Slicer v. Bank of Pittsburg

THIS was an appeal from the Circuit Court of the United States for the Western District of Pennsylvania.

The facts of the case are stated in the opinion of the court.

It was argued by Mr. T. Fox Alden and Mr. Johnson, for the appellants, and by Mr. Hepburn and Mr. Loomis, for the appellee.

The points made by the counsel for the appellants were the following:--

1. That a proceeding of scire facias sur mortgage, in Pennsylvania, is literally a bill in equity to foreclose the equity of redemption, and forfeit the estate of the mortgagor. Dunlop's Digest, 31, Act of 1705.

2. That the proceedins being in the nature of a bill in equity to foreclose the mortgage, the principles of equity, in that particular branch of chancery procedings, are alone applicable. Self-evident.

3. That amendments of judgments at common law, with all the authorities authorizing the entries of judgments nunc pro tunc, can in no case be applicable to amendments of decrees in equity, for foreclosure, because the reason of the law does not apply in such case, but e converso.

4. That while the bill to foreclose the equity of redemption is pending, the equitable bar, by analogy, does not run any more than the statute would run, while suit at law was pending. 1 Powell on Mortgages, 320.

5. When it has been shown that suit was instituted, it is incumbent on the party wishing to avoid the effect of the principle of lis pendens, to show that the cause was legally terminated. 13 How. 332.

6. The issuing of final process, void on the face of the record, does not terminate suit, at law; still less, is it to be construed in equity in such manner as to forfeit the estate of the mortgagor. Needs no authority.

7. No release of the equity of redemption, by express parol agreement, or by implication, arising from the acts of a distressed debtor, or mortgagor, in waiving inquisition, or notice, or appraisement, can compromit his rights as mortgagor, and work a forfeiture of his estate, when his solemn covenant, contained ill his condition of absolute sale, in his mortgage, will not be permitted to have such effect.

8. That estoppels, either at law or equity, are only allowable to advance justice, never in equity, to work a forfeiture of estate.

9. That presumptions are not allowed at law or equity, against fact, a fortiori, in equity, when such allowance would defeat an estate, the favorite of equity. 11 How. 360.

10. The confession of judgment, by warrant of attorney, in Pennsylvania, is not a judgment of record, until the confession of judgment is duly entered by the proper officer of record; still less is the parol declaration of any defendant, that he had confessed judgment, evidence of a judgment in Pennsylvania.

11. If such parol admission of the confession of a judgment is tantamount to the entry of a judgment in Pennsylvania, it must be a judgment for every purpose.

12. That the respondents cannot avail themselves of the amendment in this case, on the motion of Mr. Bradford, as they repudiate his acts as unauthorized by them, and further, without notice to Mr. Cromwell. Coke Litt. 303 a., 352 b.; Bull. N. P. 233; 1 Wash. C. C. R. 70; 11 Wheat. 286; 9 Cow. 274; 4 Metc. 384; 9 Wend. 147; 6 Ad. & Ellis, 469; 10 Ib. 90; 5 Watts & Sergt. 306.

13. That even if the amendment of judgment was regular, it did not, and could not, sanctify a void execution and sale. 4 Wend. 678, 474, 480; 1 Stark. Ev. 283; 12 Johns. Rep. 213; 1 Moore & Payne, 236.

14. That if such judgment was regular, and within the powers of the court, it was interlocutory in its nature, the proceedings being in the nature of a bill of foreclosure, &c., and the defendants having been in possession of the mortgaged premises for sixteen years, would either have to account in equity, for the reception of the profits, or have the same liquidated by action at law.

15. Laches, either at law or equity, when both parties are in pari delictu, are available by neither; and in this case it was the fault of respondents, if they did not press their mortgage to the foreclosure of the equity of redemption.

From which preceding propositions, if established, we contend that it flows as a legal consequence:

1st. That there was no judgment of the court, which would authorize a writ of levari facias.

