•km c / y 4M' fi^ #ir. Olnrupll Cam ^rijnnl Hibrarii Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024705380 LAW OF LIENS VOLUME ONE. THE . Cornetl University Ubrary KFP 176.L5T82 V.1 Law of liens in Pennsylvania / 3 1924 024 705 380 LAW OF LIENS IN PENNSYLVANIA. WILLIAM TEICKETT. IN TWO VOLUMES. VOL. L JERSEY CITY, N. J.: Frederick: d. linn & co. 1882. 76731 Entered according to Act of Congress, in the year 1882, by FKEDEEICK D. LINN & CO., In the office of the Librarian of Congress, at Washington. J. L. MTJBPHY, PRINTER, TBHNTON, N. J. TO WILBUR F. SADLEE, Esq., OF THB CtTMBEBLAND COUNTY BAR, IN EECOGNITION OF HIS EMINENT ABILITIES, HIS HIGH CHAEACTEB, AND HIS TJNE AILING- EBIENDSHIP, THIS WOEK IS EESPECTEULLY DEDICATED, PREFACE. By lien is meant generally, the right of a creditor to limit in some way the owner's enjoyment, or to determine his ownership, of a thing, as a means of enforcing payment of the debt. Of the kinds of liens recognized in the law of Pennsylvania, the following will be a suffi- -cient classification : I. The right to detain a chattel or land, from the possession of the owner, until a debt is discharged. The right of a tailor to keep the ooat which he has made from his customer's cloth, until his charges are paid, is such a lien. It is, at common law, a right of detention, not of sale. It presupposes possession of the chattel acquired by the consent of the owner; it cannot begin in a forcible or involuntary dispossession of the owner, by the person asserting it. The right of detention may exist abstracted from every other right than such as is reasonably incident to detention, or it may be a part merely of the larger right to use and enjoy the subject of the lien according to its physical capabilities for a limited time. The tailor may, at common law, hold the coat, as a means of coercing the cus- tomer to pay him for making it, but he cannot wear it until he Te-imburses himself. On the other hand, it is competent for the owner of a wagon, or horse or other chattel, to mortgage it in such terms as will permit the mortgagee to use it, and, in using it, to recompense himself, in whole or in part, for the debt for which it is mortgaged. Mortgages of land usually confer on the mortgagee this power. Either before or after breach of the stipulation for repay- ment of the debt, he may take possession of the premises, collect the rents or take the profits thereof, and apply them to his debt. A simi- lar power is enjoyed by a judgment creditor, when, execution having (viij' "VIU PREFACE. been levied on the defendant's land, the inquisition finds that its rents and profits are sufficient, beyond all reprises, in seven years to satisfy the judgment, and it is " extended." II. Lien, as a right to detain, may be modified by addition to it of the right to sell under certain limitations. The innkeeper's right to detain a horse left with him for keep, for example, has been enlarged, by statute, to include a power to sell it (§ 753). The mortgagee of chattels may have a right of sale prescribed in the instrument, and mortgages of land carry with them a statutory power of sale in a designated method. On joint stock companies the law occasionally confers a right to refuse to transfer stock, (of which, by the regulation requiring assignment on their books, they are made gwasi-custodians,) and, in addition, the right to sell the stock by execution or otherwise, for the satisfaction of debts due from stockholders to them. Akin to this lien of a joint stock company upon stock, is the right of a bank to detain a deposit and apply it to any indebtedness of the depositor to it. Since the deposit is in money, a sale is unnecessary ; the deposit can be directly applied to the debt. III. Lien, as a right to detain, may also be modified by the addi- tion of the right to take possession of the thing domino nolente : e. g., if a chattel mortgage should confer on the mortgagee authority to take the thing mortgaged from the mortgagor, on his breach of the stipulations. The right, however, to dispossess the owner, is usually incident to the exercise of the power of sale. Well-known excep- tions are, the possession taken by the judgment-creditor under an extent, and by a mortgagee by means of the iaction of ejectment. IV. Of some liens, the right of sale is the characteristic element. The sale is a means of satisfying the debt, to which its product is applied, and the creditor's right to make sale does not cease with the owner's transfer of his title to another. If the lien arises, e. g.^ from the recovery of a judgment, a conveyance of the defendant's land after such recovery will not prescind the creditor's right to sell it again, as fully as if it remained the property of the defendant. If the coming to the sheriff's hands of a fieri facias is the point of PREFACE. IX origin of the lien, no subsequent alienation of the chattels in the county will elude the creditor's power to seize and sell them by the proper instrumentality and to apply their proceeds to his debt. But liens consisting of this power to sell, notwithstanding the debtor's conveyances or transfers, may be acquired by many creditors, to the dis- charge of all of whose debts the proceeds of the subject of the liens may bs inadequate. Liens of different creditors must either be co-ordinate, or they must be related to each other as superior and inferior. Two principles are chiefly recognized to decide the rank of liens, viz. : the order in time in which the determinant fact arises, to which the lien right attaches {qui prior est tempore, potior est jure), and the relative merit, in the eye of the law-maker, of different kinds of debts. In a vast majority of cases, the lien arising first in the order of time prevails over subsequently beginning liens. Among exceptions to this principle, are liens of certain municipalities for various kinds of assessments and liens for taxes. These claims have by statute, in several important instances, been preferred to liens in favor of indi- viduals, however anterior the latter may be in origin. A peculiar specimen of this preference of lien is that which is conferred on the landlord by the eighty-third, eighty-fourth and eighty-fifth sections of the act of 16th June, 1836, which give him a right to receive one year's rent (if so much is due) from the proceeds of goods levied in execution on the demised premises, and abridge the plaintiff's control of the execution. Though the landlord's lien arises only with the levy, it takes precedence to that of the execution under which the levy is made, and which begius with the moment the fieri facias comes to the sheriff's hands. Co-ordination of liens is, for the most part, limited to such as arise synchronously, and the unit of time arising within which liens are regarded as synchronous, for most purposes, is the civil day, of which the law will cognize no fractions. Thus, a mortgage delivered and recorded, and a judgment recovered, between two successive midnights, though at different hours, confer equal lien rights, and the proceeds of the subject of the lien are divided ratably between them. X PEEFACE. "With respect to the facts which are constitutive of liens, detailec. statement is unnecessary. Some of them happen in pais, some are juridical, some are contractual in character, others non-contractual. Among liens arising in pais are mortgages, mechanics' liens, liens of decedents' debts, liens imposed by will, etc. Liens arising from juridical events are the lien beginning with a judgment, an attach- ment, an execution, etc. Of contractual liens, mortgages are exam- ples, while, to the non-contractual class belong mechanics' liens by statute and at common law (for the lien is added by the law as an incident to the rights which are created by contract), judgments, executions, decedents' debts, recognizances, etc. In a sense it is true, however, that all liens are contractual when, at the time the contract is made, the law known to the parties annexes lien rights to the posi- tion of one of them. In that case the parties may be said to intend the rights which are known to be attributed by the law to the relation which they assume. To consider how far such rights are subject to legislative interference were irrelevant to our present aim. This book has far exceeded the limits within which it was hoped to confine it. This has been rendered unavoidable by the number of topics to be treated, and the amount of matter under each demanding discussion. In the chapters on Mechanics' Liens and the Lien of Mortgages, the whole doctrine pertaining to these two subjects, respectively, so far as developed in decisions, including what might be regarded as mere procedure, has been recorded as fully as possible. In treating liens arising from what may be termed certain juridical facts, (e. g., the rendition of judgments, the issue of executions or of attachments thereon, the inception of suits by attachment, etc.,) atten- tion has been coniined to such features of these facts as bear upon the lien which finds in them its basis. Thus, under the Lien of Judg- ments, the principles which govern the entry of judgments, the open- ing and striking off of them, their value as evidence, and by way of estoppel, the bringing of actions upon foreign judgments, etc., are excluded from consideration, except in so far as they are implicated in the attributes, the rise, the extension, the prolongation or the effect- PEEFACE. XI uatlon of the lien of judgments. In like manner executions and attachments have been regarded solely from the point of view of lien, when this was practicable. The nature of the different writs, the con- ditions under which they issue, the method of amending them, the modes in which they musi; be executed, the manner of conducting sales thereunder, are necessarily ignored, except where their discussion is essential to a complete theory of the liens of executions or of attach- ments. To have considered matters like these would have been super- fluous for a profession that is already in possession of Mr. F. C. Brightley's admirable edition of Troubat and Haly's Practice. A similar method of exclusion has been pursued in the treatment of liens arising from various sorts of attachments by which actions are begun, as also of that of municipal claims for improvements, and of taxes. But while matters of mere procedure have been pretermitted, it is believed that nothing has been lost bearing upon the constitutive facts of liens, the subjects on which they operate, their beginning and duration, the means of prolonging them in time and extending them in scope, their restriction or extinction, and, for the most part, the means for making them avajlable for the satisfaction of the debt or duty to which they are ancillary. The divesting of liens and subro- gation to liens, both important topics, have been treated in distinct chapters. This book makes no pretence to perfection. Its author, as con- scious of its faults as anybody can be, hazards its publication never- theless, because he confidently hopes it will materially assist a hard-worked profession to solve important and oft-recurring ques- tions, at once with as little expense of time and labor as possible, and with reliable accuracy. W. TEICKETT. Carlisle, Pa., August 17th, 1882. Contents of Volume I. CHAPTEK I. mechanics' liens. SECTION. PAGE. 1. How created 1 2. For what the lien exists generally 2 5. Erection and construction 3 6. New buildings which merge the old 4 7. Additions 6 8. Alterations and repaire 9 9. The nature of the work and material for which lien arises 11 10. Lien on appurtenances, but not parts of the freehold 12 11. Special parts of a building for which the lien exists 13 12. Relation of work or material to the building 15 16. For whom the lien exists 20 17. Authority of the owner necessary 20 19. delegated to contractor 21 22. Lessee or vendee as contractor 24 26. Lien of contractor 27 27. materialmen '. 28 28. workmen 29 29. What estate is bound by lien 31 33. buildings are subject to lien 35 34. Subject of the lien 36 37. Vicarious subject of lien 39 38. Commencement of lien 40 43. Duration of lien 45 44. When claim must be filed 47 50. Duration of lien after claim filed 53 62. Joint claims 55 54. Nature requisites of the claim 59 55. Naming the owner 60 56. the contractor 62 57. Stating sum due, and kind and amount of work and material 63 58. Stating time 65 61. Locality and description 69 65. Claims against married women 74 66. amendment of 75 67. Mechanics' lien docket..?. 76 68. Motions to strike off claims and demurrer 78 (xiii) xiv CONTENTS OF VOL." ONE. SECTION. PAGE. 69. The sci. fa - 79 71 proceeding on 83 72. Evidence 85 75. The judgment 89 CHAPTER II. MOBTGAGES. 76. How defined 92 77. Mortgagees, rights of, possession 93 78. what is included in 95 79. how long it continues 95 81. - under chattel mortgages 98 82. power to sell 99 84. Mortgage and assignment in trust for creditors 101 85. forms of 102 87. abnormal forms of 105 91. forms of defeasance of 108 92. absolute deed when construed to be 109 93. Evidence and to whom addressed 110 95. Mortgagor, right of redemption of. 113 96. Mortgage, subjects of 116 100. of personal property 121 102. for what may be security 124 107. usury in 129 108. attorney's commission in 130 109. recording of. 131 111. when unnecessary 134 112. actual notice of. 136 113. notice of, to purchasere under liens 136 114. to later lien creditors 137 115. of chattels, record of. 138 116. of corporations 140 117. of married women 143 120. acknowledgment of 147 122. of wife, joinder of husband in 150 123. liens of. 150 124. rank of, how afl^ected by agreement 151 125. special cases in 152 126. of purchase-money, lien of. 153 127. discharge of lien of. 155 128. payment of 157 129. effect on, of payment of stock in building association given as collateral 160 130. presumption, of payment of. 160 131. merger of. .» 161 132. satisfaction of 163 CONTENTS OF VOL. ONE. XV SECTIOM. ■ PAGE. 133. Mortgage, failure of consideration 164 136. personal liability on account of. 168 137. assignment of. 169 142. recording assignments of. 174 143. certificate of no defense of 175 144. Mortgagore, duties, rights and remedies of 176 147. remedy by sale 180 148. Mortgages, sd. fa. upon 182 149. parties 184 150. terre-tenants 186 151. when may issue 187 152. alias 188 153. proceedings 190 154. particular defenses to 191 157. evidences of 194 158. judgment upon 195 160. execution upon 198 161. courts control of. 199 162. payment and satisfaction of 200 CHAPTEE III. LIEN OP JUDGMENTS. 166. Judgments, origin of lien of 203 167. what are liens 203 171. on others liens 208 172. etFect of, entering in the diflferent courts 208 173. when inchoate, not liens 209 174. when lien of begins 210 176. relation of to other liens 212 177. for purchase money, relation of. 213 178. relation of lien of, dependent on judicial sale 215 179. what are purchase money 216 181. how affected by fraudulent conveyances 218 182. simultaneousness of 219 183. subject of lien of 221 184. against partnership real estate 222 187. against real estate 227 190. against equitable estates 230 193. what land cannot be reached by 233 194. when lien of attaches 234 196. special limitations to, lien of 237 197. territorial scope of lien of. 238 198. transfer of 240 201. duration of lien of 243 202. five years' limit to 246 204. how computed 248 XVI CONTENTS OF VOL. ONE. SECTION. PAGE. 205. Judgments, when revival of unnecessary 248 206. method of revival of 249 208. amicable revival of. 252 210. sci. /a. on, when may issue 255 211. writ of sd.fa. on 256 212. what will not prevent issuance of. 256 213. parties to 258 217. mandate of 264 218. effect of on length of lien 266 219. service of. 267 220. abandonment of 269 222. effect of on length of lien 271 223. and its effects ^ 272 226. ^ scire /ocias, pleas and defenses on 277 227. defenses to 278 230. dockets 282 231. defective registration of name in 284 232. registration otherwise defective 2S6 234. assignment of , 289 237. usury as to other creditors • 293 238. contest of lien creditors inter se and with terre-tenaTds in relation to 29 1 241. superiority to intermediate lien, effect of. 297 242. ■ payment and satisfaction of 298 245. satisfaction of by officer of court 302 CHAPTER IV. LIEN OF VERDICTS. CHAPTER V- LIEN OF DECREES IN EQUITY. CHAPTER VI. LIEN OF DEPOSIT NOTES OP INSTJEANCE. 248. Source of lien 306 249. The lien itself 306 CHAPTER VII. LIEN OF TRANSCRIPTS OF JUSTICES' JUDGMENTS. 250. When the lien attaches 309 251. "Who may make the transcript 309 252. What may be transcripted 310 253. Duration of lien 311 CONTENTS OF VOL. ONE. XVU CHAPTEK VIII. LIEN OF EXECUTIONS. SECTION. PAGE. 254. Basis of execution , 314 255. Immature judgments 315 556. Inconclusive judgments : 316 257. Special judgments , 317 258. The writ itself..., 319 260. Several executions < 320 262. When returnable 322 2f>3. Territorial scope „ 322 266. Lien of executions on personalty 323 267. Beginning of lien. : 324 269. Evidence of time of delivery of writ 325 270. What constitutes delivery 326 271. Continuance of lien oi fi.fa •. i 326 272. First levy of later writ 327 273. Sheriff's inversion of priority before return day 328 275. Levy, when can be made 330 276. when cannot 331 278. nature of. 332 283. actual seizure as to purchaser's 337 284. sheriff's return to 338 285. when paper levy valid 340 287. effect of 341 288. What impaii-s the lien of an execution 342 289. Writ issued merely for its lien 343 290. This intention communicated to sheriff. 344 291. Subsequent deviation from proper purposes 345 292. Effect of delay when occasioned by plaintiff.,..., 347 293. Private sales 348 295. Effect of revocation of improper orders 351 296. When later execution creditors consent 352 297. Abandonment of execution 353 298. Impairment of lien by act of sheriff. 354 301. Delay of sale caused by the law 357 304. Executions against partnerships 359 306. individual property of partners 361 307. partners for private debts 361 308. Effect of sheriff's sale of partnership propei-ty on joint execution 363 309. Simultaneous sales under executions against both partners 364 -310. Absence of joint interests 365 311. Special writ as against partnership effects 366 313. Lien of execution on land. 367 314. mode of levy 368 315. wlien not a lien 368 318. duration of. 370 *B XVm CONTENTS OP VOL. ONE. SECTION. PAGE. 321. Testatum writs 372 324. Executions against corporations 374 325. of justices' judgments 37& 327. duration of lien 37ft 328. effect of appeal 377 329. Leaving goods levied on with defen.dant 37T CHAPTER IX. LANDLOEd's lien ON GOODS TAKEN IN EXECUTION. 330. At common law 379' 331. Statutes relating to 379 333. Eelation of landlord and tenant 380 337. Sub-lease 383 S39. Eenewed lease 383 340. "Written and parol lease 384 341. Change of landlord 384 346. Duration of landlord's lien 387 349. On what chattels the lien exists 389 351. Ownership of goods taken in execution 391 354. When stranger's goods are not liable 393 360. Eent, what amount demandable ' 396 361. of what year ". 397 362. apportionment of 399 364. by aliening part of premises 401 365. accruing after levy not a lien 401 366. when several levies are made for 401 367. for use and occupation beginning after levy 402 368. payable in advance 403 371. sundry mattera pertaining to 405 372. need not be payable in money 406' 373. effect of landlord's notice to oflBcer 406 375. other matters effecting the lien 40S 377. costs 409. CHAPTER X. THE LIEN OF ATTACHMENTS IN EXECUTION. 378. When may issue 410 379. The judgment on which it is founded 410 380. , matters collateral thereto , 412 381. Subjects of the attachment, land 413. 382. debts 415 386. wages 42^ CONTENTS OP VOL. ONE. XIX SECTION. PAGE. 887. Subjects of the attachment, legacies and distributive shates 423 389. goods and chattels 427 390. stock 428 392. effect of assignments of. 430 394. The garnishee 433 398. money recoverable from 439 399. interest and costs 440 400. Beginning of lien of attachment 442 401. Service of writ 443 CHAPTEK XI. EXECTJTION-ATTACHMENTS BY JUSTICES OF THE PEACE. 402. Generally 444 404. Wages not liable 445 405. Attachment on transcript 446 406. The judgment 44ft CHAPTER XII. FOKEIGN ATTACHMENTS. 407. The defendant, who may be 448 408. non-residence of 450 410. when foreign attachment will not lie against 452 412. later liens against 455 413. absence from county 455 414. The plaintiff, who may be ; 455 415. Cause of action for which foreign attachment lies 457 417. What may be attached 460 419. debts not presently due 462 420. cash sales 463 421. debts extinct 463 422. interest 464 423. real estate 465 424. Property attachable considered as to its ownership 465 426. death of defendant 467 427. effect of assignment 467 429. as related to the garnishee 4S9 432. Set-off. 471 434. Beginning and duration of lien 472 438. Dissolution of attachment 475 439. Goods in possession of warehousemen, wharfingers, &c 476 440. The lien determined 477 441. Scire facias ad disprobandum debitum 478 XX CONTENTS OF VOL. ONE. SECTION. PAGE. .442. Subject of the lien 478 443. Quantum of the lien 478 444. The writ 479 445. Service of the attachment 480 CHAPTEK XIII. FOREIGN ATTACHMENTS BY JUSTICES OF THE PEACE. CHAPTEE XIV. DOMESTIC ATTACHMENTS. CHAPTEK XV. DOMESTIC ATTACHMENTS BY JUSTICES OP THE PEACE. 455. The proceeding , 488 456. Execution of the writ 489 457. The return 490 458. Subject of the lien 491 459. Origin and continuance of the lien 491 CHAPTEE XVI. ATTACHMENTS UNDER THE ACT OF MARCH 17tH, 1869. 460. Nature of lien 492 463. The affidavit 495 464. The bond 496 465. Service and subject of the attachment 49B 466. Dissolution of the attachment 497 467. Origin of the lien -. 498 46''. Proceeding to judgment 498 469. Exemption 499 470. Execution 50]_ CHAPTEE XVII. ATTACHMENT UNDER THE ACT OF APRIL 6th, 1870. LAW OF liens; CHAPTEE I. mechanics' liens. § 1. Mechanics' liens on real estate are purely the creature of statutory law, and cannot be maintained bej'^ond the extent of the grant of some act of assembly.^ For Avhat the Lien Exists. § 2. Under the first section of the act of 16tli June, 1836, [P.- L. 696,] this lien is for the payment of all debts con- tracted for work done or material furnished for or about the erection or construction of buildings. The lien arises, though the debt thus contracted was to be partly paid in merchan- dise.^ If A. agrees with B. to furnish bricks at so much per thousand, his bill to be partly paid in cash, and the rest in lumber at fair prices, by B., and B. becomes insolvent before A. calls for the lumber, A. has a lien for his entire bill.'* "When A. is to be paid by the conveyance of a house fr^e from encumbrance, he may file a lien if the house, when offered, is encumbered.* The mechanic who is employed to ■erect a house, may include in his lien the wages per diem, and the boarding of his journeymen, when the boarding is a part of the compensation for their work.^ A., a plasterer, and B., a carpenter, erecting each a house for himself, agreed, A. to do the plastering on B.'s house, and B. the carpenter- ing on A.'s, the balance to be paid in cash by the party found to be in arrears on striking an account. A. had a ' Tilford V. Wallace, 3 W. 141 ; Reed ^ Hinchman v. Lybrand, 14 Serg. & V. Kenney, 4 W. N. 0. 450 ; Bolton v. E. 32. Johns, 5 Pa. St. 149. *Haviland v. Pratt, 1 Phila. 364. ^ Campbell v. Scaife, 1 Phila. 187. ^ Lybrandt v. Eberly, 36 Pa. St. 347. 2 LAW OF LIENS. lien for the excess of the value of his work for B. over that of B.'s for him, though no account was struck.^ § 3. Taking a promissory note for the debt,^ though under seal,'' or obtaining a judgment in a personal action against the contractor,* will not preclude a lien for the debt, unless the note or judgment was intended to be an extinguishment of the lien.' Giving credit will not impair the lien," though a sci. fa. on the claim cannot issue until the term of credit has expired.' If the materialman accept a time note from the contractor, binding himself to wait until its maturity, the building, which is mere surety to the contractor, is dis- charged.* When A. furnishes bricks to B., owner and builder, on C.'s guarantee of payment, A.'s lien is not im- paired.^ If the contractor, receiving in payment bonds pur- porting to be first mortgage bonds, negotiates them, he is estopped from asserting a lien against the holders of them, or against a stranger who guaranteed them as such.^° § 4. Under the act of May 1st, 1861, [P. L. 560,] which gives a lien for alterations and repairs in several counties, the debts for which such lien is given must not be less than I^O. The act of August 1st, 1868, [P. L. 1168,] gives in such case, in the city of Philadelphia, a lien for debts not less than $50. If a joint claim for $66.72 is filed against- two contiguous houses in that city, belonging to the same person, for alterations, and is apportioned equally between 'McCall V. Eastwick, 2 M. 45. Thompson, 2 Br. 297; Crean il JSrc- 'Bassett v. Baird, So Pa. St. 384; Fee, 2 M. 214. Streeper v. McKee, 6 W. K. C. 169; ^ Jones v. Shawan, 4 W. & S. 257. Diller v. Burger, 68 Pa. St. 432 ; Odd "Bassett v. Baird, 85 Pa. St. 384. Fellows' Hall v. Masser, 24 Pa. St. 'Campbell v. Scaife, 1 Phila. 187; 507; Herron v. Graham, 3 W. N. C. Barclay v. Wainwright, 86 Pa. St. 91. 176; Fisher r. Bush, 71 Pa. St. 40; 'Hill v. Witmer, 2 Phila. 168. Johns V. Bolton, 12 Pa. St. 339. "Hinchman r. Lybrand, 14 Serg. ' Kinsley v. Buchanan, 5 W. 118. & R. ,32. * Powell V. Wyoming Valley Man. i" Green's Appeal, 10 W. N. C. 73. Co., 8 W. N. C. 293; In re John MECHANICS LIENS. 3 them, the lien will be stricken off.' But a claim for |37.23, accruing in the erection of a building, is valid.^ The act of 28th June, 1879, [P. L. 182,] gives a lien for alterations and repairs in all counties whose population does not exceed two hundred thousand, to which the act of 1836, and its supplements, are applicable, for debts not less than $50. Erection and Construction. § 5. Under the act of 1836, the debt for which a lien ex- ists, is for labor or material furnished, for or about the erec- tion or construction of a building. For material or labor furnisljed in the alteration and repair of buildings, much later statutes first made provision, e. g. the act of May 1st, 1861, [P. L. 650,] applicable to Chester, Delaware and Berks counties only, and extended to many other counties by sev- eral succeeding acts. The act of August 1st, 1868, [P. L. 1168,] gave a lien for the labor or material furnished in the repair, alteration, or addition to any house or other building in Philadelphia.^ The distinction, however difficult to make, must be observed, therefore, between erection and construction on one hand, and alteration and repair on the other. When a building is erected on a site where there has been no pre- vious structure, no such question can arise. But when build- ings already existing undergo modification, it is indispensable to determine whether the modification is itself a construction or erection of a building, or a mere alteration and repair of the old one. When the facts are ascertained or undisputed, it is, in a trial by jury, the function of the court to decide whether any changes in a building constitute a new erection or merely an alteration of the old.* The change in the form, size and composition of the old building may be so thorough, iStefFy V. Frost, 3 W. N. C. 409. [P. L. 182,] for lien for iilterations ^Hallowell v. Masse)', 2 W. N. C. and repairs. 644. * Norris' Appeal, 30 Pa. St. 122, per •^Sce, also, act of 28th June, 1879, Sharswood, P. J.; Hunger v. Silsbee, 64 Pa. St. 454. 4 LAW or LIENS. that the court will be justified in telling the jury that there is an erection and construction, not an alteration and repair,^ or the amount of change imported into a building may be so much less, as to leave it doubtful whether the building is to be regarded an old one altered, or a new one built. In this case, the jury must determine.^ In cases of distribution, the auditor and the court may decide all questions incidentally arising concerning the validity of the lien," or an issue may be awarded.* Ne^w Buildings ■vs/'hiehi Merge the Old. § 6. When the structure of a building is so comipletely changed that, in common parlance, it may be properly called a new building, or a rebuilding,^ or there is such entire change of the external appearance as denotes a different building from the former,^ or there is a substantial addition of material parts, a rebuilding on another and larger scale,'' the process is an erection or construction of a building in the sense of the act of 1836. Beside a one-story house, a two-story house was erected, into which, on its completion, the family occupying the former, moved. From the former house the weather-boarding was then stripped off, the roof removed, a second story added to the height of the new house; a roof was put 6n, continuous with that of the new house ; interior communications between both were made ; a porch was put around the joint structure. This was substan- tially an erection of a building.* So, in the following cases : Under a contract to make "additions and alterations," the roof of a one-story brick church was taken off, the front 1 Armstrong i;. Ware, 20 Pa. St. 519; Burling's Estate, 1 Ash. 377; Hill's Furman v. Masson, 6 Phil. 222. Estate, 2 CI. 96. 2 Armstrong v. Ware, 20 Pa. St. "Miller v. Hershey, 59 Pa. St. 64. 519. Mere change of the purpose of a ^ilSrorris' Appeal, 30 Pa. St. 122. building does not, with slight altera- *Diller v. Burger, 68 Pa. St. 432. tions, make it a new building. "Armstrong v. Ware, 20 Pa. St. ' Driesbach r. Keller, 2 Pa. St. 79. 519; Olympic Theatre, 2 Brown 275; ^Driesbach v. Keller, 2 Pa. St. 77. mechanics' liens. 5 ■wall, including the foundation, was entirely removed, the back and side walls taken down to about nine feet of the ground, the side walls were lengthened eleven feet, with new foundations for the extensions, new window frames and doors were inserted, the building was carried up eleven feet higher than the old one. A basement was made, and a gallery, the old church having neither. The exterior was plastered, and entirely different from that of the former building.^ A building, partly brick and partly frame, was removed to another lot, and a cellar was then dug under it, and walled up, a new chimney was built, and the structure was newly weather-boarded and plastered.^ A large build- ing, devised for a public storehouse during the French war, was long afterwards sold to seven persons, six of whom made of it, for themselves, six dwelling houses, by taking out all the old wood work, except' the joists and the roof, tearing down the front brick wall, running up brick division walls and front walls, making new windows and doors, building chimneys, dividing the cellars into apartments for kitchens and dining-rooms. These were six separate erections.^ An old brick building in Philadelphia was entirely removed, ex- cept the western party wall and part of the foundation. The bricks were used in erecting a new building, suited to the dry goods business ; the front being made of pressed brick, and finished in an ornamental manner. Gas pipes and flues were introduced.* The rear wall of a theatre was removed, its side walls lengthened twenty feet, a new rear wall was then put up and a stage covering the additional area, and reaching forward into the old, was constructed.® At the corner of A. and B. streets, stood a three-story house, with back buildings facing on ' Armstrong v. Ware, 20 Pa. St. 519. alteration, repairing of and improve- ^ Burling's Estate, 1 Ash. 377. ment," was, as respects all after the ^ Gilbert Hall's Estate, 2 CI. 96. word construction, treated as sur- * Fisher v. Eush, 71 Pa. St. 40. A plusage. statement in the claim that the lien ^ Olympic Theatre, 2 Brown 275. was for the "erection, construction, 6 LAW OF LIENS, B. street, partly of two and partly of one story. On A. street, a two-story wing adjoined the main building. After a fire, this establishment was enlarged and modified ; the one-story rear building was torn down and re-erected on the same foun- dation to two stories; and the two-story wing on A. street was also rebuilt. Part of the old floors remained, and the family continued to occupy the main building and use it as a hotel, during the improvements. A part of the main building and of the new structure on B. street, were thrown together into a dining-room, two other apartments on B. street were made into stores. The first story of the wing on A. street was formed into a private entrance to the hotel, a cigar store, a barber shop, and a passage and stairway to the second story. The second stories of the new buildings were divided into sleeping apartments for guests of the hotel. For the work and material furnished, a lien attached to the entire building.-^ Additions. § 7. Different from changes in the old building, which transform it into a new building, is an addition which does not merge its identity, but which, though intimately con- nected with it, forms a new and separate erection. When, to the rear of a two-storied brick house, a oiie-storied kitchen was built, a lien arose, attaching to the whole.^ So, when to the side of a brick hotel, a three-storied addition was erected, whose front was forty feet back from the street on which the main building fronted, and on every story were communica- tions between the two parts of the one building thus made.^ To the side of a building, and for the purpose of enlarging it, an addition was put up, seventeen feet in front and run- ning back to the rear of its main portion ; the side of the 1 Nelson u Campbell, 28 Pa. St. 156. ^Lightfoot v. Krug, 35 Pa. St. Of this case, Agnew, J., says, in Diller 348. V. Burger, 68 Pa. St. 432, " It can ^ Pretz & Gausler's Appeal, 35 Pa. scarcely become a precedent for an- St. 349. other case." MECHANICS LIENS. 7 old building forming one of the walls of the addition. Many changes were simultaneously made in the old portion. For the erection of the addition, a lien arose, binding the entire structure, but not for the alterations in the the old part.'^ Before a building to be used for the making of saws by hand, was completed, its owner, designing to make them by steam, changed his plan, and caused an engine house, with a costly steam engine, and several other buildings additional to those originally contracted for, to be erected, at a cost greatly in excess of that of the building originally designed. From these supplemental erections, liens arose, covering the entire establishment.- A kitchen erected ten feet in the rear of the main building, will give rise to liens covering not only itself, but the principal dwelling house to which it is appurtenant.^ The owner of a long-used furnace, planned an improvement which embraced the erection of an additional furnace, new boilers, smoke stack and engine. The foundation of the new engine was of solid masonry, ten feet square, and six feet deep; the house enclosing it, standing ninety-three feet from the old furnace, was weather-boarded, furnished with win- dows, covered by a comb roof, and thirty-five feet high. The boiler house was built some distance from the furnace, and forty-two feet from the boiler stack. The stone founda- tions of the boiler were seven walls, sixty-seven feet long, eighteen inches thick, three feet high. On them, brick walls were built to the height of six feet, so as to enclose the boilers. A frame building was then put over them, to protect the boilers ; was supported by posts set in stones outside the boiler walls, strengthened by girders, plates, rafters, and weather-boarded from the eaves down to the brick wall. The iron boiler stack, ninety feet high, ten Harman v. Cummings, 43 Pa. St. These liens, however, related onl'y to o22; Corap. Miller -u. Hershey, 59 Pa. the commencement of work under St. (34 ; Landis' Appeal, 10 Pa. St. fhe enlarged plan. 879, 'Hershey v. Shenk, 68 Pa. St. 382; ''Norris' Appeal, 30 Pa. St. 122. Conim, Kand r. Mann, 3 Phil. 429. 8 LAW OF LIENS. and one-half in diameter, was built on a stone foundation, twenty feet square, deeply sunk in the ground, and raised ten feet above the surface. The engine and boiler houses were connected with the furnace by blast pipes and flues. These additions formed, with the old furnace, one establish- ment, to the whole of which, for their erection, liens attached.^ Iron works had been in operation ten years, when it became necessary to replace the old boilers. Six new ones were placed thirty feet in the rear of the old building, while the old boilers had been within it. After their completion, a frame building to cover them was erected, resting on stone foundations. They were connected with the engines, which continued in the old building, by pipes which conducted the steam to them overhead. For the boilers and boiler house, liens arose ; they, however, did not attach to the old struc- ture, which was a different building.^ A lien arises for the erection of a barn on a farm, but attaches only to the barn itself and the ground directly necessary to its use.^ When, after the completion of a brewery, it was found necessary, owing to certain defects revealed in its use, to build a new brewery to the end of the first, with a separate vault, but this additional building was connected with the first by machinery used in the process of brewing ; for the erection of the additional building, liens arose, but they did not attach to the original brewery.* A large mansion was trans- formed into a hotel, and in the same curtilage a new concert- hall was erected, to be used in connection with the former building. The lien for the erection, as well as for the alter- ations, under the special act of Assembly conferring a lien therefor, attached to both hotel and hall.' ' Parrish & Hazard's Appeal, 83 Pa. ^ VVerth v. Werth, 2 Rawle 152. St. 111. "Diller v. Burger, 68 Pa. St. 432. ^Wharton v. Douglass, 92 Pa. St. A dictum. 66. A claim filed against the whole '^ Moore v. Forrest Mansion Hotel establishment was void. Co., 3 W. N. C. 289. mechanics' liens. 9 Alterations and Repairs. § 8. As we have seen, no lien is conferred by the act of 1836 for labor or material furnished in the alteration and repair of buildings.^ The changes described in the follow- ing cases have been decided to be mere alterations : A frame building, furnished so far as to be occupied for a residence, was raised, and a basement story of stone put under it. The basement had not been in the contemplation of the builder as part of the plan of the house.^ Yet, where a building was first constructed of frame-work, and afterwards raised on props, and a cellar dug under it and walled, and a brick chimney built in it, it was rightly held that, for this altera- tion, there was a lien relating to its commencement.'^ Of an old-fashioned two-story house, with a pentroof, formed by the projection of joists of the second story, the roof was propped up, the front wall taken down and rebuilt on a new foundation, outside and adjoining the old foundation, which was left standing. The old rafters were spliced, a new roof put on, with new dormer windows. Nearly all the parti- tions in the house were altered, and, except the floors, all the inside work was taken out. The chimneys below the garret floor were taken down. New doorways and windows were cut ; new work put in the old doors and windows. The back and side walls, the floors and the foundations of the old house remained. Adjoining the house a new two-story back building was erected, without a cellar, and new outhouses. During these changes the family removed from the prem- ises.* Windows in a house were taken out, and larger ones put in, on two sides ; new doors were cut between it and a iDriesbachr. Keller, 2 Pa. St. 77 ; *Landis' Appeal, 10 Pa. St. 379. Harman v. Cumraings, 43 Pa. St. The claims were invalid. Some of 322; Olympic Theatre, 2 Brown 275; them did not distinguish between Miller v. Hershey, 59 Pa. St. 64; the work done in the new part Perigo V. Vanhorn, 2 M. 359. and that in the old. The othera ^Milleri'. Oliver, 8 W. 514. were apportioned between both 'Stevenson v. Stonehill, 5 Whart. parts. 304, dictum of Huston, J. 10 LAW OP LIENS. new additional side building; a porch at the rear was raised from one story to two stories, stairs were put up, and a par- tition at the hea^ of them ; a door in a partition was moved, and a cupboard made where it had been. The floor, parti- tions, plastering — the internal arrangements generally — re- mained the same, and the house continued to be occupied during the alterations.^ Changes in a theatre, by putting in three new flights of stairs, putting in new fronts to several boxes, rounding the columns, originally square (but with- out removing them), which supported the boxes, galleries and dome, taking out certain columns near where the stage, newly constructed, was, and securing the dome, which had been supported by them, to the roof.^ A frame saw mill, driven by water power for a number of years, was turned into a steam mill : an engine was constructed and put up, with the necessary fixtures. The exterior of the building was unchanged, except by the erection of a shed to cover the boilers, which, with the smoke stack, were put outside the mill. All the old machinery wfis removed.^ An old fulling mill was transformed into a grist mill, by the erec- tion of a new water house of stone and frame, as high as the second story of the mill, into which the machinery was put ; the roof of the old building received new shingles on the old rafters, and two new floors ; in the lower story, new joists.* The entire front of a house was torn down ; it was raised from a two-story pitch roof to a three-sto;-y flat roof; the side walls were made to conform; a new roof was put on. The back buildings were raised one story, and a bath house was added.'^ The front and the back wall of a three-story ^Harman v. Cummings, 43 Pa. St. * Miller v. Hershey, 59 Pa. St. 64. 322. A lien was had for the erection There was no lien for the new roof of the addition, but not for the alter- and other alterations in the old ations. building, but might have been for 'Olympic Theatre, 2 Br. 275. the new building. 'Summerville v. Wann, 37 Pa. St. ^Furman v. Mnsson, 6 Pliila. 222, 182. per Sharswood, P. J. mechanics' liens. 11 house were taken down to the ceiling of the first story, and built up anew of brick, on girders, four stories ; new window frames and sash and new chimneys were put in ; the stairway was taken out, four large door frames were put in the rear face, one in each story ; the partitions were entirely torn out ; the fourth and fifth stories were entirely new. A rear build- ing, three stories high, was raised to four stories. A con- nection between the fi'ont and back buildings, one story high, was raised to five stories.^ Under the act of May 1st, 1861, which confers a lien for alterations and repairs, the following was treated as an alteration : On a lot at the inter- section of two streets, stood a house with back buildings, and diagonally opposite, a stable. The back buildings of the house were heightened, the stable was moved forward on a line with their face, but at some distance in their rear, and was connected with them by their second stories ; the back buildings and the stable were then converted into four small dwelling houses.^ Nature of the Work and Material for which Lien Arises. § 9. An architect has no lien for merely drawing plans and specifications for the building,'' though he visits the site of the building before its commencement to explain the draw- ings to the mechanics ;* it is otherwise if he is employed to be on the ground during the erection of the building, to make designs for every part, to direct the execution of the same by the various mechanics, to examine the material em- ployed, to advise with the owner of the building in contract- ing for every portion of the work or materials, to examine all accounts, etc." If the architect is the owner of a patented machine for hoisting and dumping coal, he has a lien not only for his services as architect, in supervising the construc- ' Perigo V. Vanhorn, 2 M. 359. ' Rush i;. Able, 90 Pa. St. 153. ^Bunting's Appeal, 6 W. N. C. 12. 'Price v. Kirk, 90 Pa. St. 47. The lien was postponed, becau.se the ^Bank of Pennsylvania v. Griea, claim was not apportioned. 35 Pa. St. 423. 12 LAW OF LIENS. tion of such a machine, but also for the use of his patent, when a specific agreement has been made with him for a certain sum as compensation for both.^ One employed by the owner to hoist materials used in the erection of a build- ing, by a derrick,^ or a teamster who hauls lumber used in a building, or takes away clay dug from the cellar, has a lien;* and the materialman who delivers lime, brick, lumber, etc., by his carter, may properly include the cartage in his claim.* The act of August 1st, 1868, [P. L. 1169,] gives a lien, in Philadelphia, for measurement and valuation of work done and material furnished in the erection, alteration or repair of buildings, or additions to them.* The act of 11th April, 1866, gives a lien for propping timber for raining purposes, upon the personal property on the premises. This provision, however, does not extend to Schuylkill county.* Appurtenances, but not Parts of the Freehold. § 10. Under the act of 1836, a lien on the freehold accrues for machinery affixed to and made a part of it in the pro- cess of its construction. The act of 21st April, 1856, [P. L. 496,] extends the provisions of this law to every steam engine, coal-breaker, or part thereof, pump gearing, hoisting gearing, fixture or machinery, in or about mills of any kind, iron or coal works, coal mines and iron mines. Under this act the lien is not upon the machinery, as such, but upon the freehold." It arises only when the machinery, though not made a part of the freehold, is introduced into the build- ing, or otherwise connected with it, during the erection of the building. If a saw mill, heretofore run by water power, is transmuted into a steam mill, by means of a boiler and engine placed outside of the original building, and covered ^St. Clair Coal Co. v. Martz, 75 Pa. ^Phila. Trust Co. r. Oakdale Coal St. 384. Co. C. P. of Schuylkill county, 1874, 'Tizzard v. Hughes, 3 Phila. 261. report of Hon. E. O. Parry, auditor. " Hill V. Xewman, 38 Pa. St. 151. "Summerville v. Wann, 37 Pa. St. * Gam on v. Loughery, 1 W. JT. C. 182. 195. mechanics' liexs. 13 by a shed, and of a smoke stack, and the removal of the old machinery, but the exterior of the old building remains unchanged, this constitutes a mere alteration or repair of the saw mill, and no lien arises for the boiler and machinery.^ To increase the power of an iron furnace, its owners con- tracted with A. for boilers, with B. for an engine, and with C. for a boiler stack, at the same time. The engine rested on solid masonry, enclosed in a frame building, weather- boarded, with windows, covered by a comb-roof thirty-five feet high, situate ninety-five feet from the furnace. Forty- two feet from it w^ere the boilers, resting on seven walls nearly two feet thick, sixty-seven feet long, and from two to three and one-half feet high. They were covered with a frame building, supported by posts on stones outside the boiler walls, strengthened by girders, plates and rafters ; weather- boarded; roofed. The stack, ninety feet high, ten and one- half feet in diameter, rested on a stone foundation twenty feet square, sunk deeply in the ground and raised ten feet above the surface. For the machinery placed in and on these structures, and for these structures themseivps, a lien extended to the entire iron works.