Gibson v. Lyon

This was an action of ejectment to recover possession of certain real estate in Philadelphia, brought by the plaintiff in error, a citizen of New Jersey, against the defendants in error, citizens of Pennsylvaia, in which there was judgment for the defendants below, which is brought here for review by this writ of error. The cause was submitted to the court, on the trial below, a jury being waived in writing, where judgment was rendered upon the following findings of fact:

(1) In 1861 George W. Roberts was seized of the premises in dispute, situate at the S. E. corner of Broad and Oxford streets, containing in front on Broad street 48 feet, and extending in depth on Oxford street 143 feet. On April 13, 1861, the said George W. Roberts mortgaged the same to the Reliance Insurance Company, of Philadelphia, to secure the sum of $5,000.

(2) In 1862 George W. Roberts died, and on the seventeenth of December, 1863, his heirs presented a petition to the orphans' court of Philadelphia county for leave to sell the above premises under the act of April 18, 1853, clear and discharged of all liens in the hands of the purchaser. On January 13, 1864, the said premises were sold to John Rice for the sum of $10,500, which sale was, on January 15, 1864, approved and confirmed by the orphans' court aforesaid, and security approved and entered in the sum of $21,000. The conveyance to the said John Rice was made January 30, 1864, in consideration of the sum $5,500, 'and under and subject to the payment of the mortgage debt or sum of $5,000, with interest, made and executed by the said George W. Roberts to the Reliance Mutual Insurance Company, of Philadelphia, dated April 13, 1861, and recorded in mortgage book A. C. H., No. 9, page 71,' etc. This provision is made in the habendum of the deed, but not in the premises. On the fifth day of February, A. D. 1864, this conveyance was duly acknowledged before the orphans' court aforesaid.

(3) On February 11, 1865, John Rice and wife conveyed the said premises to Sarah A. Jermon, in consideration of $8,000, 'under and subject to the payment of the said mortgage of $5,000,' held by the Reliance Insurance Company.

(4) On June 5, 1867, the said mortgage of $5,000 was duly assigned by the Reliance Insurance Company aforesaid to the defendants, who subsequently foreclosed the same by proceedings in the supreme court of Pennsylvania to July term, 1867, No. 154. The action was brought against George W. Roberts, and judgment was duly obtained upon two returns of nihil; but, after judgment, both the said Sarah A. Jermon and J. Wagner Jermon appeared and made several applications to open the judgment, which were refused.

(5) On February 17, 1868, J. Wagner Jermon and Sarah Ann, his wife, filed a bill in equity in the supreme court for the Eastern district of Pennsylvania, to January term, 1868, No. 60, averring that the defendants were creditors of J. Wagner Jermon, and were proceeding upon the mortgage for the purpose of realizing their claims against J. Wagner Jermon, and also averring that Sarah A. Jermon had caused a tender to be made of principal, interest, costs, etc., to the defendants, and requested them to execute an assignment of the mortgage prepared and presented to them, which they refused. Whereupon a decree was entered 'that an injunction be granted as prayed for, to restrain the sheriff's sale of the property mentioned and referred to in the bill, and that the said injunction do stand until the defendants, Lyon and Taylor, do execute an assignment of the bond and mortgage referred to in the bill, and a transfer of the suit brought upon the said mortgage, upon receiving payment of the debt and interest secured thereby, together with all costs, upon the execution of which assignment and transfer the said injunction shall be dissolved,' etc., which said decree was affirmed by the supreme court, February 23, 1869, and a procedendo awarded. On April 3, 1869, the supreme court aforesaid decreed that the injunction should be dissolved, and the defendants hereto should be at liberty to proceed upon their said mortgage, unless the said J. Wagner Jermon or Sarah A. Jermon should pay the same before the twentieth of April, 1869. On April 20, 1869, the time was, upon the application of J. Wagner Jermon, extended to May 10, 1869. No payment or tender was made on or before May 10, 1869.

(6) On September 18, 1869, a levari facias was issued in the action to foreclose the mortgage, wherein the premises were described as three properties, viz.: Lot No. 1. S. E. corner of Broad and Oxford streets, 48 feet on Broad street by 111 feet on Oxford street. Lot No. 2. South side Oxford street 111 feet east of Broad street, 16 by 48 feet. Lot No. 3. South side Oxford street 127 feet east of Broad street, 16 by 48 feet. Lot numbered 1 was purchased by the defendants at the sheriff's sale, made October 4, 1869, for the sum of $10,000; and No. 2 was purchased at the same sale, by the defendants, for the sum of $2,000. The sheriff's return to the writ of levari facias was, inter alia, 'and it appearing that the plaintiffs in the writ are entitled to be paid the sum of $5,748.47, being the amount of principal and interest to day of sale of the mortgaged premises sued on in this case, I have taken their receipt for the same, and balance of purchase-money I have as within commanded.'

On December 4, 1869, the sheriff's deed for the premises, * w443 Nos. 1 and 2, was duly acknowledged and delivered to the said defendants. No disposition was premises, Nos. 1 and 2, was

(7) As to lot No. 3. By virtue of certain proceedings in the district court of Philadelphia county, of December term, 1866, No. 1421, the premises situate on the south side of Oxford street, 127 feet east of Broad street, 16 feet by 48 feet, were exposed to sheriff's sale on January 3, 1870, upon a vendi tioni exponas, issued December 3, 1869, under a judgment obtained by W. A. Arnold against J. Wagner Jermon, and Sarah A. Jermon, his wife. The first count of the narr filed in this action was for materials furnished to the said premises at the request of said Sarah A. Jermon. The second count was for materials furnished at the request of J. Wagner Jermon and Sarah A. Jermon, and the judgment was confessed in open court. At the sale the premises were purchased by defendant, and on January 22, 1870, the sheriff's deed therefor was duly acknowledged and delivered to defendants.

(8) That on the third July, A. D. 1872, an ejectment was brought in the supreme court of Pennsylvania, sitting at nisi prius to July term, 1872, No. 130, by J Wagner Jermon, and Sarah A. Jermon, against these defendants, wherein a verdict was rendered for these defendants, and on March 6, 1876, this was affirmed by the supreme court of Pennsylvania, sitting in bank.

(9) On March 7, 1876, Sarah A. Jermon, wife of J. Wagner Jermon, conveyed the premises in dispute to William L. Gibson, a citizen of the state of New Jersey, for the consideration of $500. This conveyance purports to be made by Sarah A. Jermon alone. J. Wagner Jermon joined in the covenants, and both she and her husband signed and sealed the deed, and it was separately acknowledged.

David C. Harrington, F. Carroll Brewster and ''Geo. W. Biddle'', for plaintiff in error.

''Wm. Henry Rawle'', for defendants in error.

MATTHEWS, J.