. The estate must necessarily be for a moment in the buyer before he can execute a valid mortgage, or confess a judgment, which may become a lien on the property bought; but eo instanti that the conveyance .by the seller is sealed and delivered, the lien of the old judgment against the buyer attaches, as the inevitable consequence of the doctrine contended for. These would be serious evils, and must have been severely felt, if that doctrine had prevailed. No other mode for the security of the vendor presents itself to me, where the old judgments have not been searched for, except a_ conveyance of the lands subject to the payment of the consideration money, so that the estate cum onere should vest in the vendee at the same moment; and yet in the whole course of my experience, I have known or heard only of two instances wherein this precaution has been used. These considerations fully satisfy my mind as to the general understanding of the people upon this subject. General gross negligence and inattention to individual interest, are not the marked characteristics of mankind in a social state.
But the question is not undecided amongst us. In Rundle and Murgatroyd v. Etwein, it was adjudged by á full Court in bank, that mere judgments did not bind after purchased lands, when aliened before execution. I will not say that the point was fully argued, though there were counsel of great ability on both sides; but I have no difficulty in asserting, from the note 1 took 'of the case at the time, that. M'-Kean Chief Justice pronounced what was then understood to be the unanimous opinion of the other judges. It has been' truly said, that our brothers Shippen and Smith afterwards expressed doubts upon the English law, respecting the liens of such judgments; yet I think I have abundant reason to conclude from copies of their own papers now in my possession, that their minds were not changed as to the law and usage of Pennsylvania on this point. The inconveniences of a different doctrine struck them [148]*148in full force. I wholly omit any remarks on the danger and impolicy of changing a solemn decision, Unless the interests of society should imperiously require it. We know that the judgment of the Court of Common Pleas here, was grounded on our former decision.
It remains'only, that I should consider a difficulty raised by the plaintiff’s counsel, as to holding inquisitions upon lands seized in execution, and the security of sheriffs upon sales. It has been asked how an inquest can possibly ascertain the time when the defendant’s title accrued, in or'der to distinguish between the different judgments binding on his land? I answer, by the public records, if the title is derived under a deed or will; but if by descent, it is as susceptible of proof as any other fact whatever. And as to sheriffs, their conduct may be regulated in the same manner; and it is obvious, that the fewer judgments they- have to discharge, there is the less danger as to the misapplication of the money arising upon the sales.
Upon the whole, I am of opinion, that the judgment of Samuel Calhoun, the plaintiff in error, did not continue a lien upon the house and lot of Michael Immel; and therefore that the judgment of the Court of Common Pleas of Franklin county be affirmed.
Brackenridge J.
I understand the question in this case to be, whether a judgment binds lands purchased after the judgment, and aliened before execution. If this was to be taken up upon principle, I should find no difficulty; for ideo consideratum est per curiam quod recuperet, is the entry of the judgment. This judgment by force of the Statute Westminster 2., 13 Ed, 1. c. 18, charges the land of the debtor, and is in the nature of a general security. The lands are but in the nature of a pawn or pledge to secure the payment of the debt. 2 Black. Comm. 289. In the same manner lands descending to the heir were a pledge for the debt of the ancestor, and where no assets existed it might be levied of them, and they might be sold for the debt; and this was the only case in which the land could be sold, unless upon a recognizance in the case of the king. Can any one be supposed to pledge a thing of which he has not the property ? It would be an absurdity, and inconsistent with the notion [149]*149óf a pledge. A mortgage is always spoken of under the idea, that it is a specific security, whereas a judgment is but a general. But as under a mortgage .one can only be considered as pledging what he specifies, so under a- judgment whatever property he has at the time. It is impossible that the judgment can attach to more. It cannot enlarge itself beyond the sum recovered. The execution must pursue the judgment as to the sum. Costs are included in(the execution as an appendage of the judgment. Interest is added by the Court under the idea of damages for the detention of the debt after judgment; that is, it is endorsed on the execution writ, but subject on motion to the Court to allow or modify. Can the judgment enlarge itself as to the subject ' of itf It can bind only that for which it was a security, or what was pledged under it. It is contrary to the nature of a lien, and cannot be done. But lands may be taken in execution under a levari facias at common law, as to present profits, or1 under an elegit by the statute. — Doubtless, but it is by virtue of the execution, and not'of the judgment. This is the ground of all the error. For the books speak of the judgment’s binding after purchased lands; but they mean no more than that lands purchased after may he taken in execution under the judgment. It is the same in the case of goods and chattels. If a cloak is pledged to one, or put into his possession, and he obtains judgment under k f.fa., he may levy not only the cloak in his possession, but the coat which he has not. It does not follow that 'the coat was pledged, because he can also take this. The precedent of the execution shews, that he may not only take the lands that were the debtor’s the day of the judgment, but since. A scire facias must for this very reason be to the terre-tenants of the land, at the day of the judgment rendered or afterwards, because the lands are liable to be taken-in execution. Yet why a scire facias to them, but to give an opportunity of shewing .that the debt is satisfied; for by virtue of the statute, these lands are liable to be taken in execution, being the property of the debtor at the time of the elegit sued out. But may they not shew, not only that the debtor had not these lands at the day of the judgment, but also that he had them not at the day of suing out the elegit? This is the question that we are to examine.