^ Special Parts of a Building for -whieh the Lien Exists. § 11. Paper-banging is included in the erection of a house,^ a staircase,* plumbing, gas-fitting and furnishing, and erection of grates and furnaces,^ but not chandeliers, pendants, side brackets, lava-tips or burners, glass or porce- lain globes. Gas fixtures such as these do not become part of the freehold.^ A permanent stage in a theatre is a part 'Sunimervillei'.Wann,37Pa.St.l82. 'Freeman v. Gilpin, 1 Phila. 23; ^Parrish's Appeal, 83 Pa. St. 111. Act of 24th March, 1849, [P. L. 675.] This would have been the case, how- *Tack v. Brady, 2 W. N. C. 426. ever, independently of the act of 1856. ^Act of 14th April, 1855, [P. L. The engine house, boiler house and 238.] stack were buildings erected, for *Jarechi r. Philharmonic Society, which, as appurtenant to the fur- 79 Pa. St. 403 ; Marshall v. Kaighn, nace, a lien would attach to the en- 2 W. N. C. 426 ; Comp. Vaughen v. tire establishment. Haldeman, 33 Pa. St. 522. 14 LAW OF LIENS. of the freehold, and a lien for its construction arises, but not movable scenery and flying stages.^ Burr millstones, fur- nished as a part of the machinery of a mill, in its erection;^ castings to be used in a steam engine set up in a saw mill;* a copper brew kettle, set up in brick work,* or other machinery in a brewery which is being erected,'' are sources of lien upon the realty. Generally all machinery and fix- tures made a part of the freehold in the erection of a build- ing for some particular use, are not only subject to, but sources of, a mechanics' lien for the labor bestowed on them, or the material consumed in their making." A pavement before the house, is so related to it, that if, in a general con- tract to furnish all the bricks and stone work for the house, the pavement is also mentioned, a lien will exist for the material and labor employed in the paving.' If a vault is included in the plan of a house to be erected, and shelves are usual in such vaults, a lien exists for the lumber used in such shelving.^ When a building to be used as a dry-goods store is erected, shelving is necessary to complete it, and a lien therefor exists, although there was one contract for the house, to be paid for according to its reasonable worth, and another for the counters and shelves, at a specified sum." Walls or curbing around the basement windows of a church, if necessary to the completion of the contract for the erec- tion of the church, may give rise to a lien on it.^" If the plan on which a contract was made to erect a building has been fully carried out, but the contractor, without any ^Olympic Theatre, 2 Brown 275. 'Yearsley v. Flanigaii, 22 Pa. St. ^ Wademan v. Thorp, 5 W. 115. 489; Webster v. Wakeling, 2 W. N. ^Morgan v. Arthurs & Co., 3 W. C. 111. Otherwise, if nothing is said 140. of it in the contract. Church v. Al- *Gray v. Holdship, 17 Serg. & R. lison, 10 Pa. St. 413. 413. Thekettle, as part of the realty, ^Harker v. Conrad, 12 Serg. & R. is subject to the hen. 301.. * Diller v. Burger, 68 Pa. St. 432. « Smaltz i;. Hagy, 4 Phila. 99. ^ Summerville v. Wann, 37 Pa. St. " Presbyterian Church v. Allison, 182 ; Parrish's Appeal, 83 Pa. St. Ill ; 10 Pa. St. 413. Comp. Schenck v. Uber, 81 Pa. St. 31. mechanics' liens. 15 new arrangement with the owner, makes slight additions, the materialman who furnishes the material for these additions has a lien therefor, which will be valid against the owner.^ A lien arises in favor of a paper hanger, for jDapering a house, as a part of the process of its construction;'^ but when, though the plan did not provide for it, some of the rooms were papered, the paper hanger had no lien as against a mortgagee whose mortgage was executed before the paper- ing was done.^ A lien arises for marble mantels put in a house during its building.* Relation of Work or Material to the Building. § 12. The act of 1836 gives the lien for work done or materials furnished for or about the erection or construction of a building, and that of May 1st, 1861, [P. L. 550,] of August 1st, 1868, [P. L. 1168,] and many others, extends it to work done or materials furnished "for or about the repair, alteration of or addition to any house or other build- ing." The labor or material must be intended and expected, by the party furnishing it, to be applied to the erection or repair and alteration of the building against which a lien on account of it, is asserted. Hence, the material or labor must be of such nature as to be reasonably adapted to the produc- tion of a building of the class contracted for. The work- man or materialman must inquire after the general character of the building, whether it is brick or frame, of one or three stories, large or small. For material largely in excess of what could be needed in a building such as is to be erected, no lien arises. It is otherwise with a slight excess.^ That boards furnished are of a quality inferior to that which the contractor has agreed to use, does not prevent a lien for them, this agreement being unknown to the lumber mer- 'Harker v. Conrad, 12. Serg. & R. *Derrickson v. Nagle, 2 Phila. 120. 301. 5 Harlan v. Band, 27 Pa. St. 511; ''Bolton's Appeal, 3 Grant 204. Dickinson College v. Church, 1 W. » McCree v. Campion, 6 Phila. 9. & S. 462 ; Boyd v. Mole, 9 Phila. 118. 16 LAW OF LIENS. chant, and the boards being of such a character as to justify their use in the construction of similar buildings generally/ Por a heater put in a building by the maker, by agreement with the builder that if found not to answer its purpose, it must be removed, and for this reason, in fact removed sub- sequently, no lien can arise in favor of its maker, or of per- sons employed by him to put it in.^ Nor is there any lien for a patent elevator put into a hotel by the patentee, but, owing to the excessive noise caused by it, unfit for use, and therefore removed.^ § 13. Not only must the labor or material be furnished with the expectation that it will be applied to the building, but it must be rendered on the credit of the building. If furnished in exclusive reliance upon the contractor for pay- ment,* or on the owner," or on securities transferred to the claimant by the contractor,'' no lien exists. The building must be credited in the sense that the title to the material does not pass to the contractor, but to the proprietor of the building, so that it cannot be seized and sold in execution for the contractor's debts.' Unless furnished on the credit of the buildings, materials are no lien, though in fact used thei'ein.* But, if lumber is furnished for the construction of the house, it is, in the absence of evidence to the con- trary, on the faith of all the remedies which the law pro- vides for such a case.^ When a contract is made for the 1 Odd Pellows' Hall v. Masser, 24 2 Leg. Gaz. 121 ; Boyd v. Mole, 9 Pa. St. 507. Phila. 118; Davis v. Stratton, 1 '' Harlan v. Rand, 27 Pa. St. 511. Phila. 289. 'Kitson «. Crump, 9 Phila. 41, 1 ^Shriver v. Birchall, 2 W. N. C. W. N. C. 164. 172. * Odd Fellows' Hall v. Masser, 24 " Barclay v. Wainwright, 86 Pa. St. Pa. St. 507 ; Presbyterian Church v. 191. Allison, 10 Pa. St. 418; White v. ' White u Miller, 18 Pa. St. 52. Miller, 18 Pa. St. 52; Wolf v. Batch- » Hills v. Elliott, 16 Serg. & E. 56 ; elder, 56 Pa. St. 87 ; Harlan v. Rand, McMullin v. Gilbert, 2 Wh. 277. 27 Pa St. 511; Derrickson v. Nagle, "Van Billiard's Adm. v. Nace, 1 ■2 Phila. 120 ; McDonald v. Williams, Grant 233. mechanics' liens. 17 erection of a house, the materialman has a lien, notwith- standing notice to him from the owner that he must look solely to the contractor for payment.-^ Lumber brought to houses after their completion, and afterwards taken away, or ordered for and sent to other properties, cannot have been furnished on the credit of the former.^ A charge by the materialman, on his books, against the contractor alone, without reference to the building, is prima facie evidence that the building was not credited at all;^ but the plaintiff is not, therefore, precluded from showing that the materials were in fact furnished on the credit of the building.* A ■charge on plaintiif's books against "A. for C.'s house," A. being the contractor, is prima facie sufficient to charge the house.' When the same contractor is simultaneously build- ing for the same owner separate blocks of houses, and a charge is made in plaintiff's book for lumber furnished to these two blocks jointly, parol evidence is admissible to show for which block particular parts of the bill were intended and sent.*^ A charge in plaintiff's book against a block of houses is proper evidence in a sci. fa. against any one of these houses, ■each being liable for its apportioned, share.'' A book entry, showing a sale of materials to the owner, who is not the con- tractor, wilt not alone support the lien, but parol evidence may be admitted that the contractor received and used them, and that, in a settlement between the latter and the owner, the price of the materials was set apart to pay the plaintiff's bill.* A book of original entries, kept by a paper hanger, is evidence of paper furnished and labor bestowed in putting ' Hall r. Parker, 8 W. N. C. 325. noelil t'. Arentz, 1 Pearson 503 ; Mc- ■' Early v. Albertson, 2 W. N. C. 369. Mullin v. Gilbert, 2 Wh. 277 ; Barbier ' Hills V. Elliott, 16 Serg. & E. 56. v. Smith, 38 Pa. St. 296. See Linn v. * Kelly V. Brown, 20 Pa. St. 446; IS'aglee, 4 Wh. 92. Presbyterian Church v. Allison, 10 ^ Young v. Chambers, 15 Pa. St. Pa. St. 413 ; Church v. Davis, 9 W. 265. S04. ' Millett V. Allen, 3 W. N. C. 374. 'Kelly V. Brown, 20 Pa. St. 446; ^ Barbier v. Smith, 38 Pa. St. 296. Millet V. Allen, 3 W. N. C. 374 ; Kei- 18 LAW OF LIENS. it upon the walls, where the entry is made as soon as the quantity of paper is ascertained from its use, and the amount of Avork done in using it, although it required several days to finish the work.^ A charge in a book of original entries is not essential to show that the labor or material was fur- nished for and on the credit of a particular building ; this may be made out by parol evidence of any kind sufficient to satisfy a jury." The defendant may show by parol that the building was not credited by the plaintiff." Book entries, though kept 'in ledger form, supplemented by parol, are law- ful evidence.* Under a plea of " no lien," it may be shown that material was furnished exclusively on the credit of the contractor.' The credit given to the building is not exclu- sive of personal liability of the contractor,'^ to whom the building holds the relation of a surety to a principal debtor.'^ § 14. Material and labor, destined for and furnished on the credit of a building, by the plaintifi', will support a lien, though they are in fact not used therein by the contractor or owner.^ So was it, though, after delivery of lumber at the site of the house which was being erected, the owner became insolvent, and the house was never completed ;' or the owner of the house sold the lumber,^" or used it in con- structing a ten-pin alley and outbuildings;" or lumber and window sash were seized in execution, and sold, as the prop- ' Bolton's Appeal, 3 Grant 204. ^Presbyterian Church v. AUison, = Wolf V. Batchelder, 56 Pa. St. 87 ; 10 Pa. St. 413 ; Witman v. Walker, 9 Singerly v. Doerr, 62 Pa. St. 9. W. & S. 183 ; Odd Fellows' Hall v. ' Barclay u. Wainwright, 86 Pa. St. Masser, 24 Pa. St. 507; Singerly v. 191. Doerr, 62 Pa. St. 9 ; Smaltz v. Hagy, * Rehrer t). Zeigler, 3 W. & S. 258. 4 Phila. 99; Olympic Theatre, 2 5 Lee V. Burke, 66 Pa. St. 336. Brown 275; Schultz v. Asay, 8 W. "Gattanach v. Ingersoll, 1 Phila. JS". C. 219. 285; Lee v. Burke, 66 Pa. St. 336; 'Hinchman v. Graham, 2 Serg. & Russell V. Bell, 44 Pa. St. 47. E. 170. 'Bassett v. Baird, 85 Pa. St. 384; »» Wallace v. Melchior, 2 Brown Hill V. Witmer, 2 Phila. 168; Gable 103. V. Parry, 13 Pa. St. 181. " Gaule v. Bilyeau, 25 Pa. St. 521. mechanics' LIEIfS. 19 erty of the contractor;^ or the himber was used to construct shelves in a vault connected with the house, though such shelving was not embraced in the building contract.^ When A. contracts simultaneously to erect two similar houses on two contiguous lots, belonging to B. and C, the materialman may apportion his claim between the two, though he cannot identify the material that went into each house.^ When nine mechanics and others erected simultaneously nine con- tiguous buildings, like each other in size, appearance, material employed, etc., and agreed each to furnish all the material or labor in his own line for all the houses, and to file a lien against each particular house for only its share of the labor or material furnished, it was unnecessary to trace any par- ticular material into any particular building.* In order, however, to bind the estate of a married woman, it is neces- sary that the material and labor for which a lien is claimed should be actually applied to the improvement or repair of that estate.' § 15. It is not necessary that the material should be delivered at or near the building. Lumber may be left at a carpenter shop, to be worked up;" or window sash at a shop, to be painted.^ A boiler stack, engine and boilers may be made at shops, and for the work there done a lien arises f so, lumber may be delivered by the merchant at a saw mill.* The lumber may be delivered at the shop even before the work is begun at the site of the building,^" and machinery designed for a building may be made at the machine shops before the erection of the building is commenced.^^ nVhite V. Miller, 18 Pa. St. -52. "Hinchman t'. Graham, 2 Serg. & ^'Harker v. Conrad, 12 Serg. & E. K. 170. 301. ' White v. Miller, IS Pa. St. 52. ' Davis V. Farr, 13 Pa. St. 167 ; For- » Parrish's Appeal, 83 Pa. St. Ill rester v. Preston, 2 Pittsb. 298. 'Singerly v. Doerr, 62 Pa. St. 9. * Croskey v. Coryell, 2 \Vh. 222. i" Dick v. Stevenson, 9 W. N. C. 411. ^Schrififer v. Saum, 81 Pa. St. 385. " Parrish's Appeal, 83 Pa. St. 111. 20 LAW OF LIENS. Tor -wrhom the Lien Exists. § 16. It does not exist in favor of one of several joint owners, who has furnished labor or material to the erection of the house, as against other claimants. When, on land deeded to trustees for an Odd Fellows' lodge, the members of the lodge began the erection of a hall, one of them, who contributed labor and material, could not take from the pro- ceeds of its sale in execution, as against other mechanics' lien creditors.^ A. bought land at sheriff's sale, on which was an unfinished house. After himself performing work upon it, towards its completion, a judgment was recovered against him. He then contracted with B. to put a roof on the house. The lien of B. could not be related to the work done by A., so as to have precedence over the judgment.^ Authority of the Ovrner Necessary. § 17. Material or labor must be furnished on the authority of the owner of the land on which the building is going on, directly or indirectly, expressly or impliedly given. ^ The owner himself may order the labor or material,* or an agent may act for him.^ Thus, when a married woman permitted her mother to cause a house, intended as a gift to her, to be erected on her land, the land became liable to liens in favor of the mechanics and materialmen, or of the contractor, though not in favor of the mother herself.*^ A husband may be agent for his wife.'' § 18. An insurance company, which contracts with A. to re-erect a house that has been destroyed by fire, under a power reserved to it in the policy of insurance, is not the agent of the owner in such sense that it may bind the building for ^ Babb V. Eeed, 5 Rawle 159. Sullivan v. Johns, 5 W. 366 ; Knabb's ' Stevenson v. Stonehill, 5 Wh. 301. Appeal, 10 Pa. St. 186 ; ScboU v. 'Harlan v. Band, 27 Pa. St. 515; Gerhab, 9 W. N. C. 157. Kitson V. Crump, 9 Phila. 41 ; Camp- ^ Smith v. Stokes, 10 W. N. C. 6. bell V. Scaife, 1 Phila. 189 ; Miller v. « Atkinson v. Schuyler, 5 W. N. C. Hershey, 59 Pa. St. 64. 448. * Bayer v. Eeeside, 14 Pa. St. 167 ; ' Forrester v. Preston, 2 Pittsb. 298. Harper v. Keeley, 17 Pa. St. 234; mechanics' liexs. 21 labor and material furnished to it.-' A life-tenant, who causes a building to be erected, is not the agent of the remainder- man, and cannot bind the estate of the latter by mechanics' liens.^ The owner, however, must, at the time he in person or by an agent contracts for material or labor for a building, be in possession of the land on which the building is erected, at the time of commencing it.'^ Actual possession, however, by the owner, is unnecessary, when no one else has such actual possession. Hence, when the owner of land constructs shops on it, with the design that they shall become the prop- erty of a railroad company, but the company is not in posses- sion, that possession of the owner which is implied in his being on the ground, directing and superintending the construction, is suiEcient to give a lieu on his title to materialmen.* O-wrner's Authority Delegated to Contractor. § 19. The owner of the land may enter into a contract with a builder to erect the house, and thus communicate to this builder or contractor the power, by employing labor or purchasing material for the house, to confer on the material- man or workman liens upon it.** The building becomes a surety for the debts created by the contractor." The con- tractor to whom this power is delegated need not be such for the entire construction of the building. Specific portions of it may be let out by the owner, and the partial contractor can, by obtaining labor or material for the execution of his ' Bruner v. Sheik, 9 W. & S. 119. * Pratzman v. Bushong, 83 Pa. St. '' Petitland v. Kellj^ 6 W. & S. 483. 526. But his own title will be bound. * Barnes v, Wright, 2 Wh. 193; Fisher u. Rush, 71 Pa. St. 40. Prior Bruner v. Sheik, 9 W. & S. 119; to the act of 1840, the hfe-tenant, Hinchman v. Lybrand, 14 Serg. & like a mere lessee, could bind the E. 32 ; Morgan v. Arthurs & Co., 3 fee. Savoyi;. Jones, 2R.343; O'Con- W. 140; Odd Fellows' Hall v. Mas- ner v. Warner, 4 W. & S. 223 ; Evans ser, 24 Pa. St. 507 ; Forrester v. Pres- V. Montgomery, 4 W. & S. 218 ; An- ton, 2 Pittsb. 298 ; Chambers v. Yar- shutz V. McClelland, 5 W. 487. nell, 15 Pa. St. 565. [It was not so 'Section24, act of April 28th, 1840, under the act of 1803. Steinmetz v. [P. L. 474.] Siner ■;;. Moore, cited, 9 Boudinot, 3 Serg. & E. 541.] W. & S. 120. "Bassett v. Baird, 85 Pa. St. 384. 22 LAW OF LIENS. contract, bestow on the workmen or materialmen liens on the building/ Examples are, contracts for all the marble mantels;^ for the mason work;^ for the carpenter work and lumber ;* for the putting in of a heater.® ^i; 20. The partial contractor, however, must, in order to communicate a lien to others, be engaged to erect some main division of the building, such as the masonry, brick work, wood work, etc. A contract with the owner to j)ut into a building, which is being erected, an elevator for goods and passengers, the engines, drums, cages, and necessary attach- ments, guides and steam pipes, is not for the construction of any primary or main division of the building, but one merely for certain useful or even necessary machinery for the convenient use of the building. One with whom such a contract is made cannot communicate to those from whom he procures labor or material for carrying it out, a lien on the building." Still less can one who has been engaged, not to do the work of erection or construction, but simply to furnish naaterials towards such erection, have the power to convey to others a lien on the building, by procuring from them a portion or the whole of the material necessary to enable him to fulfill his contract. Hence, when A., the owner of land, who was himself erecting a house on it, con- tracted with B., who had a planing mill, to deliver lumber to his house, and B., after delivering all he had, procured shijigles from C, who charged them to B., " for A.'s house," C. had no lien upon the building.'' § 21. The contractor, whether for the entire construction, or only for some primary part, of a building, may confer on those with whom he contracts to do parts of the work em- 'DufF V. Hoflfman, 63 Pa. St. 191; ^Singerly v. Doerr, 62 Pa. St. 9; Schenck v. Uber, 81 Pa. St. 31. Wolf v. Batchelder, 56 Pa. St. 87. ^Derrickson v. Nagle, 2 Phila. ^ Young ?;. Elliott, 2 Phila. 352. 120. "Schenck v. Uber, 81 Pa. St. 81; * Barker v. Maxwell, 8 W. 478. Comp. Kitson v. Crump, 9 Phila. 41. 'Duff ■«. Hoffman, 63 Pa. St. 191. , mechanics' liens. 23 braced in his contract, the right to liens on the building; but these sub-contractors cannot in turn, by contracting with others, communicate to them liens for the work or material they render. The law establishes one link, and only one, between the owner, on the one hand, and the workmen and materialmen, on the other. It requires the lien to be founded on contract, and it recognizes no one as having power to contract so as to make a lien against the building, except the owner and the contractor or architect.^ Hence, when the owner contracts with A. to build for him a liouse, and A. contracts with B. to put in a heater of new construction, C, whom B. employs to make and put up the pipes, registers, dampers and ventilators, according to the specifications, has no lien on the building.' And, if the contractor contracted with A. to furnish doors, shutters, mouldings and sash, and A. contracted with B., the owner of a saw mill, to make them for him, B. would have no lien.^ A mere agent of the owner must, however, be, dis- tinguished from a contractor in applying the principle just considered. The husband of an owner of land, with her acquiescence, made a contract with A. to erect a house upon it. A. contracted with B. to do the stone work. B. had a lien.* So, when the mother-in-law of a married woman, owner of land, in jjursuance of a jjurpose of making a gift of a house, entered into a contract fo? its erection with A., who procured materials from B., B. had a lien on the house." If the husband makes the contract for the erection 'Harlan r. Eand, 27 Pa. St. 511; D. D. had a lien. In Anslnitz v. Campbell v. Scaife, 1 Phila. 187; McClelland, 5 W. 487, A. leased land Smith V. Stokes, 10 W. N. C. 6. to B., under a contract that B. should 2 Harlan v. Eand, 27 Pa. St. 511; erect a house, for which he was to be Comp. Kitson v. Crump, 9 Phila. 41. paid out of the rent. B. contracted ■■'Singerly v. Doerr, 62 Pa. St. 12. with C, and C. with mechanics and In Odd Fellows' Hall v. Masser, 24 materialmen, who obtained Hens. Pa. St. 507, A., the owner, contracted * Forrester v. Preston, 2 Pittsb. 298. with B. to erect a hall; B. contracted "Atkinson v. Schuyler, 5 W. N. C. with C , and C. procured boards from 448. 24 LAW OF LIENS. , of a house oa his wife's lands, without her consent or knowl- edge, no lien can be acquired against her title.^ Lessee — Contractor. § 22. The contract by the owner for the construction of a building, may be in the form of a lease. If the lease stipu- late that the lessee may erect a building on the land, and that, if he does so, he shall be compensated by the lessor,, either by a payment of money to him, or by the use and occupation of the premises for nothing, or for a reduced rental, the lessee is really a contractor, having power, by employing others to contribute to the erection or construc- tion of the building, to bind it in their favor with mechanics' liens. The lessee may assume an obligation, by covenant, to erect the building," or the lease may simply give him an option to erect ;^ the presence or absence of a covenant to erect is not decisive.* It is essential, however, that the lease provide for compensation to the lessee by the lessor."' A mere permission or authority from the lessor to the lessee to erect the house will not make the latter a contractor." The lessee was a contractor in the following cases : When he covenanted to build a warehouse, the lessor paying him $1,500, and giving him the occupancy of the premises for five years, at $300 rent per annum ;^ when he covenanted to tear down a building, and erect a new one, and to pay $1,500 annually, as rent, for ten years, as the consideration for the lease;" when he agreed, in consideration of a lease for five years, for which he was to pay only $5 rent the first 'Rnley's Appeal, 67 Ri. St. 453; 191; Comp. Reed i-. Keiiney, 4 W. Woodward v. Wilson, 68 Pa. St. 208. N. C. 452. nVoodward v. Leiby, 36 Pa. St. = Barclay c. Wainwrigbt, 86 Pu. St. 437; Leiby v. Wilson, 40 Pa. St. 63; 191 ; Hall v. Parker, 8 W. N. C. 325. Fisher v. Rush, 71 Pa. St. 40; Hall "Dietricb v. Crabtree. 8 W. X. C. V. Parker, 8 W. N. C. 325. 418 ; Reid v. Kenney, 4 W. N. C. 452. 'Hopper I). Childs, 43 Pa. St 310; 'Woodward v. Leiby, 36 Pa. St. Barclay !•. Wainwright, 86 Pa. St. 437 ; Leiby )'. Wilson, 40 Pa. St. 63. 191- « Fisher",'. Rush, 71 Pa. St. 40; ^Barclay v. Wainwright, 86 Pa. St. Rush v. Perot, 34 Leg. Int. 58. mechanics' liexs. 25 year, $500 for the second, and $600 for the third year, to make certain improvements and repairs in the building;* when the owner of a tract of timber land and a shingle machine agreed to let A. erect a building suitable to cover the machine, and to permit him to use the machine in manu- facturing two million shingles in a time not to exceed one year, he paying to the owner $1 for every thousand shingles manufactured ;- when A. let a lot, whereon was a theatre, to B. for five years, with privilege of purchase, on certain terms, at any time during the lease, with a stipulation that if B. should erect a theatre, he was to pay no rent for one year;^ But, when A. leased to B. lots, " for the express pur- pose of erecting a hotel and opera house, and for no other purpose," for $1,275 the first year, and $900 the nine suc- ceeding years, and the plans of these buildings were shown to A. and approved by him, B. was not a contractor, since he had a mere option to build, and the rent which he was to pay was not to be affected by the building/ § 23. Under the act of August 1st, 1868, [P. L. 1168,] which provides for liens for alterations and repairs in Phila- delphia, no such liens can arise, unless the alterations or repairs, if instituted by the lessee or tenant, have been authorized in writing by the lessor. The act of March 20th, 1868, [P. L. 407,] and others, contain a similar provision. When a lease provided that the lessee should make all necessary repairs to the premises, including roof and win- dows, but should make no alterations or improvements with- out the lessor's consent, this was not such written consent to alterations and repairs as the former of these acts requires.^ ^Hall V. Parker, 8 W. N. C. 325. because the owner's name was not ^Hopper !'. Childs, 43 Pa. St. 310; mentioned. Comp. Houston, Smith & Co.'s Ap- ^ Barclay v. Wainwright, 86 Pa. St. peal, 6 W. N. C. 162, where, though 191. the lessee was bound by his lease to *Keed v. Kenney, 4 W. IST. C. 450. erect a house, the claim .was invalid, ^Howell v. Burns, 10 W. N. C. 237. 26 LAW OF LIENS. § 24. A vendee under articles whose equitable title is never completed, is not related to the vendor as a contractor. When A. contracted to convey, at a future time, to B., a lot of land, B. to have the right to make such improvements as he might desire in the meantime, and B. caused a house to be erected on it, no liens were acquired as against the title of A., who subsequently resumed possession of the laremises on B.'s failure to comply with the conditions of the agree- ment of purchase.^ § 25. Prior to the act of 28th April, 184G, [P. L. 474,] any lessee, whatever the terms of his lease, had the power to contract for the erection of a house on the demised prem- ises, and to bind the estate of his lessor in them to mechanics and materialmen.^ The twenty-fourth section of that act provides that a mechanics' lien shall not extend to any other or greater estate in the ground on which the build- ing is erected, than that of the person in possession when the building is commenced, and at whose instance the same is erected. Under this act, the estate of the lessor cannot be bound by any act of the lessee, as such.^ The act of May 1st, 1861, [P. L. 550,] creating a lien for alterations or repairs of buildings, was extended to Allegheny county by the act of February 16th, 1865, [P. L. 150,] with a pro- viso that alterations or repairs, instituted by a lessee or ten- ant, should not be binding without the written consent of the owner, or reputed owner, or his duly authorized agent. Under this act, the consent must be unconditional. Hence, when a lease was extended, in consideration that the lessee 1 Dietrich v. Crabtree, 8 W. N. C. J.yon v. McGuffy, 4 Pa. St. 126 ; An- 418; StaufFer v. Bowers, 11 L. Bar. shutz r. McClelland, 5 W. 487. 3. It was otherwise under the acts '' O'Conner v. Warner, 4 W. & S. of 1806 and 1808. Bickel v. James, 223 ; Evans v. Montgomery, 4 W. & 7 W. 9 ; Prutzman v. Bushong, 83 S. 218 ; Smith's Estate, 7 Leg. Gaz. Pa. St. 526. 31 ; Van Billiard's Adm. v. Nace, 1 ^Holdship V. Abercrombie, 9 W. Grant 283; Prutzman v. Bushong, 52 ; Stoner v. NefF, 50 Pa. St. 258 ; 83 Pa. St. 526. mechanics' LIEN'S. 27 was to have a new front, with glass windows and door, put in at his own cost, no lien was acquired upon the premises by those who furnished labor or material for the alteration.^ The act of August 1st, 1868, [P. L. 1168,] makes for Phila- delphia provisions similar to those of the act of 1865, with respect to alterations or repairs by a lessee, but it has been held by the district court of that city that the authority of the lessee to make repairs could not be qualified by the pro- viso that they should be made at his own expense.^ When, under an insurance policy giving the company the right, on the destruction of the house, to re-erect it, the company con- tracts with A. to erect a new building, and A. employs B. to furnish material, B. has no lien on the building under the act of 1840.^ The Contractor's Lien. § 26. The act of 1836 did not give to a contractor who agrees with the owner to furnish all the materials and erect the entire building,* or any part of it, e. g., the marble work,® or the carpenter work,'^ for a fixed price, a lien on the building, though the contractor was to be paid the price in bricks." The act of 16th April, 1845, [P. L. 538,] changed the interpretation of the law in this respect, declar- ing that for labor done or material furnished, under a con- tract with the owner, there should be a lien. Though in terms declared retroactive, this act could not be constitution- ally applied where, before its passage, a building had been 'McClintock v. Criswell, 67 Pa. St. cited in Bruner v. Sheik. Tliis is so, 183. however, only when some other per- '' Amos V. Clare, 9 Phila. 85. This son is in actual possession. Prutz- act does not apply to erection or man v. Bushong, 83 Pa. St. 526. construction of buildings. Fisher ■!). * Jones v. Shawan, 4 W. & S. 417 Bush, 71 Pa. St. 40. Hoatz v. Patterson, 5 W. & S. 537. = Bruner v. Sheik, 9 W. & S. 119. * Witman v. Walker, 9 W. & S. 183 The person who causes the building Comp. Shaetfer v. Hull, 2 CI. 93. to be done must have actual, not * Haley v. Prosser, S W. & S. 133 merely " constructive," possession Bolton v. Johns, 5 Pa. St. 145. of the premises. Siner v. Moore, 'Haley v. Prosser, 8 W. & S. 133. 28 LAW OF LIENS. erected under a contract, and it had been sold to a new owner, who had paid the purchase money.^ One who con- tracts for a fixed sum to erect a house, has a lien upon it, though he has given security that no liens shall be entered against it.^ But a contractor for the erection of a house, while he has a lien for the contract price, cannot assert it against those to whom he is personally liable for labor or material furnished in its construction ; he cannot share with them pro rata in the proceeds of its sale.^ Since the act of 1845, instances are frequent of liens by contractors against the buildings they have erected.* By the act of April 3d, 1872, [P. L. 857,] which was, however, repealed by the act of March 6th, 1873, [P. L. 217,] w?iere any building in the city of Philadelphia Avas erected, in whole or in part, by contract in writing, such building was liable to the con- tractor alone for the work or material furnished in pursu- ance of the contract, provided the contract was acknowledged and duly recorded in the ofiice for recording deeds, within fifteen days after its execution. Under this act, a record of the contract, without the accompanying specifications, in the deed book, was sufficient to give immunity to the building from the claims of persons who had furnished labor or mate- rial to the contractor.^ Lien of Materialmen. § 27. As we have seen, the lien was originally supposed to accrue only in favor of the materialmen or furnisher of work, who had contracted with the contractor ; the latter ' Bolton V. Johns, 5 Pa. St. 145 ; by a stranger, are given him in part Johns i'. Bolton, 12 Pa. St. 339; payment, and negotiated by him, he O'Brien v. Logan, 9 Pa. St. 97 ; Comp. cannot assert his lien as against the Steinmetz o. Boudinot, 3 Serg. & B. holders of them, or the guarantor. 541. Green's Appeal, 10 W. N. C. 73. 2 Young V. Lyman, 9 Pa. St. 449. ''Wharton Bro. i;. Douglas, 92 Pa. ^Lay D.Millette.l Phila.513. And St. 66; Parish's Appeal, 83 Pa. St. if bonds, purporting to be first mort- 111 ; Rush v. Able, 7 W. N. C. 199. gage bonds, and as such guaranteed * Glading v. Frick, 88 Pa. St. 460. mechanics' liens. 29 himself liad no lien. Since the lien has been extended to the contractor, both he and those who furnish labor or material at his instance, share in it/ The materialmen may- be a firm, of which the contractor is a member.^ The mate- rialman can recover no more than the value of what he has furnished ; the price agreed to be paid him by the contractor does not measure his lien.^ The owner may show that it was beyond the fair market price of the articles furnished or work done at the time — that the contract was improvident and unjust.* An agreement of the contractor with the owner not to make the building liable to liens of others, will not prevent liens from arising in favor of materialmen.* But, if the materialman has agreed with the owner to look exclu- sively to the contractor for payment, or has been warned not to furnish materials on the credit of the building, he has no lien.^ And advantage of the plaintiff's undertaking to file no lien may be taken under the plea "no lien."" Lien of Workmen. § 28. Under the act of 1806, a journeyman mechanic employed in working on a building, under a master mason, had no lien upon it.' It is only the principal in each branch or trade that has a lien on the building ; his laborers or journeymen have none.^ Such remains the law, under the acts of 1836 and 1845. The journeyman operative is left to the security he most commonly relies on, the personal responsibility of his employer. Hence, when one who had contracted to build a mill, hired A. by the day to work as a ' Campbell v. Scaife, ] Phila. 187 ; * Cattanach v. Ingersoll, 1 Phila. iSingerly r. Doerr, 62 Pa. St. 9j Har- 285. Contra, Campbell r. Scaife, 1 Ian V. Rand, 27 Pa. St. 511. Phila. 187. ^ChambersburgManufacturingCo. ^Wolf v. Batchelder, 56 Pa. St. V. Hazelet, 3 Brewst. 98. 87. 3 Russell V. Bell, 44 Pa. St. 47 ; Lee « Lee v. Burke, 66 Pa. St. 336. V. Burke, 66 Pa. St. 836 ; Odd Pel- ' Cobb v. Traquair, 1 Frank. Jour, lows' Hall V. Masser, 24 Pa. St. 507; 97. Kitson V. Crump, 9 Phila. 41; Der- « Barnes v. Wright, 2 Wh. 193. rickson v. Nagle, 2 Phila. 120. 30 LAW OF LIENS. carpenter and millwright, A, had no lien on the mill.^ A carpenter, hired at $2.50 per day by the contractor, in the construction of a house, and bound to work no particular number of days, had no lien on the house.^ Payment by the day, however, is not conclusive that the party so paid is a journeyman. Hence, when the contractor, a carpenter, employed A. to do the brick-work of a house, and engaged to pay him $2 per day. A., as a master-bricklayer, had a lien.^ When lumber to be used in a house, is delivered by the contractor to A. at his steam mill, to be worked into adaptation, A. has a lien for the value of the labor, though it was done by means of machinery operated by his work- men.* Under the act of 1806, one who furnished bricks for a house had a lien upon it, though he was neither a brick- layer nor a dealer in bricks.^ The act of 21st May, 1878, [P. L. 76,] makes the wages of journeymen, mechanics and laborers, liens on the buildings in whose erection they are employed, in the city of Philadelphia, and gives them and all other mechanics' liens, precedence to advance-money mortgages, except for so much thereof as represents the assessed value of the land prior to the commencement of the building. The act of 28th June, 1879, [P. L. 182,] gives to all persons in the State, except Philadelphia, who per- form labor for or about the construction or erection of any engine, engine house, derrick, tank, buildings, machinery, wood or iron improvement, constructed or erected on any leasehold, whether held by a written or by a verbal lease, or for boring, drilling or mining on any lease or lot as afore- said, for the development or improvement of the same, whether such labor be done by the day, month or year, or by contract, for the tenant or lessee of such lot, or lease, or ■^Jobsen v. Boden, 8 Pa. St. 463; 'Barnes v. Wright, 2 Wh. 193. Guthrie v. Horner, 12 Pa. St. 236. *SingerIy v. Doerr, 62 Pa. St. 9 ^ Mitchell i;. Martin, 3 Pittsb. 474 ; ^ Savoy v. Jones, 2 R. 343. Comp. Kitson v. Crump, 9 Phila. 41 ; Harlan v. Rand. 27 Pa. St. 511. mechanics' liens. 31 parcel of land, oi" for his use or benefit, a lien on such engine, engine house, derrick, tank, building, machinery, wood or iron improvement, oil wells and fixtures, on such lot or leasehold, and upon the lot or leasehold itself, for the price of their work or labor. The Estate Bound. § 29. Prior to the act of April 28th, 1840, [P. L. 474,] the land itself, and the title therein of any and all persons, whether leasehold, freehold, or in fee, were bound by the liens of mechanics and materialmen, unless, indeed, when the building was done at the instance of a mere trespasser.^ By the twenty-fourth section of that act, the lien is confined to the estate of the person who is in .possession at the com- mencement of the building, and at whose instance the build- ing is undertaken.^ Under this section, however, no lien can be acquired on any estate less than a freehold. When A. leased land to B. for thirteen years, B. erecting a building under an agreement which permitted him to remove it at the end of the term, unless A. paid him for it, no lien was acquired by mechanics and materialmen against either the leasehold or the building.^ An estate for life may be bound by such lien.* The act of 17th February, 1858, [P. L. 29,] extends mechanics' liens to all improvements, engines, pumps, machinery, screens and fixtures, put up or repaired by tenants of leased estates in the counties of Luzerne and Schuylkill, and to all mechanics, machinists and material- men doing work or furnishing articles or materials therefor. 1 Bickel V. James, 7 W. 9. Montgomery, 4 W. & S. 218, O'Con- -The builder's interest only is ner ii. Warner, Jd. 223, it was decided bound. Smith's Estate, 7 Leg. Gaz. that a lien existed upon a lease for 31. ten years; the purchaser of the lease ^Haworth v. Wallace, 14 Pa. St. under a mechanics' lien was, as 118; White's Appeal, 10 Pa. St. 252; lessee, liable to pay rent to the Church V. Griffith, 9 Pa. St. 117 ; Eeid lessor. See, also, McClelland v. Her- V. Kenney, 4 W. N. C. 450; Thomas ron, 4 Pa. St. 63. V. Smith, 42 Pa. St. 68 ; Gaule v. Bil- ' Pentland v. Kelly, 6 W. & S. 483 ; yeau, 25 Pa. St. 521. In Evans v. Fisher v. Kush, 71 Pa. St. 40. 32 LAW OF LIENS. These liens bind only the interest of the tenants in the lease- hold, and the improvements, engines, pumps, machinery, screens and fixtures erected or repaired.^ This act was not intended to give a lien upon ordinary houses or dwellings of tenants, notwithstanding the generality of the word improve- ments. When such a house was sold under a mechanics' lien, the lessor was entitled to the rent in arrear at the time of levy.^ Under a lease for five years of a lot in Schuylkill county, near a certain reservoir, with all the ice in the reser- voir, a lien arises in favor of one who furnishes lumber for the erection of a frame ice house on the leasehold, one hun- dred and seven feet in depth, fifty-four in width, and thirty- three in height, upon the ice house and the ground covered by it and necessary to its use.^ So, a lien exists in favor of one who furnishes lumber for the erection of a large black- smith and wagonmaker's shop in Northumberland county.* The lessee of a colliery in Schuylkill county sunk a slope, and introduced new machinery, including a railroad track along the new gangway. The hardware merchant who fur- nished spikes for the track had no lien, the railroad being a mere temporary convenience, not sufiiciently permanent to ground a lien.' For material or labor supplied for wooden air-pipes or fans in mines, belonging to the lessee, no lien arises." Under the act of 1858, no lien can arise for rejjair- ing a pump belonging to the lessor, at the instance of the lessee, on the latter's interest in the colliery, or in the fix- tures, improvements, etc., belonging to him ;'' nor for repair- ing boilers, the lessee's property, but attached to the bottom ^This act has been extended to 855; Knecht v. Heintze, 4 Luz. L. Westmoreland, Allegheny, Erie, Reg. 101. Crawford, Warren, Venango, North- 'Thomas v. Smith, 42 Pa. St. 68. umberland, Forest, Carbon, Brad- *Keid v. Clement, 3 W. N. C. 53. ford. See act of 28th June, 1879, ^Esterley's Appeal, 54 Pa. St. 192. [P. L. 182,] which extends to the «Phila. Trust Co. v. Oakdale Coal entire State, except Philadelphia. Co. C. P. of Schuylkill Co., 1874. ' Sch enley 's Appeal, 70 Pa. St. 980 ; ' Ibid. Schmidt v. Armstrong, 72 Pa. St. mechanics' liens. 33 of the cage on whicli coal cars are drawn up from the mines, the cage being the property of the lessor.^ The lien is con- fined, under this act, to the interest of the lessee in the spe- cific machinery, etc., upon which the labor is bestowed, or into which the material enters, on account whereof a lien is claimed. Hence, for the erection of a patent coal-hoistiug iiud dumping cage, there is'no lien on the leasehold, or all the improvements, machinery and fixtures of the lessee upon the colliery.' The claim must be filed against the interest ■of the lessee in the particular improvement, not against the improvement itself." One who furnishes parts to an engine, or other machine, has a lien, however, on the lessee's interest in the entire machine, e. g., when for an engine, derrick, etc., being erected at an oil well in Venango county, A. sup- plied a cable, pins, belting, tubing, sucker-rods.* No lien under this act can be acquired against the lessor's interest.® § 30. The act of April 8th, 1868, [P. L. 752,] gives to all persons furnishing materials, or doing work for, on or about the erection, construction or repair of any engine, •engine house, tanks, derricks, etc., on any leasehold estate held by Avritten lease, or for boring, drilling or mining on said lease or lot, for the development or improvement of the same, a lien on the personal property and fixtures on said lot, as well as on the interest of the lessee in the lot itself. Under this act, the materials furnished are a lien on the leasehold from the time they are furnished, but on the movables and fixtures only from the time the claim is filed. ' Phila. Trust Co. v. Oakdale Coal frame building," not against the in- €o. C. P. of Schuylkill Co., 1874. terest of the lessee therein. And in ^ Clair Coal Co. v. Martz, 75 Pa. St. Robson & Co.'s Appeal, 62 Pa. St. SS4 ; El}' V. Wren, 90 Pa. St. 148 ; 405, the claim was filed against the Thomas v Smith, 42 Pa. St. 68. interest of the lessee in the lease- '^ Ely D. Wren, 90 Pa. St. 148. Yet, hold, as well as in the engine, etc. in Thomas v. Smith, 42 Pa. St. 68, *Robson's Appeal, 62 Pa. St. 405. the claim was against a " certain * Carey v. Wintersteen, 60 Pa. St. 395. 34 LAW OF LIENS. If, when the material is furnished, the lessee is in possession, but a written lease is not executed till afterwards, there is no lien on the leasehold.^ If the lessee has promised, in parol, a share in the lease to a materialman, the latter has no such interest in the lease that a valid claim may be filed against him alone. A sale under such a claim is no defence in an action by him against the lessee for the value of the material furnished, the latter refusing to convey the promised share in the lease.^ § 31. The act of March 7th, 1873, [P. L. 219,] relating to Butler county, gives to all persons doing wort in boring, drilling or mining on any leasehold, for the development or improvement thereof, whether by the day, month, year, or by contract, and for the lessee, or his use and benefit, a lien on the personal property and fixtures on said lot or lease, and upon the lessee's interest in the leasehold itself, for the price and value of such work or labor. Under this act. A., who contracted with a lessee to drill an oil well, furnishing tools, ropes and fuel, for the sum of |3,400, had a lien.^ The act of April 21st, 1856, which gives a lien for machinery not affixed to the freehold, puts it upon freehold estates only.* § 32. When A. leased a lot to B. for seven years, with the right in B. at any time within the first three years to become the grantee under a perpetual ground-rent, and B. immedi- ately took possession of the lot, and began the erection of a house, procuring the material from time to time from C, and within six months A. conveys the fee to B., subject to the ground-rent, B. had such an estate in the land as could be encumbered by mechanics' liens in C.'s favor.^ But the liens could not be asserted against one who, without knowl- ' Dame's Appeal, 62 Pa. St. 417. *Summerville^'.Wann,37Pa.St.l82. 'Newell V. Haworth, 66 Pa. St. ^^Gaule v. Bilyeau, 25 Pa. St. 521; 363. Stoner v. Neff, 50 Pa. St. 258 ; Lyon 'Vandergrift& Foreman's Appeal, v. McGufFy, 4 Pa. St. 126; Denkel's 83 Pa. St. 126. Estate, 1 Pearson 213. mechanics' liens. 35 edge of the equitable title which they bound, purchased the legal title.^ The liens which bound the equitable title attached to the entire legal title on its conveyance, subject only to liens that had been acquired against the legal title prior to the making of the deed.^ Buildings Subject to Lien. § 33. Liens have been had on churches,^ a college,* a hotel,^ an Odd Fellows' hall,® an agricultural exhibition building,' a grain warehouse,* a grist mill,^ a saw factory,^" a theatre,^^ a brewery ,^^ a mill for making shingles,^^ an iron furnace,^* dwelling houses,^" a barn,^'' a house built on land of the poor directors of Cumberland county." A prohibi- tion in a college charter against mortgaging or encumbering its real estate, does not prevent mechanics' liens for its build- ings.