2d. The sale, therefore, being void, the equity of redemption still exists, and the mortgagee is bound to account for rents and profits, and if he paid his debt, is bound to reconvey the mortgaged premises, or pay the value thereof on such equitable principles as the court may determine to be just and equitable to all parties.

The points on the part of the appellee were the following:

I. The levari facias, upon which the mortgaged premises were sold, was issued upon and fully warranted by a legal and valid judgment, confessed by Thomas Cromwell on the 13th day of September, A. D. 1820, to the plaintiff in the action ''sci. fa. sur mortgage, No. 136, August term, 1820, (the Bank of Pittsburg v. Cromwell,'') for the sum of $21,740.40. Of this the complainants have exhibited record evidence in the certificate of Edward Campbell, Jr., prothonotary of the Court of Common Pleas of Alleghany county, which may be found on page 17 of the record. That confession of judgment is a part of the record of which he certifies a full exemplification, and is correctly and rightfully certified as a part of the record. Reed v. Hamet, 4 Watts's Rep. 441; Lewis v. Smith, 2 S. & R. 142; Shaw v. Boyd, 12 Pa. State Rep. 216; Weatherhead's Lessee v. Baskerville, 11 Howard's 360; 7 S. & R. 206; Railroad Co. v. Howard, 13 Howard's R. 331; Cook v. Gilbert, 8 S. & R. 568; Wilkins v. Anderson, 1 Jones, 399; Sererenge v. Dayton, 4 Wash. C. C. R. 698.

II. If the entry of the judgment confessed by Cromwell in favor of the bank (upon a docket of the court) were requisite to its validity as a judgment, and material to the power and authority of the sheriff in acting upon the levari facias, by virtue of which the mortgaged premises were sold, it being the duty of the prothonotary to make an entry of the judgment upon a docket of the court, and the rough docket of 1820 having been lost, it will, after the lapse of thirty years, be presumed in favor of the validity of the proceedings, and for the protection of purchasers at a public judicial sale; that such entry was made by the prothonotary in pursuance of his duy upon the docket now lost. Shaw v. Boyd, 12 Pa. State Rep. 216; Owen v. Simpson, 3 Watts's Rep. 88; De Haas v. Bunn, 2 Barr, 338-9; Demarest v. Wynkoop, 3 Johns. Ch. Rep. 129, 146; 2 Peters, 162, 168.

III. The amendment made by the prothonotary, in the case of the Bank of Pittsburg v. Thomas Cromwell, No. 136, August term, 1820, by order of the court, on the 14th day of December, A. D. 1835, in the words and figures following, to wit,--

'September 13th, 1820, judgment confessed per writing filed, signed by defendant for the sum of twenty-one thousand seven hundred and forty dollars and forty cents, besides costs of suit a release of all errors, without stay of execution, and that the plaintiff shall have execution by levari facias by November term, 1820.

H. H. PETERSON, Prothonotary.'

-was the legitimate exercise of an undoubted discretionary power, vested in the court, and is not the subject of revision in the Supreme Court of Pennsylvania, nor can its validity be properly questioned collaterally in the courts of the United States. Mara v. Quin, 6 Term Rep. 1, 6, 7; Murray v. Cooper, 6 S. & R. 126-7; Ordroneaux v. Prady, 6 S. & R. 510; Marine Insurance Co. v. Hodgson, 6 Cranch, 217; Griffeth v. Ogle, 1 Binney, 172-3; 1 Burrow's Rep. 148, 226; Owen v. Simpson, 3 Watts, 87, 88, 89; Maus v. Maus, 5 Watts, 319; De Haas v. Bunn, 2 Barr, 335-9; Rhoads v. Commonwealth, 3 Harris, 273, 276-7; Strickler v. Overton, 3 Barr, 323; Clymer v. Thomas, 7 S. & R. 178, 180; Chirac v. Reimcker, 11 Wheaton, 302; Hamilton v. Hamilton, 4 Barr, 193; Latshaw v. Steinman, 11 S. & R. 357-8.