[150]*150There are authorities that seem to look as if execution could be laid upon lands bound by the judgment only. 2 Inst. 395. Et medietatem terree sues. This says the commentator,is tobe understood of the one half of such land as the defendant had at the time of the judgment, or at the recognizance knowledged, unless it be conveyed away by fraud or covin to deceive his creditors. This exception under the unless, shews that the words respect lands conveyed away before the judgment, and have no relation to lands conveyed away after. It proves therefore nothing upon this point, though it may be cited for it. It means that no fraudulent conveyance of lands before judgment shall bar the lien. Cro. Car. 149, is sometimes cited; this means nothing as to this point. It is only that goods are bound by the execution, but lands by the judgment. But it does not follow that lands are not bound by the execution also, when levied upon them. Coke Lyttleton 102 is cited as conclusive; it concludes nothing. It is only that judgment cannot have a retrospect to lands aliened before the judgment. The diversity proves this, taken between lands by descent to the heir, bound before the judgment in right of the land. Other judgments are in right of the person, and cannot bind before. I discard these authorities as having no application to the point. But I put it upon the principle, that the judgment cannot extend itself, though the execution may take more; and it is with a view to this only, and in this sense, that the judgment is said to bind. This is said abundantly in the books. 2 Cruise on Real Property 73. “ A “judgment binds all the freehold lands whereof the person “ against whom it is obtained is seized at the time; and no “ subsequent act of the debtor, not even an alienation for a “ valuable consideration to a purchaser who has no notice of “ the judgment, will avoid it. A judgment also binds all the “ lands which are afterwards acquired by the debtor.” He cites no authority. He is not correct. It is not the judgment that binds after purchased lands, but the execution that may be levied, and this is all that I take it he can mean. If he means more, he will be an authority so far as he goes. It is an hypallage, the effect for the cause. The writ of ele git takes, and therefore the judgment is said to bind. But the elegit takes by force of the statute the posssession of the lands, just as the levari facias at common law would have taken the [151]*151present profits; and the levari facias would not be confined to lands bound by the judgment, but-the profits of land not bound might be taken as chattels under a fieri facias; but the ownership must be in the debtor., A judgment as against the defendant and his heirs, binds a moiety of all the freehold lands and tenements of which he or any person in trust for him were seized, at or after the time to which the judgment l-elates. Tidd 850. Will it be too much to say that Tidd is incorrect in attributing to the lien of the judgm ent, - what was the effect of the execution, or that he means no more? Let him be supposed to mean what he seems to state, -and to. attribute to the judgment virtute lien, what it appears to me the statute 13 Ed. l.-c. 18, which he cites, by no •means warrants. I say let him be supposed to lay it down totidem verbis, that after purchased lands, though aliened before execution, are bound by the judgment. It is no more than Rolle in his Abridgment 892, totidem verbis, has already said. “ It may be laid (execution) upon any land that he has' by purchase since the judgment, although he hath aliened it before execution.” This is the bull by the horns, that I take. What is his authority? He cites the Year Book, 30 Ed. 3. The point there was whether having taken an ele git, and the sheriff returned nihil, a capias Gould afterwards be sued out. It was decided that after the elegit taken, he could have no other execution; a decision perfectly erroneous. Hob. 57, holds the law to be clear\Contrary, and speaks of this year book and some others, as that “concerning them ' there was never a judgment but one.” Whether after purchased lands aliened before the execution, .could be taken by the elegit, was not in view; nor is there any thing said from which a colour of inference can be drawn, save a dictum, of Finch. The inference would seem- to have been drawn by Rolle, even though but a dictum; but having the words before me, I could not draw it. I will give the words in the Norman law French, so that others may judge: “ Si, al “ tempus del judgement rend, il avera aucune terre, mes que il “ av alien puis, home pouvoit aver execution de Celle. Et si il “purchase ierres apres, homme avera execution de celleY Which I translate, “ if a man at the time of the judgment “ rendered, shall have any land, but hath aliened it since, he “ shall have execution of that; and if he purchases land after. [152]*152“■he shall have execution of that.” It is but an inference from this dictum, to say that after purchased lands aliened before execution shall be taken by elegit; and whether this inference is just, there is no other evidence but that of Rolle having made it; and yet this is the foundation of the whole law upon it. For from Rolle it is handed down through all the reports, and 30 Edit). 