^* On the following kinds of buildings there is no lien: A county court house ; ^' a school house erected for the con- trollers of the public schools ; ^° an engine house of a water com- 1 Gault V. Demming, 3 Phila. 337. ' Woodward v. Leiby, 86 Pa. St. 437. 2 Lyon V. McGuffy, 4 Pa. St. 126; "Norris' Appeal, 30 Pa. St. 122. Stoner v. Neff, 50 Pa. St. 258. " Olympic Theatre, 2 Brown 275. ' A rmstrong v. Ware, 20 Pa. St. 519 ; ^^ Diller v. Burger, 68 Pa. St. 432. Church V. Stetler, 26 Pa. St. 246 ; Noll " Hopper v. Childs, 43 Pa. St. 810. V. Swineford, 6 Pa. St. 187; Church "Thoma's Estate, 76 Pa. St. 80; V. Allison, 10 Pa. St. 413; Baptist Parish's Appeal, 83 Pa. St. 111. Churchi;. Trout, 28Pa. St. 153; Bap- '^Landis' Appeal, 10 Pa. St. 879; tist Chiu-ch V. Schreiner, 6 W. N. C. Driesbach v. Keller, 2 Pa. St. 77;- 407. Miller v. Oliver, 8 W. 514 ; Lightfoot * Dickinson College V. Church, IW. ii. Krug, 35 Pa. St. 348; Harman v. & S. 462 ; University of Lewisburg v. Cummings, 48 Pa. St. 822 ; Hinch- Eeber, 43 Pa. St. 305; Seabrook v. man v. Graham, 2 Serg. & E. 170; Swarthmore College, 65 Pa. St. 74. Harper v. Keely, 17 Pa. St. 234. s Nelson v. Campbell, 28 Pa. St. i« Werth d. Werth, 2 R. 152. 156; Pretz's Appeal, 35 Pa. St. 349; "Church v. Davis, 9 W. 304. Amos 11. Clare, 9 Phila. 35. i« University v. Eeber, 43 Pa. St. "Odd Fellows' Hall v. Masser, 24 305. Pa. St. 507; Babb v. Reed, 5 R. 150. "Wilson v. Commissioners, 7 W. ' Wigton's Appeal, 28 Pa. St. 161. & S. 197. » Woodward v. Leiby, 36 Pa. St. ^"Williams v. Controllers, 18 Pa. 437 ; Leiby v. Wilson, 40 Pa. St. 68. St. 275. 36 LAW OF LIENS. pany, which is used in furnishing water to parts of a city ;i the depot of a railroad;^ gas works which supply a city with gas, though belonging to a private corporation ;^ the Pennsylvania Reform School, maintained by appropriations from the legislature.* A stable belonging to a passenger railway company is subject to a lien." Subject of the Lien. § 34. The first section of the act of 1836, [P. L. 696,] makes every building erected, subject to a lien for debts con- tracted for labor or material furnished for or about such erection ; and the second section of the same act extends the lien to the ground covered by such building, and to so much other ground immediately adjacent thereto, and belonging to the same owner, as may be necessary for the ordinary and usual purposes of such building. The acts of May 1st, 1861, August 1st, 1868, and 28th June, 1879, in so far as they give liens upon real estate for alterations and repairs, only extend the class of debts for which these liens shall exist, but do not change the subject upon which, when they arise, they shall operate. Under these acts, the lien is pri- marily on the building ; it extends to the soil, only as an inseparable adjunct to the building. Hence, if labor and material are furnished for a building whose construction has been undertaken, but no such building is ever, in fact, con- structed, no lien arises for such labor and materials;" and when, the building being in fact erected, it is subsequently destroyed, the liens accruing from its erection perish with it. Hence, when a new church, just after completion, was con- sumed by fire, the lien of one who had put a tin roof upon it, and had not filed his claim when the destruction occurred, 1 Foster v. Fowler, 60 Pa. St. 27. ^Mcllvain v. Hestonville, etc., E. '' Evans V. E. E. Co., 11 Pittsb. L. E. Co., 5 Phil.i. 13. J- 4. « Presbyterian Church v. Stetler, 2 McXeal v. Gas Co., 4 W. N. C. 504. 26 Pa. St. 246 ; Wigton and Brooks' "Patterson & Co. ■y.Pemia.Eeform Appeal, 28 Pa. St. 161; Kitson v. School, 92 Pa. St. 229. Crump, 9 Phila. 41. mechanics' liens. 37 ceased. A claim filed subsequently would not be a lien against the substituted structure.^ A large agricultural exhibition building was erected, the grounds graded and enclosed with a high, tight board fence, with entrances and ticket offices. Stalls and pens for cattle extended around the greater part of the enclosure. Gas works were erected in a separate building, for the purpose of lighting the main structure. The principal building was so far completed that an exhibition was held in it for four days. Two months after- wards it was prostrated by a storm, though the foundation walls were left entire, and the floor, except that some holes were broken through it by the falling timber. The mechan- ics' liens, which had embraced the main building and the appurtenances, ceased, as against judgments recovered after the commencement of the building.^ Even after a recovery on a sci. fa., and immediately before the sheriff's sale, the court will indefinitely stay the execution if a fire destroys the structure.^ The taking down of a house, by the builder himself, on account of defects in its construction, will not deprive mechanics and materialmen of their liens against the structure, which he immediately re-erects, in execution of the same contract.* § 35. If several buildings are standing on ground belong- ing to the same owner, and so related to each other as to subserve a common purpose, a lien for debts contracted in the erection of one extends to the others, and the building out of whose erection the liens arise, may be either the prin- cipal,^ or a subsidiary" building. And the principal and ^ Presbyterian Church v. Stetler, ^ Lauman's Appeal, 8 Pa. St. 473. 26 Pa. St. 246. " Nelson v. Campbell, 28 Pa. St. 156 ; nVigton and Brooks' Appeal, 28 Lightfoot v. Krug, 35 Pa. St. 348; Pa. St. 161. Pretz's Appeal, 35 Pa. St. 349; Har- ' Campbell v. Coolbaugh, 3 Luz. L. man v. Cummings, 43 Pa. St. 322 ; Eeg. 93. JSTorris' Appeal, 30 Pa. St. 122. Har- *Odd Fellows' Hall v. Masser, 24 ris v. Woolston, 3 Phila. 376, is Pa. St. 507 ; Wigton and Brooks' Ap- scarcely consistent with these, peal, 28 Pa. St. 161. 38 LAW OF LIEIfS. subsidiary buildings may be either conterminous,^ or may be separated by an interval of space.^ But a barn on a farm is not so related to the entire farm that a lien for its erection extends any farther than to the ground immediately sur- rounding it, and necessary to its use;^ nor a church to the adjacent burial ground, that a lien on the former will extend to the latter.* On one of two lots, separated by an alley, but owned by the same person, there had long stood a stable and slaughter house. When, subsequently, a dwelling house was erected on the other lot, a lien for labor and materials furnished to it, did not extend to the stable lot, merely because a butcher moved into the house, and was using the buildings on the stable lot, in his trade. The slaughter house and stable were not so connected with the dwelling as to be inseparable from it.^ § 36. Under the act of 1836,® the curtilage over which the lien of a building about to be constructed shall extend, may be defined by a description thereof, entered previously to the commencement of the building, in the mechanics' lien ' Nelson V. Campbell, l!S Pa. St. 156 ; tioned ; those representing the value Lightfoot V. Krug, 35 Pa. St. 348; of the addition being applied to the Pretz's Appeal, 35 Pa. St. 349 ; Har- mechanics' liens, man c. Cummings, 43 Pa. St. 322; * Beam v. Methodist Church, 3 01. Xorris' Appeal, 30 Pa. St. 122. Har- 343. ris V. Woolston, 3 Phila. 376, is 'Miller v. Lenhart, 1 Pearson 95. scarcely consistent with these. L'nder the act of 1806, the necessary -Hershey v. Shenk, 58 Pa. St. 382; ground was bound by the lien, to- Parrish's Appeal, 83 Pa. St. Ill ; gether with the building upon it. Burt t'. Kurtz, 5 R. 246. To the con- Browne v. Smith, 2 Br. 229 ; Bickel trary : Wharton v. Douglas, 92 Pa. c. James, 7 W. 9; Holdship r. Aber- St. 66, and a dictum in Diller i'. crombie, 9 W. 52. The amount Burger, 68 Pa. St. 432. necessary must be ascertained by * Werth V. Werth, 2 Rawle 152. In considering the intention and design Olympic Theatre, 2 Br. 275, when a of the owner at the commencement theatre was lengthened twenty feet, of the building. Pennock ■!'. Hoover, it was held that the lien for the ad- 5 Rawle 291. But in no case can the dition did not e.xtend to the older lien extend beyond the ground de- portion of the theatre, and the whole scribed in the claim filed. McDon- structure having been sold on exe- aid v. Lindall, 3 R. 294. cution, the proceeds were appor- * Sections 4^9. mechanics' liens. 39 docket; or, in default of such designation of boundaries, the court, on the petition of the owner or any lien creditor, may appoint commissioners to fix the boundaries. They must describe by metes and bounds the limits of the ground necessary for the convenient use of the building for the pur- poses for which it is designed. Such report, entered in full in the mechanics' lien docket, shall be conclusive on all per- sons concerned. The court may stay any execution until the boundaries are thus ascertained ; or, after sale thereon, may, by means of an auditor, ascertain the amount of land that was covered by the mechanics' liens, for the purpose of making distribution of the proceeds of sale. A mechanics' lienor may ask the court to stay an execution on a prior lien until the reasonable curtilage is designated.^ But the court may, notwithstanding that a part only of the land is subject to mechanics' liens, permit the whole to be sold at once, if, by such sale, a higher j)rice will be obtained.^ When, after a sheriff's sale, an issue is directed to decide how much of the land sold was covered by the mechanics' lien, the jury must decide how much was necessary for the convenient use of the building for the purposes for which it was designed when built. On a lot sixty feet front and two hundred and seventy deej), adjoining another lot of equal depth, and of half the width, a saw mill was erected. When, under exe- cution, these two lots were sold, but separately, the jury could allot the proceeds of both to the liens incurred in the erection of the saw mill, if they found both lots necessary to the use of the mill.^ Vicarious Subject of Lien. , § 37. The act of August 1st, 1868, [P. L. 1169,] provides that, in the city of Philadelphia, the defendant may enter ' Flickinger v. Huber, 31 Pa. St. 344. in Pennock v. Hoover, 5 R. 291 ; and - Ibid. a commissioner for this purpose was ^Keppel t). Jackson, 3 W. & S. 320. appointed in Werth v. Werth, 2 An auditor decided, after execution, Rawle 1-51 ; Hinchmau v. Graham 2 the extent of the mechanics' liens, Serg. & R. 170. 40 LAW OF LIENS. security in double the claim of the plaintiff, or pay into court the amount claimed, and the security or money shall stand for the building, which henceforth shall be released from the lien. The act of 6th March, 1873, [P. L. 215,] specifies the security to be given, as a bond and warrant of attorney, in double the amount of the claim, to be executed by the defendant and one surety, and the judgment immedi- ately entered on such bond shall bind the land of the defendants offered and approved by the court as security. When the owner had paid the contractor in full, a bond, executed by the latter with a surety, was sufficient.^ The substitution of security may be made at any time before the issue of a levari facias^- e. g., after the filing of an affidavit of defence to the sci. fa.,^ or four years after a verdict has been set aside and a new trial of the sci. fa. has been granted.* Commencement of Lien. § 38. Under the act of 1836, the lien for labor or materi- als begins when the debt therefor arises ; but once begun, it is preferred to every other lien or encumbrance which attaches upon the building and ground, or either of them, subsequently to the commencement of such building.^ The building is commenced when the first work is done on the ground, for the foundation, as part of the work suitable and necessary for its construction.'' Hence, if, the date of the beginning of the excavation for the masonry of the founda- tion not being ascertained, the masonry itself was begun July 16th, a mortgage recorded July 17th would be a pos- ^Matsinger v. Mullen, 3 W. N. C. before the commencement of the 544. building, the lien cannot, of course, ^ Day V. Garrett, 3 W. N. C. 558. arise until said commencement. ^Ibid. Parrish's Appeal, 83 Pa. St. 111. ■* Ashmead v. Prowhattan, 2 W. X. ^ Pennock r. Hoover, o R. 2'Jl ; C. 98. Parrish's Appeal, 83 Pa. St. Ill ; * Section 10, act of 1836. It was Prutzman v. Bushong, 83 Pa. St. so under the previous acts. Where 526 ; Denkel's Estate, 1 Pearson 213. the labor or material are furnished mechanics' lieas. 41 terior lieu to the mechanics' liens.-^ All mechanics' liens, arising at whatever time during the construction of the building, are of equal rank, since they relate to the same commencement, and must share pro rata in the proceeds of the judicial sale of the building.^ If, having contracted by- articles of agreement to purchase land from A., B. com- mences to erect a house upon it, and subsequently A. con- veys the legal title, and a judgment is entered the same day for the purchase money, the judgment is a prior lien to the claims of mechanics.^ But if the judgment for purchase money is not entered until after the day on which the con- veyance is made, it will be postponed to mechanics' liens.* When A. leased land to B. for two years, stijjulating, how- ever, that if, within that time, B. should erect a house upon it, he would convey the fee to B., subject to a redeemable ground rent, judgments entered before the commencement of the building, against B., were postponed to the mechanics' liens which arose in the construction of the house ; the build- ing of the house was essential to the completion of the equitable title to the fee." The lien affects the title of any one who purchases it, after the commencement of the building." § 39. In the erection of the house, as it exists when it is sold judicially, there may have been wholly distinct stages, furnishing distinct points of commencement. Under the twenty-fourth section of the act of 28th April, 1840, [P. L. 474,] which makes mechanics' claims a lien only on the estate of the person by whom the building was commenced, a total cessation of the erection, payment of all claims • Parrish's Appeal, 83 Pa. St. Ill ; 'Stoner v. Neff, 50 Pa. St. 258. Hahn's Appeal, 39 Pa. St. 409. ■'Lyon v. McGuffy, 4 Pa. St. 126; ^ Section 22, act of 1836 ; Steven- Denkel's Estate, 1 Pearson 213. son V. Stonehill, 5 Wh. 301 ; Denkel's ^Case of John Vandevender, 2 Br. Estate, 1 Pearson 213; Norris' Ap- 303. peal, 30 Pa. St. 122; Anshutz v. Mc- «Scholl v. Gerhab, 9 W. N. C. 157. Clelland, 5 W. 487. 42 LAW OF LIENS. accrued, and a sale of the owner's title to another, who does not resume the work of construction for several months after the conveyance to him, are a severance of the erection into two distinct processes, and liens acquired in the second pro- cess of erection relate only to the commencement of that process, not to the commencement of the first one. Hence, a judgment for the purchase money, entered on the day of the conveyance, has priority over the liens arising in the subsequent completion of the building.^ Whten, however, under a contract with A., the owner, B. began to erect a saw mill, in the spring of 1847, and continued the work until June, 1848, when he desisted for want of materials, and he returned between June, 1848, and November, 1849, several times, but did not complete the mill, because the smith-work was not done, and on October 23d, 1849, A. sold the mill to C, and B. returned in 2!s^ovember and com- pleted the mill, filing his claim for the entire contract price on December 17th, 1849 ; it was held to be the function of the jury to say whether the work done in November, 1849, was in completion of the contract of 1847, with the consent of C. If so, the claim filed would support a lien for the entire work. The work done after the sale to C. was thus related to the work done before it.^ If, after a house is finished, it is sold, and a purchase-money mortgage is taken by the vendor, and the vendee then employs a paper-hanger to paper some of the rooms, the latter acquires no lien that can, by relation to the commencement of the work, inter- cept the mortgage.'' A sheriff's sale of an unfinished house, even before the act of 1836, divested all liens that had arisen in its building. After a house had reached the third story, it was sold by the sheriff to A., March 7th, 1836. A judgment was recovered against A. the 20th of April fol- lowing, and in November work on the house was resumed 'Fordham's Appeal, 78 Pa. St. ^'Holden ti. Winslow,18Pa. St. 160; 120. Mears v. Dickerson, 2 Phila. 19. 'McCree v. Campion, 5 Phila. 9. mechanics' liens. 43 by mechanics, and it was completed. The lien for the last work thus done did not relate farther back than the time it was begun. The judgment was a prior lien.^ § 40. In the progress of a building there may, independ- ently of any change of ownership, be distinct and striking departures from the original design upon which the structure was being erected, with the effect of separating the building- process into two or more stages, with wholly independent commencements so far as the point of relation of liens is concerned. Having begun and nearly finished a structure for the making of saws by hand, requiring a small outlay of money, A. determined to manufacture saws by steam ; changed the plan of the building, introduced a costly steam engine, put up an engine house and several buildings super- numerary to those contemplated originally. The buildings differed materially in number, size, complexness and expens- iveness from those first planned. The liens which arose in the execution of the second design related only to the mani- fest commencement of the work under it, and were postponed to a mortgage of the land made during the prosecution of the original plan.^ The substituted plan may not supervene ' Stevenson v. Stonehill, 5 Wh. 301. parties, who began the building of When M., having commenced the houses, but subsequently stopped building of a house, sold it before it working and abandoned their con- was finished to P., who executed a tract with B. B. shortly after sur- mortgage for the purchase money rendered his contract to A., but on when the deed was made, and P. the same day it was renewed with went on with the construction, the C, as trustee for B. B. resumed the lien of mechanics for work done erection of the houses, but before after the salo related to the com- they were finished they were sold by mencement of the house, and had the sheriff. Held, the mechanics' precedence of M.'s mortgage. Am. liens all related to the commence- Pire Ins. Co. v. Pringle, 2 Serg. & E. ment of the work by the parties to 138 ; Hern v. Hopkins, 13 Serg. & K. B.'s sub-contracts of sale, as against 269. A. contracted to convey land intervening judgments, to B., subject to a perpetual ground ^Norris' Appeal, 30 Pa. St. 122 ; rent, so soon as B. should erect suf- Smedley v. Conaway, 5 CI. 417. For ficient buildings to secure the rent. work done under the original de- B. sub-contracted to sell to other sign, a claim must be filed within 44 LAW OP LIEXS, upon the original one until the latter has been substantially- completed. Work done under the more recent plan would, of course, carry its lien back only to the more recent com- mencement. An iron furnace was built after a certain design, and completed so far that it was started and run a short time, though the air and water pipes, which had been laid, had not yet been connected. Working unsatisfactorily, it was blown out; considerable changes and repairs were made ; new kilns were built. Liens for the latter work were posterior to a mortgage executed before its beginning, but about the time of the completion of the original design.^ A. began to erect houses, intending them to be of two stories, but, his funds failing, he roofed them in, when they had reached the height of one story, and rented them. Subse- quently, he resumed his former plan, took off the roofs and added a second story. Liens arising in this second stage related only to its commencement, as against judgments recovered before that time.^ § 4L When, under a common plan, several physically separate structures, but equally indispensable to the purpose of the establishment, are erected, the liens arising from materials or labor furnished to any of them, relate to the first work done under this plan. Thus, when the plan of building embraced an engine and its house, new boilers, and the structure which should cover them, and an immense boiler stack, all standing at considerable distances from each other, and the first work on the ground was the excavation for the foundation of the boiler stack, the lien of the work on the engine, and on the boilers, as well as of that on the stack, related to the beginning of this excavation." Whether the facts exist which, under the principles indicated, will six months of the definitive com pie- 'Thoma and Blandy's Estate, 76 lion of it, though the same claimant Pa. St. 30. has done work, also, under the sub- "Irvin t'. Hovey, 3 Phila. 373. stitu ted design. Diller ti. Burger, 68 'Panish's Appeal, 83 Pa. St. 111. Pa. St. 432. mechanics' liexs. 45 carry back to the first beginning of work on the ground, or only to some later point, the liens for labor and materials, is for the jury.^ To mechanics' liens growing out of any build- ing, precedence is given by the act of June 8th, 1881, [P. L. 56,] over any advance-money mortgage, except to the amount thereof that equals the value of the lot of ground or curtilage immediately prior to the commencement of the building.^ § 42. Liens for alterations and repairs, under the act of May 1st, 1861, [P. L. 550,] for Chester, Delaware and Berks counties ; under the act of August 1st, 1868, [P. L. 1168,] applicable to Philadelphia ; under that of March 20th, 1868, [P. L. 407,] applicable to Cumberland and Franklin counties, as well as under several others, are made to begin with the filing of the claim.^ Yet, under the act of August 1st, 1868, it was held that when a claim was filed after an assignment for the benefit of creditors, the lien was valid against the assignees.* When, however, a house in Philadelphia was finished according to its original design, in 1871, was sold three times, and in 1873 paper-hanging was done, but subsequently the house was again sold, before a claim was filed, no lien existed for the papering.^ Duration of Lien. § 43. Under the act of 1836, debts for labor and mate- rial continue a lien until the expiration of six months after the labor shall have been finished or the materials furnished, although no claim shall have been filed therefor. The filing of an invalid claim within that time will not determine the lien before the expiration of that period.^ If a sheriff's iDiller v. Burger, 68 Pa. St. 432; * Crump v. Gill, 9 Phila. 117. Holden r. Winslow, 18 Pa. St. 160. "Ashman v. Doerr, 3 W. N. G. ■' See Nixon v. Coffin, 6 W. N. C. 474. 489, for the law, before a similar act, " Shrader v. Burr, 10 Phila. 620 ; 22 that of May 21st, 1878, [P. L. 56,] was Pittsb. L. J. 86 ; Hays v. Tryon, 2 M. passed for the city of Philadelphia. 208 ; Berger v. Long, 31 Leg. Int. 3 As to act of 1861, see Bunting's 373. Appeal, 6 W. N. C. 12. 46 LAW OF LIENS. sale of the premises takes place at any time within six months from the furnishing of labor or material, the lien therefor is payable out of the proceeds, though no claim was filed until after that period,^ or, indeed, ever. Hence, when the premises were sold, March 1st, 1852, a mechanic's debt for bricks, for which no claim had been filed, was or was not a lien, according as the building had been finished, June 27th, 1851, or not till the laying of a pavement on Novem- ber 8th, 1851. If on the latter date, the debt for all the bricks furnished to the building was a lien.^ When the last material was furnished on January 22d, the lien expired on July 22d, following.^ The act of April 8th, 1868, [P. L. 752,] which gives a lien for material or labor furnished in or about the construction or repair of engines, engine houses, derricks, tanks, etc., on leaseholds in Venango county, as amended by the act of April 13th, 1869, [P. L. 888,] directs that the debts for such material or labor shall be a lien for the period of three months after the last work shall be done, or the last material shall be furnished ;* while the act of June 28th, 1879, [P. L. 182,] concerning repairs, alterations and additions in counties whose population does not exceed two hundred thousand, limits the lien to the period of thirty days after the last work shall be done, unless within that time a claim shall be filed.' f ^ Young V. Elliott, 2 Phila. 352. years from the commencement of ^Yearsley v. Flanigen, 22 Pa. St. the building, but, to prolong them 489. So, under the act of 17th beyond that limit, an action for the February, 1858, which extends the recovery of the debt must be begun, lien to improvements, engines, etc., or a claim therefor filed, within six put up by tenants, in Luzerne and months after finishing the work or Schuylkill counties. Esterley's Ap- furnishing the material for which peal, 54 Pa. St. 192 ; Robson's Ap- the lien was asserted. A sheriff's peal, 62 Pa. St. 405. sale of the premises, taking place ' Hoops V. Parsons, 2 Miles 241. within two years of the conimence- * Gibbs V. Peck, 77 Pa. St. 86. The ment of the building, the mechanics' act of 1868 supplied, in this respect, liens, though no claim was filed, that of February 17th, 1858, [P. L. 2.] were superior to mortgages given ^ The act of 17th March, 1806, con- six months after the building began. tinued liens of mechanics for two In re John Thompson, 2 Br. 297. The mechanics' liexs. 47 When Claim must be Filed. § 44. As we have seen, the claim must be filed, according to the fourteenth section of the act of 1833, within six months after the work shall have been finished, or material furnished.^ The claimant may file his claim even on the last day of the six months.^ Hence, if the claim was filed February 11th, 1855, it was not too late, unless the work was completed before August 11th, 1854.^ When the last item of material was furnished on January 16th, 1858, the claim was filed in time on July 16th, 1858/ When the material was furnished January 22d, a claim filed July 23d of the same year was too late.^ So, when the bill of particu- lars set out the work as done May 16th, 1859, the claim filed November 17th, 1859, was stricken oflf.^ The claim may be filed within six months, though a judicial sale of the land has taken place ; its lien attaches to the proceeds/ If a lien lasted for two years ■n'ithout claim or action brought. Pennock 11. Hoover, 5 R. 291 ; Hern v. Hop- kins, 13 Serg. & R. 269. If the claim was not filed till after six months from the furnishing of the material, or completion of the labor, though within two years from the com- mencement of the building, the lien expired at the end of the period of two years. Hern v. Hopkins, 13 Serg. & R. 269. So, if, after the six months, the materialman obtained a judgment, before a justice of the peace, and had it transcripted into the common pleas, his lien was lost, after two years from the commence- ment of the building, as against judgments recovered subsequently thereto. Cornelius v. Uhler, 2 Br. 229. The entry of a judgment on a bond, with warrant of attorney to confess, was not the commencement of an action, such as would continue the lien, though it was entered within six months of the rendering of the work, as against a mortgage exe- cuted between the doing of the work and the entry of the judgment. Wil- liams V. Tearney, 8 Serg. & R. 58. A sale of the premises after the begin- ning of the building, did not make a new commencement, preserving liens for two years therefrom. Hern !'. Hopkins, 13 Serg. & R. 269 ; Pen- nock V. Hoover, 5 R. 291. 'Russell V. Bell, 44 Pa. St. 47. ^Speakman v. Knight, 3 Phila. 25; though the claim was not entered on the judgment docket till the next day. 'Wilson V. Porder, 30 Pa. St. 129; McKelvy v. Jarvis, 87 Pa. St. 414. *Smaltz V. Hagy, 4 Phila. 99. ^ Hoops V. Parsons, 2 M. 241 ; Mc- Kelvy V. Jarvis, 87 Pa. St. 414. * Philadelphia v. Sl^onaker, 6 Phila. 48 ; Hall v. Dougherty, 8 W. N. C. 255. ' Burt V. Kurtz, 5 R. 246. 48 LAW OF LIENS. claim is filed within six months, but is abortive for some technical or substantial defect, another may be filed within that period, even though a sci. fa. on the first claim has been nonsuited.^ When the first claim was void, because joint against several houses, a second claim was properly filed.^ When one claim is filed against George S. Pierce, as owner, this does not preclude the filing of another naming as owner William S. Pierce. The latter will not be stricken off because the first is not yet disposed o£^ § 45. Under an entire contract to erect a saw mill, under which the work was begun in the spring of 1847, and con- tinued till June, 1848, but was then suspended for want of necessary materials until November, 1849, when it was resumed, and completed in December, the claim filed in December for the entire contract money was in time, if the delay was not unreasonable, under existing circumstances, although during the suspension of work the premises had been sold; the resumption of work being with the pur- chaser's consent.* When, in pursuance of a contract, the plastering work and material were furnished and completed between October 1st, 1872, and March 3d, 1873, but, by reason of a fire in an adjoining building, happening May 1st, 1873, additional plastering was made necessary to the ■outside of the new building, and was done June 23d, 1873, a claim was filed too late on December 12th, 1873, for the work under the contract.^ When a steam pump on a leased colliery was finished and started August 16th, 1872, and a part of it, being broken by accident, was repaired December 14th, 1872, a claim for the construction of the pump, not ^ Bournonville v. Goodall, 10 Pa. ^ Harper's Appeal, 4 W. N. 0. 49. St. 133. But if the claim is apparently proper ^ Chambers v. Yarnall, 15 Pa. St. on its face, it will cause a mortgage 265. dated January 7th, 1873, to be di- ''Highfield v. Pierce, 3 Phila. 507. vested by a judicial sale on a later * Holden v. Winslow, 18 Pa. St. 160. lien. mechanics' LIEN'S. 49 filed until April 30th, 1873, was too late.^ When A. con- tracted to furnish all the bricks and mortar, and do all the brick-work for a house, his claim was filed in time when filed within six months of the last item furnished. The claim ■was valid, filed December, 1846, for bricks furnished and laid November 2d and November 15th, 1845, and May 1st, June 1st and September 4th, 1846.^ For material and labor rendered under an entire contract for the window sills, door frames, columns and ornaments of a church, and for the setting of the same, a claim is filed in time within six months of the last work done in its execution.^ When an entire contract is made to do all' the brick and stone-work on a building, including the laying . of the pavement, a claim is filed in time, if within six months after the paving, though all the other work has been completed four months pre- viously thereto.* When a gross contract between the owner and the plumber for the plumbing and gas-fitting of a house was completed before April 1st, 1876, except a hose-plate, which had been overlooked, and, by agreement between the parties, the plumber, in June, 1876, put in a street washer as a substitute for the hose-plate, but not as extra work, to be paid for separately, the claim for the contract work was properly filed, if within six months from June, 1876.^ § 46. When an entire contract is made for the erection of a building, and during its progress extra work is done under later agreements, this work is so intimately connected with the work done under the contract, that the filing of a sepa- rate claim for it is unnecessary, and a claim filed within six ' Philadelphia Trust Co. v. Oakdale before act of 1836, Croskey v. Coryell, €oal Co. C. P. of Schuylkill county, 2 Wh. 223. 1874; report of Hon. E, 0. Parry, * ^ Baptist Church v. Trout, 28 Pa. auditor. St. 153; Bolton's Appeal, 3 Grant ■■' Bartlett v. Kingan, 19 Pa. St. 341 ; 204 ; In re Hill's Estate, 2 CI. 323 ; Phillips V. Duncan, 5 CI. 358 ; Fer- Geiss ■;;. Rapp, 14 Leg. Int. 116. guson v. Vollom, 1 Phila. 181; Mc- *YearsleyD.Flanigen,22Pa.St.489. €ay's Appeal, 37 Pa. St. 125. So, ^ McKelvy i). Jarvis, 6 W. N. C. 202. 50 LAW OF LIENS. months of the completion of the contract of building, though more than six months after the performance of the extra work, will preserve the lien for the latter as well as for the work done under the contract.^ Yet, if a contract is made for the brick-work of a house, exclusive of the pavement, and a distinct contract for the latter, separate claims must be filed for each, and within six months respectively of the fin- ishing of each.^ When, under one contract, a barn and wagon shed were begun between April and September, 1868, and a shed about twenty feet distant from them was begun in February, 1869, under a later contract, by the same con- tractor, a claim for the work done under each contract must be filed within six months of its completion, although each claim would cover the entire curtilage on which the build- ings erected under both contracts stood.® An entire contract may be severed so that distinct claims for each part must be filed, each within six months of the completion of the work. Thus, if a contract for the brick- work of a house, including the pavement, is made, and when the house itself is finished the parties treat the contract as complete, and suffer a con- siderable time to pass before the pavement is laid, and inter- vening rights attach, the claim for the work done on the building proper must be filed within six months of its com- pletion. An interval of four months, however, did not effect this severance.* If, after the supposed completion of the plumbing and gas-fitting of a house, under a gross contract, it is discovered that a hose-plate has been overlooked, and by an agreement between the owner, who is the contractor, and a plumber, a street washer is substituted as extra work, the claim will not be filed in time if, though within six months from the putting in of the street washer, it is filed more than six months after the completion of the other -work.* iRush V. Able, 7 W. N. C. 199; ^Hudnit v. Roberts, 10 Phila. 535. Harper's Appeal, 4 W. N. C. 49. *Yearsley v.Flanigen,22Pa.Sl.489. ^Yearsley v. Flanigen, 22 Pa. St. ^McKelvy v. Jarvis, 6 W. N. 0. 489. 202. lIEC:HA^•ICs' LIEXS. 51 Yet, when a contract was made by the owner with A. for boilers, drum heads, etc., to be used in the construction of a furnace, the owner furnishing the drafts by which they were to be made, and, the last work in pursuance of this contract having been done October 11th, 1872, it was afterwards dis- covered that the mud drums were too long at one end, owing to a mistake in the draft ; and on October 29th, 1872, the heads were taken out, the drums shortened, and the heads replaced, and extra compensation was allowed for this altera- tion ; a claim was in time for the entire work when filed April 25th, 1873.^ § 47. If there is an entire contract to plaster several con- tiguous houses, the claim against each must be filed within six months of the completion of the plastering on each ; it is not enough that one be filed against each within six months of the completion of the last house.^ A fortiori is this the case when the blocks of houses are on opposite sides of a street,'^ but are erected under a joint contract, and one of them being finished before the other, the claim is not filed until more than six months elapse from the completion of one block, though within that period from the completion of the other block. § 48. When there is no entire contract for the building of a house, or for the construction of some particular part of it, or the doing of the whole of some particular kind of work involved in its erection, e. g., the mason work, the brick work, the plastering, the papering, the doors, windows, sills, etc., the act of April 14th, 1855, [P. L. 238,] applies,* which directs that when work is done or materials are fur- nished continuously towards the erection of any building, the claim need not be filed until within six months after the last item of work or material is done or furnished. Supplies ' Parrish'.s Appeal, 83 Pa. St. 111. ^ilcCurdy v. Keenan, 1 W. X. C. ^ Wilson V. Forder, 30 Pa. St. 129 ; 523. Comp. Full V. Austin, 1 W. N. C. 457. * Diller v. Burger, 68 Pa. St. 432. 52 LAW OF LI Elf S. of materials or labor, from time to time, for the same build- ing during its progress, on successive requests of the con- tractor, are by this act linked together, as, independently of it, they would be by an entire contract. If the claim is filed within six months of the last of such supplies, for the entire series, it will be in time.-' If the building is finished, mate- rials 'furnished soon afterwards will not be connected with those furnished during and for its erection, so as to make a claim filed within six months of the additional supply, in time ; but the admission of the builder and owner that the house is not finished, when the last item is supplied, will be evidence as against him, or one who buys from him, sub- sequently.^ Though an interval of three, months elapse between the furnishing of the last four items (all supplied within one week, and of the aggregate value of only $7,) and the immediately preceding items, these last items will carry forward the lien of the earlier items for six months, if they were in fact furnished before the completion and as a means of finishing the building.^ A claim, however, filed May 9th, 1877, setting forth marble work done continuously to two houses, in items of two dates, viz., June 18th, 1875, and April 6th, 1877, (the items of the former date aggregat- ing ,1249.50 ; that of the latter, nine stone scrapers, only $13.50,) was stricken off, as showing on its face the attempt to evade the directions of the mechanics' lien law, by tying a new item to a long-defunct claim.* § 49. When A., the owner, contracts with B. to erect a building, to be partly used as a residence and partly as a dry-goods store, and separately contracts with him for all the counters and shelves of the store, one, from whom B. obtains his lumber in installments ranging from September ^Singerly v. Doerr, 62 Pa. St. 9. 'Soholl v. Qerhab, 9 W. N. C. 157. Before the act of 1855, the contrary ' Ibid. had been held. PhilHps v. Duncan, * Kohler v. Mountney, 5 W. N. C. 5 CI. 358. 260 ; 4 W. N. C. 288. mechanics' liens. 53 2d, 1857, to January 16tli, 1858, may file his lien for his entire demand within six months of the last date, notwith- standing that there is one interval of two months between two of the dates of supply. He need not file two claims within six months of the last item furnished for the build- ing, and for the counters and shelving, respectively.^ When, to the erection of a brewery on a certain plan, A. contributes labor and material, and on the completion of the building another building is begun, in connection with the first, to which A. likewise supplies material and labor, if the two buildings were embraced in the original design, a claim filed within six months of the completion of the last building will preserve the lien for the supplies rendered to both ; but if the construction of the second building is the result of a new plan, adopted after the work had advanced under the first plan to completion, a claim for the supplies to the first building must be filed within six months after it is finished.^ Duration of Lien after Claim Filed. § 50. When a valid claim is filed in time, the lien is pro- tracted beyond the day of its filing, for five years, by the provision of the twenty-fourth section of the act of June 16th, 1830. A scire facias issued within that time to revive it, will continue its lien beyond the expiration thereof. The sci. fa. may issue at any time within the term of five years. When the claim was filed Xovember 13th, 1856, a sci. fa. was properly issued on November 11th, 1861.^ Liens under the act of April 8th, 1868, [P. L. 752,]* which applies to Venango county, and which was extended to several other counties by the acts of March 18th, 1869, [P. L. 410,] and of -leth March, 1870, [P. L. 452,] and liens under the act of 28th June, 1879, [P. L. 182,] continue for three months only from the dat^ of filing the claim, unless within that time a scire facias issues thereon. 1 Sraaltz V. Hagy, 4 Phila. 99. =• Hershey v. Shenk, 58 Pa. St. 382. ^Diller v. Burger, 68 Pa. St. 432. *Gibbs v. Peck, 77 Pa. St. 86. 54 LAW OF LIENS. § 51. The effect of the sci. fa. is similar to that of a sci. fa. to revive and continue the lien of judgments. The lien is continued for five years from the issue of the sei. fa., and if within that time a judicial sale of the premises takes place, the mechanics' lien may be paid from the proceeds, together with the costs on the sci. fa. ; it is not necessary to recover judgment after the sale.-^ When, on a claim filed September 8th, 1845, a sci. fa. issued December 10th, 1845, and no fur- ther steps were taken until July 31st, 1850, when the cause was urged forward, and a verdict recovered October 28th, 1850, judgment was entered on this verdict in the Supreme Court in 1853, the court below having arrested judgment.^ But it has been decided that a judgment must be recovered within five years of the issue of the sci. fa. Hence, when the sci. fa. issued November 11th, 1861, and the trial did not take place until June 4th, 1867, judgment was entered for the defendant.^ Nor does the death of the owner within five years of the issue of the sci. fa. preserve the lien under the twenty-fourth section of the act of February 24th, 1834.* A claim was filed November 14th, 1865; sci. fa. issued March ]6th, 1866; affidavit of defence filed April 21st, 1866; plea, September 8th, 1866; trial, April 6th, 1870, and verdict for plaintiff. On June 28th, 1870, a new trial was granted. On October 2d, 1871, a special plea was made that more than five years had elapsed since the issue of the sci. fa. The lien was gone.^ When a verdict was obtained 'McLaughlin v. Smith, 2 Wh. 122. gci. fa. was not filed within the six This was prior to the act of 1830. months. Kogevs v. Klingler, 3 Wh. Under the act of ISOS, the lien ceased 331 ; Linn v. Xsglee, 4 Wh. 92. two years from the commencement ^Sweeny v. McGittigan, 20 Pa. St. of the building, unless a claim was 319. filed within six months after the ^Her^lley v. Shenk, .58 Pa. St. 382. supplying of the work or materials. *lUd. But a personal action or a sci. fa. * Hunter v. Lanning, 76 Pa. St. 25; could be brought to enforce the pay- Ward v. Patterson, 46 Pa. St. 372; ment and to continue the lien. An Comp. City of Philadelphia v. Scott, action within the two years would 8 W. X. C. 246. not continue the lien beyond, if the mechanics' liens. 55 two days before the expiration of the five years, on the fourth day following, the day for entering the judgment, judgment was arrested.^ "When a sci. fa. issued January 18th, 1868, on which judgment was not obtained, plaintiff issued a sci. fa. to revive and continue the lien of his claim, on April 20th, 1872, on demurrer to which, judgment was entered for the plaintiff in 1877, the plaintiff stating that on the second sci. fa. he expected merely a judgment to revive, not one quod recuperet.- Joint Claims. § 52. Under the act of 1806, and its supplement of 1808, when a materialman or mechanic contracted for a gross sum, or at given rates of compensation, to do all the work or fur- nish all the materials needed in the simultaneous erection of two or more adjoining houses of the same owner, he could file only one claim for the entire compensation against all the houses jointly. If, without making such a contract, he simply furnished material or labor from time to time, to be used in the several houses, he might either file a joint claim against all, or, apportioning his debt among them, might file a separate claim against each for its share.^ The act of 30th March, 1831, [P. L. 243,] recognizes the right to file a joint claim against two or more adjoining houses erected by the same owner, but in every such case gives the claim- ant the power to file with his claim an apportionment of the amount of materials or labor furnished, among the houses, and makes each house liable for its apportioned share,* while the thirteenth section of the act of 16tli June, 1836, [P. L. 699,] requires such apportionment of a joint claim against adjoining buildings, erected by the same owner, to be appor- tioned upon each, otherwise such claim shall be postponed ^Rush ('. Plumly, Com. Pleas Xo. 'Pennock v. Hoover, 5 E. 291. S, Phila., 13th June, 1878, cited 2 Apportioning a joint claim is not Bright. T. & H. Pr. 338, note 11. recognized. ^Ketcham y. Singerly, 3 W. N. C. * Barnes v. Wright, 2 Wh. 193; 544. Chambers v. Yarnall, 15 Pa. St. 265. 56 LAW OF LIENS. to other lien creditors.^ The liea against each house cannot be greater than the amount so apportioned upon it, as against other creditors having liens by judgment, mortgage, or other- wise. The claim, though unapportioned, is valid against the owner.^ A claim for work, as well as for material, may be filed jointly against contiguous buildings of the same owner,, and apportioned under the act of 1836.^ Under the acts which give a lien for alterations, repairs and additions, a joint claim against several houses may be apportioned,* and,, indeed, must be, as against later lien creditors. An omission to apportion a joint claim upon four houses, made by altera- tion of a back building, previously annexed to a dwelling house, and a stable, postponed the claim to other mechanics' liens arising out of the same alteration, and to a mortgage recorded after the filing of the claim.^ One structure, on a common foundation and under a common roof, was divided into two, thus : Two cellars were made by the foundation for the double chimney, standing in the middle, and by sub- stantial boarding; above the cellar the structure was divided into equal and non-communicating parts by a studding par- tition, lathed and plastered on both sides, from the lower floor to the top of the attic. Each section of the structure had its own exterior doors ; the front yards were entirely divided by a paling fence. The two sections were designed to be distinct dwellings, and were occupied as such. A joint claim against this structure, not apportioned, was postponed to later liens." When the single claim is against two three- ' Creditors acquiring liens subse- ^Donahoo v. Scott, 12 Pa. St. 45; quently to the filing of the claim. Section 38, act of 25th April, 1850, Thomas v. James, 7 W. & S. 381 ; [P. L. 576.] Bunting's Appeal, 6 W. N. C. 12. *Steffy c. Frost, 3 W. X. C. 409. And creditors by mortgage, judg- ^Bunting's Appeal, 6 W. N. C. 12. ment, or otherwise, not merely me- The alterations were under the act chanics' lien creditors. Bunting's of May 1st, 1861, applicable to Ches- Apj)eal, 6 W. N. C. 12. ter, Delaware and Berks counties. 