Hartman v. Stahl

2 Pen. & W. 223

• Court: Supreme Court of Pennsylvania
• Decided: October 15, 1830
• Status: Published

Opinion

The opinion of the Court was delivered by

Rogers, J

If one of several defendants, make the affidavit required, by the act regulating arbitrations, and the recognizance be for all the defendants, the appeal will stand for all. But if either of them come into Court and desire to be severed, he may be seyered, and the appeal will go on, in the name of the others. La Fitte v. La Fitte, et al. 2 Serg. & Rawle, 107. Gallagher v. Jackson, 1 Serg. & Rawle, 492. Further than this we cannot go. Elizabeth Hartman took the oath, and entered into the recognizance, with bail for herself alone, it therefore, is but an appeal for one, and amounts to -a severance, as much so, as if her co-defendants had come into Court and disclaimed the appeal. It cannot be successfully contended, that the hail would he liable beyond the recognizance, which stipulates for one of the defendants; without naming the others, or even referring to them, nor would it be in the power of the Court to extend the liability of the recognizance, be3rond their agreement. The bail may be willing to be bound for Elizabeth Hartman, and very unwilling to answer for the act of others. It is alleged that the appeal is for the benefit of all, and that the consent of the other defendants will be presumed. If this were so yet it will not dispense with the provisions of the act of assembly which prescribes that an oath shall be taken, and a recognizance given, for all.

Here the oath was taken by one, and for one, and the recognizance binds her only, and her bail.'

But it is said that the Court should have permitted the defendants to amend the appeal. In order to amend, on the statutes, it is a general rule, there must be something to amend by. The writ may be amended by the praecipe, the declaration by thejjwrit, &e. A general or special verdict has sometimes been amended by the memory or notes of a judge. And a special verdict, even by an affidavit, of what was proved at the trial. 1 Tidd. Pr. But no case, has been cited at the bar, when an appeal has been amended, or -an affidavit of a party, or his counsel, that he inr tended to appeal, and particularly when it is in evidence, that no such intention, but the reverse, was mentioned, at the time the appeal was taken. It was the business of Elizabeth Hartman, and her counsel to see that the appeal was rightly taken, and it would not do to permit a mistake to be corrected on parol testimony. There must be something more certain,"from which the amend* ment may be made. The experience of a century has shewn, that a rigid adherence to this rule, best comports with the safety of the suitors. Besides, had the amendment been allowed, it would have still been an appeal, with an oath, for Elizabeth Hartman alone, and without any recognizance binding the other defendants. It may be remarked, that Elizabeth Hartman does not say, in her affidavit, that she had any authority from the other defendants to appeal for them, nor have we an affidavit of Mary Broking, that she gave her any such power. The plaintiff ha# a right to all the security arising from an oath for all, and a recognizance, with bail, binding all. If we should decide that this appeal was good, Mary Broking would have the benefit of it without any oath taken by her, or for her, or without any recognizance being given, in which she was bound, or any person bound in the nature of special bail, that she would comply with tile directions of the act.

In the year ISIS, the land for which the ejectment is brought, was'sold by Jeremiah Snyder, the then sheriff, as the property of James Orbison. Afler the sale, he acknowledged-a deed, for the premises, to John Hetich, who was the highest, and best bidder. The sum bid for the land, as appears by the sheriff’^ deed, was $410. At the time of the sale Hetich had a judgment against the administrator of Orbison, for $1,240, and on an apportionment of the assets, by auditors appointed for that purpose, it was admitted, that his share amounted to $331 21. After the acknowledgment of the deed, Hetich.took possession of the property, sold part of it, and paid Hosacle, one of the defendants, another part, who resided there, as his tenant for four years. Snyder retained the deed, because a balance of the purchase money, amounting to $898 remained unpaid. A judgment was obtained against Hetich, and on that judgment his interest was sold to the plaintiff in this ejectment. No title was shewn in the defendants.

It strikes me, that by the return of the sheriff, and the acknowledgment of the deed, the title was vested in Hetich.

The acknowledgment of the sheriff’s deed is not conclusive evidence of delivery, but taken in connection with the fact, that the vendee of fhe sheriff took possession of the property, and continued in possession for four years, it is strong proof of it. Chess v. Chess, 1 Penna. Rep. 41. After the return of the sheriff, and the acknowledgment of the deed, the defendant in the execution could have no claim to the land, and it is plain, that the title must be either in him or in the sheriff’s vendee. It cannot be in the sheriff. Nor do the heirs of Orbison pretend that they have any title. The sheriff, by his return, has fixed himself for the amount bid, nor is there any thing to rebut the presumption, that the administrators of Orbison have availed themselves of the liability of the sheriff. Indeed, it is certain, that the whole amount, for which the property was sold, went to the payment of Orbison’s debts. Nor is the retention of the deed inconsistent with this view of the case. On the contrary, Snyder retains the deed to. secure the balance of the purchase money, which he had paid, or for which he had become responsible. He claims no title to the land, but asserts, that as between him and his vendee he has a lien on the land in the nature of an equitable mortgage. If this be considered an equitable mortgage, this is a matter resting between the sheriff' and his vendee, of which these persons cannot avail themselves. .

It moreover appears, that on the trial, the sheriff received his money from the plaintiff, whereupon he delivered over to him the deed,.which he had retained as a security for the money advanced by him.

Besides, by the payment of three-fourths of the purchase money, and the delivery of possession, Hetich acquired an interest in the land, although that interest did not amount to a legal title. And this interest is the subject of execution and sale. This would entitle the plaintiff to possession, in opposition to those who shew no title.

The evidence of the record of the judgment, was pertinent testimony, because it shows the manner in which the sheriff" was in part paid for the land sold to Helich.

Judgment affirmed.