3. is cited, because he cites it. But it may be a just inference, since Rolle seems to have thought it so; and if it is a just inference, it will prove that it is not by force of the elegit, that after purchased lands are taken, but by virtue of the judgment; a principle I cannot comprehend as grounded upon the analogy of law, that like a scorpion a judgment can expand its claws, and contract so as to fix what it has embraced, that is, bind the pledge originally given it, and open to take more, and shut again. But can it be presumed that Rolle would have made this inference, had he not understood this in practice to be. an artificial rule of law at the time he wrote, independent of the dictum of Finch; that understanding it to be the rule of law, he had the more readily refered to the dictum as evidence of it, or the more hastily made the inference from the dictum? It may have been the law as under- • stood, though contrary to the analogy of pledging; and if so, I would account for it having come to be so understood, from what was done in taking all land under a recognizance to the king, that had been in the debtor at the time or since the taking the recognizance, even though not at the time, but since the recognizance, and aliened before execu-v tion. Whether this was so or not, we have no evidence as to what was the law before the Year Book, or before the time of Rolle, further than these dicta support.
But supposing it to be the law, I would resolve it into that all grasping principle, the prerogative of the king. For at the common law, independent of lands coming to the heir by descent, which might be sold for the debts of the ancestor, the recognizance to the king was the only judgment under which lands could be sold. The king having this prerogative, it might be considered but an incident to the prerogative to take after purchased lands, though aliened before execution; and this having become a principle,' it was applied in the case of common persons, when by the [153]*153statute of Westminister 2. they came to- have the power to charge lands for debt, and to take execution by the elegit.
Another consideration may have led to the having given this extent to the judgment, even by the' adjudication of the Courts. Subjecting to debts under the júdgment was favourable to alienation; and the greatest extent that could be given to the effect of a judgment, was within the policy. The king was favourable .to this, and the judges would seem to have had the same bearing. “ A free power of aliena- - “tion tended to reduce the power of the nobility, and pro*“portionably to increase that of the crown.” 4 Reeve 135. “ The barring an estate tail, induced the judges to give way “ to a subtle finesse of construction, (for such it undoubtedly ££ was) in order to shorten the duration of those conditional -“ estates. Courts had' so long before as the reign of Edtvard “III., very frequently hinted their opinion that a bar “ might be effected upon these principles.” 2 Black. Comm. 111. For upon the introduction of the feudal tenures into England, the feudatory was not only prohibited from alienating his land, but also from charging it with the payment of his debts, because this might tend to disable him from performing his military services. The goods and chattels of the debtor therefore, and the profits of his lands, were the only fund which the law allotted for the payment of his debts. Although this law was well suited to the situation of a warlike nation, yet it was noways for a -trading people, where it is a material object to create an extensive credit, which can only be done by making lands and profits subject to the payment of debts; and therefore when about the reign of Henry III., the English began to acquire some little foreign trade, the inconvenience of this doctrine began to be felt. 2 Cruise 59. Hence it is, that the spirit of the people, and the sense of the nation, together with the policy of the crown, could not but give a determination to the jurisprudence of the country. “ Alienation of real estate was “'always resisted by the feudal lords, but favoured by the “ prince and the people. The increase of liberty, and the “ growth of commerce, pushed the spirit of unshackling “ estates, and the judges also leaned to the unfettering trans- “ mission. In the case of the power of devising lands, so “ loose was the construction put upon the stat. 32 Hen. 8. [154]*154“ ch. 1., that bare notes in the handwriting of another, were ' “ allowed to be good evidence within the statute.” 2 Black. 375. With the like leaning it was decided by the judges, that “ no after purchased lands will pass under a devise, “ unless subsequent to the purchasé or contract, the devisor “repüblishes his will.” 2 Black. 