'Young V. Lyman, 9 Pa. St. 449. ''Malone's Appeal, 79 Pa. St. 481. In Donahoo v. Scott, 12 Pa. St. 45, For similar case, see Munger v. Sils- this case is cited as one of appor- bee, 64 Pa. St. 454 ; Mersereau r. Koh- tionment. ler, 2 Leg. Opin. 133, 2 Peai-son 119. mechanics' liens. 57 story brick houses, but omits an apportionment, it is fatally defective. If a judgment has been obtained on it, two levari facias cannot be issued, each for one-half the claim', to be made out of each of the houses.^ § 53. The ihechanic or materialman need not file a single claim against two or more adjoining houses of the same owner, though he has made an entire contract for the supply of labor or material to them. He may apportion his demand upon each, and file a separate claim against each for its share of the aggregate demand." When, owing to the inter- dependence of several structures, the law gives a lien on all for the work done in, or material furnished to, any one of them, there need, of course, be no ajjportionment.'^ Under a contract to do the plumbing and gas-fitting for twenty-five contiguous houses, for the aggregate price of $1,750, the apportionment may be simply of the debt; an assessment of $70 on each house, without specifying the material or labor put into it, is sufficient.* A separate claim must be filed against each of two or more buildings, when they belong to different persons ; even though they are contiguous, and are erected at the same time by the same contractor," and a materialman, who furnishes bricks to a contractor who is erecting two adjoining houses for two distinct owners, to be used in such houses indiscriminately, may apportion his demand, and file a distinct claim against each house for its share thereof,'* though the material is furnished under an entire contract.'^ ' Boas V. Birmingham, 2 Pearson Moore v. Forest Mansion Co., 3 W. 334. N. C. 289. MVilson V. Forder, 30 Pa. St. 129 ; * Armbrust v. Galloway, 2 W. N. C. Millett V. Allen, 3 W. N. C. 374. 585. Liebelt v. King, 21 Pittsb. L. J. 144, ^Gorgas v. Douglass, 6 Serg. & E. is contrary. 512 ; Jones v. Shawan, 4 W. & S. 259 ; ^Lauman's Appeal, 8 Pa. St. 473 Harnian w Cummings, 43 Pa. St 322 ; Lightfoot o. King, 35 Pa. St, 848; Hershey v. Shenk, 58 Pa. St 882; Parrish's Appeal, 83 Pa. St. Ill: Davis V. Farr, 13 Pa. St. 167. ^ Harper v. Keely, 17 Pa. St. 234 ; Davis V. Farr, 13 Pa. St. 167. The debt -was equally divided. 'Rush V. Bank, 2 W. N. 0. 263. 58 LAW OF LIENS. If the houses, though adjoining and belonging to the same owner, are not erected at the same time, distinct claims must be filed against each. A. erected two contiguous houses simultaneously on his lot, and when they were under roof, bought the adjoining lot and commenced to build two other houses, contiguous to the first two. Sipce the material and labor furnished to the second two could be easily discrimi- nated from those which were supplied to the first two, a joint claim against the four was improper/ Yet, though the entire contract for material or labor to be furnished to several contiguous houses of the same owner specifies not only the aggregate price of the materials- or labor, but the price for each house, the claimant may file one claim and apportion it upon the several houses, in conformity with the contract.^ If the joint claim shows, on its face, that it is against blocks of houses intersected by streets, it is a nullity, and a mortgage later than the lien will not be divested .by a sale on a subsequent judgment.'' When, on one lot facing on two parallel streets, the owner erects simultaneously a row of houses on each street, their yards meeting each other, respectively, one who has furnished material to these houses indiscriminately may file a single claim, and apportion it.'' So, if a narrow private alley separates the rears of the yards of houses thus constructed over which each house has the right of way.° A. built on a lot facing a street, ten houses, two adjoining each other, making five blocks of two each, and between each block side-yards with a common partition fence. Between blocks two and three, a space of sixty feet ^Boyd V. Mole, 9 Phila. 118. each house, is apparently inconsist- ^ Armbrust v. Galloway, 2 W. N. C. ent with the three cases cited. 585; O'Donnell v. Bleim, 3 W. N. C. 'Goepp v. Gartiser, 35 Pa. St. 130. 432 ; Maxwell v. Kaighn, 4 W. X. C. ■* Taylor v. Montgomery, 20 Pa. St. 108. Thorn v. Shaw, 5 Leg. & Ins. 443. Chambers v. Yarnall, 15 Pa. St. Rep. 19, which holds that where the 265, is contrary. claimant can specify the work or "Fitzpatrick v. Allen, 80 Pa. St. material furnished to each house, 292. he must file a distinct claim against MECHAiNlCs' LIENS. 59 frontage was left, with the intention that a street, perpendic- ular to that on which the houses faced, should pass there. Held, since this space had not been dedicated as a public street before the buildings commenced, nor since, a joint claim, apportioned on each house, was valid.^ If one who owns land on both sides of a street, causes two opposite rows of houses to be erected thereon, simultaneously, a single claim filed against them all, showing that the houses are so situate, will be stricken off.^ Whether a structure is one or two buildings must be decided by the jury in the trial of the sci. fa.^ or by an auditor, who is making distribution of the pro- ceeds of sale.* It is not competent for a materialman to fur- nish materials indiscriminately to several houses divided by a street into two blocks, and then to apportion his debt upon each house, and file a separate claim against it for its share thus ascertained ; this can be done only when the houses form but one block.*" The Claim. § 54. The eleventh section of the act of 16th June, 1836, [P. L. 698,] requires that the claim or statement of his demand be filed by the claimant in the prothonotary's office of the county wherein the building may be situate. If the claim is filed in the prothonotary's office, the mere fact that it is mistakenly headed, " In the Quarter Sessions Court of Dauphin county," will not vitiate it." This claim must con- tain the name of the claimant.^ " Robert Dalzell & Broth- ers" is a sufficient designation of a firm if Robert Dalzell is a member of it.* A claim by two need not show that they are partners.'' The omission of the Christian names of the members of a firm must be pleaded in abatement ; other lien 1 Kline's Appeal, 9 W. N. C. 26; * Bunting's Appeal, 6 W. N. C. 12. Comp. Howell v. Campbell, 5 W. N. ^Schultz v. Asay, 10 W. N. C. 33. C. 361. Campbell v. Furnace, 1 ^ Hummel r.Kehres, 2 Pearson 100. Phila. 372, is contrary. 'Section 12, act of 1836. 2 French v. Kaign, 3 W. N. C. 495. » Black's Appeal, 2 W. & S. 179. 'Munger v. Silsbee, 64 Pa. St. 454. ' Knabb's Appeal, 10 Pa. St. 186. 60 LAW OF LIE-VS. creditors caunot take advantage of ij.^ A firm may file the claim though one of its members is also named as contractor.^ When the owner contracts with A. to furnish the mason work at a stipulated price, A. cannot, by taking B. into part- nership to do the work, legitimate a claim in the name of A. and B. It must be in the name of B. alone.^ If, after fur- nishing material, one member of the firm assign his interest to the other, the claim filed must nevertheless be in the name of the firm.* On the death of one partner, the survivor may file a claim in his own name.° If the name of one of several claimants is given, the omission of the rest will not vitiate the lien." The claim may be signed, " Wm. Boyd, attorney for plaintiff;"^ "Thomas Scott by Thomas Mellon, his attor- ney," Scott adopting it by issuing a sci. fa. upon it* It need not be signed at the bottom at all, if the name of the claim- ant appears in the body of the claim, and he has caused it to be filed and a sci. fa. to issue upon it.® The claimant may file a claim, in his own name, to the use of another, to whom he has assigned his lien.^'^ Naming the Owner. § 55. The name of the owner, or reputed owner, of the building, and of the contractor, architect, or builder, when the claimant made his contract with such contractor, archi- tect, or builder, must appear in the claim.^-^ A claim against ^ Hill's Estate, 2 Cl. 96. In Harker anta, at any stage of the proceed- V. Conrad, 12 Serg. & R. 301, there ings. were no Christian names. ' Calhoun v. Mahon, 14 Pa. St. 56. ^ Chambersburg Woolen Manufac- * Donahoo v. Scott, 12 Pa. St. 45. turing Co. u. Hazelet, 3 Brewst. 98. ° Kramer v. Spahr, Common Pleas ''Barker v. Maxwell, 8 W. 478. of Cumberland, tried in 1878. Mul- This was before a contractor could len v. Money, Dist. Ct. of Phila., 22d file a claim. April, 1848; cited 2 Bright. T. & H. •Howard v. McKowen, 2 Br. 149. 339, n. 3. See Clark v. Richardson, ^ Davis V. Church, 1 W. & S. 240. 4 W. X, C. 559. « Section 1, act of 11th June, 1879, "McCay's Appeal, 37 Pa. St. 125; [P. L. 122.] This act permits amend- Miller v. Bedford, 6 W. N. C. 144. ment of claim by changing, adding " Section 12, act of 1836. and striking out the names of claim.- mechanics' liex.s. 61 " A. B., contractor," no one being named as owner, is void.^ If the owner is called Jacob A. Tryon, instead of George Tryon, the mistake is fatal.^ If, in the title of the claim, and in the annexed bill, the owner's name is Joseph M. Harper, but in the body of the claim it is Joseph Harper, the discrepancy is immaterial.^ A claim against the trustees of Grace Mission is good, though the church building is known as Grace Mission, and there is no body corporate or unincorporate known as its trustees.* A claim entitled against a building committee of a church, but describing the building as owned by the church, might, seemingly, have been valid if the sci. fa. upon it had made the church a party, instead of the building committee only.® jSTaming the corporation the " Trustees of the Jefferson Medical Col- lege Hospital," the true name being " The Jefferson Medical College of Philadelphia," is immaterial, the real owner having full notice.^ The name of him who was owner when the labor or material was ordered,'^ or the work commenced,^ is sufficient. If A., after commencing a house, sells it to B., who permits him to complete it, a claim filed for material furnished since the sale is valid, though it names A. as owner and contractor.'' But if there has been a change of ownership since the furnishing of material, the owner at the time of filing the claim may be named,^° and the former owner, who also made the contract, may be named con- tractor.^^ A claim against A., owner and contractor, is void if A. in fact be not owner, and A. may defend on this 'Kennedy v. Bozarth, 3 W. N. C. N.C.407. Theclaim maybe amended 157. even after six months from its filing, ^ Hays V. Tryon, 2 M. 208. by substituting the names of the pur- ' Knabb's Appeal, 10 Pa. St. 186. chaser for that of the original owner, ^Gamon v. Trustees of Grace Mis- such amendment being immaterial, sion, 4 W. N. C. 72. 'Mears v. Dickerson, 2 Phila. 19. 'Noll V. Swineford, 6 Pa. St. 187. i° Jones v. Shawan, 4 W. & S. 257 ; 'Nason Manuf. Co. v. Jefferson Baptist Church v. Schreiner, 6 W. College, 4 W. N. C. 496. N. C. 407. ' Jones V. Shawan, 4 W. & S. 257. " Sullivan v. Johns, 5 Wh. 366. * Baptist Church v. Schreiner, 6 W. 62 LAW OF LIENS. ground.^ If A. alone is named as owner, neither the inter- est of his wife^ in the land, nor his own curtesy in her estate, will be bound by the lien ; such interest as he has independently of his curtesy will be.^ A confession of judg- ment on a sci.fa. on such a claim, by an attorney, the judg- ment to have the same effect as if the lien had been filed against both husband and wife, will not make a lien on the wife's land.* A claim may be filed against a married woman as owner, either alone or jointly with her husband.' Under the act of April 8th, 1868, which gives a lien on certain chattel interests in Venango county, the omission of the name of the owner, and of his designation as such, is fatal.'^ The chattel property against which a lien is asserted under the act of 17th February, 1858, must be described as belong- ing to the lessee; naming the lessor as owner is fatal.'' Prior to the act of 1836, when a life-tenant leased property to A., who, as part of the rent, was to have erected a building, a claim against A. alone was valid against the interest of the life-tenant.* Since that act, the interest of the lessor could not be bound by a claim which named the lessee as owner and contractor.' Though the owner has died within the six months, the claim may be filed against him, and a sci.fa. may at once issue to bring in his heirs and legal representatives.^" Naming the Contractor. § 56. If the person named contractor is not such, the error is fatal." So, if the claim names A. as owner and contractor, •Davis V. Stratton, 1 Phila. 289; 'Anshutz i;. McClelland, 5 W. 487. Fox V. Ketterlinus, 10 W. N. C. 506; * Houston, Smith & Co.'s Appeal, Smith V. Stokes, 10 W. N. C. 6. 6 W. X. C. 162. A sale on the lien ^Finley's Appeal, 67 Pa. St. 453. was enjoined at the prayer of the 'Woodward v. Wilson, 68 Pa. St. lessor. 208. '"Boas v. Birmingham, 2 Pearson « Finley 's Appeal, 67 Pa. St. 453. 334. * Hutchinson v. Preston, 2 Pittsb. "Davis v. Stratton, 1 Phila. 289; 303. Smith v. Stokes, 10 W. N. C. 6; « Newell V. Haworth, 66 Pa. St. 363. Hershey v. Odd Fellows' Hall, S. C, 'Carey v. Wintersteen, 60 Pa. St. 19th May, 1853; cited, Bright. T. & 395. H. 340, n. 8. mechanics' liens. 63 but the claimant's contract was not made with A.^ Though the claim is against A., as owner, and B. is named simply as debtor in the bill annexed, the omission to designate B. as contractor vitiates the lien.^ If the owner has made the contract with the plaintiff, he may be named as both owner and contractor,^ or he may be named as owner merely.* When A., the owner in fact, made the contract, and, after the beginning of the work, sold to B., the claim may name B. as owner, and A. contractor.^ The omission of the name of one of two joint contractors must be pleaded in abatement." If one of the contractors dies, the claim is properly filed against t!ie survivor.' By the act of 11th June, 1879, [P. L. 122,] omitted names of owners or contractors may be added at any stage, but so that no bona fide purchaser without notice, or other lien creditor, shall be affected by such amendment, made subsequently to the purchase or the acquisition of the lien. Stating Sum Due, and Kind and Amount of Work and Material. § 57. The sum of money claimed to be due, and the nature or kind of the work done, or the kind and amount of the materials furnished, must be stated in the claim.^ The amount due for work must be distinguished from that due for materials, and the amount due for each item of work or material must be given along with the specification of the work or material itself; claiming a gross sum for work and material is insuflScient.** A claim for materials furnished,^* or for labor performed," not designating their kind or quantity, is void, even as to later lien creditors. An item, "Bill of P. Iron Co.," and another, "A. & Bro.'s extra bill," 1 McCay's Appeal, 37 Pa. St. 12.5. 'Dick v. Stevenson, 9 W. N. C. 411. ^Ward V. Black, 7 Phila. 342. 'Section 12, act of 1836. ^Dearie v. Martin, 78 Pa. St. 55; 'Noll v. Swineford, 6 Pa. St. 187; Sullivan v. Johns, 5 Wh. 366; Jones Singerly v. Cawley, 26 Pa. St. 248. V. Shawan, 4 W. & S. 262., ^^Lauman's Appeal, 8 Pa. St. 473; *Knabb's Appeal, 10 Pa. St. 186. Heron v. Robinson, 2 Pars. 248. * Sullivan v. Johns, 5 Wh. 866. "Graham v. McLean & Bennor «Eichabaughti.Dugan,7Pa.St.394. Machine Co., 35 Leg. Int. 70. 64 LAW O.F JJENS. were stricken off for want of particularity.^ A claim for $185, "for stair building," was sufficiently definite.^ So many feet of "lumber, third common," sufficiently describes' the character of the material.^ When the material or labor has been furnished under an entire contract, for a gross sum, specification of its kinds and quantity is unnecessary ; stating the cubic yards of cellar dug, the perches of stone- work built, the quantity of boards used, would be super- fluous.* But if the contract is to do some particular kind of work, e. g., plastering or painting,^ or putting up ready- made marble mantels,'' the claim must show that the work done is of the class contracted for. If, under a contract to build a house for a specified sum, the work, after progress- ing to a certain point, is stopped by the owner on account of his embarrassments, the claimant may file a lump claim for the part of the contract price which he has earned by the work already done.'' It is immaterial whether the contract be in writing or in parol.^ A reference in the claim to the special contract is unnecessary.^ When bricks are furnished under a contract for so much per thousand, the amount due the materialman to be ascertained by measurement after the completion of the work, a claim for the amount so ascer- tained, without specifying the number of bricks found to have been furnished by the measurement, is sufficient.^" If, besides the work under the contract, extra work is done also, the latter must be particularly set forth as to kind, quantity and price.^^ If the claimant has made his entire contract for iRush V. Able, 90 Pa. St. 153. "Morris v. Eckstein, cited, Bright. ' Tack V. Brady, 2 W. N. C. 426. Dig. 1730. ''Ferguson v. Vollum, 1 Pliila. * Eckstein v. Keely, cited, Bright. 181. Dig. 1730. * Young V. Lyman, 9 Pa. St. 449; 'Young v. Lyman, 9 Pa. St. 449. Stiles i'. Leamy, 1 Phila. 29; Haines ^ Ibid. V. Burr, 1 Phila. 52 ; Hoover v. Mar- ' O'Brien v. Logan, 9 Pa. St. 97 ; tin, 10 Lan. Bar 134 ; Rush v. Able, Hill v. McDowell, 14 Pa. St. 175. 90 Pa. St. 153. Singerly v. Cawley, i" Miller u Bedford, 86 Pa. St. 454; 26 Pa. St. 248, is contrary. Hill v. McDowell, 14 Pa. St. 175. " Rush V. Able, 90 Pa. St. 158. mechanics' liens. 65 a gross sum, with the contractor, and not with the owner, he must set forth the kind and quantity of the work done and material furnished ; his contract, made with the contractor, is not conclusive upon the owner as to the price demanded by him/ The act of March 24th, 1849, [P. L. 675,] appli- cable to Philadelphia and to Chester county, permitting work and material to be incorporated into the same claim, and authorizing a statement in gross of the price of the whole, when there was an entire contract for a stipulated sum, or the value of the work and material was to be ascertained by measurement, has reference only to those who contract directly with the owner ; not to sub-contractors.^ Under this act, the nature and character of the work or material must be so set forth as to show that a lien exists therefor under the statute.^ Objections to a claim, for want of par- ticularity in describing the work or material, must be made by demurrer or rule to strike off; they are waived by plead- ing to the sci. fa} Stating Time. § 58. The time when the materials were furnished, or the work was done, must be stated in the claim.'^ This is for the double purpose of showing that the claim was filed in time, and of individuating the subject of the plaintiff's demand.** Though setting out the month and day of furnishing each item, a claim which omits the year is fatally defective.'' If the date given is related to the statement of labor, and of material, so as to leave it doubtful to which it refers, the ' Kussell F. Bell, 44 Pa. St. 47 ; Lee ' Section 12, act of June 16th, 1836, V. Burke, 66 Pa. St. 336 ; Gray v. [P. L. 698.] Dick, 9 W. N. C. 55.5; Van Koden v. ^Lehman v. Thomas, 5 W. & S. Sterrett, 7 W. X. C. 196. 262. Yet, in McCay's Appeal, 37 - Gray v. Dick, 9 W. N. C. 555 ; Pa. St. 125, it was held the claim Comp. Shields v. Garrett, 5 W. N. C. need not show that it was filed within 120 ; Thorn v. Heugh, 1 Phila. 322. six months. ^ Smaltz V. Knott, 3 Grant 227. ' Kehrer v. Zeigler, 3 W. & S. 258 ; <■ Lee V. Burke, 66 Pa. St. 336 ; Lord Eeneker v. Hill, 3 Phila. 110. Contra, ■V. Church, 6 Luz. L. Keg. 119. Green v. Brown, 1 W. N. C. 434. 66 LAW OF LIENS. claim is vicious.^ The date at the head of the bill will not be interpreted to be that of the furnishing of the material.* A statement that the materials were furnished within six months last past/ or that the claim was " filed within six months,"* is insuflBcient. Yet, when no dates were given, but a general statement was made that plastering was done within six months, the claim was sustained on the trial of the sci. fa. considering the sum claimed to be due, $51.68, and that plastering is usually done by the square yard.® If the claim gives the dates between which work was done, and the annexed bill of particulars sets forth the month and day, but not the year, when the labor was rendered, the year will be inferred from the body of the claim." If the dates of furnishing materials or labor are given, whence it appears that they were supplied within six months of filing, the formal statement that they were supplied within six months last past is unnecessary.'' When the claim, itself dated, stated generally that the materials were furnished within six months last past, and the bill of particulars, headed with full date, gave items, opposite to which months and days only were set forth, the year was inferred from the general averment and the date at the head of the bill.* A claim filed October 2d, 1873, the bill annexed charging for work done April 7th, but mentioning no year, was not stricken oflF,^ though the claim made no averment that the work was done within six months;^" much less when, at the head of the 1 Noll V. Swinefoi-d, 6 Pa. St. 187. 262. It is difficult to reconcile Mc- ^Witmani^.Walker, 9W. &S.183; Cay's Appeal, 87 Pa. St. 125. See Clark V. Richardson, 4 W. N. C. 569 ; Teas v. Snyder, 16 Leg. Int. So. Eeneker v. Hill, 3 Phila. 110. Contra, ? Shaw v. Barnes, 5 Pa. St. IS. Kane v. Zell, 6 W. N. C. 43. " Martin v. Jack, 2 W. Is". C. 282. 3 Witman v. Walker, 9 W. & S. 183. ' Scholl v. Gerhab, 9 W. N. C. 156. Yet, in Lybrandt v. Eberly, 36 Pa. St. « Roche v. Young, 4 W. N. C. 183 ; 347, such a claim was held valid, Williams v. Carson, 1 W. N. C. 107. under the plea of payment with 'Green ti. Brown, 1 W. N. C. 434. leave. " Kane v. Zell, 6 W. N. C. 43. * Lehman v. Thomas, 5 W. & S. mechanics' liens. 67 bill, there was a full date.^ Setting out the work as done " from May to July last past," the exact dates being given in the bill, is sufficient.^ § 59. Stating that painting and glazing were done jDrior to a certain day, is not a proper designation of the time of doing them.^ When the claim alleges that the work was done within six months last past, and the months and days of performing it are specified, the general statement will ascertain the year.' So when, of bricks furnished to a house, the date of furnishing the last is mentioned in the bill, it will be intended that they were all furnished between six months before the filing and the date given.* A claim for serving 63,200 bricks, one date only being given, is suf- ficient; it is the habit of brick furnishers to ascertain the number of bricks needed before making their charge.* A claim mentioning the dates of beginning and finishing the carpenter work, and of the furnishing of materials to a house, and to which a bill is annexed, giving a single date, with a general charge for carpenter work, is valid, the plain- tifi" having an agreement with the defendant that he should be paid by measurement, at a certain rate." When a single date is given for materials, and the doing of certain work in building requiring time, the date is referred to the time the work was completed and the quantity ascertained.' When the claim states that a contract was made on a certain day, and the work was done in pursuance thereof between that day and another four months later, it will be intended that the work was begun on the earlier date.* And, generally, stating that the work was done, and the necessary material ' Aman v. Brady, 2 W. N. C. 262. Brown v. Erisman, 5 Luz. L. Eeg. ^ McCay's Appeal, 37 Pa. St. 125. 189. ^McClintock v. Rush, 63 Pa. St. " Hill v. McDowell, 14 Pa. St. 175. 203. 'Donahoo v. Scott, 12 Pa. St. 45; * Calhoun v. Mahon, 14 Pa. St. 56. Young v. Elliott, 2 Phila. 352. "Knabb's Appeal, 10 Pa. St. 186; ^Driesbach v. Keller, 2 Pa. St. 78. Scott V. Senderling, 7 Leg. Int. 42; 68 LAW OF LIENS. furnished, between two dates reasonably near each other, the last being within six months of filing, will be sufficient.^ When the claim refers to the annexed bill, and this gives a long list of items, opposite the first of which is the date, including the year, and opposite to all the following are the months and days in chronological order, the year will be supplied.^ § 60. Under the act of March 24th, 1849, [P. L. 672,] for Philadelphia and Chester counties, a statement of the time when work under an entire contract is commenced, and when it is ended, is sufficient.* A statement of one date only for a work which necessarily occupied several days, is not a compliance with this requirement.* Yet, it has been held that one who contracts with the owner for a gross sum, need specify no dates whatever in his claim, which avers generally that the work was done within six months prior to the date of the claim.^ When the date of the claim is December 2d, and it was filed December 9th, a statement that the work was done within six months last past leaves it in doubt whether it was done within six months of the filing, and is vicious." Much more will the omission of this general statement, and of the date of the completion of the contract, be fatal.' Stating the date of the commencement and of the completion of the contract is' sufficient,* and though the claim contains a long list of extra materials and 1 Bayer?). Reeside, 14 Pa. St. 167; 126. In Gray v. Dick, 9 W. N. C. Kiohabaugh v. Dugan, 7 Pa. St. 394 ; 555, this act is confined to claimants Wilson V. Porder, 30 Pa. St. 129. who have directly contracted with ^ Scholl V. Gerhab, 9 W. N. C. 157. the owner. ^It refers to contractors with the "Hahn's Appeal, 39 Pa. St. 409; owner only. Gray v. Dick, 9 W. N. Comp. McCay's Appeal, 87 Pa. St. C. 555. Contra, Howell v. Campbell, 125. 5W. N. C. 360. See Lynch i;. Feigle, «Ellice i;. Paul, 2 Phila. 102. 33 Leg. Int. 488 ; Knowlan v. Ellis, ' Faulkner v. Reiley, 1 Phila. 234. 35 Leg. Int. 134. ^Rush v. Able, 90 Pa. St. 153; ^Shields v. Garrett, 5 W. N. C. 120; Schaeflfer v. Hull, 2 01. 93; McNeill Van Roden v. Campbell, 5 W. N. C. i'. O'Neill, 2 W. N. C. 530. mechanics' liens. 69 work, to which no dates are affixed, it will be valid as to these, when valid as to the work done under the contract.^ If the claim mistakenly state that the work was done De- cember 14th, it may be shown to have been done the pre- vious November.^ Locality and Description. § 61. The claim must set out the locality of the building, and the size and number of the stories of the same, or such other matters of description as shall be sufficient to identify it.^ A claim describing the buildizig as of two stories, frame, twenty-two by twenty-four feet deep, situate in Londonderry townshi23, Dauphin county, is void for uncertainty.* If of eighteen connected houses of the same owner, a lien is filed against eight, without specifying them, it is void.° A claim against a house belonging to A., in North Queen street, Lan- caster, adjoining property of B., B. owning property on both sides of this street, was void, though A. owned no other property on this street.^ When a claim mistakenly gives the locality of the house adjoining the one upon which the lien really existed, it will be void as against A., who purchased from the legal owner of the house, whose deed is on record, the house having been erected by one who had an equitable title only, under unrecorded articles of agreement for the sale of the lot, and A. having no notice of the equitable title.'' When such a mistake is made, and a judgment is recovered on the claim, the lien cannot be made valid by amending the levari facias so as to apply to a lot different from the one described.* When a building is described as iRush V. Able, 90 Pa. St. 15.3; » Section 12, act of June 16th, 1836. Schaeffer v Hull, 2 CI. 93; McNeill 'Denkel's Estate, 1 Pearson 213. D. O'Neill, 2 W. N. C. 530. ^Pennock v. Hoover, 5 R. 2 il ; 2 Baptist Church v. Trout, 28 Pa. St. Wray v Haines, 4 W. N. C. 358. 153; Vandike v. Carson, 1 W. N. C. « Hill's Estate, 2 CI. 96. 107. In Hillary i;. Pollock, 13 Pa. St. 'Gault v. Deming, 3 Phila. 337. 186, a mistake in the year was cor- See Hoover v. Martin, 10 Lan. Bar rected on the trial, though the claim- 134. ant did not allege an entire contract. * Hansen v. Byrne, 2 W. N. C. 96. 70 LAW or LIENS. upon A. street, between B. and C. streets, it cannot be identi- fied with one on A. street not between B. and C. streets, in the absence of decisive characteristic circumstances.^ The Clarion river penetrating throughout Clarion county, a building described as in that county, on the east side of that river, and as a double saw mill, its dimensions being given, cannot be identified without exploring the whole county ; the claim is insufiicient.^ A description of a house as on the south side of Tenth street, below Pine, Philadelphia, will not sup- port a lien on a house on Pine street, below Eleventh.^ A claim against twenty brick buildings on east side of Seven- teenth street, commencing at northeast corner of Seventeenth and Reed streets, and extending north about 328 feet, more or less, and in depth 53 feet, or 63 feet 4 inches, to a certain 5-feet alley, the bill of particulars alleging materials fur- nished to forty-two houses on the east side of Seventeenth street, etc., was stricken oflf, on petition of the owner, for vagueness.* § 62. A house was sufficiently located as on the west side of Thirteenth street, between Vine and James, in Philadelphia, though it was in fact between Callowhill and James, Callow- hill street being between Vine and James, and the defendant having no other house on that street.^ A claim against two houses on the north side of Christian street, 116 feet west of Twentieth street, Philadelphia, which were then severally described, the first one being stated to be 116 feet west of Twenty-first street, the second 132 feet west of Twentieth street, was valid ; though producing some confusion, it did not actually mislead.^ A building is sufficiently located as in Dillersville, adjoining lands of P. H. and the Pennsyl- vania railroad, if there is no other building that would cor- 'Hemberger v. Kohler, 1 W. N. C. * Hillary v. Mole, 1 W. N. 0. 239. 311. Omission to state the number of '^Washburn v. Russell, 1 Pa. St. stories was remarked on. 499. ^ Springer v. Keyser, 6 Wh. 186. ' Simpson v. Murray, 2 Pa. St. 76. " Williams' Appeal, 5 W. N. C. 24. mechanics' liens. 71 respond.^ A claim against A. and B., owners of a three- story brick house, situate on the south side of Walnut street, between Eleventh and Twelfth streets, in Philadelphia, was sufficient, under the act of 1806.^ Against a building situate on a lot which is on the north side of Clinton street, begin- ning 116 feet east of Eleventh street, and 20 feet in width, a claim is valid describing it as 20 feet in width, but begin- ning 130 feet east of Eleventh street, if the jury find the lot could have been identified.'* A building described as situate in Philadelphia, on the north side of Lombard street, west of Ninth street, adjoining a lot of S. on the east, with piazza and bath house attached, but not mentioning the number of stories, was sufficiently described.* If a house is differenti- ated by village, township, county, road, breadth, depth, and adjoiners, but the depth is given mistakenly as 16 feet in- stead of 32, the description is sufficient, if the jury find that the house can be identified." When a building was described as brick, of two and a half stories, with cellar, standing upon a lot of ground in a certain township and county, belonging to A., bounded by lands of B. and others, front and depth being given, the claim was adequate, it not appearing that A. had other land in the township; that the village in which the house stood was not mentioned was immaterial, unless such omission would lead to the inference that the house was not within it.° When the village, township and county in which a building is, are named, the side of the road on which it stands, and its dimensions, and it is called a two-story frame steam grist mill, the identification is sufficient, though in fact the mill was worked by water, and the frame structure rested on a stone foundation, when the lien was filed, there being no other mill in the neighborhood.^ A claim describ- ing a house as two-story, frame, 16 feet front on H. street, ' Shaefer v. Hull, 2 CI. 93. *Shaw •;;. Barnes, 5 Pa. St. 18. ^Harker v. Conrad, 12 Serg. & E. * Kennedy v. House, 41 Pa. St. 39. .301. « Knabb's Appeal, 10 Pa. St. 186. '' Ewing V. Barras, 4 W. & S. 467. ' Brundage v. Phillips, 3 Grant 313. 72 LAW OF LIENS. running back 18 feet, in the Thirteenth ward, Pittsburgh, above Captain B.'s, near A.'s stone quarry, will not be stricken oflF; the jury must judge whether it identifies the house.^ § 63. The claim should not only describe the building against which the lien is asserted, it should also identify the structure in and about whose erection the labor or materials were supplied, for which a lien is demanded. Describing the material as furnished to a building and " its appurte- nances " is too uncertain.^ But other parts of the descrip- tion in the claim, ^ or in the bill of particulars,* may correct this ambiguity. If the claim shows what the appurtenances are, and they are legal sources of a lien, it will be valid ; if they are not such as furnish a lien, the claim will be vicious for only so much as is claimed on account of supplies to them.^ When the claim was for lumber used in erecting a frame building, a ten-pin alley, various outbuildings and a fence, the lien was not defeated." If the plaintiff sets forth his demand as for alterations in the interior of an old house, the claim will not support a lien on a shed built against it& exterior, though for such shed a lien arose under the act of 1836.^ But, if the claim arises from the addition of a wing, a claim which describes it as springing from the erection of the house as a whole, though not strictly accurate, will be valid.^ If the claim describes the wing as the only subject of the lien, as well as its source, this will not prevent the lien's attaching to the entire curtilage, with the interdepend- ent buildings." The claim need not state, in the language ' McClintock v. Rush, 63 Pa. St. 203. ' Miller v. Hershey, 59 Pa. St 64. ^Barclay's Appeal, 13 Pa. St. 495; * Harman v. Cunimings, 43 Pa. St. Denkel's Eftatft, 1 Pearson 213. 322. Contra, Wetmore'.s Appeal, 91 ''Singerly v. Cawley, 26 Pa. St. 248. Pa. St. 276. *Odd Fellows' Hall v. Masser, 24 »Xelson v. Campbell, 28 Pa. St. Pa. St. 507; Lybrandt v. Eberly, 36 156; Lightfooti'. Ki-ug,35Pa.St.348; Pa. St. 347. Pretz v. Gausler's Appeal, 35 Pa. St. ^ Killingworth v. Allen, 1 Phila. 220. 349 ; Parrish's Appeal, 83 Pa. St. Ill ; "Gaule V. Bilyeau, 25 Pa. St. 521. Field v. Oberteuffer, 2 Phila. 271. --^ mechanics' liens. 73 of the act of 1836, that it is for materials furnished " for or about the erection or construction of the building"; stating that it was furnished on the credit of the house — that it was for John Brown's house — is sufficient.^ A claim of so much for carpenter work and boarding of workmen is proper, the boarding being a part of the stipulated compensation of the claimant." A claim for shingles furnished about the erec- tion and construction of a building will not support a lien growing out of its repair and alteration.^ If the material is set forth as furnished for the erection and construction, alteration, repair and improvement of the premises, all after the word construction will be treated as surplusage, if the claim in fact grows out of the process of erection and con- struction.* But, when a concert hall is erected, to be used in connection with an old building, which is altered and repaired into a hotel, a joint claim may be filed for con- struction of the former and alteration of the latter, and omission to state w^hether material charged as extra work was applied to the new or to the repaired structure, is unim- portant.* A claim against interdependent buildings in the same curtilage, embracing an old and a new furnace, for materials furnished about the erection, construction, im- provement and fitting up of the said buildings, will not sup- port a lieu growing out of the furnishing of materials to the construction of the new furnace." Under the act of Febru- ary 17th, 1858, [P. L. 29,] giving liens upon certain chattel interests, a claim against the interest of the lessee in the lease, and in all the improvements, fixtures, etc., on a col- liery, will not support a lien for work done in the erection of a hoisting and dumping cage ; it should be against the 1 Kelly r. Brown, 20 Pa. St. 446. It ' Lybrandt v. Eberly , 36 Pa. St. 347. is not necessary that the claim 'Kynd i). Bakewell, 87 Pa. St. 460. should aver that the materials or ^Fisher ■!). Rush, 71 Pa. St. 40. labor were supplied on the credit ^ Moore v. Forest Mansion Co., 3 of the building. Teas v. Snyder, 16 W. N. C. 289. Leg. Int. 85. " Wetnaore's Appeal, 91 Pa. St. 276. 74 LAW OF LIENS. lessee's interest in such cage.^ It will embrace, however, the lessee's interest in so much of the land as is necessary to the use of a building which he has erected on the leasehold.^ When the claim shows that the defendant is a lessee of the land on which he has caused a building to be erected, it is not necessary that it state the precise nature of his title as such lessee in the land, or in the building.^ § 64. A bill of particulars, if distinctly referred to in the claim,* or if there is evidence that it was filed together with and for the purpose of being a part of such claim,* will be regarded as a part thereof. Under the act of April 8th, 1868, [P. L. 752,] concerning liens on the interests of lessees, the claim must be supported by affidavit, and will be stricken off" for want thereof.^ Claims against Married Women. § 65. A mechanics' lien against a married woman must show on its face every fact which is requisite to its validity as against her. A claim which omits to state that the work or material was necessary for the improvement or repair of her separate estate, will be stricken ofF.^ Much more must it allege that it was furnished for the improvement or repair of her separate estate,* and was in fact so applied.' It must state that she is the owner not only of the building, but also ' St. Clair Coal Co. v. Martz, 75 Pa. v. Snyder, 16 Leg. Int. 85 ; Donahoo St. 384; Carey ■«. Wintersteeu, 60 Pa. v. Scott, 12 Pa. St. 45; Calhoun v. St. 395 ; Phila. Trust Co. v. Oakdale Mahon, 14 Pa. St. 56 ; McClintock v. Coal Co., in C. P. of Schuylkill county, Eush, 63 Pa. St. 203 ; Wilvert v. Sun- 1874 ; Hon. E. 0. Parry, auditor. In buiy Borough, 81J Pa. St. 57 ; Schultz Robson's Appeal, 62 Pa. St. 405, a v. Asay, 10 W. I\\ C. 33. claim against the leasehold interest ^Knabb's Appeal, 10 Pa. St. 186. was supported. "Gibbs v. Peck, 77 Pa. St. 86. ^ Thomas v. Smith, 42 Pa. St. 68. ' Kuhns v. Turney, 87 Pa. St. 497 ; ^Ibid. Looniis <■. Fry, 91 Pa. St. 396. But * Hill V. McDowell, 14 Pa. St. 176 Witman v. Walker, 9 W. & S. 183 Maitin v. Jack, 2 W. N. C. 232 necessary may mean convenient. Bar- to's Appeal, 55 Pa. St. 386. » Shannon v. Shultz, 87 Pa. St. 481. Scholl V. Gerhab, 9 W. N. C. 156 ; Teas ' SohrifFer v. Saum, 81 Pa. St. 385. mechanics' liens. 75 of the ground.^ Her coverture must explicitly appear; a claim against " Mrs. A. Schriflfer and Charles Schriffer," the former being in fact the wife of the latter, but not otherwise alleged to be such, is void,^ as of course is one against "Mrs. A. Schriffer " alone.' The claim must allege that the erection or repair of the building took place with the authority and consent,* or on the request,* of the wife; otherwise, it could not be known that the claimant's intend was to bind her separate estate. Naming the husband as contractor is not a sufficient averment of the wife's consent and authority;^ nor is naming him in the bill annexed as debtor for the materials furnished, a substitute for naming him as contractor.'^ A claim filed against the husband alone cannot bind the' wife's separate estate.** When a claim is filed against A. alone, a judgment confessed by an attorney for his wife, for the purpose of making it a valid lien on her separate estate, is a nullity.' When the claim is, for any of the reasons indicated, invalid, a judgment on an award of arbitrators, in favor of the plain- tiff in the mechanics' lien, and against the married woman, will be set aside and the claim will be stricken oflf.^° Amendment of Claim. § 66. Prior to the act of 11th June, 1879, [P. L. 122,] amendments in essential points could be made in claims within the period of six months allowed for filing them," but not afterwards,^^ except the striking out of names mistakenly included as claimants, owners, or reputed owners, contractors, architects or builders.-^' An amendment, which vitiated the ' >hannon v. Shultz, 87 Pa. St. 481. ' Ibid. - Schrifler v. Saum, 81 Pa. St. 385 ; " Lloyd v. Hibbs, 81 Pa. St. 302. Dearie v. Mai-tin, 78 Pa. St. 55 ; Van "Schriffer v. Saum, 81 Pa. St. 385. Koden I'. Sterrett, 7 W. N. C. 196. "Russell v. Bell, 44 Pa. St. 47; 3 Ibid. ; Ward v. Black, 7 Phila. 343. Dearie v. Martin, 78 Pa. St. 55 ; Day * Dearie v. Martin, 78 Pa. St. 55. v. Garrett, 4 W. N. C. 368; O'Neill v. 5 Lloyd V. Hibbs, 81 Pa. St. 306. Hunt, 33 Leg. Int. 13. 8 Dearie o. Martin, 78 Pa. St. 55; " Act of April 9th, 1862, [P. L, 402 ;] Ward V. Black, 7 Phila. 342. Nason Manuf. Co. v. Jefferson Col- ' Ward V. Black, 7 Phila. 342. lege, 4 W. N. C. 369. 'Finley's Appeal, 67 Pa. St. 453. 76 LAW OF LIENS. claim, luiglit be allowed after six months, at the instance of the plaintiff.-' Immaterial amendments, e g., inserting the name of the equitable plaintiff,^ or of a purchaser from the owner, after the commencement of the construction of the building,^ were permitted. Under the act of 1879, the court may permit amendments which are conducive to justice and a fair trial on the merits, at any time, but such amendments must not prejudice bona fide purchasers or other lien credit- ors entitled, as the claim stands, to priority. This act did not apply to liens the period for the filing of claims for which, had elapsed before the act was passed.* Mechanics' Lien Docket. § 67. The third section of the act of 16th June, 1836, [P. L. 696,] requires the prothonotaries of the several counties to keep a mechanics' lien docket, which shall contain all designations of ground under the provisions for ascertaining the necessary curtilage, and all claims filed,, and the day of filing; and to alphabetically index therein the names of the owners of pieces of ground, as well -as of contractors, archi- tects or builders, and of persons claiming liens. The act of 11th June, 1879, [P. L. 122,] makes the filing of the claim itself, in proper time and form, sufiicient notice to purchasers and lien creditors, if the claim contains a sufiicient descrip- tion of the premises, the name of the owner or reputed owner and contractor, and of a claimant, although all the proper claimants should not be named therein. Except under the conditions of the act of 1879, the claim itself is not a record ; the lien docket alone affects purchasers and encumbrancers.^ Hence, when the docket describes two ' Schriffer v. Saum, 81 Pa. St. 386. trary, is Freund v. Fenner, 8 W. K ^ Miller v. Shirk, 6 Lan. Bar 189. C. 287. ^Baptist Church !'. Sclireiner, 6 W. "Armstrong v. Hallowell, 35 Pa. N. C. 407. St. 485. Indeed, in Davis v. Church, 'Sutton V. Clark, 7 W. N. C. 437; 1 W. ct S. 240, the registry itself is Schultz V. Asay, 10 W. N. C. 33 ; Ash- said not to be a record, and the plea man v. Mcllvaine, 8 W. N. C. 309; nv,l tiel record \s, ». nv\\\{y . Sparr v. Walz, 9 W. K C. 64. Con- mechanics' liens. 77 lots aud buildings, as situate on Lombard street, 188 feet eastward of Nineteenth, it cannot be amended so as to read 222 feet eastward, for the purpose of affecting the title of one who has purchased the lot indicated by the latter designa- tion, before the amendment.^ When a claim was filed on the last day of the six months, the mere omission to docket it until the next day did not invalidate it, as against one who acquired an adverse interest in the land, after it was, in fact, docketed. The filing in time saved the lien as to the owner, and the purchaser was affected with notice of whatever the docket disclosed at the time of his purchase." The lien is not impaired, as against a mortgage made after the building commenced, but before its comj)letion, because of an omission from the docket of the date of entering the lien.^ When the claim filed was R. K. Church v. James Davis, and the docket entry was R. E. Church, surviving partner of the late firm of Crist & Church, v. James Davis, it was not error to permit at the trial of the sci. fa. an amendment of the registry so as to correspond with the claim.'' The mere omission to alphabetically index the lien does not vitiate it, as against the defendant.® It is not the practice, nor is it necessary, that the prothonotary should copy the bill of par- ticulars into the mechanics' lien docket, when the claim itself gives the names of the owner and occupier of the premises, and the particulars of the labor or materials for which a lien is claimed.*^ The act of 31st March, 1864, [P. L. 171,] and of February 16th, 1866, [P. L. 50,] requires the prothonotary of the city of Philadelphia to keep a locality-index, in which the street front and the determining distances of the real estate, against which mechanics' liens, etc., are asserted by claim filed or by writ of scire facias, shall be registered. 'Armstrong v. Hallowell, 35 Pa. * Davis v. Church, 1 W. & S. 240. St. 485. ^ Irish v. Harvey, 44 Pa. St. 76. ^Speakman v. Knight, 3 Phila. 25. ^Wilvert v. Sunbury Borough, 81 J ^Hahn's Appeal, 39 Pa. St. 409. Pa. St. 57. 78 LAW OP LIENS. The prothonotary must also give a certificate of search when such is demanded in writing. Motion to Strike Off Claims and Demurrer. § 68. All defects in the claim itself should be taken advantage of by a demurrer, or by a motion or rule to strike off. They are waived by a plea of no lien/ of payment,^ of payment with leave,^ of nil debet,*' of non assumpsit,^ or any other plea. A demurrer to a claim was sustained/ and one was stricken off' for want of dates. One was properly stricken off for omitting the particulars of labor and material/ or when the claimant appeared, from the face of the claim, to be a mere journeyman,* or when the name of the owner was omitted,^" or the date assigned for furnishing material was more than six mouths before that of filing the claim,^^ or when a small item was added to the claim (all the other items in which were more than two years old) , apparently to keep alive the lien.^^ Certain items in a claim may be stricken off, when, on their face, they are not legal sources of a mechanics' lien,^^ but not if this is doubtful,^* or when they are not properly set forth.