IV. The exhibit marked 'B,' filed with complainants' bill, and prayed to be taken as a part of said bill, shows (page 9 of the record) a judgment in the case of the Bank of Pittsburg v. Cromwell, entered the 13th of September, 1820, for the sum of $21,740.40, which fully authorized the levari facias and subsequent proceedings, estops the complainants from controverting its verity or validity, and is, in this proceeding, conclusive upon the rights of the parties. Rhoads v. Commonwealth, 3 Harris, 273, 276-7; Strickler v. Overton, 3 Barr, 325; ''Marine Ins. Co. v. Hodgson, 6 Cranch, 217; Chirac v. Reimcker, 11 Wheaton, 302; United States v. Nourse, 9 Peters, 8-28; Voorhees v. Bank of the United States, 10 Peters, 450, 478; Elliott v. Piersol, 1 Peters, 329, 340; Thompson v. Tolmie, 2 Peters, 157; Clymer v. Thomas, 7 S. & R. 178; Levy v. Union Canal Co. 5 Watts's Rep. 105; Hauer's Appeal, 5 W. & S. 275; Drexel's Appeal, 6 Barr, 272; Davidson v. Thornton,'' 7 Barr, 131.

The amendment cannot be collaterally impeached, though no notice is given to defendant. Robinson v. Zollinger, 9 Watts, 170; Tarbox v. Hays, 6 Ib. 398.

V. The complainants are, in equity, estopped from having the relief prayed in their bill, by the appearance of Thomas Cromwell before the prothonotary of Alleghany county, on the 13th of September, 1820, and confessing judgment before that officer in favor of the Bank of Pittsburg for the sum of $21,740.40, besides costs, with a release of all errors, without stay of execution, and that plaintiff (the Bank of Pittsburg) have execution by levari facias to November term, 1820-by the entry signed by him (page 16 of the record) on the levari facias which recites a valid judgment warranting the sale of the mortgaged premises commanded by said writ-by his subsequent acquiescence, for the period of thirty years, in the sale, without objection or complaint, especially after the expenditure of immense sums in improvement, and a great consequent enhancement in the value of the property. Dezell v. Odell, 3 Hill, 215-219; 6 Adolphus & Ellis, 475; 33 Eng. Com. Law, 117; 10 Adolphus & Ellis, 90; 37 Eng. Com. Law, 58; Hamilton v. Hamilton, 4 Barr, 193; Robinson v. Justice, 2 Penn. Rep. 22; Epley v. Withero, 7 Watts, 163; Carr v. Wallace, 7 Ib. 400; 10 Barr, 530; 1 Story's Eq. Jur. § 387.

VI. The bank, and those claiming under it, having held the possession of the mortgaged premises for a period exceeding thirty years, without account for rents, issues and profits-without claim for such account by the mortgagor-without admission by the bank during that entire period, that it possessed a mortgage title only,-the mortgagor and those claiming under him have lost the right of redemption and claim to account, and the title of the mortgagee and those claiming under the mortgagee has become absolute in equity, whether the bank entered as mortgagee or vendee. 2 Story's Equity Jurisprudence, §§ 1028 a, 1520, and authorities there cited. Moore v. Cable, 1 Johns. Ch. Rep. 320; Hughes v. Edwards, 9 Wheaton's Rep. 489, 497-8; Dexter v. Arnold, 1 Sumner's C. C. Rep. 109; Rafferty v. King, 1 Keen, 602, 609-10, 616-17; Demarest v. Wynkoop, 3 Johns. Ch. Rep. 135; Story's Equity Pleading, 757; Strimpler v. Roberts, 6 Harris, 302; Elmendorf v. Taylor, 10 Wheaton, 168; Underwood v. Lord Courtown, 2 Scho. & Lef. 71; Dikeman v. Parish, 6 Barr, 211; 1 Powell on Mortg. 362 a, n. 1.

Mr. Justice McLEAN delivered the opinion of the court.