378. It had been a long struggle on the part of the king, judges, and people, to get lands subjected to debts in any way, and this had been accomplished in part by the slat, of 13 Ed. 3.; and the more the lands would be subjected, it was in advancement of the policy. This might have led to follow the prerogative, and as in the case of the king, to take 'all lands before or after, in the case of private creditors. Be this as it may, it would seem to have been the understanding of the law commentators; for Viner takes it as Rolle has done, and under the head of execution lays it down, 10 Vin. 568. lett. Z. pl. 16., that “ if a man recovers debt, he may sue execution of any “land which he had at the time of the judgment, though he “ had aliened it before execution.” What is more, under the head of Lien, vol. 15, lett. A. pl. 1., he cites a case, Carey 11, Crompton 63, which would appear the strongest of all possible cases. “ A was bound in a statute to B, and one C lent “ 100/. to A, with which A bought lands and assured the “ same to C for his 100/. A failed in payment, B extended “that land, C was denied help in chancery, although the “land was bought with'his money.” It would seem therefore to be the law of England, whether originating in error, or founded in policy. But we come now to consider it as the law of Pennsylvania.
What is there to justify a contrary decision? If in England it has become a rule of property, and estates are holden under it, it cannot there be changed without inconvenience. It may affect those who have taken the after purchased lands aliened before execution; who have taken possession by elegit. It may affect creditors, who looking to this principle, may have counted upon the fund of all lands being bound, that at any time come to the. debtor after judgment, even though he aliens them before execution. The elegit, giving but a temporary possession for the extinguishment of the debt by the issues and profits, cannot affect much. But still it is something as a rule of property, and renders it less easy [155]*155to change the rule, than where no such understanding exists, or rule has been known to be established. The reason and policy of the rule also in some degree fail, if there has been any thing in the idea that it was the.offspring of a more shackled sale of lands for the payment of debts. If there has been any thing also in the notion, that it received countenance from the example set in the prerogative of the king, it will not be continued in a Commonwealth where kingly prerogative is not favoured. But these are small considerations. I do not know how it is under a recognizance sued, whether after purchased lands aliened before execution are taken; nor is it material. The principal consideration must be that of no impediment existing in Pennsylvania to the sale of the whole-lands for debt, but 'that of the- law of seven years extent; there is therefore less reason to extend the lien of a judgment. But the tying up by a judgment shackles alienation, which the policy of our law favours, and this may lay a substantial ground of distinction that cannot be disputed in this case. But how will it work in practice, under the law of the seven years extent? Before land can be sold an inquisition must be held. But the inquisition must be held upon the land levied on. All judgments may be shewn to condemn it. What is there in that argument? I can see nothing. The lands levied on are compared with the judgments, and none other. But land after purchased and aliened before execution, may be levied on. It is the very question we make, whether they can or not. But it will behove the creditor to distinguish between after purchased lands, and lands after purchased but sold before execution. On a scire facias sued, the terre tenant will shew this, or if levied on under the judgment, the court on motion may set aside the levy. .But if not, it is at the risk of the creditor to take such lands, and it is his look out. He can as well ascertain this as what lands were sold before judgment. A conveyance from the debtor, will as well appear upon the books of the register, as a conveyance to him. If adjudgment creditor has not such constructive notice from a registry, it may be an answer to the purchaser why the lands may be taken in execution. But the sheriff must look to the lien of every judgment, and on the sale pay over the purchase money according to the priority. What then? I can see nothing in the [156]*156supposition that bears upon this point. It is supposing him to be bound to take the distinction between after purchased lands, and lands after purchased but sold before the execution, that he may know what judgments are a lien on this or that land. It is the date he must look at, and the sum. The land that he sells, must be considered bound by judgments prior to the' date of that judgment on which he sells. But I deny that he has any thing to do with judgments. He is to sell according to the exigency of his writ, and afterwards pay debt and costs,, if the sale comes up to that, if not, what it produces, and the surplus to the debtor, except in the case of a sale under a first judgment,' where the surplus may be claimed by a subsequent, and on notice to the sheriff, and application to the Court, it will be so applied. It is ihe purchaser that is to look to the incumbrances. Caveat emptor. It is his affair to examine the lien of every judgment, and the amount of debt and costs, and to bid for the premises, what over and above they may be worth. For it is to the land- that every prior judgment creditor will look, and is not affected by a sale under a judgment subsequent to his. Under these considerations it can make no difference whether the rule prevails as it is in England,, or is changed. But-it -has been changed in Pennsylvania by a decision, or rather the decision is an evidence that it never was a rule here. Rundle v. Etwein, December 1795, banco Philadelphia, it was decided. It was not the only point in the case, but it is reported to have been decided, Chief Justice M-Kean on the bench; a great authority. Having therefore an anchor to windward,. I am disposed to swing round with it, more especially as the decision best accords with the inclination of my mind upon principle, as may be collected from what has been suggested. I will acknowledge, that not a single authority, cited for that decision as reported, when it comes to be examined, gives the least countenance to the decision; and there is no argument by the counsel nor reasons given by the Court. I must therefore suppose that it must have been upon other grounds than those authorities that the Court went. It must have been upon the equivocal evidence of entry and precedent in the English books, and the obscurity of reports, or dicta of winters-conflicting with principle, analogy and all reason, or it must have been from [157]*157an examination of the Tmr Books from whence all would seem to have sprung, or it must have been from something in the law of Pennsylvania, that would not admit of giving such extent tb the lien of a judgment here as. in England• There is one principle which would seem to make a difference. A judgment there is a lien upon estates'at law, but not as with us “ on every kind of equitable interest in lands, every kind “ of right vested in the debtor at the time'of the judgment.” Chief Justice Tilghman. 3 Binn. 9. As this makes the lien longer in one way, it would be but reasonable that it should be lopped in another. If it takes all lands in which the debtor has the least possible interest, it might be confined to the taking only those where at the time of the judgment or the execution only, he had an interest. I cannot comprehend how they manage matters in England, as on this principle a case must be supposed sometimes to occur, where a vendee against whom there is a judgment, takes a grant and gives a mortgage in security of payment; it must be that no unan can. purchase against whom there is a judgment, and give such mortgage, for the judgment must intercept the mortgage and cut it out. There is. in the nature of this thing a punctum temporis, as in articulo mortis where the jus accrescendi cuts out the devisee. In the order of time, as in cbm templation of law, there must be a priority. The taking the grant in the first instance, and then the conditional regranting, cannot be concurrent acts, or considered such. It is an argument against the extent of this lien in England, that we find no case in the books where such difficulty has been raised. Is it because there have been few instances where a person bound by a judgment, has purchased lands and given a mortgage? In Pennsylvania, where the settlement of the country has led to so much buying and selling in lands, it would be in the way of this, that the law should be so understood that no one having a judgment against him could purchase lands and give a mortgage, or at least that no one could sell to such, for he could not secure himself by taking the mortgage. The judgment would come in and cut out his security. Whether that case turned upon the law therefore as *our Judges may have taken it to be in 1795, in England, or whether upon the law as inapplicable to our situation, is not -apparent,-there having'been no argument before the Court oh [158]*158tliis point in the manuscript report which I have had the advantage of consulting, and the reasons not appearing'Upon which the decision went.' Nevertheless I am willing to abide by the decision, for I think it right upon principle, and were it even a new case, I should be disposed to decide the same way. For as to all that can be collected from the English books, I am not clear that it was originally the common law, and much less that it was a principle carried with us in our colonization. That trading in lands, by which they have become almost a species of merchandize like goods and chattels, renders it inapplicable to our circumstances. I think so the more especially, as I feel a repugnance to a principle which would not seem to have had originally a foundation to support it, and would seem from what has been hinted, to have crept in surreptitiously, and been propagated from one reporter to another until it came to be taken for law. Supposing it to be the law of England, it may not be practicable to eradicate it in that country, it having become a rule of property, and estates having passed under it, even though upon investigation it should be evident that it has got into the system, though it did not originally belong to it; as flies, or other insects, which have been embodied when the gum or mineral oil was liquid, and cannot be got out when become hard without breaking the amber. For as the poet sings,
Pretty in amber to observe the forms
Of hairs, or straws, or dirt, or grubs, or worms;
The things we know are neither rich nor rare,
But -wonder how the devil they got there.
Judgment affirmed.
John de Mowbray, a Serjeant at Law. Lugd. Chron. Seri. 47.
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