^^ Under the Venango act of 1 Lee ■!). Burke, 66 Pa. St. 336 ; Mc- ^SchoU v. Gerhab, 9 W. N. C. Kelvy V. Jarvis, 6 W. N. C. 202. The 157. plea of "no lien" was stricken off * Lehman v. Thomas, 5 W. & S. on motion. Snyder v. Kohler, 3 W. 262. N. C. 156. But the plaintiff may ac- ' Howell v. Philadelphia, 38 Pa. St. cept it if he choose; Browning v. 471. Rafsnyder, 3 W. N. C. 204. In Hill «Lee v. Burke, 66 Pa. St. 336. V. McDowell, 14 Pa. St. 175, the plea ^ Mitchell v. Martin, 3 Pittsb. 474. of "no lien " was treated as a gen- ^"Kennedy v. Bozarth, 3 W.' N. 0. eral demurrer. , 157. 2 Lybrandt v. Eberly, 36 Pa. St. 347 ; " Philadelphia v. Slonaker, 6 Phila. St. Clair Coal Co. v. Martz, 75 Pa. St. 48. 384; Shaw v. Barnes, 5 Pa. St. 18; '^ Kohler v. Mountney, 5 W. N. C. Mitchell V. Martin, 3 Pittsb. 474; 260. Goepp V. Gartiser, 35 Pa. St. 130. ^^ Rush v. Able, 90 Pa. St. 153. » Lewis V. Morgan, 11 Serg. & R. "Shaffer v. Green, 9 W. N. C. 144. 234. 15 Shields v. Garrett, 5 W. N. C. 120 ; * Humphreys v. Addicks, 4 W. N. Gray v. Dick, 8 W. N. C. 435. C. 88. mechanics' ] lENS. 79 April 8th, 1868, a claim will be stricken oflP, if it be unac- companied by an affidavit.^ Unless the defect be necessarily- fatal, the claim will not be stricken off on account of it,^ nor for defects made apparent only by evidence dehors : e. g., that while the plaintiff was a sub-contractor, none but the contractor had a right to a lien under the act of April, 1872;^ or error in the name of the contractor,* or allegation in the claim that the debt arose from the erection and con- struction of a new building, when, in fact, it was for altera- tion and repair;^ or misdescription of the contract under which materials are furnished, and by which the omission of details in the claim is sought to be justified." The rule to strike off must be granted by a judge, on motion ; it does not issue, of course, from the prothonotary, on the defend- ant's praecipe.' The Scire Facias. § 69. It cannot issue within fifteen days of the return day of the next term,* or of the next monthly return day ;^ but in Philadelphia the owner of the premises may, on motion, obtain a rule on the claimant to sue out a sci. fa. to the next monthly return day ; if the rule is made absolute, the claim will be stricken off on default of compliance therewith.^" The form of the sci. fa. is prescribed by the fifteenth section of the act of 1836. It is a command to make known to the defendant to show cause whv the sum demanded should not be levied of the building. A sci. fa. to revive the lien is unnecessary until judgment." The sci. fa. must conform to the registered 1 Gibbs V. Peck, 77 Pa. St. 86. ' Bank v. Rush, 2 W. N. C. 186. ^Maxfield v. German Lutheran * Section 16, act of 1836. Church, 2 Luz. L. Reg. 120. "Miles v. Pleasants, 9 W. N. G. 63. 5 Frick V. Claddings, 10 Phila. 79. '" Section 5, act of August ] st, 1868, * Shoemaker v. Duganne, 1 W. N". [P. L. 1168.] C. 471. " Cornelius v. Junior, 5 Phila. 171. ^Hallowell v. Massey, 2 W. N. C. In Hershey v. Shenk, 58 Pa. St. 382, 644. it is termed a sd.fa. " to revive and « Miller v. Bedford, 86 Pa. St. 454. continue " the lien. 80 LAW OF LIENS. claim, or it will be demurrable.^ If the owner,^ or the con- tractor,' be dead, his executor or administrator must be made a party. The owner named in the claim must be named as defendant in the scire facias, and the omission cannot be cor- rected at the trial by amendment of the writ.* A sci. fa. omitting the name of the contractor was bad, under the act of 1808,° though the name of the owner was unessential.^ Under the act of 1836, the contractor must be a party to the sci. fa.'' All of several joint claimants must be parties to the scire facias.^ If the claim is in the name of " B. & Broth- ers," the names of the members of the firm may appear in the sci. fa.^ In the act of 1836, there is no provision for bringing in a terre-tenant ;^'' it is, hence, unnecessary to summon one who has become a purchaser of the land since the commencement of the building." He may, however, intervene with leave of the court.^^ And if one who became owner of 'the land after the building began, ceases to be such before the trial of the sci. fa., that he was warned as terre- tenant does not make him a party .^^ But the terre-tenant may be warned, and take defence," as may also a mort- gagee^' or other encumbrancer,^^ or the assignee of a building lease for ten years after the erection of the build- ing, as well as the life-tenant who made the lease.^' The defendants and terre-tenants may plead different pleas." If the claim by mistake gives the locality of the wrong house, ' Davis V. Church, 1 W. & S. 240. "Jones v. Shawan, 4 W. & S. i57. ^Yan BilHard's Adm. v. Nace, 1 "^Ibid. Orant 233; Bristol v. Golden, 3 Luz. "Schultz v. Asay, 10 W. X. C. 33. L. Obs. 10. >' Hold en v. Winilow, 19 Pa. St ^ Richards v. Reed, 1 Phila. 220. 449. *Xoll V. Swineford, 6 Pa. St. 187. "Johns v. Bolton, 12 Pa. St. 339 'Barnesu.Wright, 2 Wh. 193. Scholl v. Gerhab, 9 W. N. C. 157 «An:^hutzi). McClelland, 5 W. 487; McAdam v. Bailey, 1 Phila. 297; Christine v. Manderson, 2 Pa. St. 363. Hopkins v. Conrad, 2 R. 315. ' Dickinson College v. Church, 1 ^ McAdam !•. Baile3-, 1 Phila. 297. W. & S. 462. " Knabb's Appeal. 10 Pa. St. 187. « Howard v. McKowen, 2 Br. 150. " Fisher v. Rush, 71 Pa. St. 40. 'Black's Appeal, 2 W. & S. 181. "Johns v. Bolton, 12 Pa. St. 839. mechanics' liens. 81 the sci. fa. cannot be varied so as to apply to the right one.^ The sci. fa. may, but need not, join the husband of a married ■woman, when the claim is against her separate estate.^ Since the sci. fa. contains the substance of a declaration, the latter is unnecessary.' It must be served as a summons on the ■defendant, if he can be found in the county, and a copy of it must be left with some one who resides in the building ; if no one so resides, a copy must be affixed upon the door or other front part of the building.* If it appear by affidavit that the building was occupied by a tenant, a judgment by default on a claim will be stricken off", the sheriff's return not showing that he left a copy of the sci. fa. with the ten- ant.' So, when the defendant himself occupied the house, and the sheriff's return was " made known by posting, nihil habet, as to defendants."® On a return of "made known by 230sting on the house, in accordance with the Act of Assem- bly," a judgment for want of appearance was stricken off, on condition that the defendant should enter an appearance within one week.'' If the sheriff's return shows a copy of the writ served on the owner, and posted on the front of the building, and is nihil as to the contractor, it is sufficient.* If one who was owner of the building when the work was done, but has ceased to be such, is named contractor in the sci. fa., and is personally served, and as to the one who is named owner the return is " nihil habet" a valid judgment can be recovered.' A judgment for want of affidavit of defence will not be stricken off, the sheriff's return being made known to the contractors, nihil habet and by posting as to the owner ; two returns of nihil are unnecessary.^" 1 Hansen v. Byrne, 2 W. X. C. 96. ' Bradley ■;;. Forepaugh, 7 W. N. C. ^ Hutchinson "«. Preston, 2 Pittsb. 392. S03 ; Becker v. Price, 1 Lack. L. Rec. * Donahoo v. Scott, 12 Pa. St. 45 ; 483. Fuller v. Jenkins, 1 Luz. L. Reg. ^Ridgway v. Hess, 1 Br. 347. 633. * Section 17, act of 1836. " Sullivan v. Johns, 5 Wh. 366. 5 Kane v. Schmidt, 2 W. N. C. 487. '"Shoemaker v. Duganne, 5 W. N. 'Bradley v. Totten, 7 W. N. C. 16. C. 403. 82 LAW OF LIENS. § 70. The twenty-third section of the act of June 16th, 1836, provides a substitute for a sei. fa. in certain cases. On petition of the owner or other interested person, a rule may- be granted on the claimant and other interested persons to appear in court at a time fixed, and on the return of such rule proceedings as if a sci. fa. had issued may be had.-^ The plaintiff cannot, after such rule has been granted, suffer a non-suit on the trial' without the consent of the defendant.^ After an order on the plaintiff to file a statement in twenty days, and the defendant to plead in fifteen days afterwards, has been made, the claim will not be stricken off on the plaintiff's motion, the defendant consenting to an amend- ment and the plaintiff not tendering the costs.* The nine- teenth section of the act of 16th June, 1836, provides^ that when a sci. fa. issued on one claim has been returned, other claimants, having filed their claim, may file a suggestion of record, stating the amount and nature of their demand ; thereupon a rule will be granted upon the defendant to appear and plead.* The claimant, if he perform other labor or furnish other material after filing his claim, may make a suggestion thereof of record, and file a statement of kind and amount ; if a sci. fa. has been issued on the original claim, a separate sci. fa. must issue on the additional state- ment.* A distinct sci. fa. must issue on each of the parts into which a joint claim has been apportioned, to show cause why from each house should not be levied the plaintiff's demand assessed upon it.® If a single sci. fa. issue against iBorton v. Morris, 2 M. 109. 485; Donahoo v. Scott, 12 Pa. St. 45 r ''Walter v. Streeper, 2 M. 348. Kussell v. Bell, 44 Pa. St. 47 ; Mun- 'Seabrook •!;. Sw^-rthmore College, ger v. Silsbee, 64 Pa. St. 454; Barnes 65 Pa. St. 74. v. Wright, 2 Wh. 193 ; Jones v. *Noyes v. Fritz, 2 M. 162. See Shawan, 4 W. & S. 257; Pull v. the form of the suggestion here Austin, 1 W. N. C. 457. In Taylor i'. given. Montgomery, 20 Pa. St. 443, thirty- ^ Section 3, act of 14th April, 1855, two sci. fa. issued on a claim appor- [P. L. 238.] tioned among so many houses. See, * Bolton V. Johns, 5 Pa. St. 145; also, Campbell v. Purness, 1 Phila. Armstrong v. Hallowell, 35 Pa. St. 372. mechanics' liens. 83 both houses upon which a claim has been apportioned, pro- ceedings may be discontinued on it, even after an award of arbitrators in favor of the plaintifi", and an appeal by the defendants, and two scire facias may issue, one against each house.^ A non-suit in the sci. fa. will not impair the lien.^ Though security has been substituted for the building, in the city of Philadelphia, originally charged with the lien, a sci. fa. issues on the claim against the building therein described, and it is not otherwise, though the levari facias designates the substituted building as that from which the demand must be levied.^ Proceedings on the Scire Facias. § 71. A declaration is unnecessary.* Though nil debet be the better plea,® non assumpsit has been sustained.^ JVun- quam indebitatus is a negative plea, less comprehensive than non assumpsit, in that payment, or a release, could not be given in evidence under it; it makes necessary, however, proof of the plaintiff's cause of action.' Payment confesses the cause of action ; hence, the plaintiff's claim may be read to the jury under such a plea.* Under payment, or pay- ment with leave, etc., the formal validity of the claim filed is not put in issue,^ The same is true of the plea of " no ' Bolton V. Johns, 5 Pa. St. 145. dicks, 4 W. N. C. 88 ; Smith v. Stokes, 2 Berger v. Long, 31 Leg. Int. 373. 10 W. N. C. 6 ; Spare v. Waltz, 10 W. 3 Hanson v. Stewart, 1 W. N". C. 4; N. C. 82. Day V. Garrett, 3 W. N. C. 558. Mc- "Early v. Albertson, 2 W. JS". C. Gonigle v. McDonough, 1 W. IST. C. 541 ; Sullivan v. Johns, 5 Wh. 366 415, and Maulsbury v. Simpson, 33 Snyder v. Kohler, 3 W. N. C. 156 Leg. Int. 108. are contrary. Under Scholl v. Gerhab, 9 W. N. C. 157 the act of August 1st, 1868, and prior Hopkins v. Conrad, 2 E. 315. to that of March 6th,- 1873, a set. /a. 'Pittsburgh v. Walter, 69 Pa. St. could not issue after the substitution 365. This was a municipal lien, of security. Seipel v. Wierman, 8 *Van Billiard 's Adm. v. Nace, 1 Phila. 26 ; Hoffman v. Haines, 8 Grant 233 ; Lewis v. Morgan, 11 Serg. Phila. 248. & B. 234. ^Eidgwayv. Hess, IBr. 347. 'Lybrandt v. Eberly, 36 Pa, St. ^ It was used in McKelvy v. Jarvis, 347 ; St. Glair Coal Co. v. Martz, 75 87 Pa. St. 414; Gamon v. Winslow, Pa. St. 384. 1 W. N. C. 482; Humphries v. Ad- 84 LAW OF LIENS. lien," which imports that, for some cause dehors the record, there was no lien.^ After a plea of nil debet, a motion cannot be made to strike off the lien, though in renewal of one which had been made before plea, and improperly dis- charged.^ Set-off may be pleaded.^ Special pleas are allow- able,* e. g., that the materials were not furnished on the credit of the building;^ or that the plaintiff, an architect, was not entitled to a lien for his services;^ or that the land against which the lien is claimed has been judicially sold since the lien arose ;'' or that the persons named in the claim as owner and contractor were not such ; * or that the claim was not filed within six months of the furnishing of the materials.^ The plea that the person at whose instance the building was constructed was a mere tenant-at-will, is irrele- vant,-"' and the plea that the defendant holds no lands bound by the alleged lien is too indefinite to raise properly the question of the power of a lessee to bind the title of the lessor." The plea that the plaintiff never had a lien is bad, as raising a question of law.^^ The plea that the materials were not put into the building will be stricken off on rule.^^ A plea that the building against which the lien is claimed was destroyed by fire before the filing of the claim,^* or after 1 Lee I). Burke, 66 Pa. St. 336 ; Mc- Kelvy V. Jarvis, 87 Pa. St. 414. This plea will be stricken off, on motion of the plaintiff. Snyder v. Kohler, 3 W. N. C. 156 ; Browning v. Kafsny- der, 3 W. N. C. 204. See Hill v. Mc- Dowell, 14 Pa. St. 175. ^ Humphries v. Addicks, 4 W. N. C. 88. 'Sullivan v. Johns, 5 Wh. 366; McKelvy v. Jarvis, 87 Pa. St. 414; Lee V. Burke, 66 Pa. St. 336 ; St. Clair Coal Co. V. Martz, 75 Pa. St. 384; Driesbach v. Keller, 2 Pa. St. 79; Thorn v. Heugh, 1 Phila. 322 ; Bayne V. Gaylord, 3 W. 301; Gable v. Parry, 13 Pa. St. 181. * Pittsburgh V.Walter, 69 Pa. St. 365. 5 Gable v. Parry, 13 Pa. St. 181; Van Billiard's Adm. v. Nace, 1 Grant 233. « Price V. Kirk, 7 W. N. C. 107. 'Johns V. Bolton, 12 Pa. St. 339. 8 Smith V. Stokes, 10 W. N. C. 6. But such a plea was stricken off, in Spare v. Waltz, 10 W. N. C. 82. 'Gamon v. Winslow, 1 W. N. C. 432. ^"Van Billiard's Adm. v. Nace, 1 Grant 233. But see Leiby v. Wilson, 40 Pa. St. 63. " Leiby •;;. Wilson, 40 Pa. St. 63. 1^ Campbell v. Scaife, 1 Phila. 187. '^ Early v. Albertson, 2 W. N. C. 541. "Presbyterian Church v. Stettler, 26 Pa. St. 246. mechanics' liens. 85 the issue of the sci. fa.^ is valid. The plea of nul tiel record is a nullity ; the registry of the claim is not a record.^ That the sci. fa. issued before the term of credit given by the claimant expired, must be pleaded in abatement.^ For want of aflBdavit of defence, or for insufficient affidavit of defence, judgment will be entered against the defendant;* but one alleging that the sci. fa. has issued before a term of credit agreed on by the plaintiff for a consideration, is sufficient.* When the administrator of the contractor is sued, an affi- davit is unnecessary.'* Evidence. § 72. The defendant does not admit the correctness of a claim, by reading it to the jury, to apprise them of the subject matter of controversy.^ The plaintiff cannot read it to support his claim,* unless the plea is payment, or some other affirmative plea, when its correctness is admitted.^ Under the plea of payment, a tender of goods, according to an agreement to receive them as payment, may be shown.^" When the owner employs a workman at so much per day, evidence of the estimated value of his work is irrelevant." Yet, when the contract for certain prices has been lost, proof may be tendered of the value of the work done and material furnished.^^ When the claim sets forth in detail the work and materials supplied, and the value thereof as ascertained by measurement, and stated to be |798.o2, proof that there was a contract for the gross sum of $500 will not defeat a lEush V. Plumly, cited 1 Bright T. » Hills v. Elliott, 16 Pa. St. 56. & H. Practice, p. 350, n. 12. "Lybrandt v. Eberiy, 36 Pa. St. 'i Davis V. Church, 1 W. & S. 240. 347 ; Van Billiard's Adm. v. Nace, 1 5 Campbell v. Scaife, 1 Phila. 187. Grant 233. But, if the claim is read See Barclay v. Wainwright, 86 Pa. to the jury without defendant's ob- St. 191. jecting, it may be sent out with the *Dick V. Stevenson, 9 W. N. C. 411. jury. Odd Fellows' Hall v. Masser, 5 Barclay v. Wainwright, 86 Pa. St. 24 Pa. St. 507. 91. i»Richabaugh v. Dugan, 7 Pa. St. « Eichards v. Keed, 1 Phila. 220. 394. ' Harman v. Cummings, 43 Pa. St. " Barnes v. Wright, 2 Wh. 193. 322. " Jones v. Shawan, 4 W. & S. 257. 86 LAW OP LIENS. recovery.^ To support a claim for $400, for painting and glazing, with the necessary materials, a measurer of painters' work may be called to show the quantity and value of the painting.^ A claim for a certain sum, omitting particulars, and therefore valid only when founded on a special contract, may be supported by evidence that the sum claimed was ascertained by a measurement after the completion of the work.^ When the validity of the claim filed depends on the structure's being one or two distinct houses, acts of the owner, subsequent to its erection, may be shown ; e. g., that he rented, sold or mortgaged the different parts as separate buildings.* The time when material was furnished may be shown, when direct evidence is wanting, by the time when the work upon the material was done ; e. g., when doors were hung and locks put on, is evidence when the material out of which they were made was furnished.^ The exact time alleged in the claim for doing work need not be supported by the evi- dence ; thus, when the claim alleged December 14th as the date, it was not defeated by evidence that the correct time was November, both dates being within six months of the filing." When the time of furnishing materials is not set out in the claim, it may be shown at the trial.' § 73. Evidence in general that the building was done, but not on any particular dates, and that the defendant tendered a house in payment of plaintiff's claim, which the latter refused to accept, on account of encumbrance on it, will sup- port the claim.* Even when the last items in a claim were not supported, because their dates did not agree with the evidence, nevertheless, since their real dates were within the six months of the filing of the claim, the earlier items prop- 'Eoss V. Hunter, 3 Brewst. 169. « Baptist Church v. Trout, 28 Pa. = Thorn v. Heugh, 1 Phila. 322. St. 153. ' Miller v. Bedford, 6 W. N. 0. 144 ; ' Jones v. Shawan, 4 W. & S. 257. Hill V. McDowell, 14 Pa. St. 175. "Haviland v. Pratt, 1 Phila. 364; * Hunger v. Silsbee, 64 Pa. St. 454. Milligan v. Hill, 4 Phila. 52, is con- ^ Jones V. Shawan, 4 W. & S. 257. trary. mechanics' liens. 87 erly proven were not defeated, because furnished more than six months before the filing of the claim, the various items having been furnished continuously in the erection of the building/ An order on the owner, given by the contractor to the materialman, is evidence of material furnished about the erection of the building.^ A note given by the con- tractor to the lumber merchant, is evidence of the price of the lumber.^ Admissions of the contractor as tO' the amount ' due, or the materials furnished, are legitimate evidence,* but should be subjected to the nicest scrutiny ; his declarations, made after his purchase of materials, that they were fur- nished on the credit of the building, are not competent.* Admissions made by the owner and contractor, before he sold the premises, that he had bought lumber for the house on dates mentioned in the claim, may be received against the objection of the terre-tenant.^ The admission of the owner that he was bound to pay the liens on his house, and that he had reserved money for this purpose out of his debt to the contractor, is proper evidence.'' Though the contract between the contractor and the claimant is prima facie evidence, it is not conclusive of the value of the labor or material, in the sci. fa? It may be shown that the claimant, or one of several joint claimants, encouraged the terra-tenant to buy the premises, concealing his lien ; if this is established, he will be estopped from asserting it. His mere presence at the sale, however, or stating that the work was well done, will not have this effect.* ' Hill V. Milligan, 38 Pa. St. 237. real owner has induced the claimant ^Singerly v. Doerr, 62 Pa. St. 9. to believe that another was owner. ^Odd Fellows' Hall v. Masser, 24 Smith d. Stokes, 10 W. N. C. 6. Pa. St. 507. ' Odd Fellows' Hall v. Masser, 24 * Dickinson College v. Church, 1 Pa. St. 507 ; Cattanach v. Ingersoll, W. & S. 462 ; Spackman v. Caldwell, 5 01. 144, 1 Phila. 285 ; Lee v. Burke, 3 Phila. 375. 66 Pa. St. 336 ; Russell v. Bell, 44 ^Scholl V. Gerhab, 9 W. N. C. 156. Pa. St. 47. •^ Lewis V. Morgan, 11 Serg. & R. ^ Jones v. Shawan, 4 W. & S. 257. 234. And it may be shown that the 88 LAW OF LIENS, § 74. Prior to the statutes enlarging the competency of witnesses, it was held that when one bought a house after the lien was filed, neither the vendee '^ nor the vendor^ was a competent witness for the other. One of two co-contractors could not be made a legitimate witness for the owner and other contractor by their releasing him;^ but a contractor could be made a competent witness by the owner's release of him.* The sureties of a contractor are not discharged, as to the owner, by his release of the contractor, to which they consent.^ A contractor is a competent witness for the claimant." Evidence that the contract was negligently per- formed may be given under the plea of set-off, for the pur- pose of reducing the amount recovered.'' That the contractor has not yielded possession of the house to the defendant, its owner, may be shown, but only for the purpose of recoup- ing damages.* The contractor may show a debt due to him- self by the plaintiff, for materials put by the plaintiff in the house,® and a terre-tenant may show that the plaintiff, whose claim is for sawed lumber, had given a note to the former owner (who was the builder) of the house, payable in sawed lumber, and that this note was in the possession of the latter when the plaintiff made the supply for which he claims a lien ; the note extinguished pro tanto the plaintiff's claim as against the subsequent purchaser of the building.^" When a claim filed embraces items furnished the contractor- before the contract to build was entered into, as well as others fur- 1 Jones V. Shawan, 4 W. & S. 257. 'Bayne v. Gaylord, 3 W. 301. A ^ Hopkins v. Conrad, 2 E. 315. certificate in favor of the defendant ' Haworth v. Wallace, 14 Pa. St. was quashed. 118. s McNeil v. O'Neill, 2 W. N. C. 530. * Dickinson College v. Church, 1 ^ Gable v. Parry, 13 Pa. St. 181. W. & S. 462. i» Hopkins v. Conrad, 2 E. 315. The- * Church V. College, 3 W. & S. 221. note could not be applied as partial * Wolf D. Batchelder, 56 Pa. St. 87; payment for supplies furnished to Eichabaugh v. Dugan, 7 Pa. St. 894; another building begun subsequently Odd Fellows' Hall v. Masser, 24 Pa. to the terre-tenant's purchase of the St. 507. former house. mechanics' liens. 89 nished under it, and a credit is acknowledged, the jury must say whether this credit was applied to the building or to the account, and whether, if a part of the account is disallowed as against the building, the credit shall be applied i to the disallowed part, or to the residue.^ In the absence of any appropriation by the parties, the law will appropriate a pay- ment to a debt which is not secured by the mechanics' lien.^ All facts essential to support the lien, save such as concern the regularity of the claim, and of proceedings of record on it, must be established, when the pleading denies their exist- ence, e. g., that the claim was in fact filed in time;" that the items were furnished continuously,* or on the credit of the building,^ and whether a structure of ambiguous char- acter is really one or two buildings.'' If the owner (also contractor) becomes bankrupt, and the claimant prove his demand, but fail to have the value of his security, by virtue of the lien, appraised, this is no defence for the terre-tenant in the trial of the sci. fa? If two separate houses are erected by A. for B. at the same time, and payments are made with- out specific appropriation, A. and B. may subsequently agree to which debts these payments shall be applied, and such appropriation will be good as against creditors who obtain liens afterwards ; but if a mere lumping settlement is made, ascertaining a general balance due, the jury must determine how much of it belongs to each house, in a feigned issue, in distribution of the proceeds of a sheriff's sale of the houses-* The Judgment. § 75. A judgment can be recovered, which will support a sale of the building, though the contractor was not served with the process.^ If a claim is apportioned on several 1 Dickinson College v. Church, 1 * Singerlyy. Doerr, 62 Pa. St. 9. W. & S. 462. ^ Keinohl v. Arentz, 1 Pearson 503. ^McKelvy v. Jarvis, 87 Pa. St. 414. « Hunger v. Silsbee, 64 Pa. St. 454. 'Driesbach v. Keller, 2 Pa. St. 77 ; 'Bassett v. Baird, 85 Pa. St. 384. Lewis V. Morgan, 11 Serg. & R. 234; 8gtg^artv.]VrcQuaide,48Pa.St.l95. McCay's Appeal, 37 Pa. St. 125. 'Fulleri;. Jenkins, lLuz.L.Eeg.633. 90 LAW OF LIENS. houses, there must be a distinct judgment against each house.^ Though, prior to the act of 1840, an erection of a house, procul-ed by a tenant for years, gave rise to liens which bound the fee, yet, if the lessee only was a party to the sci.fa. and the judgment, and the execution was levied on his right, title and interest only, the leasehold interest only was sold.^ If a sci. fa. issues against one who was the owner and contractor when the building was erected, and against the terre-tenant, the latter being called owner, and the former contractor, in the writ, and service is had on the contractor, but as to the owner the sheriff's return is " nihil habet," a judgment, entered generally after a plea for both defendants and a verdict against both, is valid as against the building.^ If the facts properly in evidence under the plead- ings are not such as authorize a lien under the acts of assem- bly, no judgment can be entered for the plaintiff; a judgment taking effect as a lien only from the day of its rendition cannot be entered adversely to the defendant. If, however, the plea precludes the proof of the fact that vitiates the lien, a judgment can be entered which will relate to the origin of the building.* The judgment is strictly in rem. From this, it follows that the contractor is not liable even for costs,^ nor he who was the owner when the building was erected." The building is, however, liable for costs, and if it is sold before judgment has been recovered on the sci. fa., such costs as have then accrued are payable from the proceeds.^ In such case, the court will stay further proceedings on the sci. fa. No judgment can be entered for the plaintiff.* The defend- ant, therefore, has no right that the trial shall proceed simply to get a judgment against the plaintiff, for costs paid by him 'Barnes 1). Wright, 2 Wh. 193. ^Dickinson College v. Church,! ■' McClelland v. Herron, 4 Pa. St. W. & S. 462. 63. 8 Sullivan v. Johns, 5 Wh. 366; ' Sullivan v. Johns, 5 Wh. 366. Holden v. Winslow, 19 Pa. St. 449. * Lewis V. Morgan, 11 Serg. & R. ' McLaughlin v. Smith, 2 Wh. 122. 234. ^Ibid. mechanics' liens. 91 in taking an appeal from an award of arbitrators.^ If a judgment is obtained by confession,^ or adversely,^ against the defendant, it is valid as to him, and a sale under it of the building would be good. It also cures all mere irregu- larities.* But it is not even prima facie evidence as to other lien creditors, of the relation of the lien to the commence- ment of the building. As to them, or sheriffs' vendees under their liens,^ it operates only from its date. Hence, they may postpone it, on account of the omission from the claim of the name of the contractor,'* or because the claim was not filed within six months of the doing of the work.'' Of course, other lien creditors may dispute the mechanics' lien before a judgment has been recovered on it.* The proper execution is a writ of levari facias.^ When a seques- trator is appointed under the act of 13th October, 1840, a levari facias cannot be sued out.-"" The purchaser under, such writ has the summary remedy of the act of 16th June, 1836, for getting possession of the premises.^^ 1 Matlack v. Deal, 1 M. 254. See, also, Field v. Oberteuffer, 2 ^McCay's Appeal, 37 Pa. St. 125. Phila. 271; Hahn's Appeal, 39 Pa. ^Norris' Appeal, 30 Pa. St. 122. St. 409; Smedley v. Conaway, 5 01. * Holland v. Garland, 35 Leg. Int. 417. 324. ^Denkel's Estate, 1 Pearson 213; '" Dalzell V. Patterson, 6 W. N. 0. Lauman's Appeal, 8 Pa. St. 473. 493. ' Section 21, act of 16th June, 1836. «McCay's Appeal, 37 Pa. St. 125. i«Pentland v. Kelly, 6 W. & S. 483. 'Norris' Appeal, 30 Pa. St 122. "Walbridge's Appeal, 10 W.N.C. 76. 92 LAW OF LIENS. CHAPTEE II. MOBTGAGES. § 76. A mortgage is a pledge of land or chattels to secure the payment of a debt or the performance of some other duty of the mortgagor, damages for whose breach may be appraised in money.^ But this payment is attainable only in the modes which, in virtue of the mortgage, the law may authorize. Of these modes, there are two : entry into pos- session of the subject mortgaged by the mortgagee, and application of its clear yield, estimated in money, to his debt ; or sale of it, and appropriation of the purchase money to the mortgagee's demand. The ordinary mortgage, which in terms grants, bargains and sells land to the mortgagee, confers on him both these powers.^ When viewed, there- fore, with respect to his right of possession and occupancy, the mortgagee is sometimes said to have an estate in the land;^ when regard is had to his power of sale alone, or to the determinable quality of his right of possession, which can be at any time defeated by a tender of the debt due him, he is said to have no estate in the land, but a mere lien upon it.* As a mere chose in action, the mortgagee's interest ' Directors of the Poor v. Royer, 43 ' McLaughlin v. Ihmsen, 85 Pa. St. Pa. St. 146 ; Wilson v. Shoenberger, 364 ; Britton's Appeal, 45 Pa. St. 172 ; 31 Pa. St. 295; Lennig's Estate, 52 Simpson's Lessee «. Ammon, 1 Binn. Pa. St. 135 ; Horstman v. Gerker, 49 175 ; Kuhn's Appeal, 2 Pa. St. 264. Pa. St. 287; Gangwere's Appeal, 36 * Myers v. White, 1 R. 353; Mc- Pa. St. 466; Wetherill's Appeal, 3 Grew v. Lanahan, 1 P. & W. 44; Grant 281 ; Commonwealth v. Wil- Craft v. Webster, 4 R. 241 ; Presby- son, 34 Pa. St. 63. - terian Church v. Wallace, 3 R. 109 ^Tryon v. Munson, 77 Pa. St. 250; Semple v. Burd, 7 Serg & R. 286 Phillips V. Bank of Lewistown, 18 Weidner v. Foster, 2 P. & W. 23 Pa. St. 394 ; Twitchell v. ]McMurtrie, Hulings v. Guthrie, 4 Pa. St. 123 77 Pa. St. 383. Lennig's Estate, 52 Pa. 185. MOETGAGES. 93 cannot be taken in execution;^ it descends to the heirs, in trust for the administrator/ and is not subject either to dower or curtesy.^ Not having an estate in the land, the mortgagee cannot take a part of the damages awarded for laying out a road through the premises, the statute giving them to the owner.* On the other hand, the mortgagor retains the full and absolute estate which he had before the mortgage, limited by the mortgagee's right of possession, until his debt is paid from the proceeds of the land, and his right to sell it.® The Mortgagee's Rights: Possession. § 77. In the ordinary form, a mortgage of real estate grants, bargains and sells it to the mortgagee, subject to a condition subsequent, on the happening of which the title so con- veyed becomes null and void. Under such a mortgage, the grantee acquires the right to enter into possession of the land, to use it in the mode in which, by reason of its physi- cal qualities, it is susceptible of being used, and to appropri- ate to his debt its proceeds, until that debt, with lawful interest, shall be fully paid.* It is unusual for the mort- gagee to be let into possession of the mortgaged premises before there has been a breach in the condition of the mort- gage;'' and until possession is taken by him, the mortgagor iRickert v. Madeira, 1 Eawle 328; v. Oyster, 3 P. & W. 244; Horner •;;. Lennig's Estate, 52 Pa. St. 135 ; Asay Hasbrouck, 41 Pa. St. 180. V. Hoover, 5 Pa. St. 35; Claason's "Kunkle v. Wolfersberger, 6 W. Appeal, 22 Pa. St. 363. 126; Street v. Sprout, 5 W. 272; ^Simpson's Lessees v. Ammon, 1 Plumer v. Robertson, 6 Serg. & R. Binn. 175; Tryon v. Munson, 77 Pa. 179; Green v. Scarlett, 3 Grant 228 ; St. 263; Lennig's Estate, 52 Pa. St. 135. Odenbaugh v. Bradford, 67 Pa. St. 3 Woods V. Wallace, 22 Pa. St. 171. 96 ; Harper's Appeal, 64 Pa. St. 320 ; * Road in Upper Dublin Township, Lessee of Simpson v. Ammon, 1 8 W. N. C. 433. Binn. 175 ; Bradley v. Chester Valley ^ Directors of Poor v. Eoyer, 43 Pa. E. R. Co., 36 Pa. St. 141 ; Ashhurst v. St. 146 ; Cadmus v. Jackson, 52 Pa. Montour Iron Co., 35 Pa. St. 30 ; St. 295 ; Wentz v. Dehaven, 1 Serg. Tryon v. Munson, 77 Pa. St. 250. & R. 317 ; Schuylkill Navigation Co. ' Plumer v. Robertson, 6 Serg. & R. V. Thoburn, 7 Serg. & R. 419 ; Bowen 179 ; Givens v. McCalmont, 4 W. 460. 94 LAW OF LIEXS. is entitled to receive the rent due under a ground-rent deed, and payment to the mortgagee is no defence, in the absence of evidence that the latter made a demand for it/ But, though it has been said that mortgagors do of right retain possession until breach of some condition,^ the better opinion seems to be that the mortgagee may, immediately upon the execution of the mortgage, evict the mortgagor, unless the latter protects himself by an agreement for quiet possession until default of payment.^ The mortgagee's right to take possession may be precluded by an understanding incon- sistent therewith,* e. g., a lease made by him to the mort- gagor, stipulating that the latter shall pay all taxes, make all repairs, and pay to the mortgagee a rent equal to the interest on the mortgage money .^ After breach of the con- ditions of the mortgage, the mortgagee's right of possession becomes unquestionably mature, and he may assert it by a pos- sessory action against the person who is in possession ; ^ or, being in possession himself, may defend such action brought against him by the mortgagor, or one who claims under himJ ' Weidner v. Foster, 2 P. & W. 23. St. 383, was a case of possession A mortgagee cannot compel the taken before breach, tenant of the mortgagor, without *Youngman v. Elmira, etc., E. R. the consent of the latter, to pay him Co., 65 Pa. St. 278 ; Soper ■!;. Guern- the rent, whether the lease was ex- sey, 71 Pa. St. 219. ecuted before or after the mortgage, * Kunkle v. Wolfersberger, 6 W. until the mortgagor's title has been 126. So, when the mortgagor makes sold under the mortgage, or posses- a lease to the mortgagee. Scott v. sion has been recovered in eject- Fritz, 51 Pa. St. 418. ment. Myers v. White, 1 E. 353 ; ^ Lessee of Simpson v. Amnion, 1 Eobb's Appeal, 41 Pa. St. 45. Binn. 175 ; Martin v. Jackson, 27 Pa. 2 Ashhurst v. Montour Iron Co., 35 St. 504. Pa. St. 30. ' Green v. Scarlett, 3 Grant 228. ' Martin v. Jackson, 27 Pa. St. 504 ; Hence, if the purchaser under a void Harper's Appeal, 64 Pa. St. 320 ; sale, under a mortgage, is in posses- Soper V. Guernsey, 71 Pa. St. 219; sion, he may defend against an eject- Youngman v. Elmira, etc., E. E. Co., ment brought by him by a sheriff's 65 Pa. St. 278 ; Street v. Sprout, 5 W. vendee under a later mortgage, not 272; Fluck v. Eeplogle, 13 Pa. St. in virtue ofhis purchase, but in virtue 406 ; Kunkle v. Wolfersberger, 6 W. of his possessory right, as mortgagee, 126. Twitchell v. McMurtrie, 77 Pa. or as assignee of the mortgage. MORTGAGES. 95 What the Right of Possession Includes. § 78. Being ia possession, the mortgagee may use the premises, according to their capabilities, under the limitation that he must not materially diminish their value by demol- ishing buildings, cutting down forests, or otherwise commit- ting waste.^ All cutting of timber, however, is not waste ; so much of it is permissible as is necessary to meet the ordi- nary needs of the farm, and, where arable land is for the most part covered with forests, the clearing of a reasonable proportion for the purpose of tillage is not waste, though in doing so timber is collected in heaps and burnt. The cir- cumstances of each case must be taken in view. If a pru- dent owner would clear off" timber, thus increasing the value of the tract, the mortgagee in doing so is not guilty of waste.* Hovr Long the Right of Possession Continues. § 79. The right of possession of the mortgagee continues only so long as is necessary, by proper application of the net revenues of the land, to satisfy the principal and interest of the mortgage debt.^ The mortgagee is charged with the rents and profits.* If he lease to another, the rent will be, generally, the measure of the value of the land, but not necessarily so ; the actual profits may be more or less than the rent,° and, on his refusal to show what profits he has made from the premises, he is to be charged with having received the most which, under the evidence, he might have made out of them.® If, at the time the mortgagor brings iGivens v. McCalmont, 4 W. 460; 460; Guthrie v. Kahle, 46 Pa. St. Guthrie v. Kahle, 46 Pa. St. 831. If, 331 ; Hewitt ■;;. Hulings, 11 Pa. St. the mortgagee being in possession, 27 ; Harper's Appeal, 64 Pa. St. 315. timber is cut down by a trespasser, * Guthrie v. Kahle, 46 Pa. St. 331 ; to whom the former subsequently Hewitt v. Hulings, 11 Pa. St. 27 ; sells it, the mortgagee must account Bradley v. West Chester Valley E. to the mortgagor for the damage K. Co., 36 Pa. St. 141; Smith v. Shu- thus done to the freehold. ler, 12 Serg. & E. 240. 2 Givens v. McCalmont, 4 W. 460. » Scott v. Fritz, 51 Pa. St. 418. 'Odenbaugh v. Bradford, 67 Pa. St. ^Eeitenbaugh v. Ludwick, 31 Pa. 96; Taylor v. Cornelius, 60 Pa. St. St. 131. 187; Givens v. McCalmont, 4 W. 96 LAW OP LIENS. ejectment to recover the premises, the mortgagee has received rents and profits which must be credited on the debt, such rents and profits as have been received subsequently, and down to the time of trial, may be charged against him, for the purpose of ascertaining whether he has been fully reim- bursed/ When the mortgage confers on the mortgagee the power to collect the rents of the mortgaged premises, he is accountable for so much as he actually received, but not, as against the administrator or heirs of the mortgagor, for what he permitted some of the latter to receive ; they must account to their co-heirs for it.^ A landlord to whom the tenant has mortgaged the leasehold and fixtures, and delivered posses- sion to secure past and future installments of rent, may retain possession, or, selling under a power bestowed on him in the mortgage, may apply the proceeds to rent that became due since the mortgage was executed.^ If the mortgagee lease the premises from the mortgagor, and, after the latter conveys to another his equity of redemption, renews the lease from the grantee, in an action on the mortgage against the mortgagor alone, the rent due by the mortgagee to the grantee cannot be treated as profits which must be set off against the mortgage debt.* § 80. The charge against the mortgagee in possession for rents and profits, must be reduced by payments made by him for taxes,® premiums of insurance," ground-rents,'' for war- rant and survey expenses,* and for proper repairs.® Under ^ Stafford v. Wheeler, 93 Pa. St. that the profits should be applied to 462. taxes, needed repairs and ground- " Myers' Appeal, 42 Pa. St. 518. rents. 5 O'Harra v. Baylis, 3 Phila. 357. * Dimond v. Enoch, Add. 356. * Scott V. Fritz, 51 Pa. St. 418. 'Givens v. McCalmont, 4 W. 460; "Hogg V. Longstreth, 10 W. N. C. Dimond v. Enoch, Add. 356; Taj-lor 95. V. Cornelius, 60 Pa. St. 187; Oden- * Taylor v. Cornelius, 60 Pa. St. baugh v. Bradford, 67 Pa. St. 96. 187 ; Wharf v. Howell, 5 Binn. 499. Here the mortgagee was in posses- ' Lysle V. Williams, 15 Serg. & R. sion twenty-seven years, long enough 135. Here there was an agreement to indemnify him for all repairs. MOETGAGES. 97 repairs, however, no allowance will be made for permanent and costly additions and improvements, made without the consent of the mortgagor, and the mortgagee must prove that the repairs made were absolutely necessary to preserve the premises from dilapidation and decay .^ If, with the acquies- cence of the mortgagor, the mortgagee makes a contract for the rebuilding of a house on the premises, after its destruc- tion by fire, he has a right to apply the money received on a policy of insurance, to such purpose, even as against a cred- itor of the mortgagor who attaches the money in his hands after the contract for rebuilding is made.^ The right of the mortgagee to reimbursement for improvements not capriciously and unreasonably made, has been, however, recognized when the mortgage was, in form, an absolute conveyance, and the parties believed in good faith, and therefore intended, it to be such. To the extent to which such improvements have increased the value of the premises, the grantee, in the absolute deed, when decreed to be a mere mortgagee, is entitled to reimbursement.^ Even in the case of ordinary mortgages, the increase of the rents and profits, occasioned by the additions or improvements put on the premises by the mortgagee, must not be charged against him ; he is liable to account for only that part of them which ■would have been earned by the land if he had not expended his moneys upon it for its melioration, but, when he has been fully repaid his outlays, he is chargeable with the whole of the profits of the land, even including that part of them which is earned by his improvements.* The posses- sion must be surrendered by the mortgagee as soon as he has obtained his debt and interest, in addition to compensa- tion for all proper outlays,* and the mortgagor or terre- ^ Harper's Appeal, 6Jt Pa. St. 315. clearing thirty acres of land, and ^ Taylor v. Cornelius, 60 Pa. St. 187. the erection of a mill. =■ Harper's Appeal, 64 Pa. St. 315. * Bradley v. Chester Valley E. E. *Givens v. McCalmont, 4 W. 460. Co., 36 Pa. St. 141; Fluck v. Kep- Here the increased rent was due to logle, 13 Pa. St. 405. 98 LAW OF LIENS. tenant may redeem at any time by a tender of tne amount due the mortgagee/ Possession of Mortgagees under Chattel Mortgages. § 81. Chattel mortgages, while valid, without transfer of possession, against the mortgagor,^ or one who purchases from him,'* or makes a loan to him, with full knowledge of the exist- ence of the mortgage, are, as against purchasers or lien cred- itors without this knowledge, void, unless possession is taken by the mortgagee.* Hence, when, after mortgaging a crop in the ground, on a farm in possession of the mortgagor, who was to retain possession of it until it matured, then sell it, and from the proceeds pay a debt due the mortgagee, the former died, the latter was not preferred over other creditors in dis- tributing the proceeds of the crop.* A mortgage of cattle,* or of railroad cars,' which were not taken into the custody of the mortgagee, was void as against creditors who subse- quently attached them,* or caused them to be levied in exe- cution.'' The possession taken need be such only as the nature of the thing mortgaged, and its circumstances, make feasible. Thus, when a tenant, who vacated the land on which a barley crop was growing, in the spring, mortgaged it, and the new tenant kept the field in which it was, fenced oiF from the rest of the farm, and when it was threshed received it into his barn for the mortgagee, the latter had sufficient possession of it as against a subsequent execution creditor of the mortgagor.^" A mortgage of a ship at sea is valid, if, so soon as it returns, it is reduced into posses- sion by the mortgagee, to whom the muniments of title are 1 Muse V. Letterman, 13 Pa. St. 167. ^ Welsh v. Bekey, 1 P. & W. 57. ^ Boyle V. Eunkin, 22 Pa. St. 168. " Megee v. Beirne, 39 Pa. St. 50. ' Coble V. Nonemaker, 78 Pa. St. 501. ' Buffalo Coal Co. i). Rochester, etc., * "Welsh V. Bekey, 1 P. & W. 57 ; E. R. Co., 8 W. N. C. 126. Roberts' Appeal, 60 Pa. St. 400; ^ Megee w. Beirne, 39 Pa. St. 50. Comp. Fry v. Miller, 46 Pa. St. 44; ' Buffalo Coal Co. ii. Rochester, etc., Bismarck Building Ass. v. Bolster, R. R. Co., 8 W. N. C. 126. 92 Pa. St. 123. '"Fry v. Miller, 45 Pa. St. 44. MORTGAGES. 99^ delivered.^ A leasehold interest iu land may be effectively mortgaged wlien the possession is surrendered to the land- lord, under a parol agreement that he shall apply the rents, or the proceeds of the sale of the leasehold, to debts and accruing rents,^ When a lease is assigned as collateral secu- rity, with the knowledge of the lessor, and of the lessee's sub-tenant, who, under the direction of the lessee, pays the rent to the assignee, the assignee has a valid mortgage of the lease.* The Mortgagee's Po-wer to Sell. § 82. In Pennsylvania, the mortgage, which in form grants, bargains and sells the land of the mortgagor, was never regarded as conferring an absolute title upon the mortgagee, notwithstanding the mortgagor's default in performance of the conditions for however long a time. The sole remedy of the mortgagee, in the absence of a court having the equitable power of foreclosure of the mortgagor's equity, was that of possession of the land by means, if necessary, of the action of ejectment. The act of 1705, [1 Sm. L. 59,] annexed to all such mortgages the power of sale, by means of a certain instrumentality there created and defined. This act provided for the issue of a sci. fa. on the mortgage, the recovery of a judgment, and the issue of a levari facias to the sheriff, by whom the land shall be sold. When thus sold, its proceeds are applicable to the mortgage, unless other creditors of the mortgagor have a better right to receive them § 83. The power of sale may be expressly conferred. This is usual in corporation mortgages, made to trustees for the benefit of the holders of bonds or other obligations of the ^Morgan's Exr. v. Biddie, 1 Y. 3. date of the mortgage, merely be- In Fisher v. Willing, 8 Serg. & K. cause he received the documents. 118, it is said that a mortgagee of a ' O'Harra v. Baylis, 3 Phila. 357. ship does not become liable to the 'Bismarck Building Ass. v. Bol- master for wages accruing after the ster, 92 Pa. St. 123. !,100 LAW OF LIEKS. compaoy/ It may be accompanied by a conveyance of the land, as a means of making the power effectual/ or it may rest on a mere power of attorney, executed and delivered to the mortgagee, with a blank for the name of the donee of the power, which he is authorized to fill, and accompanied by the mortgagor's title deeds,^ and a future time may be limited, after which the exercise of the power may take place.* Whether the sale shall be a public" or a private one, or either, at the option of the mortgagee,* may be designated by the parties ; or all reference to the mode of sale may be omitted/ The mortgagee may stipulate to dispose of the premises under the direction of the mortgagor.* The mort- gage may sanction the sale only when the principal of the debt is mature,* or so soon as default has been made for a certain time in the payment of the interest.^" When the sub- ject of the mortgage is such, e. g., a leasehold, that the mort- gage, though in parol, is valid, the power of sale may also rest in parol.^^ A mortgage of a chattel, e. g., a ship,^^ or 'Bancroft v. Ashhurst, 2 Grant ilar suggestion in Danzeisen's Ap- 513 ; Mellon's Appeal, 32 Pa. St. 121 ; peal, 73 Pa. St. 65. Bradley v. Chester Valley E. E. Co., * Corpman v. Baccastow, 84 Pa. St. 36 Pa. St. 141 ; Ashhurst v. Montour 363 ; Stoever v. Stoever, 9 Serg. & E. Iron Co., 35 Pa. St. 30; Youngman 434; Taylor v. Cornelius, 60 Pa. St. V. Elmira R. E. Co., 65 Pa. St. 278 ; 187 ; Comp. Haines v. Thomson, 70 Mendenhall t;. West Chester, etc., E. Pa. St. 434; Hulings v. Guthrie, 4 E. Co., 36 Pa. St. 145 ; Leavitt v. Pel- Pa. St. 123. ton, 11 W. N. C. 74. = Mechanics' and Manuf. Bank v. ^Corpman v. Baccastow, 84 Pa. St. Bank of Penna., 7 W. & S. 335. 363 ; Stoever v. Stoever, 9 Serg. & E. « Taylor v. Cornelius, 60 Pa. St. 187. 434 ; Directors of the Poor v. Eoyer, ' Corpman v. Baccastow, 84 Pa. 43 Pa. St. 146. St. 363 ; Hulings v. Guthrie, 4 Pa. St. 'Edwards' Exr. v. Trumbull, 50 123. Pa. St. 509. The mortgagee filled in * Directors of the Poor v. Eoyer, the blank with the names of a donee 43 Pa. St. 146. of the power, who then executed a 'Bradley v. Chester Valley, etc., E. deed in pursuance of it, to him. In E. Co., 36 Pa. St. 141. Todd V. Campbell, 32 Pa. St. 250, "> Youngman v. Elmira, etc., E. E. Strong, J., intimates the opinion that Co., 65 Pa. St. 278. the existence of a power of sale in an " O'Harra v. Baylis, 3 Phila. 357. instrument is inconsistent with the " Fidelity Ins. Co. v. Miller, 89 Pa. character of a mortgage. See a sim- St. 26. MOETGAGI^. 101 standing grain,^ may authorize the mortgagee, on default in payment of the debt, to take possession and sell, either at public or private sale. Mortgage and Assignment in Trust for Creditors. § 84. The distinction between a mortgage to a trustee, with a power of sale, and an assignment in trust for the benefit of creditors, is sometimes difficult to draw. In both the estate is conveyed to a trustee ; the trust inures to the benefit of creditors ; the assignor and the mortgagor have a right to receive whatever remains, after the satisfaction of debts, and both retain the right to determine the title and the power of sale of the assignee or mortgagee, by payment of the debts designed to be secured by the conveyance, before the exercise of the power of sale." When the conveyance is to provide for the payments of debts not yet mature, it will not be treated as an assignment," nor when there is no power of sale.* But when the trustee, with j^ower of sale, is to sell the land, and from the proceeds pay the debts, the land being solely the instrument of payment, the conveyance is an assignment for the benefit of creditors.' When the grantee is not a trustee for creditors, but undertaking himself to pay them, the conveyance is merely to indemnify him for ad- vances thus to be made by himself, it is a mortgage, though it contains a power of sale; and so continues as to all lands not sold by him in pursuance of the power." If, however, the land is granted for the purpose of being sold, in order that from the proceeds the debts of the grantor should be paid, 'Fry V. Miller, 45 Pa. St. 441. assignor's debts and the expenses of ^ In Ridgwaj- v. Stewart, 4 W. & S. the trust, from some other source. 383, an assignment i.s said to be an 'Eidgway v. Stewart, 4 W. & S. absolute and indefeasible convey- 383; Manuf and Mech. Bank v. ance, and a mortgage only a condi- Bank of Penna., 7 W. & S. 335. tional and defeasible one. But, the *Bidgway v. Stewart, 4 W. & S. title of an assignee for the benefit of 383. creditors, may be defeated at any ^ Blank ii. German, 5 W. & S. 36. time before sale by payment of the 'Taylor v. Cornelius, 60 Pa. St. 187. 102 LAW OF LIEXS. an absolute estate passes, at least as to so much of the land as is needed to accomplish the object of the conveyance.^ Porms of Mortgage. § 85. As against other lien creditors, or purchasers at judicial sales founded upon their liens, no mortgage of an estate in land, which could not be validly conveyed by parol, is efficacious, unless reduced to writing, though possession of the land is given at the time of tjie mortgage.^ A debtor's delivery of his deed for a house to a surety, to guarantee him against loss by reason of his suretyship, does not con- stitute a valid mortgage as against purchasers from the assignees for the benefit of creditors of the debtor, under a deed of assignment executed subsequently to the pledge of the title-deed.^ When, accompanying the delivery of the deed, a statement of that fact in writing under seal, was made by the debtor, together with a promise that, on his failure to pay the debt in a reasonable time, he would make deeds of the property for the consideration of the debt, the whole transaction constituted a mortgage.* As the grant of a right in the land must be made in writing, so the particu- lar debt or other duty of which such grant is designed to secure the discharge, if once reduced to writing, cannot be varied by parol subsequently. Thus, if the mortgage is given to guarantee the discharge of an obligation in which A. is principal, it would not be valid as security for an obli- gation, substituted by parol, in which B. is the principal ' Danzeisen's Appeal, 73 Pa. St. 65. equity. Sidney v. Stevenson, 33 Leg. ''Bowers v. Oyster, 3 P. & W. 239. Int. 42, 11 Phila. 178. A mortgage cannot be transferred *Luch's Appeal, 44 Pa. St. 519; from one lot to an adjoining one, as Spencer v. Haines, 4 W. N. C. 152. against later lien creditors, by parol In this last case the writing was not evidence of misdescription. Wentz's under seal. In Edwards v. Trum- Appeal, 10 W. N. C. 284. bull, 50 Pa. St. 509, a deed made ' Shitz V. Dieffenbach, 3 Pa. St. 233. under the power of attorney, but in- The creditor's right to detain the tended to be a security to the grantee title-deed, however, till he is paid, for money loaned by him, was re- will be respected by a court of garded as a mortgage. MORTGAGES. 103 and A. only a guarantor;^ and after the payment of the debt mentioned in the mortgage, it cannot be kept alive by an oral understanding, as security for another indebtedness.^ § 86. A valid mortgage, however, can be made, the grant- ing part of which only shall be in writing ; the debt to be secured, and the contract for defeasance on its discharge, being wholly in parol at the time the deed is made.^ So, when A. has agreed, even in parol, to convey land to B., who, unable to obtain the purchase money, induces C. to advance it, and to take the legal title from A., as security for repayment, and A., at B.'s direction, conveys to C, C. is a mortgagee relatively to B., though there is no writing in which B. appears as a party.* The fourth section of the act of 22d April, 1856, [P. L. 533,] which requires declarations of trust to be in writing, does not apply to agreements for defeasance, by which a conveyance of land is made a mort- gage." Since the defeasance need not be in writing at all, it ^Penna. Co. for Ins. of Lives v. Dovey, 64 Pa. St. 260. But see Mitchell V. Coombes, 11 W. N. C. 70. ^Thomas' Appeal, 30 Pa. St. 37S. In Mode's Appeal, 6 W. & S. 280, it is said to be well settled " that two parties cannot, by their private agree- ment, create a parol mortgage which shall have the legal effect of a mort- gage by reason of verbal notice to creditors or purchasers." ' Sweetzer's Appeal, 71 Pa. St. 264 ; Hiester v. Madeira, 3 W. & S. 384; Kunkle v. Wolfersberger, 6 W. 126 ; Houser v. Lamont, 55 Pa. St. 311 ; Harper's Appeal, 64 Pa. St. 315; Danzeisen's Appeal, 73 Pa. St. 65 ; Steinruck's Appeal, 70 Pa. St. 289 ; Ballentine u. White, 77 Pa. St. 20 ; ■Pattison v. Horn, 1 Grant 301; Ehines v. Baird, 41 Pa. St. 256; Corpman v. Baceastow, 84 Pa. St. 363 ; Odenbaugh v. Bradford, 67 Pa. St. 90; Cole v. Bolard,- 24 Pa. St. 431 ; Couch v. Sutton, 1 Grant 114 Todd V. Campbell, 32 Pa. St. 250 Hamet v. Dundass, 4 Pa. St. 178 Kellum V. Smith, 38 Pa. St. 158 Halo V. Schick, 57 Pa. St. 319 ; De France v. De France, 34 Pa. St. 385; Dimond v. Enoch, Add. 356 ; Staf- ford I'. Wheeler, 93 Pa. St. 462. * Houser v. Lamont, 55 Pa. St. 311. Here, A.'s contract to sell, and C.'s contract to hold the land as secu- rity, were both in parol. Comp. Pattison v. Horn,! Grant 301; Dickey V. McCullough, 2 W. & S. 88 ; Maf- fitt's Adm. V. Kynd, 69 Pa. St. 380. In Fessler's Appeal, 75 Pa. St. 483, the ccmtract to sell land between A. and B. was in writing, but B.'s con- tract with C. was in parol. ^Maffitt V. Rynd, 69 Pa. St. 380 Sweetzer's Appeal, 71 Pa. St. 264 Danzeisen's Appeal, 73 Pa. St. 65 Ballentine v. White, 77 Pa. St. 20 StafiTord v. Wheeler, 93 Fa. St. 462. 104 LAW OF LIEHrS. may be reduced to writing either simultaneously with the grant which it qualifies/ or at some subsequent time. This interval of time may be of varying length, e. g., seventeen days/ thirty-five days/ eight days,* one day,^ three years,* five months/ The defeasance, reduced to writing, may be under seal,* or not/ And, since a conveyance of land in writing, not under seal, is valid, the granting part of a mortgage, as well as the defeasance, whether on the same or on separate pieces of paper, need not be under seal.^° The act of 8th June, 1881, [P. L. 84,J forbids that any defeas- ance to any deed for real estate, regular and absolute on its face, shall reduce it to a mortgage, unless the defeasance is made in writing, signed, sealed and acknowledged at the same time that the deed is made, and is delivered by the ' Manuf. and Mech. Bank v. Bank of Penna., 7 W. & S. 335 ; Jacques v. "Weeks, 7 W. 261 ; Gratz v. Philips, 1 P. & W. 333; Stoever v. Stoever, 9 Serg. & K. 434; Wharf r. Howell, 5 Binn. 499; Friedley v. Hamilton, 17 Serg. & R. 70; Wilson v. Shoenber- ger's Exr., 81 Pa. St. 295 ; Directors of Poor V. Boyer, 43 Pa. St. 146 ; Harper's Appeal, 64 Pa. St. 315; Colwell V. Woods, 3 W. 18S ; Kerr v. Gilmore, 6 W. 405. In Haines v. Thompson, 70 Pa. St. 434, the su- preme court say that the recital in the collateral agreement, that it was delivered on the same day the deed was delivered, would, in the absence of controlling facts, prove the trans- action to be a mortgage. In Greene, Taylor & Co.'s Appeal, 39 Pa. St. 361, a coal lease was assigned, and on the same day the assignee executed a separate paper, agreeing to re- convey on being paid his advances. The assignment was a mortgage. ^Corpman v. Baccastow, 84 Pa. St. 363. ^Eeitenbaugh v. Ludwick, 31 Pa. St. 131. *McClurkan v. Thompson, 69 Pa. St. 305. ^Baisch v. Oakley, 68 Pa. St. 92; Paige V. Wheeler, 92 Pa. St. 282. * Caverow r. Mut. Benefit Life Ins. Co., 52 Pa. St. 287. Here the mort- gagee was compelled, by a court of equity, to execute the defeasance. 'Taylor r. Cornelius, 60 Pa. St. 187. * Eeitenbaugh v. Ludwick, 31 Pa. St. 131; McClurkan v. Thompson, 09 Pa. St. 305 ; Wilson v. Shoenber- ger's Exr., 31 Pa. St. 295 ; Colwell v. Woods, 3 W. 18S ; Kerr v. Gilmore, 6 W. 405 ; Jacques v. Weeks, 7 W. 261 ; Stoever v. Stoever, 9 Serg. & K. 434 ; Friedley v. Hamilton, 17 Serg. & E. 70. ^Directors of the Poor r. Eoyer, 43 Pa. 146 ; Manuf and Mech. Bank V. Bank of Penna., 7 W. & S. 335; Gratz V. Philips, 1 P. & W. 333. i" Woods V. Wallace, 22 Pa. St. 171 ; Spencer v. Haynes, 4 W. N. C. 152 ; Dexter's Appeal, 2 W. N. C. 621, per Dreher, P. J. MOKTGAGES. 105 grantee to the grantor, simultaneously with the delivery by the latter of the deed to the former ; and unless, further, the defeasance is recorded in the office for recording deeds, in ' the county wherein the lands are, within sixty days from the execution thereof Such defeasances must be recorded and indexed as mortgages. Abnormal Forms of Mortgage. § 87. The common form of mortgage is a deed of bargain and sale, concluding with a proviso to be null and void, on the grantor's compliance with a certain condition therein set forth : but this form is unessential.^ The part conveying a right to land may be the usual absolute deed,^ or an assign- ment of the deed by which the title was conveyed to the mortgagor,^ or of the executory contract to convey.* Instead of a conveyance of the land, a power of attorney, together with the title-deeds, may be given to the creditor, empower- ing him or some other donee of the power, to convey the land.^ § 88. A mere agreement that the mortgagee " should have the land and hold the rights " to it, until the judgment in which he was the mortgagor's surety, should be paid," or a declaration that A. has bargained, granted, sold, assigned and set over to B. the within indenture of mortgage for a described tract of land, subject to be redeemed at any time during five years,'' or a certificate that the mortgagor has left two deeds in the hands of the mortgagee, as collateral secu- rity, containing a promise to make deeds of the property to ' The insertion in such a mortgage ^ Directors of Poor v. Royer, 43 Pa. of a stipulation that the mortgagee St. 146 ; Ballentine v. White, 77 Pa. may collect the rents of the prem- St. 20. ises, and that, if he pays encum- ''Ehines v. Baird, 41 Pa. St. 2.56; brances, he may have them assigned Guthrie v. Kuhle, 46 Pm. St, 331; to his use, does not change its char- Kussell's Appeal, 15 Pa. St. 319. acter. Myers' Appeal, 42 Pa. St. 518. ^Edwards' Exr. •!;.■ Trumbull, 50 ^Wilson V. Shoenberger's Exr., 31 Pa. St. 509. Pa. St. 295; Colwell v. Woods, 3 W. «Hulings v. GiUliri.-, 4 Pa. St 123, 188 ; Harper's Appeal, 64 Pa. St. 315. ' Woods v. Wallace, 21 Pa Si. 171. 106 LAW OF LIEKS. the latter if the former should fail to pay a note within a reasonable time,^ will be sufl&cient. An agreement by the heirs that the widow's dower, as appraised by three arbi- trators, " shall be and remain a true claim and demand upon and against " the land, said land " to be and remain charged therewith and liable for the payment thereof," and that, on default of payment, the widow may sue out a sci. fa., is a mortgage.^ When a vendee under articles borrows money to pay the purchase money, and, to secure the lender, causes the legal title to be conveyed to him, the lender is a mere mortgagee. The deed may declare the trust,'' or not.* There may be an assignment on the articles,® or otherwise," to evi- dence the relation between the grantee in the deed and the vendee in the articles, or the articles may be destroyed, and this relation be manifest only by parol.'' It is not necessary that the contract of purchase should be in writing. When A., having contracted in parol to convey a house and lot to B., and received a part of the purchase money, induces C. to advance the remainder of the purchase money, and con- veys to him the legal title, C agreeing with both A. and B., in parol, to hold it as security for repayment from B., C. is a mortgagee as to B.* Knowledge on C.'s part of the parol contract between A. and B., and consent to hold the title as security for B.'s repayment of the money paid by him, are indispensable to the rise of this relation between C and B., and this knowledge and consent must be shown.' 1 Luch's Appeal, 44 Pa. St. 519. ' Fessler's Appeal, 75 Pa. St. 483v ^ Dexter's Appeal, 2 W. N, C. 621. « Houser v. Lament, 55 Pa. St. 311; It was unnecessary to decide whether Pattison v. Horn, 1 Grant 301 ; Mc- the instrument was a mortgage, a Ginity v. McGinity, 63 Pa. St. 38, im- rent-charge, or annuity ; it was, in plies the same. any case, a lien. ' Plumer v. Guthrie, 76 Pa. St. 44jl. ' Hewitt V. Hulings, 11 Pa. St. 27. In Pennsylvania Life Ins. Co. v. Aus- * Fessler's Appeal, 75 Pa. St. 483; tin, 42 Pa. St. 257, when B., desiring Merkel's Appeal, 10 W. N. C. 116. to purchase land from A., induces C. ^Rhines v. Baird, 41 Pa. St. 256; to endorse his note, by the proceeds Guthrie v. Kahle, 46 Pa. St. 331. of which the purchase money is *Dickey!).McCullough,2W.&S.88. paid, and the title is conveyed to C, MOETGAGES, 107 § 89. A sheriff's sale may be tlie medium through which the mortgage is accomplished. A., having issued an execu- tion against B., on which B.'s land was to be sold, they agree, just before the sale, that the sheriff shall sell it to A. for a small sum, and that A. shall, if his debt is paid within three months, reconvey the land to B.; otherwise, that A.'s title shall be absolute. The transaction was a mortgage.^ C, unable to borrow money on account of liens on his prop- erty, agreed with D. that a sheriff's sale should be had to divest the encumbrances ; that D. should become the pur- chaser ; that he should then convey the land to E., who should mortgage it, and with the money thus procured, D. should pay the liens and liabilities, using the proceeds of the land for five years for that purpose, at the end of which time he should reconvey to C, on C.'s paying any balance which might be due D. The sale was effected for |50, the land being worth $12,000, and the liabilities were dis- charged. D. was, as to C, a mortgagee.^ One who, prac- ticing no artifice by which he gains an advantage, buys property at sheriff's sale, does not hold the relation of mort- gagee to the defendant merely because he has promised that he will let the defendant have it,^ or will buy as agent for him.* When, after taking a conveyance absolute in form, but in fact a mortgage, the grantee buys the land at sheriff's sale, under a judgment which he does not control, the grantor advancing none of the money, and no trick being used by which persons are deterred from bidding, the grantee ceases to be a mere mortgagee, although he promised the grantor as collateral security for the note, C. ' Kellum v. Smith, 33 Pa. St. 158. having declined to take an ordinary *Barnet v. Dougherty, 32 Pa. St. mortgage, it was said that C. was not 371. If, after a sheriff's sale of A.'s a mortgagee, because, while he had lands, B., at his request, buys them agreed to convey the property to B., from the sheriff's vendee, promising on B.'s paying the note, there was to let A. have them on repaying the no contract for reconveyance to A., price, with interest, B. is not a mort- the grantor. gagee, since A. had no interest in the 1 Hiester v. Maderia, 3 W. & S. 384. landwhenB.boughtit. Payne's Adm. "Sweetzer's Appeal, 71 Pa. St. 264. v. Patterson's Adm., 77 P:i. St. 134. 108 LAW OF LIEXS. to let him redeem on paying the price, in addition to the original mortgage debt.^ The mere fact that a purchaser from the sheriff's vendee has said that he is to reconvey to the defendant in the mortgage under which the sheriff's sale took place, without any evidence tending to make the sher- iff's vendee, from whom he purchased, a mortgagee, will not convert the purchaser into a mortgagee.^ § 90. A contract to sell land may be the means of mort- gaging it. A., by sealed articles, agreed, in two years, for a certain consideration, to convey to B. certain premises by deed, in fee-simple, and an endorsement was made on the articles, signed by B., by which B. agreed to annul them on A.'s repaying him within two years, the consideration with interest.^ Creditors of A. purchased land, erected a planing mill upon it, and contracted with him that he should super- intend it at an annual salary, and that, after the net profits had repaid them his indebtedness and their outlay, they would convey the premises to his wife. They afterwards conveyed, by absolute deed, their interest in the land to two of their number, for a consideration, the vendees verbally agreeing to hold the property until they realized their debt and the entire purchase money paid by them. This deed was found by the jury, under instructions of the court, to be ^ mortgage as between the grantees and A.'s wife, who, on sale of the premises, was entitled to receive the proceeds in excess of the amounts for which they were pledged to the creditors. That no indebtedness existed from the grantor to the grantees was immaterial; A.'s indebtedness to the grantees being sufficient.* Forms of the Defeasance. § 91. When the defeasance is in writing, it may assume a variety of forms. It may be a promise to " reconvey " the premises, on the payment of the mortgagor's debt, or his 1 Kellum V. Smith, 33 Pa. St. 158. ' Brown v. Nickels, 6 Pa. St. 390. 'Plumer v. Guthrie, 76 Pa. St. 441. *Maffit'sAdm.i).Rynd,69Pa.St.3S0. MORTGAGES. 109 discharge of the liability of the mortgagee for him;^ to "redeed" them;^ to convey them back.^ It may stipulate that the grant in the deed from the mortgagor to the mort- gagee shall be null and void;* it may, when a part of the instrument by which the mortgagor conveys the land to the mortgagee, be a mere statement that the conveyance is as collateral security for a debt due,* or, when the conveyance is in the form of an assignment of articles of sale, or of a deed, it may be a stipulation to re-assign." In a large major- ity of cases, a time is limited within which the condition must be performed, on which a reconveyance is promised to be made, e. g., one year,'' three months,^ five years," six months,^" thirty days after the taking place of an event described in the deed." The date at which the liability assumed by the mortgagee for the mortgagor, and to indemnify him for which the mortgage was made, shall be extinguished, is occasionally indicated as the limit.-^^ Establishing an Absolute Deed to be a Mortgage. § 92. It is essential, when a deed absolute in form is asserted to be a mortgage, to ascertain whether there was, in fact, when it was made, an agreement for a reconveyance, or that it should be null, on the performance of any condition, and whether, if there was such an agreement, it must be con- strued as a mortgage defeasance, or as a collateral agreement ^ Keitenbaugh v. Ludwick, 31 Pa. ° Russell's Appeal, 15 Pa. St. 319. St. 131; Wilson v. Shoenberger's " Guthrie ■«. Kahle, 46 Pa. St. 331. Exr., 31 Pa. St. 295; Manuf. and 'Kerr -y. Gilmore, 6 W. 405; Kelly Mech. Bank v. Bank of Penna., 7 W. v. Thompson, 7 W. 401 ; Eankin v. & S. 335 ; Corpman v. Baccastow, 84 Mortimere, 7 W. 372. Pa. St. 363; Directors of the Poor v. « Wharf ■«. Howell, 5 Binn. 499. Eoyer, 43 Pa. St. 146 ; Penna. Life « Guthrie v. Kahle, 46 Pa. St. 331. Assurance Co. ■!;. Austin, 42 Pa. St. 257. '" Reitenbaugh v. Ludwick, 31 Pa. ^ Kelly V. Thompson, 7 W. 401. St. 131. 3 Kerr v. Gilmore, 6 W. 405. "Allegheny R. R. Co. v. Casey, 79 * Wharf V. Howell, 5 Binn. 499; Pa. St. 84. Myers' Appeal, 42 Pa. St. 518 ; Ran- ^^ Wilson v. Shoenberger's Exr., 31 kin V. Mortimere, 7 W. 372. Pa. St. 295. 110 LAW OF LIENS. for a resale, enforceable only on strict compliance with the condition as to time of performance. To convert a deed of conveyance into a mortgage, the agreement of defeasance must be made simultaneously with, and as a part of the con- tract, in partial execution of which the deed is made. A subsequent and entirely independent agreement to reconvey, for the same consideration money, and the interest thereon, cannot retroact upon the conveyance so as to change its character, though the latter was executed only five days pre- viously.^ And, if the deed and defeasance bear the same date, but the latter was, in fact, executed and delivered thirty-five days after the former, the conveyance is a mort- gage only if it was, when made, intended to be a security, and not a sale and purchase.^ On the other hand, when the deed of conveyance and the agreement for defeasance or reconveyance are made at the same time, they are to be con- sidered as. if executed on the same piece of paper, and as con- stituting, together, a mortgage;^ and parol evidence is, in such case, not admissible to show that the parties intended to make a conditional sale, and not a mortgage defeasance, by the collateral agreement,* though the collateral agreement declares that it is not to be considered a mortgage, but an express stipulation to pay on the particular day, and that the title shall be absolute after that day, if the condition has not then been complied with.^ Evidence, and to -w^hom Addressed, § 93. In determining that a deed absolute in form is a mortgage, by reason t)f a simultaneous separate contract of defeasance, the judge sits as a chancellor, and the evidence ^ Kelly V. .Thompson, 7 W. 401. Haines v. Thompson, 70 Pa. St. 434 ; '^ Reitenbaugh v. Ludwick, 31 Pa. "Wharf ii. Howell, 5 Binn. 499. St. 131 ; Comp. Haines v. Thomson, * Colwell v. Woods, 3 W. 188 ; Wil- 70 Pa. St. 434. son v. Shoenberger's Exr., 31 Pa. St. " Wilson V. Shoenberger's Exr., 31 295 ; Reitenbaugh v. Ludwick, 31 Pa. Pa. St. 295 ; Kerr v. Gilmore, 6 W. St. 131 ; Jaques v. Weeks, 7 W. 261. 405; Colwell v. Woods, 3 W. 188; = jjankin v. Mortimere, 7 W. 372. Brown v. Nickel, 6 Pa. St. 390; MORTGAGES. Ill must be so clear and convincing as to satisfy him.^ The jury is to ascertain the facts, when he thinks the evidence suflS- cient to justify a finding, but he is to decide whether, the facts being made out, they are enough to establish the mort- gage character of the deed.^ Direct evidence of an express agreement that the conveyance should be merely for security, is unnecessary ; facts and circumstances indicative that such was its character may be shown.* Declarations of the grantee, though made after the conveyance, are admissible with corroborative facts,* but not alone.** A corroborative fact is the grantor's continuance in possession,^ but if, after having yielded possession in pursuance of the deed, the grantor is permitted to re-occupy the premises under circum- stances which do not imply the recognition of a right in him, such re-occupancy is consistent with the absoluteness of the deed.^ Other corroborative facts are, the inadequacy of the consideration paid,' {e. g., when it consists solely of bonds executed by the grantee, which are to be collected only out of the premises conveyed,^) and that the debt survives the conveyance;" but the mere survival of the notes or bonds ' Todd !.'. Campbell, 32 Pa. St. 250 ; Baird, 41 Pa. St. 256 ; Halo v. Schick, Baisch .'. Oakley, 68 Pa. St. 92 ; De 57 Pa. St. 319. France v. De France, 34 Pa. St. 385 ; ' Todd v. Campbell, 32 Pa. St. 250 ; Odenbaugh v. Bradford, 67 Pa. St. De France i;. De France, 34 Pa. St. 385. 96 ; Rhines v. Baird, 41 Pa. St. 256 ; « Colwell v. Woods, 3 W. 188 ; Todd Plumer v. Guthrie, 76 Pa. St. 441. v. Campbell, 32 Pa. St. 250 ; Wharfe ^ De France v. De France, 34 Pa. v. Howell, 5 Binn. 499 ; Odenbaugh St. 385 ; Plumer v. Guthrie, 76 Pa. v. Bradford, 67 Pa. St. 96 ; Hamet v. St. 441 ; McGinity v. McGinity, 63 Dundass, 4 Pa. St. 178 ; Reitenbaugh Pa. St. 38 ; Ballentine v. White, 77 v. Ludwick, 31 Pa. St. 131. Pa. St. 20 ; Todd v. Campbell, 32 Pa. ''Wilson v. Shoenberger's Exr., 81 St. 2.50. Pa. St. 295. That the value of the ^ Rhines v. Baird, 41 Pa. St. 256 ; land long after the conveyance was Plumer v. Guthrie, 76 Pa. St. 441. greater than the consideration paid, * Couch V.Sutton, 1 Grant 114. is insufficient; De France v. De ' Todd V. Campbell, 32 Pa. St. 250 ; France, 34 Pa. St. 385. Comp. Halo Rhines v. Baird, 41 Pa. St. 256. v. Schick, 57 Pa. St. 319. "Couch V. Sutton, 1 Grant 114; "Todd i;. Campbell, 32 Pa. St. 250 Colwell V. Woods, 3 W. 188 ; Todd v. Hamet v. Dundass, 4 Pa. St. 178 Campbell, 82 Pa. St. 250 ; Rhines v. Rhines v. Baird, 41 Pa. St. 256 Odenbaugh v. Bradford, 67 Pa. St. 96. 112 LAW OF LIENS. which represent it, is but a faint evidence of the continuance of the debt itself, if never asserted afterwards.^ A mere statement by the grantee, when subsequently negotiating a sale of the premises, that the land has been conveyed to him to sell, and from the proceeds the grantor is to receive some- thing, does not import that he is a mere mortgagee.^ Decla- rations of the grantee, though made after the conveyance, may show that the deed was designed to be a mortgage. A. and wife having conveyed to B., who, fourteen years later, conveyed to the wife of A., a declaration made by her as to the mortgage nature of the deed to B. is competent evidence in an ejectment by her against the purchaser at sheriff's sale of A.'s interest under a judgment against him.^ The grantee's statement that he was to release the land on receiving back the consideration, though accompanied by the expression of the belief that his title was indefeasible, because of the grantor's poverty, is proper evidence.* So, the declaration of the grantee may be shown as indicative that the release of the equity of redemption, after the conveyance, was not intended to be absolute.^ When, simultaneously with a trans- fer of his integral estate, the grantor takes back a defeasance for an undivided one-half only, a subsequent admission by the grantee that he holds the land as a security, will be referred to this fractional interest only.* An expression of a present intention to reconvey at some future time, made by the grantee after the conveyance, will not prove that such intention existed when the deed was made, and was a condi- tion of its execution.'' § 94. The fact that the grantor, after the grantee's death, objected to the amount of rent required by the latter 's heirs, his nephews, and stated that the grantee had intended by 'Todd V. Campbell, 32 Pa. St. 250. ^^ Eeitenbaugh v. Ludwick, 31 Pa. 'Ibid. St. 131 ; Kunkle v. Wolfersberger, 6 » Couch V. Sutton, 1 Grant 114. W. 126. * Odenbaugh v. Bradford, 67 Pa. « Baisoh v. Oakley, 68 Pa. St. 92. St. 96 ' Plumer v. Guthrie, 76 Pa. St. 441. MORTGAGES. 113 will to allow him a residence on the premises during life, is inconsistent with an assertion of an equity of redemption.^ The extinction of a debt at the time an absolute deed is made, e. g., a credit on a judgment for the consideration mentioned in the deed, is evidence that the deed was not a mere security.- Acts of the grantee, inconsistent with his belief that he had obtained merely a defeasible title, e. g., making improvements, re-imbursement for which would not be secured by a mortgage, may be shown to indicate the character of the estate conveyed." The grantor's taking a lease from the grantee, or making bills for improvements alleged by him to be for the benefit of the grantee's heirs, is evidence that his deed was intended to be absolute,* though not conclusive; and when, one and a half years after the deed, the grantor accepted a lease for a rent equal to the interest of the debt, it was said not to be difficult to recon- cile this conduct with the. mortgage nature of the deed.* But, when, nine years after a sheriff's sale alleged to have been in fact a raortgage, a lease was made from a vendee of the sheriff's purchaser to the defendant in the lien on which the sheriff's sale took place, this was regarded as at least evidence of the abandonment by the defendant of all interest in the land other than that of a lessee.*' Delay in the assertion of the grantor's right of redemption may throw light on the original intention of the parties, and, hence, explanations of that delay, e. g., the poverty of the grantor, are legitimate evidence.'' The Mortgagor's Right of iledemption. § 95. Since a mortgage is a security for the payment of money, or otherwise, it becomes void when its purpose is accomplished by the payment of that money at the stipu- ^Todd V. Campbell, 32 Pa. St. 250. "Todd v. Campbell, 32 Pa. St. 250. 2 Cole V. Bolard, 22 Pa. St. 432; °Kunkler).Wolfersberger,6W.126. Haines v. Thomson, 70 Pa. St. 434. «Plumer v. Guthrie, 76Pa. St. 441. 2 Haines v. Thomson, 70 Pa. St. 484. ' Odenbaugh v.Bradford,67 Pa. St. 96. H 114 LAAV OF LIENS. lated time. But the right to pay the money or discharge the other liabilities of the mortgagor, and so extinguish the grantee's rights in the land, does not cease with the lapse of the period of performance named in the instrument itself, but continues indefinitely. This principle is expressed in the constantly recurring legal maxim : once a 'mortgage, always a mortgage.^ If the conveyance is in fact designed to be a security for the repayment of money, agreements, however clear and emphatic, limiting the time within which it may be annulled by such repayment, are void.^ When the land is conveyed as a satisfaction of a previous debt, it is, of course, not a security for payment of the debt, and no right of redemption survives,^ though there may be an agree- ment to reconvey.* A lease for ten years of lands of the debtor, in order that the rents might be applied to the pay- ment of the debt, to the taxes and a ground-rent, left no right in the lessor to redeem during the term;® nor did a deed conveying a ground-rent, in satisfaction of a debt.® When A., owning two undivided thirds of land, and indebted to B., the owner of the other third, conveyed his interest to B. by deed absolute, but the following day a paper was executed, stating that B. desired the one-half part of the land to be beneficial to A., the transaction was regarded as a mortgage of the undivided one-half, but a sale of the remainder of A.'s interest in discharge of the debt to B.'' The conveyance for the purpose of paying pre-existing debts may be conditioned on the grantor's not paying those debts by a future day named. In such case, the right of redemption will cease with the day specified, and the title of 1 Rankin v. Mortimere, 7 W. 372; 'De France v. De France, 34 Pa. Jaques v. Weeks, 7 W. 261 ; Kerr v. St. 385 ; Todd v. Campbell, 32 Pa. St. Gilmore, 6 W. 372 ; Directors of Poor 250 ; Cole v. Boland, 22 Pa. St. 431. u Eoyer, 43 Pa. St. 146 ; Odenbaiigh * Callahan's Estate, 9 W. JST. C. V. Bradford, 67 Pa. St. 96 ; Harper's 253. Appeal, 64 Pa. St. 315. "> Halo v. Schick, 57 Pa. St. 319. ^Rankin v. Mortimere, 7 W. 372; "Spackman v. Ott, 65 Pa. St. 131. Hiester v. Maderia, 3 W. & S. 384. ' Baisch v. Oakley, 68 Pa. St. 92. MORTGAGES. 115 the grantee will become absolute. A., indebted to B., con- veyed to the latter his lands in two counties, in trust to appraise them either alone or jointly with A.; to reconvey so much of them as should exceed twice the indebtedness, and, within thirty days after the completion of the valuation, to reconvey all of them, on A.'s paying the indebtedness ; the grant, however, to become absolute as to so much of such lands as would, at their appraised value, be sufficient to sat- isfy the debt, the remainder to be reconveyed. This was a mortgage as to such lands as exceeded in value the debt, and a sale in payment of the debt, as regards the remainder, notwith- standing the provision for redemption within thirty days of the valuation.^ The subject of the mortgage may, by a sub- sequent agreement, be taken in satisfaction of the debt for which it was originally mortgaged,^ and, when such is the case, the debt being equal to the value of the mortgaged property, the mere fact that a simultaneous stipulation was made by the creditor to deliver to the debtor, at any time within sixty days, property of the same kind and value, on his payment of the debt and interest, does not convert this agreement into a mortgage.^ If the right of redemption reserved by a separate defeasance is released simply to facili- tate the raising of money by mortgage of the land, it will not be extinguished as respects the original grantee.* The release of the right of redemption may itself be accompanied by a defeasance, providing for reconveyance on receiving the consideration, or for a public sale, at the request of the mort- gagor, and payment to him of the excess of the price 'Allegheny R. K. Co. v. Casey 79, in payment of the overdraft. An Pa. St. 84. agreement to retransfer it, within ^ Caverow v. Mut. Benefit L. Ins. two years, on his paying the price at Co., 52 Pa. St. 287. which it was transferred to the bank, ^Spering's Appeal, 60 Pa. St. 199. was a mere conditional sale, and the This was a pledge of stock. In Lau- right of redemption ceased with the man's Appeal, 68 Pa. St. 88, the wife lapse of the two years, of one who had overdrawn hisac- *Ileitenbaugh v. Ludwick, 31 Pa. count, transferred stock to the bank St. 131. 116 LAW OF LIENS. obtained beyond the debt.^ And a surrender of a right of redemption even of an equitable title under articles, will be void as to creditors who have acquired a lien upon it.^ The equity of redemption is extinguished when the mortgagee pur- chases the premises at a sheriff's sale on a judgment later than the mortgage.^ When the mortgage gives a power of sale, a sale under the power divests the right of redemption,* as, of course, will a sale under a judgment recovered upon a scire facias. When, in ejectment brought by the mortgagee after default in paying the debt, to recover possession, judgment was confessed, on condition that the habere should not issue until a certain date, the mortgagor promising to discharge the debt, interest and costs within that time, and this promise not being fulfilled, the plaintiff was subsequently put into possession, and made valuable improvements, the land not being worth more than the debt, it was decided that after six years, equity would regard the judgment in ejectment, and the possession taken under it, as an extinc- tion of the equity of redemption.® Subjects of Mortgage. § 96. All real estate may be mortgaged, e. g., a ground-rent in fee,^ or the land out of which such a rent issues.' An indescriptive warrant on which money had been paid, was validly mortgaged sixteen days before the survey on the warrant.^ Land taken by a water company under the eminent domain of the state, may be mortgaged even before security is given for the damages. When such security is subse- quently given, the mortgage attaches to the entire legal title.* 'Steinruck's Appeal, 70 Pa. St. Weidner v. Foster, 2 P. rorthampton Water Co., 7 Pa. St. 233 ; Mott v. Clark, 9 Pa. St. 399. ^Levinzr. Will, 1 Dall. 431; Mel- Ion's Appeal, 32 Pa. St. 121 ; Jaques V. Weeks, 7 W. 261 ; Stroud r. Lock- art, 4 Dall. 144 ; Speer v. Evans, 47 Pa. St. 141; Edwards v. Trumbull, 50 Pa. St. 509. * Jaques I.. Weeks, 7 W. 261; Di- rectors of Poor V. Eoyer, 43 Pa. St. 146 ; Murphy v. Nathans, 46 Pa. St. 508 ; Hibberd v. Bovier, 1 Grant 266. When A. conveys to B., taking back a defeasance, and the absolute deed only is put on record, and C. buys bona fide from B., having no notice of the defeasance, or of its not being recorded, the utmost that A.'s con- tinuance in possession, when C. pur- chases, can do, is to qualify C.'s title by A.'s right of redemption ; not to make it void, as to A., or as to a sheriff's vendee under a judgment recovered against A. after his execu- tion of the deed to B. Jaques v. Weeks, 7 W. 261. ^Manuf and Mech. Bank v. Bank of Penna., 7 W. & S. 235 ; Edwards V. Trumbull, 50 Pa. 509 ; Gossin r. Brown, 11 Pa. St. 527. «Semple v. Burd, 7 Serg. & R. 286 Friedley v. Hamilton, 17 Serg. & R. 70; Jaques v. Weeks, 7 W. 261 Hibberd v. Bovier, 1 Grant 266 Britton's Appeal, 45 Pa. St. 172 McLaughlin v. Ihmsen, 85 Pa. St, 364; Hulings v. Guthrie, 4 Pa. St ] 23 ; Speer v. Evans, 47 Pa. St. 141 Corpman v. Baccastow, 84 Pa. St, 363 ; Lahr's Appeal, 90 Pa. St. 507, A contrary principle is assumed in Cover V. Black, 1 Pa. St. 493. 136 LAW OF LIENS. rata with the other specialty debts from the proceeds of the premises sold by order of the orphans' court.^ Actual Notice. § 112. The purpose of the recording of mortgages is to put persons who deal with others, in possession of means of knowing of the existence of mortgages created by them. The constructive notice thus acquired has the same effects as actual notice.^ A mortgage unrecorded is valid, therefore,, against a subsequent purchaser having knowledge of its ex- istence, when he accepts the conveyance.^ When a mother purchased land in the name of and for her daughter,, a married woman, and when the deed was made the latter knew of a mortgage previously made the same day by the grantor, and not recorded, her title was encumbered by the mortgage, though the mother was ignorant of its existence.* Only the purchaser, or those who derive title from him, can set up the want of proper recording. Thus, when A. con- veyed by deed absolute to B., the accompanying defeasance never being recorded, and B. sold the land to C, and, sub- sequently, under a judgment against A., C. bought in the same land, the widow of A., on his death, could not, for the purpose of asserting dower in the land, insist that C. should claim, by virtue of his first purchase only, an estate unen- cumbered by any equity of redemption of A.* Notice to Purchasers under Liens. § 113. If, of a prior mortgage, a creditor has no notice when he obtains a lien, giving notice of its existence to a ' Nice's Appeal, 54 Pa. St. 200 ; Pa. St. 146 ; Jaques v. Weeks, 7 W. Adams' Appeal, 1 P. & W. 447. 261. ^Kuhn's Appeal, 2 Pa. St. 264; * Murphy v. Nathans, 46 Pa. St. Duncan v. Curry, 3 Binn. 36. 508. Notice to a trustee, and not to " Murphy v. Nathans, 46 Pa. St. the ceshii que trust, will probably not 608 ; Stroud ■;;. Lockart, 4 Dall. 144 ; dispense with recording. Spackman Hulings V. Guthrie, 4 Pa. St. 123 ; v. Ott, 65 Pa. St. 131. Directors of Poor v. Royer, 43 * Directors of Poor v. Royer, 43 Pa. St. 146. MORTGAGES. 137 purchaser at the sheriff's sale under this lien is ineffectual. The purchaser must be protected from the mortgage, in order to protect the creditor.^ Recording the mortgage after the judgment, is too late, and a subsequent sale under the judgment will divest the mortgage, and the title of a pur- chaser from the mortgagee who sells under a power of sale.^ When the registry is void for want of authority in the ofl&cer ■who took the acknowledgment, a sale on a subsequent judg- ment will divest the mortgage, notwithstanding actual notice of its existence given to the plaintiff, after recovery of his judgment.^ When the judgment creditor becomes the jDur- chaser, the mortgage will bind his estate if he had notice of it when he gave credit.* Notice to Later Lien Creditors § 114. If the defeasance accompanying an absolute deed is not recorded, but one subsequently makes a loan and accepts a mortgage, knowing of its existence, the first mort- gage will be valid as to him, and as to all later liens to which his has priority.^ When A. executes a mortgage to secure payment of a note, on which B. is endorser for his accom- modation, subsequent notice to B. of the existence of a prior mortgage will not make it valid as against B., who, on pay- ing the note, is subrogated to the mortgage which secured it.® When a judgment creditor had knowledge of the existence of the mortgage when his debt was contracted, the mortgage, though unrecorded,'^ or defectively recorded,^ will be valid as ^Hibberd v. Bovier, 1 Grant 266; sufficient if given at the sale, when Jaques v. Weeks, 7 W. 261. the sale would not divest the mort- ^ Hulings ■!'. Guthrie, 4 Pa. St. 123 ; gage, if it had been recorded. Corpman v. Baccastow, 84 Pa. St. 363 ; ^ Manuf. and Mech. Bank v. Bank Comp. Rhines v. Baird, 41 Pa. St. 256. of Penna., 7 W. & S. 335. "Uhler V. Hutchinson, 23 Pa. St. ^Gossin v. Brown, 11 Pa. St. 527. 110. Contra, Solnis v. McCulloch, 5 'Britton's Appeal, 45 Pa. St. 172. Pa. St. 473. I"^ Hulings v. Guthrie, 4 Pa. St. 123, *Britton'8 Appeal, 45 Pa. St. 172. the contrary is said. In Hibberd v. Bovier, 1 Grant 266, "Parker v. Wood, 1 Dall. 459; Lewis, C. J., says that notice of a Speer v. Evans, 47 Pa. St. 141 ; Tryon mortgage, prior to the judgment, is v. Munson, 77 Pa. St. 250. 138 LAW OF LIENS. to his judgment. But notice after the debt, though before the judgment, is ineffectual. A wife, lending money to her husband, three years afterwards joined him in mortgaging his land. Subsequently he confessed a judgment to a trustee for his debt to her. The mortgage, not being recorded, was postponed to the judgment.^ An unrecorded mortgage is not validated by giving notice of it to one who has a judg- ment bond from his creditor, but has not yet entered judg- ment on it.^ Possession by the mortgagee under an absolute deed, with separate unrecorded defeasance, is not notice to a lien creditor of the existence of the mortgage.® When a mortgage is made to A., simply in order that he may assign it to B., A. having no agency in obtaining it, his knowledge of a prior unrecorded mortgage will not affect B.; but a bank director, who is also a member of a committee to make a loan on the mortgage, represents the bank, and notice to him, if in the course of the transaction, and from some one who is likely to know of the existence of a prior mortgage, will be notice to the bank. The notice should, however, be not merely that C has some kind of lien, but specifically that it is a mortgage.* Recording Chattel Mortgages. § 115. The act of May 28th, 1715, requires mortgages of freeholds, and of leaseholds, to be recorded within six months of their execution. The acts of September 23d, 1783, March 28th, 1820, and April 6th, 1830, do not refer to mortgages of leaseholds. A leasehold mortgage is valid, therefore, if 'Lahr's Appeal, 90 Pa. St. 507; whohad uo knowledge of this agree- Britton's Appeal, 45 Pa. St. 127; Mc- nient before the origin of their Laughlin v. Ihmsen, 85 Pa. St. 364 ; claims. Comp. Gossin v. Brown, 11 Pa. St. ^ Muse ?;. Letterman, 13 Serg. & R. 527. In Mode's Appeal, 6 W. & S. 167. 280, mortgages that would have been 'Wilson v. Shoenberger's Exr., 34 divested by a sheriff's sale, but to Pa. St. 121. ■which the vendee at that sale agreed * Phillipsburg Savings Bank's Ap- to buy subject, could not be asserted peal, 10 W. N. C. 265. against lien creditors of the vendee MOETGAGES. 139 recorded at any time within six months, unless it comes within the acts in regard to collieries, mines and manufac- tories.^ Notice to the purchaser in execution of such a lease- hold, of the existence of the mortgage, supplies the place of recording.^ The act of 5th April, 1853, [P. L. 295,] makes mortgages of mining rights and coal leases in Schuyl- kill county valid against subsequent purchasers or execution creditors, if they shall be recorded in the office for recording deeds, in a coal lease mortgage book, within five days of their execution ; and the eighth section of the act of 5th April, 1855, validates mortgages of a lease of any colliery, mining land, manufactory, or other premises, anywhere in the state, together with all buildings, fixtures and machinery thereon, belonging to the defendant, and appurtenant thereto, pro- vided that the mortgage, together with the lease, be put of record as mortgages of freeholds must be. If the mortgage is first recorded, and d.fi.fa. issues before the lease itself is recorded, the mortgage will be postponed.^ When A. leased a mill to B. and C, B. subsequently assigning his interest to C, and C. then mortgaged the lease, recording both the mortgage, and a copy of the lease, and B.'s assignment, which A. and C. had acknowledged before an alderman, a subsequent mortgage of the lease was valid, when to it was annexed a copy of the lease and B.'s assignment, which were likewise recited in the body of it, and when it was also recited that the lease had been recorded with the former mortgage, and the record was referred to.* A chattel mort- gage, though unrecorded, is good as between the parties to it ; hence, failure to record such for seven days after its exe- cution, under the act of 6th April, 1853, will not vitiate it as to the mortgagor." The act of 18th May, 1876, [P. L. 1 Bismarck Building Ass. v. Bol- '^ Ihid. ster, 92 Pa. St. 123. Whether, if re- ^ Sturtevant's Appeal, 34 Pa. St. corded within six months, such a 149. mortgage is valid without possession *Ladley v. Creighton, 70 Pa. St. taken, either before or after the re- 490. cording, is left undecided. i^ Hosie v. Gray, 71 Pa. St. 198. 140 LAW OF LIENS. 181,] authorizes mortgages of saw logs, sawed lumber, etc., petroleum, etc., iron ore mined and prepared for use, etc., manufactured slate, and canal boats, for a sum not less than $500, by an instrument in writing, signed and acknowledged, to take effect, as respects all but the parties thereto, only from the time of filing and indexing the same in the office for recording deeds of the proper county. The act of Janu- ary 11th, 1867, [P. L. 1373,] which provides that all iron and other manufacturing and mining incorporated companies may secure loans by mortgage of their property, does not authorize mortgages of chattels.^ Corporation Mortgages. § 116. Unless restrained by act of assembly, corporations have the power to dispose of their property as they will ; they may convey their whole estate, or some less interest.^ The power to sell or aliene includes the power to mortgage.* The mortgage may be made by the issue of preferred stock, redeemable by the corporation.* A mortgage of land for its purchase money, by building associations, they having no power to acquire the land, is void, but can be validated by a subsequent act of assembly .° The mortgages authorized by the act of 11th January, 1867, [P. L. 1373,] are of real estate only ; chattel mortgages, unaccompanied by possession in the mortgagees, are not validated thereby.* But corpora- tions, like other lessees, may mortgage their leasehold ma- chinery and fixtures, under the act of 27th April, 1855.'^ Since nothing can be mortgaged which cannot be sold judi- 1 Roberts' Appeal, 60 Pa. St. 400. Jamison, 3 Wh. 456; Zane v. Ken- See Phila., etc., R. R. Co. v. Woelp- nedy, 73 Pa. St. 182; Maurer's Ap- per, 64 Pa. St. 366. peal, 86 Pa. St. 380 ; Lancaster v. 2 Ardesco Oil Co. v. N. A. Mining, Dolan, 1 R. 231. etc., Co., 66 Pa. St. 375; Ahl v. nVest Chester, etc., R. R. Co. v Rhoads, 84 Pa. St. 319 ; Watts' Ap- Jackson, 77 Pa. St. 321. peal, 78 Pa. St. 370; Dana i\ Bank » Faulkner's Appeal, 11 W. ^\ C. 48 of U. S., 5 W. & S. 223. « Roberts' Appeal, 60 Pa. St. 400. ' Gordon v. Preston, 1 W. 385 ; Ahl ' Lewis v. Phila. Axle Works, 10 V. Rhoads, 84 Pa. St. 319 ; Jamison v. Phila. 334. MOETGAGES. 141 cially, it has been held that a railroad could not mortgage its franchises without license from the state,^ nor a navigation company chartered for the improvement of the navigation of a river by the erection of locks and dams.^ The power to mortgage has been recognized in a plank road company,^ in a company to supply water to a borough,* in a church,'' in a bank,'' iji railroad companies^ The power to mortgage is lodged with the directors,* but they can exercise it regularly only at a stated meeting, or at a special meeting, of which all the directors have received either verbal or written notice. Executed at any other meeting, it needs the ratification of the corporation. Acquiescence in it by the officers, for eight months after knowledge of it, will preclude its impeachment by contesting lien creditors.^ A mortgage to which the cor- porate seal was attached, attested by the secretary of a manu- fecturing company, and which was signed, sealed and delivered as the act and deed of the company, was valid, if not dissented from by the company for four months, at the end of which time the company was decreed a bankrupt.^" If, without the consent of the stockholders, an act is passed enlarging the corporate power of making mortgages, and the directors, under this enlarged power, execute a mortgage and issue bonds, which are recognized as valid by a sequestrator, and by an auditor appointed to distribute moneys in the hands of the former, and in other ways, the mortgage will be deemed valid by ratification.^^ A mortgage to which a 1 Mendenhall v. West Chester, etc., ' Kobinson v. Atlantic, etc., R. R. R. R. Co., 36 Pa. St. 145; Pittsb., Co., 66 Pa. St. 160; Youngman v. etc., R. R. Co. V. County of Alle- Elmira, etc., R. R. Co., 65 Pa. St. gheny, 63 Pa. St. 126. 278 ; Phila., etc., R. R. Co. v. Woelp- ' Steiner's Appeal, 27 Pa. St. 312. per, 64 Pa. St. 366 ; Western Penna. See Sheaff's Appeal, 55 Pa. St. 403. R. R. Co. v. Johnston, 59 Pa. St. 290. 3 Wellsboro, etc., Plank Road Co. ^Gordon v. Preston, 1 W. 385; Ahl V. Griffin, 57 Pa. St. 417. v. Rhoads, 84 Pa. St. 319. * Appeal of Borough of Easton, 47 " Gordon v. Preston, 1 W. 385. Pa. St. 255. 1° Lewis ■;;. Phila. Axle Works, 10 ^ St. John's Church v. Steinmetz, Phila. 334. 18 Pa. St. 273. " McCurdy's Appeal, 65 Pa. St. Ahl V. Rhoads, 84 Pa. St. 319. 290. 142 LAW OF LIEN.S. seal, admitted by the corporation to be its seal, is affixed, will bind it, in the absence of evidence of want of authority to execute and seal it.^ The provisions of the constitution of 1874, and of the act of April 18th, 1874, in regard to increase of indebtedness, do not apply to corporations in exist- ence prior to 1874, unless they enter into a new contract with the state by accepting the benefit of future legislation." Banks may, under the present constitution, execute mortgages to secure deposits that have been already made, or that may afterwards be made.^ Under a statutory power to mortgage the road, property, rights, liberties and franchises of a rail- road company, it may mortgage property to be afterwards acquired.* A mortgage of the entire railroad, with all its rights and franchises, will not attach to its easement in land subsequently taken, in such sense that a sale under the mort- gage will divest a judgment recovered on an award for dam- ages after the sale.* An acknowledgment made by the directors, who signed the mortgage, and affixed to it the cor- porate sea;l, is valid.'' A mortgage to a stockholder by the corporation is not, on that account, invalid.' A mortgage to a corporation erected by the law of another state, is good so far as concerns the remedy by sei. fa.,^ or participation in the proceeds of a judicial sale of the premises.'' A national bank may accept a mortgage, as security for notes dis- counted simultaneously,^" as well as for notes already dis- counted." 'St. John's Church c. Steinmetz, 'Gordon y. Preston, IW. 385; Ahl 18 Pa. St. 273. , v. Ehoads, 84 Pa. St. 819. ^ Hays V. Commonwealth, 82 Pa. ' Leasure v. Union Ins. Co. 91 Pa. St. 518 ; Ahl v. Ehoads, 84 Pa. St. St. 491. 819; Lewis t'. Jeffries, 86 Pa. St. 840. 'American Slate Co. v. Phillips- 3 Ahl V. Ehoads, 84 Pa. St. 319; burg Building Ass., 8 W. N. C. 481. Lewis V. Jeffries, 86 Pa. St. 340. " Barnet v. National Bank, 98 U. S. * Phila., etc., E. E. Co. v. Woelp- 655, overruling Fowler v. Scully, 72 per, 64 Pa. St. 866. Pa. St. 456. * Western Penna. E. E. Co. v. " Woods t'. People's National Bank, Johnston, 59 Pa. St. 290. 88 Pa. St. 57. « Gordon v. Preston, 1 W. 385. MOETGAGES. 143 Married Women's Mortgages. § 117. From the first settlement of the province of Penn- sylvania, married women have had the power to execute mortgages of their real estate.-' The mortgage may be to procure money to be applied to the improvement of the sepa- rate estate of the married woman,^ or to secure a debt already due by her husband/ or to indemnify one who had endorsed the husband's promissory note,* or as collateral security for a debt simultaneously contracted by the husband,^ or to secure debts to be contracted in the purchase of goods by him in the future,* or in the course of an agency for the sale of goods.^ When she makes a mortgage for money which she intends to be used in improving her separate estate, but permits her husband to receive it, and apply it to improving his own, the mortgage is binding upon her.* A mortgage by a wife to a building association, to secure a loan to her husband, and premiums, fines, dues, owing by him as a member, is valid for the entire liability,' though the money is not borrowed nor actually used for the improvement of his real estate.^" A mortgage by a wife to a building association, of which she becomes a member, is valid only for the money actually ^ Jamison v. Jamison, 3 Wh. 456 ; « Daubert v. Eckert, 9 W. N. C. 87. Hoover v. Samaritan Society, 4 Wh. ° Association v. Steele, 11 W. N. C. 445. 204. When the wife's mortgage to ^KingsessingBuildingAss.'y.Roan, the association recited that the hus- 9 W. N. C. 15. band owned twenty-five shares of ^Sheidle v. Weishlee, 16 Pa. St. stock therein, which were pledged 134; Bayler i'. Commonwealth, 40 as collateral security for the debt, Pa. St. 37 ; Miner v. Graham, 24 Pa. she estopped herself from asserting St. 491. that nine of them were her own, and *Ly tie's Appeal, 36 Pa. St. 131. the association could enforce from ii Black V. Gal way, 24 Pa. St. 18 Evans v. Meylert, 19 Pa. St. 402 Kennedy v. Koss, 25 Pa. St. 256 Jamison v. Jamison, 3 Wh. 456 the mortgaged premises payment of his indebtedness, less the withdrawal value of the twenty-five shares, re- duced by the dues in arrear and Hoover v. Samaritan Society, 4 Wh. tines on any of the said shares. 445 '"Juniata Building Ass. v. Mixell, i^Haffey v. Carey, 73 Pa. St. 431. 84 Pa. St. 313. See Swift v. Alle- ' Singer Manuf. Co. v. Book, 84 Pa. gheny Building Ass., 82 Pa. St. 142. St. 442. 144 LAW OF LIENS. received by her, and applied to her estate, together with lawful interest ; it is not enforceable as to the premium, dues, fines, or for more than the lawful rate of interest.^ A provi- sion in a wife's mortgage for her husband's debt, for commis- sions for the cost of its collection, is void,^ but a stipulation that a sci. fa. may issue immediately after default in pay- ment, either of the whole,^ or of any installment,* is valid. A mortgage by a wife of the estate she expects to inherit from her father, yet living, is void at law, and will not be enforced in equity on the death of her father, when its consideration is merely a pre-existing debt of her husband.^ § 118. When land is settled on a married woman, for her sole and separate use, free from the debts and control of her husband, she cannot make a mortgage of it, which shall take effect during her life,'' or afterwards, for the debts of her husband, unless the power to mortgage is expressly given in the settlement.'' If the settlement is to her use for life, to her husband's use during his life, if he survive her, with remainder in fee to her children, or such persons as she shall by will appoint, a mortgage in fee by husband and wife is void, except as to the life-estate in remainder of the hus- band.^ When, by marriage articles, one-half of the hus- band's estate is settled on his wife, for her sole use during life, with remainder to her offspring, a subsequent mortgage of it by the husband and wife is void, as against the wife and her heirs, if the mortgagee has notice of the existence of the articles.^ If the settlement directs that, after her death, the ' Wolbach V. Lehigh Building Ass., ' Bayler v. Commonwealth, 40 Pa. 84 Pa. St. 211. But the husband is St. 37. liable on his bond, executed jointly * Lancaster v. Dolan, 1 E. 231 with her, for all that she has as- Maurer's Appeal, 86 Pa. St. 380 sumed to pay. Hope Building Ass. Zane v. Kennedy, 73 Pa. St. 182 V. Lance, 6 W. N. 0. 218. Duval's Appeal, 38 Pa. St. 112. ^ Magaw V. Stevenson, 1 Grant 402 ; ' Wright v. Brown, 44 Pa. St. 224. Schalck V. Quirk, 1 Leg. Chron. 236. ^ Cochran v. O'Hara, 4 W. & S. 95. ^ Black V. Galway, 24 Pa. St. 18. " McCullough v. Wilson, 21 Pa. St. * Kennedy v. Eoss, 25 Pa. St. 256. 436. MORTGAGES. 145 trustees shall hold for such persons as, during her lifetime, she shall have designated, either by will or other writing, under her hand and seal, executed in the presence of two witnesses, a mortgage made by her and her husband, though not referring to this power, will be deemed an execution of it ; on her death, a purchaser at sheriff's sale thereunder, may recover possession.^ When, under a marriage settle- ment upon trustees for the separate use of the wife, a power is reserved to them to mortgage the estate for a definite sum, to be paid to her, for her sole use, the execution of a mort- gage for this amount, exhausts the power. A subsequent mortgage by the husband and wife is void, except so far •as its proceeds have been applied to the satisfaction of the j)rior mortgage. To this extent it can be enforced against the land.- After land has been settled on a trustee for the use of the wife, by her husband, with power to convey any part of it, on the request of the wife, in writing, under her hand, a conveyance of it by the trustee and wife, after the ■death of the husband, in order that the grantee may, by mortgaging it, procure a loan for the use of the wife's son, must be regarded as a mortgage valid under the power in the settlement.^ When a settlement reserves to the wife the authority to change the uses and trusts for which the trustee under the settlement is to hold the land, by an instrument executed in the presence of two witnesses, she may direct the trustee to hold to the use of A., and then, in the same instrument, to mortgage the land to A, for the purpose of securing a debt due from her husband to him.* § 119. Prior to the act of 1848, under a sci. fa., on a mortgage of a wife's lands, in which the husband had a curtesy estate, it was competent for him to cause an attorney to appear for her and himself, and, on a judgment confessed 'Maurer's Appeal, 86 Pa. St. 380. •'Hoover v. Samaritan Society, 4 Ubid. Wh.445. ^Zane v. Kennedy, 73 Pa. St. 182. K 146 LAW OF LIEXS. by this attorney, a valid title would be conveyed by an execution.^ When, after a prcBcipe for a sci. fa. is filed, but containing no description of the premises, there is an appear- ance for the husband and wife, defendants, and no sci. fa. issuing, judgment is entered generally for the plaintiff, there is no description of the subject to which the judgment is applicable, and a sale under it is void ; ^ but if, after a lev. fac. issues on this judgment, the husband and wife procure A. to buy the judgment, and stipulate that if they fail ta repay him, he may sell the premises under the judgment, a subsequent sale thereunder, the levari facias containing a full description of the premises, will divest the title of both wife and husband.^ When land is conveyed from A. to a trustee for the wife of B., the trustee executing a mortgage for a part of the purchase money, and subsequently another mortgage is executed by the wife to C, who has no knowl- edge of any secret title of the husband in the land, arising from his furnishing the purchase money, this mortgage must be paid from the proceeds of sale under the first mortgage, in preference to a judgment against the husband, which be- came a lien after its execution, and as against a purchaser of the land under such judgment.* When land is conveyed to husband and wife, and after the husband dies, the wife mort- gages the land, the mortgagee is not affected by matters which estop the widow from asserting her estate in the prem- ises by survivorship, of which he had no knowledge.^ The death of a wife who has mortgaged her land for her hus- band's debt, does not discharge the mortgage, though she is but a surety." An indenture, whose parties are A. and B., in which A. grants to B. all the estate of himself and C, his wife, with proviso that if said A. and C. shall pay a bond, the ' Evans v. Meylert, 19 Pa. St. 402 ; signed by husband and wife, but not McCullough V. Wilson, 21 Pa. St. 436. acknowledged by either. "Wilson V. McCullough, 19 Pa. St. *Wightman's Appeal, 29 Pa. St. 77. 280. 'McCullough V. Wilson, 21 Pa. St. ^jjartin v. Jackson, 27 Pa. St. 504. 436. The agreement with A. was ^ Miner v. Graham, 24 Pa. St. 491. MOETGAGES. 147 grant shall be void, and which is signed, sealed and acknowl- edged by A. and C, is the mortgage of C. as well as of A} When the husband of a deceased married woman, a stock- holder in a building association, declines to make defence to her mortgage to it, the next of kin, there being no lineal descendants, cannot insist that the payments on stock, prior to her death, shall be applied upon the mortgage, and that only the amount of money actually loaned to her, increased by lawful interest, shall be recovered.^ A mortgage owned by a married' woman may be sold, assigned or ratified by her as if she were unmarried.^ A married woman may be a mort- gagee by an absolute deed, with a separate defeasance, but her admission or acknowledgment, orally or in writing, is not evidence of such defeasance, unless acknowledged before a magistrate, as are deeds.* Ackno-wrledgment. § 120. A mortgage by a married woman must be sepa- rately acknowledged by her,* before a proper magistrate.'' Though, before the act of 1848, a" mortgage by husband and wife, after issue born, not acknowledged by the wife, bound the land during the husband's life, it became void upon his death.® Since that act, it is utterly ineffectual, though proved by a subscribing witness,' and though it was made only four days after marriage, and the mortgagor declared to the mortgagee that she was unmarried.* The legal evi- dence of the acknowledgment is the certificate of the ofiicer before whom it was made, which must, therefore, allege the taking place of all the facts made necessary by the act of 1770,* though the facts need not be stated in the exact lan- 1 Jamison v. Jamison, 3 Wh. 456. "James r. Lyon, 3 Y. 471. ^ Kingsessing Building Ass. I'. Koan, ' Selden's Appeal, 74 Pa. St. 323. 9 W. N. C. 15. * Keen v. Hartman, 48 Pa. St. 497. 'Actof2othMay, 1878, [P.L.152.] 'Watson v. Bailey, 1 Binn. 470; * Graham v. Long, 65 Pa. St. 383. Fowler o. McClurg, 6 W. & S. 143 ; 5 Section 2, act of 24th February, Jourdan v. Jourdan, 9 Serg. & R. 1770, [1 Sm. L. 307.] 268; Thompson v. Morrow, 5 Serg. 148 LAW OF LIENS. guage of that act ; substantial identity is sufficient.^ Neither parol acknowledgments by the wife after the delivery of the deed,'^ nor parol evidence by the magistrate/ of the facts which should be evidenced by the certificate, is a substitute therefor. But, parol is admissible to show that after the death of the husband, the widow redelivered and ratified the deed which previously was void, on account of want of proper certificate of separate examination.* § 121. Omission to state that the wife was examined sepa- rate and apart from her husband," or that the contents of the deed were known by her, or were made known to her,'' or that she sealed, and, as her deed, delivered the indenture without coercion of her husband,^ avoids the deed. A cer- tificate correct in form, save that from the phrase, " the con- tents of said indenture being first made fully known to her," the word known was inadvertently omitted, was valid.^ "Seal and acknowledge," instead of "seal and deliver," " coercion," instead of " coercion and compulsion," are venial mistakes.® A statement that the contents of the deed were made known to the wife, she " voluntarily consenting & K. 289 ; Jones v. Maffet, 5 Serg. Wilson i;. Murphy, 1 Phila. 203; Ass., v. Raber's Adm., 11 Phila. Hart V. Rogers, 1 Am. L. J. 263. 546. 'Economy Building Ass. v. Hun- 'Link v. Germantown Building gerbuehler, 93 Pa. St. 258 ; Building Ass., 89 Pa. St. 15. A.rs. ('. Sutton, 35 Pa. St. 463 ; Spring * Economy Building Ass. i). Hun- Garden A.SS. V. Tradesman's Loan gerbuehler, 9 W. N. C. 218. Ass., 46 Pa. St. 493 ; Kelly v. Perse- = Early's Appeal, 7 W. X. C. 184. verance Building Ass., 39 Pa. St. 14S ; 'Spring Garden Ass. v. Trades- Kreamer v. Springfield Savings Ass., men's Loan Ass., 46 Pa. St. 493. 6 W. X. C. 267; Springville, etc., 'Xorth America Building Ass. ■». Sutton, 35 Pa. St. 463. MORTGAGES. 161 gagor, or assertion of its non-payment by the mortgagee within that time, is presumptive evidence of satisfaction ; a prior ejectment instituted on the mortgage, a claim for the balance of the mortgage debt, and an award therefor, and judgment on the award, together with revivals of this judg- ment,^ and admissions by the mortgagor before he conveys the premises,- tend to rebut the presumption of payment. A mortgage was executed by A. to secure a ^Yidow's third during her life, and the payment of the principal to several heirs at her death ; a few months before the expiration of twenty years from her death a sci. fa. was sued out by one ■of these heirs to recover his share in the principal. That for thirty years he had been indebted to the mortgagor in a sum larger than his share in the mortgage ; that the mort- gagor had never revived the judgment he had recovered thirty years before against the mortgagee ; that the other heirs had apparently been paid their shares in the mortgage, justified the presumption of an application of the mortgagee's debt to his share of the mortgage.^ Merger. § 131. Merger of the ownership of the mortgage, and of the premises, may extinguish the mortgage. If the mort- gagee become the owner of the premises, the mortgage merges therein, unless he has previously assigned it,* and a subse- quent purchaser, having no notice of the assignment, will hold the land divested of the mortgage.^ So, if, after the 1 Levers v. Van Buskirk, 7 W. & S. ^ Frear v. Drinker, 8 Pa. St. 520. 70; Green v. Fricker, 7 Pa. St. 171. ^Smith's Adm. v. Kevins' Exr., 31 See Pratt v. Eb}', 67 Pa. St. 396, for Pa. St. 238. the opinion that the 7th section of *In Hummell v. Siddal, 11 Phila. the act of 27th April, 1855, providing 308, the mortgagee, on becoming for a presumption of payment of owner of the premises, assigned the ground-rents and other charges on mortgage to his wife, and so avoided real estate, where no payment or merger. demand shall have been made on * Brown i). Simpson, 2 W. 233. But, account thereoffor twenty-one years, merger of the mortgage is not satis- applies to mortgages. faction of the debt, and the mort- 162 LAW OF LIENS. union of the title to the mortgage and that to the laud in the same i^erson, he conveys the land to another, who does not undertake to pay the mortgage, it will be discharged, notwithstanding an assignment of one of the bonds by the mortgagee before this union.^ A judicial sale on the mort- gage after such union will convey no title.^ When, under a contract of sale free from encumbrauce, A. becomes the pur- chaser of land which is in fact bound by several liens, and pays one of them, a mortgage, taking an assignment of it, it is not thereby extinguished as to other later liens, existing when the conveyance was made.^ So, when the assignee of the first of two mortgages becomes subsequently the owner of the premises, his mortgage will not be extinguished, it being his manifest interest that it be kept alive ; hence, it can be enforced against the mortgagee in the second mortgage, who by sheriff's sale thereunder becomes the owner of the prem- ises.* When land is sold in partition, subject to the annual interest payable to the widow, and the principal of the dower at her death, and is purchased by some of the heirs, and they subsequently sell it expressly subject to the same charge, their shares in the principal at the widow's death are not merged.^ One of two joint mortgagees purchasing the prem- ises on a judgment entered after the mortgage, the latter is not extinguished, and on his death the survivor may sue out a sci. fa. upon it, and acquire a good title to the land, by purchasing at the sheriff's sale.^ When, after mortgaging his land to a trustee for his wife, A. and wife convey the premises to B., subject to the mortgage, and B. then conveys them to the wife on the same terms, there is no merger of gagee, a building association, may ^Kichards v. Ayres, 1 W. & S. -1S5. retain stock assigned to it for tiie ^Koonsr. Hartman, 7 W. 20. same debt, after it has become the 'Moore r. Harrisburg Bank, 8 W. purchaser of the premises subject 138; Richards r. Ayres, 1 ■\V.& S. 485. to its mortgage, as against another *Helmbold v. Man, 4 Wh. 410. creditor who has attached the stoclc. ^ Kline v. Bowman, 19 Pa. St. 24 ; Germania Building Ass. v. Neill, 93 Schertzer v. Hei-r, 19 Pa. St. 34. Pa. St. 822. « Wallace v. Blair, 1 Grant 75. MORTGAGES. 163 the trust mortgage as against C, to whom A. and wife then mortgaged the same land.^ The owner of an undivided interest in land may pay off a mortgage binding the integral title, and enforce it against the other co-tenants.^ If a joint mortgage is made by two co-tenants, one of whom subse- quently conveys his undivided one-half to A., A. under- taking to pay one-half of the mortgage, the subsequent assignment of several of the bonds secured by the mortgage to A., extinguishes one-half of each of them. If he subse- quently assigns them to another, the latter can receive from the proceeds of the premises only one-half their amount.^ If the mortgagor pays the mortgagee, but, with a view to assigning the mortgage to another creditor, to obtain a sur- render of collaterals, has it assigned to a dry trustee, who, subsequently, on the creditor's surrendering the col- laterals, assigns to the latter, the mortgage is not merged, and can be enforced as against a later mortgage, existing before the payment.* Satisfaction. § 132. Satisfaction of the mortgage of record does not necessarily extinguish it, unless intervening rights demand that it should, and an assignee for the benefit of creditors of the mortgagor has no such rights." In the belief that the debt was only so much, a mortgage on another tract was taken for that amount, and the original mortgage was satis- fied. When it was subsequently discovered that the debt was larger, the mortgagee was permitted to take from the proceeds of the tract covered by the first mortgage the amount thereof, in preference to the assignee for creditors.'' iHatz's Appeal, 40 Pa. St. 209. An Champlin v. Williams, 9 Pa. St. 841. assignment to C, of the mortgage See Subrogation, by the trustee, as collateral security HVatson's Appeal, 90 Pa. St. 426. to the mortgage to C, made without * Appeal of Workiiigmen's Ass., 6 the consent of the wife, is void. W. N. C. 140. 2 Duncan v. Drury, 9 Pa. St. 332; ^West's Appeal, 7 W. N. C. 427. ^Ibid. 164 LAW OF LIENS. Though under the mistaken belief that a mortgage is divested by a sale, the sheriff appropriates the proceeds to it, and the bonds secured by the mortgage are marked on the record satisfied, the mortgagee, on subsequently refunding to the sheriff, may proceed on his mortgage against the mort- gagor/ If an attorney, who is directed merely to discon- tinue a sci. fa. on a mortgage, marks on the docket, " settled by the parties," and subsequently the premises are conveyed expressly subject to the mortgage, a purchaser at sheriff's sale, under a judgment against the grantee, buys subject thereto.^ If satisfaction is entered on a forged power of attorney, the mortgagee is not bound, even as respects bona fide purchasers of the premises. The recorder's attestation of the entry of satisfaction by A., as agent for B., is simply proof that A. made it, claiming to act as agent, but not that he, in fact, was such agent.^ A satisfaction of the mortgage by the mortgagee, after he has assigned the notes which it secures, is void as to a vendee of the mortgaged premises who fails to demand the production of the notes before pay- ing the purchase money ; raulto fortiori when he still retains purchase money enough to pay the notes.* Failure of Consideration. § 133. A failure of the consideration for whicb the mort- gage is given, is equivalent to a discharge pro tanto. When a mortgage is made by D., to secure a debt due to A. by B. and C, on A.'s promise to release C, as a means of forming a new partnership between D. and B., and with the under- standing that, if the arrangement should not be carried out, the mortgage and other securities should be returned, A. could, on refusing to release C, maintain no action on the ' Cross V. Stahlman, 43 Pa. St. 129. ' Saurman's Trustee v. Binder, 43 An acknowledgment under seal of Pa. St. 209. satisfaction in full of the mortgage, 'Lancaster v. Smith, 67 Pa. St. does not necessarily imply extinc- 427. tion of the debt. Fleming v. Parry, * Roberts v. Halstead, 9 Pa. St. 32. 24 Pa. St. 47. MORTGAGES. 165 mortgage.^ When the mortgage is for the purchase money of land, and the title to it, or to a part of it, is bad, the mort- gagor either never recovering possession of it against the adverse claimant,^ or being evicted therefrom after entering into possession,'' the mortgage is extinguished fro tanto, 1 whether the deed of grant contained a general,* or only a special warranty ,'' or no covenant at all,*^ and though, when there was no special warranty, the eviction was under a title paramount to that of the grantor J When the title is posi- tively bad, a tender of reconveyance by the mortgagee is unnecessary;* and after recovery in ejectment by the ad- verse claimant, and issue of a habere, the mortgagor may, having made improvements on the land, avoid dispossession by taking a lease from the claimant, without sacrificing his defence to the mortgage, his grantor failing, though re- quested, to protect him in the possession.^ § 134. When the title to all the land fails, there can be no recovery on the purchase-money mortgage, and where that to a part of it only is bad, the value of this part must be deducted from the mortgage.^" Hence, if a dower encumbers the land, the value thereof must be subtracted from the mortgage,^^ but if the dower has been barred, by the joining of the widow with the administrators of her husband, in the sale of the premises, or otherwise, the mere fact that in an 1 Welch V. Mole, 8 W. N". C. 248. Wacker v. Straub, 88 Pa. St. 32 ; Eo- Deductions may be made from the land v. Miller, 3 W. & S. 390. purchase-money mortgage, if the °Steinhauer v. Witman, 1 Serg. & quality of the premises was misrep- E. 438. resented to the purchaser. Wallace ''Beaupland v. McKeen, 28 Pa. St. V. Hussey, 63 Pa. St. 24. 124. ^Morris v. Buckley, 11 Serg. & E. 'Steinhauer v. Witman, 1 Serg. & 168. E. 438. 'Steinhauer v. Witman, 1 Serg. & * Morris v. Buckley, 11 Serg. & E. E. 438. 168. * Morris v. Buckley, 11 Serg. & E. "Poyntell v. Spencer, 6 Pa. St. 254. 168 ; Poyntell v. Spencer, 6 Pa. St. '° Colvin v. Morris, 2 Y. 518. 254 ; Colvin v. Morris, 2 Y. 518 ; " Colvin ■;;. Morris, 2 Y. 518 ; Eo- land V. Miller, 3 W. & S. 390. 166 LAW OF LIEXS. action of dower brought subsequently, she was permitted to recover, owing to the imperfect exhibition of the facts by the defendant therein, the mortgagor, will not be a pro tanto defence to the mortgage, the widow being only one of several cestuis que trust interested in the mortgage.^ The outstand- ing in C, of a right to enter upon and take out all stone-coal in the land conveyed by A. to B., with covenant of freedom from all encumbrances, will be a defence to the mortgage for the purchase money," especially when the mortgage stipulates that such outstanding title shall be rescinded before it shall he payable.^ If the outstanding title to the land will be extinguished on the jjayment of a definite sum, and it is agreed that the mortgagee may reserve so much of the pur- chase money secured by the mortgage and apply it thereto, only the excess can be recovered in the sci. fa.* Though A. purchased three tracts of land at a round sum, and two of them were conveyed by one deed, and the third by another, and a mortgage was taken on this tract, purporting to be for the balance of purchase money upon it, the contract was severed, and a failure of title to the two tracts will be no defence to the mortgage ; the grantee must resort to his covenants in the deed.° If a judgment in ejectment has been recovered against the mortgagor for a part of the land, but his possession has not been disturbed, down to the trial of the sci. fa. on the mortgage, the value of the land to which his title is shown to be bad, but not interest thereon, will be deducted from the mortgage debt.® When the adverse title outstanding at the time of purchase, is subsequently bought by one who is estopped from asserting it against the mort- gagor, the latter has no defence on account of it7 § 135. When the purchaser of land, having paid none of 1 Thomas v. Harris, 43 Pa. St. 231. *Hersey r. Turbett, 27 Pa. St. 418. ^ Murphy v. Richardson, 28 Pa. St. * Fisk v. Duncan, 83 Pa. St. 196. 288. nVacker v. Straub, 88 Pa. St. 32. ^Youngman v. Linn, 52 Pa. St. ' Beaupland r. McKeen, 28 Pa. St. 413. 124. JIOBTGAGES. 167 the purchase money, gives a mortgage for all of it, he will not be permitted, in a sci. fa. thereon, to defend for imper- fection of title or encumbrances, unless he has made valuable improvements, since the sci. fa. is simply a means of recov- ering possession of the land/ That the title is doubtful and not merchantable is no defence after conveyance of the legal title ; the mortgagor must show that it is positively bad, by proving a superior indisputable title in a third person, who is asserting it." When the validity of the title turns upon the competency of a former owner to make a will not yet adjudicated, there is no defence to the mortgage for its pur- chase money.^ Before conveyance, it is a defence to the mortgage that the title is not clearly good and merchant- able.* If, however, the defect of title is known to the mort- gagor when he contracts to buy the land, he will be presumed to have run the risk, or to have relied upon such covenants as he may have taken from his vendor, and for such defect he can make no defence against the mortgage.' Tins principle, however, has no application to a charge for a definite sum of money. If the grantee has purchased the land for a given sum, and secured it by a mortgage, the •existence of a prior mortgage, of which he had knowledge, is a defence 2}^^o tanto.^ A fortiori may the grantee set off, against his mortgage for the purchase money, a prior mort- gage on the land, executed to himself by his grantor.'^ If the loss of title to a part of the premises is due to laches on the part of the mortgagor, on asserting it against one in adverse possession, such loss constitutes no defence. Hence, twenty- nine years after the conveyance, an affidavit of defence to ^Hersey v. Turbett, 27 Pa. St. 418. ^Lighty v. Shorb, 3 P. & AV. 447; ^Ludwick V. Huntzinger, 5 W. & Wilson v. Cochran, 48 Pa. St. 107; S. .51 ; Bradford v. Potts, 9 Pa. St. 37 ; IMurphy v. Richardson, 28 Pa. St. Lippincott v. Moodie, 1 W. N. C. 14. 288 ; Bradford v. Potts, 9 Pa. St. 37 ; 3 Massey r. Turbill, 2 W. N. C. 200. Roland v. Miller, 3 W. & S. 390. 'Ludwick V. Huntzinger, 5 W. & « Wolbert v. Lucas, 10 Pa. St. 73. S. 5S; Kicol V. Carr, 35 Pa. St. 381 ; 'Roddy v. Harah, 62 Pa. St. 129. Stoddart v. Smith, 5 Binn. 365. 168 LAW OF LIENS. the mortgage, which alleges that a certain alley-way which was granted has been obstructed by a building, but omits to state that, at the time of the conveyance, the grantor had no title to it, is insufficient.^ When a sale of land is made at so much per acre, the parties selecting a surveyor to ascer- tain the number of acres, on whose report the deed was made and a security taken for the purchase money, defence to the latter can be made if it be afterwards discovered that, by mistake in running certain lines, the surveyor's estimate of the number of acres was too great by nineteen."^ Personal Liability on Account of Mortgage. § 136. Against the mortgagee a personal action cannot be sustained on the mortgage, unless it contains an express covenant to pay money. A mere recital of a sum due, or an acknowledgment of a personal debt, is not the equivalent of such covenant. Hence, though a mortgage containing such a recital is filed, a judgment for want of an aflSdavit of defence will not be entered," and an action of debt will not be sustained on a mortgage which purports to secure a bond, no bond having been in fact executed.* The act of 12th June, 1878, [P. L. 205,] enacts that the grantee of land subject to a mortgage or other encumbrance shall not be personally liable for the j^ayment thereof, unless he expressly assume to pay it, in writing," or the deed declare, in express words, that the conveyance is made on condition that the grantee pay such encumbrance, and that the words " under and subject to the payment of such encumbrance," shall not import the assumption of a personal liability by the grantee. The person with whom the a.ssumption of liability is made can alone enforce it, and the liability shall cease as soon as the grantee has parted with the premises, unless he shall ' Asay V. Lieber, S W. X. C. Ii5. ^Before this act, the pergonal as- ^ Jenks !•• Frit?,, 7 W. & S. :201. sumption might be shown by parol. ' Fidelity Ins. Co. v. Miller, 80 Pa. Thomas v. Wiltbank, 6 W. N. C. 477 ; St. 26. Merrinian c. Moore, 90 Pa. St. 78. * Scott r. Fields, 7 W. .360. MORTGAGES. 169 have expressly agreed that it shall continue. Before this act, when the deed conveying land contained the statement that a certain mortgage debt is a part of the consideration, and is to be paid by the grantee, the latter became person- ally liable therefor,^ though the mortgage had been put on the land by some earlier owner than the grantor,^ and the mortgagee might sustain assumpsit on the agreement.* When the conveyance was merely " under and subject to the payment" of the moi'tgage debt, no personal liability was assumed to the mortgagee;* but if the grantor was com- pelled to pay the mortgage, or any part of it, the grantee was liable to indemnify him." A declaration of no set-off, made to a mortgagee by one who has purchased the premises " under and subject " to the mortgage, does not make the latter liable to the mortgagee.'^ Assignment of the Mortgage. § 137. The assignment need not be in writing,^ except when the owner of the mortgage is a married woman ; in that case, joinder of her husband in a written assignment,* and separate acknowledgment by the wife," are essential. An equitable assignment is sufficient, but if a legal assign- ment is made under the act of 28th May, 1715, [1 Sm. L. 90,] the action can no longer be brought in the name of the ' Hoff 's Appeal, 24 Pa. St. 200. personally liable to the mortgagee. ' Lennig's Estate, 52 Pa. St. 135 ; Girard Life Ins. Co. v. Stewart, 5 W. Merriman v. Moore, 90 Pa. St. 78. ^. C. 87. Comp. Stokes v. Williams, ■•' Merriman v. Moore, 90 Pa. St. 78. 6 W. N. C. 473. *Paul V. Casselberry, 8 W. N. C, 334 ; Stokes v. Williams, 6 W. N. C, 473 ; Thomas v. Wiltbank, 6 W. X C. 477 ; Taylor v. Mayer, 93 Pa. St, 42 ; Hirst's Appeal, 8 W. N. C. 329 Moore's Appeal. 6 W. N. C. 474 Samuel v. Payton, 6 W. K C. 476, When land is granted "under and ^Stoop v. Blackford, 27 Pa. St. 213. subject " to a mortgage to A., who is " Moore v. Cornell, 68 Pa. St. 320. known by the grantor to take as Changed by the act of 25th May, mere trustee for another, A. is not 1878. 5 Heritage v. Bartlett, 8 W. X. C. 26 ; Taylor v. Mayer, 93 Pa. St. 42. Comp. Davis' Appeal, 89 Pa. St. 272. "Paul V. Casselberry, 8 W. N. C. 334 ; Taylor v. Mayer, 93 Pa. St. 42. ' Craft V. Webster, 4 R. 241. 170 LAW OF LIENS. assignor,^ though the same defences are open to the mort- gagor against both legal and equitable assignees.^ An as- signee for value takes subject to all defences that arise until notice of the assignment.'' An assignment as security for a pre-existing debt, is not one for value.* The mortgagor may- show that the mortgage, though for a determinate sum, was to re-im burse for outlays of uncertain amount to be after- wards made, and that these have been paid since the assign- ment.^ Payment to the mortgagee of the notes secured by a mortgage, between the date of the assignment and notice thereof, is a complete defence.^ An assignment of a paid mortgage, in payment of the assignor's debt, is a nullity, and does not discharge the debt.' But, if the assignment of a paid mortgage is made at the instance of the mortgagor, to secure a loan made to him by the assignee, it will be valid against the mortgagor, and those who subsequently obtain liens, with notice of the assignment.* A mortgage to B., "without consideration, but designed to be negotiated, is not a lien until negotiated. A sheriff's sale of the premises makes a subsequent negotiation ineflfectual.' § 138. When, at the execution of a mortgage from A. to B., it is agreed that B. shall, as to any portion of the prem- ises which A. desires to sell, release ratably, and B. assign- ' Pryor r. Wood, 31 Pa. St. 142. If the mortgage is made by A., but conditioned for the payment of a bond by A. or B., B., on paying the bond, may take a legal assignment of the mortgage, and sue out a sci. fa. in his own name. Hay r. Node, '2 Y. 534. A legal assignee may sue in the name of the mortgagee, by the act of 22d April, 1863, [P. L. 567.] 2 Carmalt v. Post, 8 W. 406 ; Horst- man v. Gerker, 49 Pa. St. 282 ; Twitch- ell V. MeMurtrie, 77 Pa. St. 388. ^Twitchell v. McMurtrie, 77 Pa. St. S88; Duquesne's Appeal, 74 Pa. St. 426; Mullison's Estate, 68 Pa. St. 212 ; Horstman r. Gerker, 49 Pa. .-^t. 282 ; Michener v. Cavender, 3S Pa. St. 334; McCandless v. Eugle, 51 Pa. St. 309 ; Ashtou's Appeal, 73 Pa. .^t. 153; Carmalt v. Post, 8 W. 406. *Ashton's Appeal, 73 Pa. St. 153. = Twitchell v. McMurtrie, 77 Pa. St. 388. * Horstman v. Gerker, 49 Pa. St. 2S3 ; Hodgdon v. Xaglee, 5 W. i S. 217. 'Hamilton v. Neel, 7 W. 517. * Mitchell f. Coombes, 11 W. N. C. 70. 'Clark V. Gibson, 10 W. X. C. 522. MORTGAGES. 171 ing the mortgage to C, who is not shown to have knowledge of this agreement, A. desires C. to release a part of the premises, C. is not bound by B.'s agreement, and any losses that A. incurs by reason of not being able to comply with his contract to sell free from encumbrance cannot be set off in C's action on the mortgage.^ When A. makes a mortgage to B. without consideration, and, procuring B. to assign it, negotiates it to C for value, and afterwards A. sells the premises to D., from whom the existence of the mortgage is concealed, though it is on record, C. can recover on the mortgage against D.* If a railroad company issues bonds to a construction company from time to time, as the work advances, and suffers them to be negotiated, damages for delay in the construction are no defence to the bonds and accompanying mortgage, the railroad having accepted the work at its completion.^ A., selling land to B., takes from B. a mortgage for the purchase money. Afterward B. sells the same land to C, who executes a taortgage for the same amount, and payable at the same time, with the the under- standing that C is to make his payments to A., and so extinguish both mortgages. An assignee of B.'s mortgage, without notice of the understanding, is not bound to see that the money paid by him for it should be applied to A.'s mortgage.'* The assignee of a mortgage executed by A., who undertook with the mortgagee to discharge a judgment against the latter, and which bound the premises, cannot set up this agreement against one who purchased the judgment bona jide from another, who had obtained an assignment of it from its owner, by a payment made with money furnished by the mortgagor.' When the assignee of a mortgage, exe- cuted without consideration, takes it from the mortgagor, 1 McMasters v. Wilhelm, So Pa. St. ^McElrath v. Pittsb., etc., E. E. 218. Co., 55 Pa. St. 189. ^Johnson v. McCurdy, 83 Pa. St. "Appeal of American Sewing Ma- 282; McCurdy v. Johnson, 2 W. K". chine Co., 83 Pa. St. 198. C. 273. ^ Wethrill's Appeal, 3 Grant 281. 172 LAW OF LIEX8. this is notice that it becomes a real security only with his purchase, and it cannot be asserted against liens originating before the assignment to him/ and a sheriff's sale of the premises before a purchase for consideration makes the mort- gage incapable of vivification.^ § 139. AVhen a terre-tenant, who assumes to pay a mort- gage, gives to the mortgagee a promissory note for the amount, permitting the bond, mortgage and certificate of no defence of the mortgagor to remain with him as security for its payment, and he assigns the mortgage, bond and cer- tificate to another for value, who has no knowledge of the arrangement, the premises remain liable on the mortgage to the assignee, notwithstanding that the terre-tenant has paid the note, after its negotiation to a stranger. The evidence left by the terre-tenant with the mortgagee of a right to assign the mortgage is such that the assignee is excused from inquiring from the terre-tenant, even if he had knowledge of the mortgagor's conveyance of the property.* When a mortgagee induced A. to purchase the mortgaged premises, on a promise to release the mortgage, a subsequent assignee of the mortgage could not enforce it against A., though the bond and mortgage were suffered by A. to remain with the mort- gagee. The assignee should have inquired of the mortgagor whether the mortgage had been paid, since the latter was liable over to A. on his covenants against encumbrance.* If a judg- ment recovered on a bond, which shows on its face that it is secured by a mortgage, is assigned on the record, a subsequent satisfaction of record of the mortgage by the mortgagee with- out the assignee's knowledge, will not prefer a later recorded mortgage, nor an assignee of that mortgage who purchased it on the faith of the entry of satisfaction. He is bound to know that the judgment was for the mortgage debt, and that the satisfaction of the mortgage was unauthorized.' 1 Mullisons Estate, 68 Pa. St. 212. " .Sellprs r. Benner, 9 W. >". C. S3. ' Clark c. Gib-on. 10 W. X. C. 522. *De Witt's Appeal, 7*5 Pa. St. 2S.3. 'Jeffers v. Gill, 91 Pa. St. 200. MORTGAGES. 173 § 140. The assignee bona fide for value of a mortgage, holds it free from the equitable claims of others than the mortgagee, of ■which the mortgage itself gives no notice. Thus, when as a substitute for a mortgage which secured a widow's dower during life, and the principal sum at her death, a second mortgage is executed to her husband for the principal sum, but not showing its nature, the assignee of her husband was entitled to its proceeds, on her death, rather than the heirs.^ When B. gives a mortgage to A. for pur- chase money of the premises, undertaking at the same time to pay a prior mortgage thereon, and, subsequently, B. pays the prior mortgage by an agent, who, at his direction, assigns it to a purchaser bona fide, an assignee of A.'s mortgage can- not insist that the other mortgage was extinguished by B.'s payment of it." The assignee of a mortgage is not affected by the secret equitable title of another than the mortgagor to the premises of which he had no notice when he purchased the mortgage, although the mortgagee himself had such notice at the execution of the mortgage.^ § 141. A mortgage may be assigned by a sale of the premises under a power not suflScient to extinguish the equity of redemption, or by a sale under a decree or judg- ment, void as to the mortgagor.* It may be assigned by foreign attachment.'' Subrogation works the result of an assignment, and the owner of a lien immediately succeeding a first mortgage may tender the mortgage debt, and compel an assignment of the instrument; but not if any other liens intervene.^ An assignment of a note, bond, or judgment secured by a mortgage, is an equitable assignment of the latter,' though the assignee had no knowledge of its 1 Pryor v. Wood, 31 Pa. St. 142. ^ Enshton v. Eowe, 64 Pa. St. 63. 2 Wethrill's Appeal, 3 Grant 281. ; « Bishop i; Ogden, 9 Phila. 524. 2 Mott V. Clark, 9 Pa. St. 399. ' De Witt's Appeal, 76 Pa. St. 283 ; * Youngman v. Elmira K. E. Co., Moore v. Cornell, 68 Pa. St. 320. 65 Pa. St. 278. 174 LAW OP LIEXS. existence.^ If the purchaser at sheriff's sale buys subject to a mortgage, he is not entitled, on paying it, to an assignment.^ If a mortgage is assigned with guarantee of payment, and is afterwards re-assigned to the administrator of the assignor, the guarantee is extinguished, and an assignment by the administrator will not revive it.* At the suit of a wife who owns land subject to a mortgage, creditors of the husband who purchase it may be compelled to assign it to one whom she procures to advance the money on it ; they will not be permitted to sell under it, her land, as a means of coercing payment by her of her husband's debts.* When a mortgage is assigned as collateral security for a debt of the mortgagee, he may compel a re-assignment on paying the debt, though after the time originally stipulated for.^ If the mortgage is to be re-assigned on payment of the debt, and, without notice to the assignor it is foreclosed, and the assignee becomes the purchaser, he will hold the premises subject to the assignor's right to an assignment of them instead of the mortgage.* Recording Assignments. § 142. As well prior to the act of 9th April, 1849, [P. L. 524,] as since,^ an assignment of a mortgage could be recorded, and a certified copy of the record was evidence. The four- teenth section of that act simply repeats the existing law. The option to record remains with the assignee, but if he in fact records his assignment, such record is constructive notice to all persons subsequently dealing with the assignor, in respect to the mortgage. Hence, if A., under a power of attorney, executes an assignment to B., and, subsequently to the recording thereof, still retaining the bond and mortgage, makes another assignment to C, the former assignment pre- >Koberts v. Halstead, 9 Pa. St. 32. * Lyons' Appeal, 61 Pa. St. 1.5. An assignment of the mortgage car- 'Srjlomon i. Wilson, 1 Wh. 241. ries the judgment on the bond. "^ Smith c. Bunting, 86 Pa. St. 116. Booth V. Williams, 11 Phila. 266. ■ Phillips i". Bank of Lewistown, 18 2 Coolys Appeal, 1 Grant 401. Pa. St. 394. ' Fluck V. Hager, 51 Pa. St. 459. ilORTGAGES. 175 Tails against the latter.^ A purchaser of the premises is not within the protection of the record of an assignment, even though the assignment is necessary to furnish the consider- ation which will infuse life into the mortgage itself; the recording of the mortgage is all he can insist upon/ and an assignment by the mortgagee, before he becomes owner of the premises, though necessary to prevent an extinction of the mortgage by merger, need not be recorded, as to one who bought the land under a judgment against the mortgagee, subsequently to his purchase of it, and who, ignorant of the assignment, believed the mortgage had been extinguished." The act of 6th of April, 1876, [P. L. 18,] makes it the duty of recorders of deeds to enter on the margins of the records of mortgages, the book and page wherein any assignments thereof are recorded, together with the date of such assignments. Certificate of No Defence. § 143. If the mortgagor give a certificate that he has no defence, and one purchases the mortgage in reliance thereon, the mortgagor is estopped from setting up any defence exist- ing at the time the certificate was made. He cannot show that the mortgage had been paid, that it was usurious,* that it had been partially paid.' When a feme covert is terre- tenant of premises subject to a mortgage, which secures the payment of a note, and A. pays the note, taking a note from her husband for the same amount, and a- verbal promise that the mortgage shall stand as security for it, and, subsequently, she executes, under seal, a declaration of no set-oflf, she will be estopped from alleging that the mortgage was paid by A.'s payment of the original note.® A declaration of no defence applies only to the time when it is executed ; it does not preclude evidence of payment on the mortgage ' Pepper's Appeal, 77 Pa. St. 373 ; * Scott v. Sadler, 52 Pa. St. 211. JSIeide v. Pennypacker, 9 Phila. 86. ° Ashton's Appeal, 73 Pa. St. 153. ^Johnson v.JIcCurdy, 83 Pa. St. 282. « Jamison v. McClure, 1 W. N. C. ' Goff V. Denny, 2 Phila. 275. 120. 176 LAW OF LIENS. made at any time prior to notice of the assignment/ But it precludes any allegation of want of consideration for the execution of the mortgage, or of misappropriation of the proceeds of its negotiation by the agent of the mortgagor, with whom it was left to be negotiated when the mortgagor should need money .^ It is an estoppel as respects a bona fide assignee for value of the mortgage and all those who claim through such assignee ; but one who takes an assignment merely as collateral security for a pre-existing debt, is not such an assignee.^ The declaration of no defence is no estoppel as to one who has knowledge, or the means of knowledge, of matters of defence,* e. g., usury .° When a certificate of no defence is alleged to have been made by a married woman, and duly acknowleged before a proper offi- cer in a separate examination, she may show that she never knowingly signed the paper, that she never read it, or was made aware of its contents, and that she did not acknowl- edge it as the magistrate's certifigate alleges she did.° An immaterial alteration in the certificate, e. g., that the mort- gage has been extended another year, made by an agent of the mortgagor, will not vitiate the certificate.'' Mortgagor's Duties, Rights and Remedies. § 144. His right of possession until default, continues, when there is such a stipulation in the mortgage, and, while in possession, he may use the land according to its capabilities, may cut timber, dig ores, sever fruit and grain from it, since ' Ashton's Appeal, 73 Pa. St. 153. ^ Duquesne's Appeal, 74 Pa. St. 2 Hutchison v. Gill, 91 Pa. St. 253 ; 426. Eobertson v. Hay, 7 W. N. C. 546. ^ Michener v. Cavender, 38 Pa. St. 3 Ashton's Appeal, 73 Pa. St. 153. 334; McCandless v. Engle, 51 Pa. St. And when evidence establishing a 309 ; Twitchell v. McMurtrie, 77 Pa. defence is offered, the assignee must St. 383. In Holz v. Belden, 4 W. N. show that he is a purchaser for C. 573, it was decided that a separate value bona fide. Twitchell v. Mc- acknowledgment by a married wo- Murtrie, 77 Pa. St. 383. man to her certificate of no defence * Ashton's Appeal, 73 Pa. St. 153. was unnecessary. 'Eobertson v. Hay, 92 Pa. St. 242. MORTGAGES. 177 products of this nature are usually intended for consumption or sale.^ He cannot lawfully commit waste, however, by taking away machinery, a part of the freehold,^ though such machinery was annexed to the land after the execution of the mortgage,^ and he may be restrained from committing waste, by a writ of estrepement* or by injunction.^ He is bound to pay taxes imposed on the premises after the execu- tion of the mortgage; otherwise, the mortgagee, paying them in order to preserve his lien or his title at sheriff's sale thereunder, will have an action against the mortgagor or the terre-tenant for re-imbursement.° When the mortgagee has been in possession, and the rents and profits derived from the premises have, in the opinion of the mortgagor, been sufficient to pay the mortgage debt, and all proper charges, there are two methods for recovering the land : ejectment and bill in equity. Ejectment will lie when the mortgage is in the form of an absolute deed, with separate defeasance;'' or of a deed made by the vendor to the mortgagee, who advances the purchase money, on a promise to convey to the vendee when re-imbursed;* or when the mortgage is in the usual form. The ejectment may be brought before the mortgage debt has been paid.' The verdict and judgment, .if the debt is still unpaid, may be conditioned on the pay- ment of what is due before a certain time.^° Judgment will be rendered absolutely for the plaintiff, if the jury find the' ^ Angier v. Agnew, 11 W. N. C. 6 ; 'Hogg v. Longstreth, 10 W. N. C. Hoskins v. Woodward, 45 Pa. St. 42. 95. '' Hoskins v. Woodward, 45 Pa. St. ' Keitenbaugh v. Ludwick, 31 Pa. 42 ; Witmer's Appeal, 45 Pa. St. 455. St. 131 ; Wharf v. Howell, 5 Binn. ^Roberts v. Dauphin Deposit Bank, 499 ; Cole v. Bolard, 22 Pa. St. 431 ; 19 Pa. St. 71. Stafford v. Wheeler, 93 Pa. St. 462. * Act of 29th March, 1822, [7 Sm. L. « Hewitt v. Hulings, 11 Pa. St. 27 ; 520.] Instances of the issue of this Dickey v. McCullough, 2 W. & S. 88. writ are found in Eoberts ■U.Dauphin "Cole v. Bolard, 22 Pa. St. 431; Deposit Bank, 19 Pa. St. 71, and Staflford v. Wheeler, 93 Pa. St. 462. Saurman's Trustee v. Binder, 43 Pa. " Reitenbaugh v. Ludwick, 31 Pa. St. 209. St. 131. ^Witmer's Appeal, 45 Pa. St. 455. 178 LAW OF LIEXS. rents and profits received by the mortgagee, down to the time of trial, to be sufficient, over and above taxes and reasonable expenditures for repair, to extinguish the debt and interest/ And a tender of the debt at the time of trial will be in time;^ though when the debt is not already paid at thebringiug of the action, the plaintiff must pay all the costs.^ § 145. Besides ejectment, the mortgagor or terre-tenant may resort to a bill in equity to redeem the land.* This remedy is frequently pursued, when the mortgage has been made by an absolute deed, under which the grantee has taken immediate possession.^ Such bills include a prayer for an account; for a decree of reconveyance of the land to the mortgagor, on his payment of whatever shall be found due," and for an injunction, when necessary, against commit- ting waste by the mortgagee or his grantee,' and against the setting up of title by those who have made contracts to pur- chase the land from the mortgagee.* Mortgagee's Remedies. § 146. The remedies for mortgagees are correlative to the rights which they acquire by virtue of their mortgages. Since one of these rights is that of possession, either before or after breach of the condition, the mortgagee is entitled to the possessory action of ejectment. Prior to the act of 1705, there was no other remedy in Pennsylvania, neither fore- closure nor sale of the mortgaged premises being recognized.* Even since that act, there is no foreclosure of the mortgage, otherwise than by the sale for which it provides,^" but the 1 Wharf 1). Howell, 5 Binn. 499; "Steinruck's Appeal, 70 Pa. St. Hewitt V. Hulings, H Pa. St. 27. 289 ; Sweetzer's Appeal, 71 Pa. St. ^ Eshback v. Zimmerman, 2 Pa. St. 264 ; Danzeisen's Appeal, 73 Pa. St. 313. Rents received to the time of 65; Pessler's Appeal, 75 Pa. St. 4S3. trial may be considered. Stafford v. ' Fessler's Appeal, 75 Pa. St. 4S3. Wheeler, 93 Pa. St. 462. Ubid. 'Wharf V. Howell, 5 Binn. 499; ' Smith c. Shuler, 12 Serg. ct R. 240. Hewitt i;. Huhngs, 11 Pa. St. 27. "Wharf !'. Howell, 5 Binii. 499; *Gaultr. McGrath, 32 Pa. St. 392. Moore v. Harrisburg Bank, S AV. 5 Harper's Appeal, 64 Pa. St. 315; 13S. Winlon's Appeal, 97 Pa. St. 385. MORTGAGES. 179 remedy by ejectment still continues.^ Hence, if, after breach of the condition, the mortgagee cannot get peaceably into possession of the premises,^ he may bring this action.'^ Though, under the act of 1705, no sale of the premises can take place until one year from the date at which the last of several installments of the debt is payable, ejectment can be brought as soon as default is made in any one of them.* On a mortgage conditioned to repay a loan to a building associa- tion, as well as to pay the monthly dues of a stockholder, ejectment may be brought for non-payment of dues, though the loan has been repaid.^ Since the mortgage will itself support an ejectment, this action can be sustained by the mortgagee, though the title which he has acquired as pur- chaser at a sheriff's sale under it, is void for irregularity in obtaining the judgment." The assignee of the mortgage may sustain an action in his own name.'' Ejectment may be brought on a mortgage given to indemnify against engage- ments undertaken by the mortgagee, after he has complied with them,* and on an assignment of a contract of purchase, made as security, against a purchaser at sheriff's sale of the title of the assignor, under a judgment later than the assign- ment.^ If the mortgage stipulates that the possession shall remain with the mortgagor until certain defaults, he cannot ' Tryon v. Munson, 77 Pa. St. 2.50 ; Bradford, 67 Pa. St. 96 ; Baird v. Nerpel's Estate, 4 W. X. C. 549. Corwin, 17 Pa. St. 463. ^ Tryon v. Munson, 77 Pa. St. 250. * Smith v. Shuler, 12 Serg. & R. ■'Martinr, Jackson, 27 Pa. St. 504; 240; Knaub v. Esseck, 2 W. 282; Jaques v. Weeks, 7 V,'. 261; Presby- Fickes v. Ersick, 2 R. 165; Pluck v. terian Corporation v. Wallace, 3 R. Keplogle, 13 Pa. St. 405 ; Martin v. 130 ; Street v. Sprout, 5 W. 272 ; Craft Jackson, 27 Pa. St. 504. V. Webster, 4 R. 241 ; Ashhurst v. ^ Eversham v. Oriental Savings Montour Iron Co., 35 Pa. St. 30; Ass., 47 Pa. St. 352. Guthrie v. Kahle, 46 Pa. St. 331; » Allison t). Rankin, 6 Serg. & R. 269. McCall I'.' Lenox, 9 Serg. & R. 304; 'Lessee of Simpson v. Ammons, Bagley v. Wallace, 16 Serg. & E. 245 ; 1 Binn. 175 ; Pluck v. Replogle, 13 Harper's Appeal, 64 Pa. St. 315 ; Pa. St. 405. Younginan r. Elmira, etc., R. R. Co., ^Louden v. Blythe, 16 Pa. St. 532 ; 65 Pa. St. 278 ; Muse v. Letterman, Levers v. Van Buskirk, 7 W. & S. 70. 13 Serg. & R. 167; Odenbaugh v. '^Rhines i;. Baird, 41 Pa. St. 256. 180 LAW OF LIENS. be disturbed by ejectment until tbese defaults have hap- pened ; but if this restriction is in terms made with respect to only a part of the premises, ejectment for the remainder can be brought at once.^ The jury cannot retard the posses- sion of the mortgagee, by giving an extension of time to the mortgagor for the discharge of his obligations,^ and the judgment in favor of the mortgagee can be discharged only by the payment of the mortgage debt.^ The jury, in eject- ment by the mortgagee, have no right to limit the period within which the mortgagor must make redemption of the land,* nor is the right of redemption barred by failure to pay the debt within the period of nine months, limited by the verdict of the jury for issuing a habere facias posses- sionem? Recovery of possession by the mortgagee of course does not determine the estate of the mortgagor/ Remedy by Sale. § 147. The mortgagor's right of redemption can be barred only by a sale of the premises, which may be made under a power contained in the mortgage, by the mortgagee,^ or under the authority of the courts. Independently of legislation, courts of equity have no jurisdiction over mortgages, as such, and, consequently, cannot decree a sale of the mortgaged premises at the suit of the mortgagee.* If, however, the mortgagor resorts to a court of equity to have a deed abso- lute in form declared to be a mortgage, and the court decrees that, on the payment of so much money to the grantee, he shall reconvey the premises, the court will subsequently enter- tain a supplemental bill by the grantee for the enforcement of ' Youngman v. Elmira, etc., E. E. Comp. Stoever v. Stoever, 9 Serg. & Co., 65 Pa. St. 278. . E. 434. =" Fluck V. Eeplogle, 13 Pa. St. 405. ^ Colwell v. Hamilton, 10 W. 413. Yet, in Hewitt v. Hulings, 11 Pa. St. ' Bancroft v. Ashhurst, 2 Grant 27, this was done. 513 ; Mellon's Appeal, 32 Pa. St. 121 ; 'Odenbaugh i;. Bradford, 67 Pa. St. Corpman v. Baccastow, 84 Pa. St. 96. 363. 'Bagley v. Wallace, 16 Serg. & E. 'Ashhurst v. Montour Iron Co., 35 246. Pa. St. 30 ; Bradley v. Chester Valley =^ Hewitt V. Hulings, 11 Pa. St. 27. E. E. Co., 36 Pa. St. 141. MORTGAGES. 181 the payment of this money, and will decree a sale of the prem- ises as a means of compelling the payment thereof.^ When the mortgage is to trustees, on whom it confers the power to enter, to collect the rents, or to sell, the trust relation between the mortgagee and his ceskiis que trust is a basis of j urisdiction upon which a court of equity may, at the suit of the latter, decree the exercise by the trustee of the powers conferred for their benefit, but no others.^ When land was settled upon a wife for life, and on her children after her death, by a deed which authorized the trustee to mortgage the land for a certain sum, to be paid to her, and to sell it for any j)rice which she might designate, the purchase money to be sub- stituted for the land, and the wife, mistakenly believing she had the power so to do, revoked the trust, and executed a mortgage upon the land, receiving the proceeds of it herself, the mortgage was invalid except for so much of the consid- eration as was used in discharge of the mortgage previously legitimately made by the trustee ; but for so much, the mort- gagee had an adequate remedy at law. His bill in equity was, therefore, dismissed."' The act of 23d March, 1877, [P. L. 32,] confers on the courts of common pleas of the state, all the powers of chancery, with respect to mortgages of the j)roperty or franchises of any coal, iron, steel, lumber, or oil, or any raining, manufacturing, or transportation cor- poration, when such property and franchises are wholly or partly situate and exercisable within the state, and belong to any domestic corporation or any foreign corporation under authority of law.* The constitution of 1874 withholds from 'Morss' Appeal, 97 Pa. St. 385. paying the principal, the court de- ^ Ashhurst v. Montour Iron Co., 35 creed a sale, although the principal Pa. St. 30 ; Bradley v. Chester Valley was not yet due, the interest due K. K. Co., 36 Pa. St. 141 ; Youngman being unpaid. V. Elmira, etc., E. R. Co., 65 Pa. St. ^Maurer's Appeal, 86 Pa. St. 380. 278. In Mendenhall v. West Chester, ■'The act designates the particular etc., R. R. Co., 36 Pa. St. 145, how- court in which any suit may be ever, where the mortgage conferred brought. See, also, act of 25th May, a power to sell only in default of 1878, [P. L. 175.] 182 LAW OP LIENS. the supreme court original jurisdiction over mortgages,^ but, previously to its going into operation, that court had, in vir- tue of the act of 11th April, 1862, [P. L. 447,] all the powers of a court of chancery in all cases of mortgages given by corporations. It had the power to decree a sale of the prem- ises for default in paying the interest of the mortgage bonds, when the trustees had, by the mortgage, the power of sale only on default in paying the principal,^ or when the powers of the trustees were wholly undefined,^ and this decree was as eflfectual with respect to that part of the railroad that was beyond the limits of the state, as with respect to the part of it which was within these limits.* All parties having an interest in the mortgaged premises, whether as proprietors or as encumbrancers, are necessary parties to the bill,® e. g., a sequestrator formerly appointed, and judgment creditors, lessees, and persons having claims asserted to be liens.^ The trustees in the mortgage, if not plaintiflfe, should be made defendants.'' Encumbrancers, becoming such after the bill is filed, are bound by the decree made upon it, as are like- wise purchasers by judicial sale under their liens.* The chancery remedy, bestowed by legislation, is constitutionally applicable to mortgages created before it was conferred.' Scire Facias. § 148. The act of 1705, [1 Sm. L. 59,] provides for a sale by means of a sci, fa. upon the mortgage. A sci. fa. need not, however, in fact issue, but an agreement of the parties may be filed to the effect that an action on the mortgage ^ Article V., section 3 ; Fargo v. Oil ^ McCurdy's Appeal, 65 Pa. St. 290 ; Creek, etc., R. R. Co., 81J Pa. St. McElrath v. Pittsb., etc., R. R. Co., 266. 55 Pa. St. 189 ; Woods v. Pittsb., etc., 2 McElrath v. Pittsb., etc., R. R. Railway Co., 11 AV. N. C. 130. Co., 55 Pa. St. 189. ' Youngman v. Elmira, etc., R. R. ^ McCurdy's Appeal, 65 Pa. St. 290. Co., 65 Pa. St. 278. * McElrath v. Pittsb., etc., R. R. ^ Ihid. Co., 55 Pa. St. 189. 'McElrath v. Pittsb., etc., R. R. ^ Youngman v. Elmira, etc., R. R. Co., 55 Pa. St. 189 ; McCurdy's Ap- Co., 65 Pa. St. 278. peal, 65 Pa. St. 290. MORTGAGES. 183 should proceed as if a sci. fa. had in fact issued.^ When the amicable sci. fa. is entered, the issue of the writ is dis- pensed with, but one may be filed as having been issued, at any time, with permission of the court. The agreement should contain a descrijjtion of the mortgage,^ but if it does not, nobody can take advantage of the omission, except the defendant, who, by appearing and confessing judgment, waives it, and if the levari facias issued on the judgment -ascertains the land, the purchaser thereunder obtains an unimpeachable title.^ The sci. fa., when it issues, is founded on the mortgage, not on the registry thereof. Hence, it may issue on a defectively recorded,* or on a wholly unrecorded, mortgage,® and a plea of nul tiel record is a nullity." The sci. fa. lies only on a sealed instrument,'' but the plaintiff need not have the mortgage in his possession when he issues the writ.* It lies on a mortgage composed of an absolute deed and a separate defeasance,^ and on a mortgage on a leasehold.-^" It must issue from the court of the county in which the premises lie," but if they extend into two or more counties it may issue from the court of any of these coun- ties.^^ The prcecipe for the sci. fa. need not contain a copy of the mortgage when it refers to the place of the record 1 Morris v. Buckley, 11 Serg. & E. « Roberts v. Halstead, 9 Pa. St. 32 168 ; Burdick v. Norris, 2 \V. 28 ; Frear v. Drinker, 8 Pa. St. 520 ; Lan Wilson V. McCullough, ]9 Pa. St. caster v. Smith, 67 Pa. St. 427. 77. 'Spencer v. Haynes, 4 W. N. C, "- Burdick v. Norris, 2 W. 28 ; 31or- 152. ris !■. Buckley, 11 Serg. & P.. 168. » Lancaster v. Smith, 67 Pa. St The agreement may be entered after 427 ; Roberts r. Halstead, 9 Pa. St. 32, a precipe for the writ has been filed. ' Wharf v. Howell, 5 Binn. 499. Wilson V. McCullough, 19 Pa. St. '"Miners' Bank v. Heilner, 47 Pa, 77. St. 452 ; Lewis v. Axle Co., 10 Phila ' Burdick v. Xorris, 2 W. 28. 334. * Solms V. McCulloch, 5 Pa. St. 473 ; " Tryon •;;. Munson, 77 Pa. St. 250 Tryon v. Munson, 77 Pa. St. 262. Treaster v. Fleisher, 7 W. & S. 137. 5 McLaughlin D. Ihmsen, 85 Pa. St. ''Act of 23d March, 1877, [P. L 564; Tryon v. Munson, 77 Pa. St. 26;] Morris v. Buckley, 11 Serg. & 262; Nice's Appeal, 54 Pa. St. 200; R. 168. See, also, act 18th May, Britten's Appeal, 45 Pa. St. 172. 1857, [P- L. 573.] 184 LAW OF LIENS. thereof.^ The sci. fa. takes the place of a declaration.^ It must, therefore, show on its face an immediate cause of a'ction. Simply stating that the bond, with interest, remains due and unpaid, without showing a failure to pay the installments of interest for six months, the condition on which a sci. fa. could properly issue, is insuflScient.^ But the recital of the mortgage as to the time the debt is payable, set out in the sci: fa., will be a sufficient averment of the time the mort- gage is payable.* The omission of the recorded mortgage^ or of the sci. fa., to describe the premises, will not vitiate the title acquired on the judgment recovered thereon, if the pluries levari facias on which the sale takes place contains a sufficient description, and the heirs, alienees or lien creditors of the mortgagor have for thirty-six years acquiesced and still acquiesce in the validity of the sale. Persons claiming by title pai'amount to that of the mortgagor cannot contest it.*^ If, by mistake, the sci. fa. describes premises adjoining those intended to be sued for, and a general judgment is rendered, the error cannot be cured by making the levari facias describe the tract intended.'' ' It is no error that the sci. fa. describes all the premises mortgaged, though a part thereof has been released, but the judgment should be restricted to the unreleased residue.' The sci. fa. need not recite the acknowledgment of the mortgage, which is no part of the instrument, though, when the mortgage is by a mar- ried woman, essential to its validity.* Parties. § 149. The mortgagee is the plaintiff in the writ, though he has equitably assigned the mortgage,' and even if he has iRhoads v. Reed, 89 Pa. St. 436; ^ Glass v. Gilbert, 58 Pa. St. 266;. Kennedy v. Ross, 25 Pa. St. 256. Burdick v. Norris, 2 W. 28. '■'Swift V. Allegheny Building Ass., "Green v. Scarlett, 3 Grant 228. 82 Pa. St. 142 ; Morris v. Buckley, 11 " Oliver v. Campbell, 4 W. N. C. Serg. & R. 174. 422. ^ Ibid; Roberts v. Halstead, 9 Pa. ® Miner v. Graham, 24 Pa. St. 491. St. 32, is contrary. 'Partridge v. Partridge, 38 Pa. St. " Rhoads v. Reed, 89 Pa. St. 436. 78 ; Roberts v. Halstead, 9 Pa. St. 32. MORTGAGES. 185 legally assigned it, by instrument under seal, in the presence of witnesses, the name either of the mortgagee or of the assignee^ may be used.^ If the mortgagee be dead, the assignee of his administrator may bring an action in his own name.^ The executor or administrator of the mortgagee is the projjer plaintiff, on the death of the latter.* But, if the mortgage is made to two administrators, in settlement of the decedent's estate, to secure the widow's dower, and they die, , the action cannot properly be brought by the executor of the survivor ; but, by a trustee appointed by the court for that purpose. If, however, the persous entitled receive pay- ment of the debt, and the executor of the surviving adiuin- istrator assign the mortgage, and a judgment is confessed thereon, to which no writ of error is taken for fourteen years, the judgment will be conclusive upon the terre-tenant." A terre-tenant to whom the mortgage has been assigned, may use the name of the mortgagee as plaintiff.'' If the mortgagor be dead, his personal representative is the proper defendant;^ it is not necessary to make his widow, heirs or devisees parties.* Since a sale under a mortgage bars the dower of a widow,° she may intervene in the action thereon, to show that it was given with a view to defraud her of her dower, and even after judgment may petition the court to open it, and permit her to defend to this extent.^" The mortgagor 'Cadmus v. Jackson, 52 Pa. St. = Brooks ?). Smyser, 48 Pa. St. 82. 29.5; Seidel v. Clark, 10 W. X. C. « Moore r, Hanisburg B'k, 8 W. 188. 1.3s. 'Tryon v. Munson, 77 Pa. St. 250; ''Act of 22d April, 1863, [P. L. Roberts v. Williams, 5 Wh. 170; 567.] See Pryor v. Wood, 31 Pa. St. Cadmus v. Jackson, 52 Pa. St. 295 ; 142. If one claiming to be an as- Brooks v. Smyser, 48 Pa. St. 86. signee sue out a sci.fa., in the name * Chambers v. Carson, 2 Wh. 365; of the mortgagee, the latter and the Tryon v. ^Slunson, 77 Pa. St. 250 ; mortgagor protesting, a judgment Hare r. Jlallock, 1 M. 26S ; Linn r. ■will be entered for the defendant. Peters, 2 Pearson 169. Tharp v. Smith. 2 W. 387. ^Scott v. Croasdale, 1 Y. 75. ^Simpson v. Amnions, 1 Biun. 175. '"McClurg v. Schwartz, 6 W. X. C. This was an ejectment. 361 ; Reidenauer v. Killinger, 11 < Parker v. Sulouff, 10 W. N. C. 26 ; Serg. & E. 119. Mille- V. Schlegel, 10 W. M". C. 520. 186 LAW OF LIENS. alone may, though dead, be made defendant, and if the sheriff returns two nihils, an unimpeachable judgment may be recovered.-^ If there are several joint mortgagors, the survivor and the executors, widows and heirs of the deceased may be made defendants.^ Unless parties to the defence of the sci. fa., the heirs may, in ejectment brougJit by the sheriff's vendee under the mortgage, make any defence that could have been made on the sci. fa? If a mortgage is made by A., through B., his attorney, A. must be made the defendant, though he dwells beyond seas.* The assignee in trust for the benefit of creditors of the mortgagor^ or of the terre- tenant^ may be substituted for him. The guardian of minor heirs of a mortgagor may be permitted to defend for them.'' Terre-Tenants. § 150. The sci. fa. may command the sheriff to give notice to terre-tenants, either specifically^ or in general,' but, if other- wise, the terre-tenant may intervene for the purpose of making defence.^" He must, however, obtain leave of the court to do so ; otherwise an appearance entered on his prmcipe will be stricken off." Leave will be granted, on rule, for the executor of the deceased terre-tenant to be made a party .^' Even after 1 Taylor v. Young, 71 Pa. St. 81. ther i-. Clark, 1 W. 491 ; Roberts v. ■•^ McLaughlin v. Ihmsen, 85 Pa. St. Williams, 5 \Vh. 170. i564. "> Smith v. Harry, 91 Pa. St. 119; ^Brooks V. Smyser, 48 Pa. St. 82; Mcllvaine v. Mat. Assurance Co., 8 Wallace v. Blair, 1 Grant 75. W. X. C. 260 ; Link v. Building Ass., * Maus V. Wilson, 15 Pa. St. 148. 89 Pa. St. 15 ; Cadmus v. Jackson, 52 ' American Slate Co. v. Phillips- Pa. St. 295. burg Building Ass., 8 W. N. C. 430. " Hobson v. Webster, 9 W. N. C, ^^Icllvain v. Mut. Ass. Co., 93 Pa. 20ij. He was admitted to defend, on St. 30. petition, in' Wickershani v. Fetrow, ' McLaughlin v. Ihmsen, 85 Pa. St. 6 Pa. St. 260, and in Roberts v. Wil- 364. liams, 5 Wh. 170. Yet, in Fraley v. "Mitchell V. Coombes, 11 W. U. C. Steinmetz, 22 Pa. St. 437, one who 70 ; Haupt v. Davis, 79 Pa. St. 23S; had bought the land from the mort- Blanchard v. Koller, 5 W. N. C. 362. gagor, and then conveyed it, with "JefFers v. Gill, 91 Pa. St. 290; warranty, tiled an affidavit of de- Parke v. Neeley, 90 Pa. St. 52 ; Ma- fence without leave of the court. ^^ Dutill V. Sully, 9 W. X. C. 578. MORTGAGES. 187 judgment on default, the terre-tenant may be permitted to appear and defend, the judgment being opened for this pur- pose.^ When one is summoned by the sheriff as a terre- tenant, he is as much a party to the action as if named in the writ, and, at the trial, the jury must be sworn as to him, as well as to the other defendants, though he has filed a dis- claimer.' If the terre-tenant is summoned, or intervene in the defence, the judgment rendered will be conclusive against him ; ' otherwise, he will be permitted to make any available defence against the purchaser under the mortgage, that he might have made on the sci. fa.;^ and the heirs of a mort- gagor," or of a deceased terre-tenant,^ have this right. The owner of an equitable title under articles of sale, is not a terre-tenant under the holder of the legal title, who has, after the origin of the equitable title, mortgaged the legal title to another, and in an action on this mortgage has no right to intervene. His claim is paramount to the mortgage.' Ser- vice of the writ upon a tenant in possession, under an alienee of the mortgagor, is not notice to the alienee himself, and will not bind him ; the Service ought to be upon him, or it should appear that he had actual notice of the pendency of the suit, and an opportunity to defend it.* The sheriff's return of "served" to the sci. fa. is conclusive in an eject- ment brought by the purchaser at the sheriff's sale, though he be the mortgagee himself." When the Scire Facias May Issue. § 151. The act of 1705 permits its issue after the expira- tion of twelve months next ensuing the last day whereon the mortgage money ought to be paid. If the mortgage is pay- 1 Schnepf 's Appeal, 47 Pa. St. 37 ; Mather v. Clark, 4 \Y. 491 ; Cowan v. Catlin V. Robinson, 2 W. 373. Getty, 5 W. 531. 2 Roberts v. Williams, 5 Wh. 170. = Wallace v. Blair, 1 Grant 75. *Nace V. Hollenbach, 1 Serg. & R. 'Dutill v. Sully, 9 W. N. C. 573. 540; Schnepf s Appeal, 47 Pa. St. 'Catlin r. Robinson, 2 W. 373. 37. It will conclude a mortgagee of * Cowan v. Getty, 5 W. 531. the terre-tenant. ' BIythe v. Richard.s, 10 Serg. & B. ^Mevey's Appeal, 4 Pa. St. SO; 261. 188 LAW OF LIEXS. able in installments, no set. fa. can issue until the last of them has become due.^ If the mortgagee induces another to buy the premises, by a promise, verbal or written, to extend the time, a sci. fa. issued before the lapse thereof cannot be sus- tained.^ When a binding stipulation is made, after the exe- cution of the mortgage, to extend the time of payment, it is not necessary that one year elapse from the expiration of this time before sci. fa. issues.^ A provision in the mortgage that on default in payment of interest,* or of installments of the prin- cipal,' or of the entire principal" for a certain time, the whole shall be due and immediately suable, will be enforced, though the mortgagor be a married woman,' and though the terre- tenant is ready to pay the interest at any time, and has only failed to do so because expecting the mortgagee to call for it.^ A condition in the bond providing that on default in paying interest, the whole debt shall be payable, will not apply to the accompanying mortgage from which a similar condition is omitted." If the mortgagee assign the mortgage as collat- eral security for a debt, the assignee may proceed on it so soon as, according to its terms, it is suable, although neither the principal nor interest of the debt of his assignor is yet payable.^" The sci. fa. should not issue within one year after the death of the mortgagor, but, if it does, the irregularity may be waived by the executor.^^ Alias Scire Facias. § 162. If the sheriff is unable to effect service of the sci. fa., he returns nihil habet. An alias writ may then issue, to 1 Fickes v. Ersick, 2 R. 165 ; Smith Black v. Galway, 24 Pa. St. 18 ; Ma- li. Shuler, 12 Serg. & B. 242. gaw v. Stevenson, 1 Grant 402 ; Swift "Hoffman t'. Lee, 3 W. 352. v. Allegheny Building Ass., 82 Pa. 'Wallace v. Hussey, 63 Pa. St. 24. St. 142. *Huling V. Drexell, 7 W. 126; ''Gaskill t. Schenerle, 2 AV. N. C. Glass V. Warwick, 40 Pa. St. 140 ; 156. Contra, Pancoast v. Haas, 1 W. Seidel !■. Clark, 10 W. N. C. 138. K C. 264. ''Kennedy v. Ross, 25 Pa. St. 256; nValker v. Tracey, 1 Phila. 225; Robinson v. Loomis, 51 Pa. St. 78. Whitecar v. Worrefi, 1 Phila. 44. « Black V. Galway, 24 Pa. St. 18. "Seidel v. Clark, 10 W. N. C. 138. ' Glass V. Warwick, 40 Pa. St. 140 ; " Brooks v. Smyser, 48 Pa. St. 86. MOETGAGES. 189 which, if it cannot be served, the same return may be made. When the iirst writ issued December 3d, returnable Decem- ber 7th, the first day of the December term, the alias could properly issue January 27th, returnable to the first Monday of February, in a county in which there were monthly return days, and in which the term succeeding that of December began on the first Monday of March.^ So, when the first writ was returnable on the first Monday of January, the last monthly return day, the second could be made returnable to the fourth Monday of the same month, which was the beginning of the term.^ If the terre-tenant appear to the first sci. fa., an alias is unnecessary, except to make the judgment conclusive against the mortgagor without showing, dehors the record, that he had parted with his title.^ When the return of nihil habet is made to the sci. fa. and to the alias, it is equivalent to a return of scire feci,^ and the plain- tiff is entitled to judgment if there be no appearance,' but judgment for want of an affidavit of defence can be entered only after an actual service.*' If two returns of nihil are made as to the mortgagor, but the terre-tenants appear, judg- ment by default for want of appearance should be taken against the former; the trial then proceeds against the latter.^ Against the judgment entered on two nihils, it cannot be averred that the defendant was in fact dead when the writs issued,* or was a married woman when she executed the mortgage as if she were a feme sole,^ or was in occupancy of ^Haupt V. Davis, 79 Pa. St. 238. ^Stevens v. Korth Penna. Coal Co., ^'Magaw V. Stevenson, 1 Grant 402. 35 Pa. St. 265 ; Miner v. Graham, 24 In this case were three .sci. /as. See, Pa. St. 493; Cooper v. Borrall, 10 also, Stevens v. North Penna. Coal Pa. St. 491. Co., 35 Pa. St. 265. ^ Miner v. Graham, 24 Pa. St. 493. ^Stevens -i'. North Penna. Coal Co., 'Roberts v. Williams, 5 Wh. 170; 35 Pa. St. 265. Stevens v. North Penna. Coal Co., 35 ^Coxa's Exr. v. Martin, 44 Pa. St. Pa. St. 265. 322; Morgan v. Watson, 2 Wh. 9; « Taylor v. Young, 71 Pa. St. 81; Magaw V. Stevenson, 1 Grant 402; Warder i;. Tainter, 4 W. 274; Cham- Warner V. Moore, 3 Luz. L. Eeg. bers v. Carson, 2 Wh. 365. 108. ' Hartman v. Ogborn, 54 Pa. St. 120. 190 LAW OF LIENS. the land when the sci. fa. was issued.^ If, however, the mortgagor being dead, the sheriff return mortuus est, as he may,^ the personal representative of the mortgagor must be brought in.^ A judgment recovered on one returh of nihil habet, cannot be impeached collaterally, though in an eject- ment by the mortgagee, as purchaser at the sheriff's sale under his mortgage.* Since a judgment by default for want of appearance cannot be taken on the fourth day after the return day, unless service was made of the summons at least ten days before the return day, so, when two returns of nihil are the equivalent of service of the sci. fa., fourteen days from the return day of the second must be allowed for an appear- ance. A judgment entered before will be stricken off.* Proceedings on Scire Facias. § 153. Nul tiel record is no plea," but non est factum^ V^l~ ment,* payment with leave, etc.,' no lien,^" set-off,^^ non-assump- sit,^^ are employed. Special pleas may be made,^^ and, that ^ Cully V. Latimeiv 5 Serg. & E. 211 ; McHenry's Appeal, 61 Pa. St. 432. So, it cannot be shown in a subsequent ejectment by the mort- gagee, who has purchased under his mortgage, against the mortgagor and terre-tenants, that the sheriff's return of made known is false. Blythe v. Kichards, 10 Serg. & R. 261. ^ Warder v. Tainter, 4 W. 276. " Blanchard v. Koller, 5 W. N. C. 362. ' Allison V. Eankin, 7 Serg. & R. 269. s Faunce v. Subers, 1 W. N. C. 248. In Laws v. McDanel, 1 CI. 421, it was decided that to entitle the plaintiff to judgment on the quarto die post, on two returns of nihil, the Second sd. fa. must have issued ten days before the return day. «Frear v. Drinker, 8 Pa. St. 520; Lancaster v. Smith, 67 Pa. St. 427; Roberts v. Halstead, 9 Pa. St. 32. 'Lancaster v. Smith, 67 Pa. St. 427 ; Lewis v. Nenzel, 38 Pa. St. 222. ^Wickersham v. Petrow, 5 Pa. St. 260; Roberts v. Halstead, 9 Pa. St. 32; Twitchell v. McMurtrie, 4 W. N. C. 419; McCrelish v. Churchman, 4 R. 26 ; Brown v. Scott, 51 Pa. St. 357; Parker v. Sulouff, 10 W. N. C. 26. "Morris v. Buckley, 11 Serg. & R. 166; Lancaster r. Smith, 67 Pa. St. 427; Roberts v. Williams, 5 Wh. 170. " Roberts v. Halstead, 9 Pa. St. 32. " Carmalt v. Post, 8 W. 406 ; Ryan V. Casey, 1 Pearson 153 ; Twitchell v. McMurtrie, 4 W. N. C. 419 ; Link v. German town Building Ass., 89 Pa. St. 15 ; Brown v. Scott, 51 Pa. St. 357. "Link V. Germantown Building Ass., 89 Pa. St. 15. '^ Lancaster v. Smith, 67 Pa. St. 427 ; Roberts ■«. Williams, 5 Wh. 170; Mevey's Appeal, 4 Pa. St. 80 ; Brown V. Scott, 51 Pa. St. 357; Tharp v. Smith, 2 W. 387 ; Wilson v. Jones, 6 W. N. C. 157. MORTGAGES. 191 the suit was prematurely brought, should be pleaded in abatement.^ Judgment may be entered for want of a suffi- cient affidavit of defence,^ even against" the administrator of a deceased terre-tenant, whose heirs, however, will not be be bound by it, not being parties.^ Particular Defenoes. § 154. That the mortgagor was never the owner of the premises,* or, being a corporation, had no power to make the mortgage;® that the mortgagee had not the custody of the mortgage, when he sued out his sci. fa. or afterwards,'^ or that the mortgage debt has been attached, is no valid defence.'^ A subsequent gratuitous promise by the mortgagee not to sue for nine years after the date at which the mortgage is pay- able, cannot defeat the action, nor the fact that a prior terre- tenant paid a bonus to obtain an indeterminate extension of time.* The terre-tenant cannot defend on the ground that the mortgagor gave to the mortgagee, subsequently to the execution of the mortgage, negotiable notes which, when paid, were to be credited on the mortgage, and that these notes, yet unpaid, are in the hands of third persons;" but if, simul- taneously with a mortgage given to secure a debt represented by promissory notes, it was agreed in writing that the mort- gagee should take up these notes and indemnify the mortgagor against them, the fact that they are still outstanding will be a defence for the latter against the former on the sci. fa}^' That the mortgage is executed under a mistake as to its ' Roberts r. Halstead, 9 Pa. St. 32 ; " Lancaster v. Smith, 67 Pa. St. Coxe's Exr. v. Martin, 44 Pa. St. 322. 427. . - Partridge v. Partridge, 38 Pa. St. 'Brown v. Scott, 51 Pa. St. 357. 78 ; Gerke v. Jacoby, 7 W. N. C. 438 ; « Zeiiiert v. Grew, 6 Wh. 403. Bruner v. Wallace, 4 W. N. C. 53; "Brown v. Scott, 51 Pa. St. 357. Selden v. Building Ass., 81J Pa. St. But, since a mortgage is not negoti- 336. able, it is no defence to the bond, or ^ Dutill V. Sully, 9 W. N. C. 573. the id. fa. on the judgment recovered * Krupp V. Krugel, 34 Leg. Int. 58 ; thereupon, that the mortgage is lost, Keasby v. Lindsay, 1 W. N. C. 147. mislaid or destroyed. Hodgdon v. 5 St. Johns V. Steinmetz, 18 Pa. St. Naglee, 5 W. & S. 217. 273. '"McCrelish v. Churchman, 4 K. 26. 192 LAW OF LIENS. purport, superinduced by the fraudulent representations of tlie mortgagee, would vitiate it.^ When a railroad company makes a mortgage to secure bonds which are to be issued from time to time, as the work of construction advances, and makes no objection because of the character of the work done, und the fact that it is not completed at the stipulated time, to the negotiation of these bonds such delay or imperfection of work will constitute no defence.^ Since a judgment on a mortgage is conclusive in an action on the accompanying bond, and payment of it discharges the bond,^ a judgment for the defendant on the bond would bar an action on the mortgage.* But a judgment for the plaintiff on the bond, though on it a fi. fa. had issued under which the inquest had not condemned the land, but no liberari had issued, will not prevent a recovery on the mortgage,^ nor will partial payment of the bond, even by execution.' § 155. It is no defence that the agent of the mortgagee had promised to notify the mortgagor when the installments of interest fell due, the non-payment of which, at maturity, is recited in the sci. fa. as the breach.'' An alteration of a mortgage made by a stranger, even if material, will not avoid it ; if immaterial, e. g., a waiver of the benefit of an act which had been repealed before the mortgage was exe- cuted, and made by an agent of the mortgagor, it will not imjjair the mortgage, and if the mortgage, being without consideration, depends for its validity upon its negotiation to a bona fide purchaser, an alteration in the certificate of no ' Lewis V. Xenzel, 38 Pa. St. 222. who has received it as collateral for 'McElrath v. Pittsb., etc., K. K. moneys to be advanced to the as- Co., 55 Pa. St. 205. signer, the nmortgagor cannot set up ^Yeomansr.Rexford,35Pa.St.273. in defence that he had held back *Whelan r. Hill,2 Wh. 118. This, part of the money thus to be ad- however, was a mechanics' lien. vanced, sufficient to pay the inter- * Lyons v. Ott, 6 Wh. 163. est, default of whose payment by the ^ Ibid. mortgagor is the condition prece- ' Gerke v. Jacoby, 7 W. N. C. 438. dent to a right of action on the mort- Against the assignee of a mortgage, gage. Seidel v. Clark, 10 W. N. C. 138. MOKTGAGES. 193 ^eville, 13 Serg. k E. 'Ibid. 227. '" Curry v. Eaymond, 2^ Pa. St. 144. ^Solms V. ilcCuUoch, 5 Pa. St. 'Kennedy r. Ross, 25 Pa. St. 256. 473. ' Pryor v. Wood, 31 Pa. St. 142. 'Hummel v. Siddal, 11 Phila. 308. 'Frear v. Drinker, 8 Pa. St. 520. MORTGAGES. 195 since the suit purchased from the heirs, and the price he has paid them.^ The Judgment. § 158. Judgment may be entered generally, by simply ■writing the date and the word "judgment."^ A general judgment for the plaintiff, entered after a replication by him which admits that the mortgage is subject to the widow's dower, will be interpreted as subject to her dower, and an execution levied without regard to her dower, will be errone- ous.^ A judgment by default, on a mortgage to secure per- formance of a collateral act, should be followed by a writ of inquiry ; but an execution issued without such writ, though irregular, will not be void.* The judgment need not be set out in due form; an entry in the docket that by a paper filed, the counsel for terre-tenants agrees that judgment be entered for a designated sum, followed by the words, "9th January, 1847 — Judgment," written by the prothonotary, who had authority under the rule of court to enter judgment, will be construed as record of a judgment.* There must be a judg- ment against the mortgagor, as well as against the terre- tenants.^ A judgment in favor of the plaintiff is conclusive of the execution of the mortgage ; and if the mortgage was made by a widow under a power conferred on her by the will of her deceased husband, the heirs will be concluded by the judgment, though not parties.'' Such judgment is also col- laterally conclusive of the power of the mortgagor to make the mortgage, and against it cannot be alleged the fact that she was a married woman, and that her husband did not join ^ Sharpless v. Tate, 2 K. 108. ment on confession by the attorney -Henryy. Sims, 1 Wh. 186. "of a terre-tenant was held to be a ^Eeidenauer v. Killinger, 11 Serg. judgment against the mortgagor, as A. R. 119. to whom two returns of nihil had *Stackpole v. Glassford, 16 Serg. & been made, and who had entered no ri. 163. appearance. = Cooper V. Borrall, 10 Pa. St. 491. 'Edraondson v. Nichols, 22 Pa. St. ^Ibid. But, in this case, a judg- 74. 196 , LAW OF LIEXS. in it.^ If, in compromise of a conflicting claim to land, A. buys it from B., executing a mortgage for the purchase money, a judgment recovered thereon is conclusive, in an ejectment brought by the mortgagee, who purchases under his mortgage, against the mortgagor." When a sei. fa. has been served on the mortgagor and terre-tenants, and judg- ment recovered by the plaintifi", it is not competent for the terre-tenants, or persons claiming title through them, to show in a subsequent ejectment by the purchaser, the mortgagee himself, that the mortgage had been paid f they can do this, however, if. the sheriff's return shows that the terre-tenant was not actually notified,* and a judgment against a mort- gagor may be opened on petition of the terre-tenant alleging payment.^ A judgment confessed on a mortgage of a mar- ried woman's property, not her separate estate, by an attorney appointed for both by the husband, will be valid/ A mort- gage may be paid after judgment; hence, if a lev. facias issues, the court may, on the allegation of payment, issue a rule to show cause why it should not be set aside, and direct an issue to ascertain the fact.^ § 159. A judgment on a mortgage does not merge its lien.* Though a sci. fa. may issue to revive the judgment before execution issues,' it is unnecessary;" a levari facias properly issued seventeen years after recovery of the judgment without revival.^^ A sale under a mortgage conveys a title relating back to its execution, and the title of the sheriff's vendee 'Butterfield's Appeal, 77 Pa. St. ' Helmbold r. Man, 4 Wh. 410. 107 ; Hartman v. Ogborn, .54 Pa. St. * Ibid.; Shad's Estate, 2.5 Pittsb. L. 120. J. 14-5 ; Wentz's Appeal, 10 W. >^. C. ^ Payne v. Bennet, 2 W. 428. 2S4. 'Blythe v. Edwards, 10 Serg. & K. 'Brooks v. Smyser, 48 Pa. St. 86; 261 : Blythe !■. McClintic, 7 Serg. & Willard !'. Xorris, 2 R. 50; Evans v. E. .341. Meylert, 19 Pa. St. 402. * Cowan V. Getty, 5 W. 531. "Franklin Fire Ins. Co. v. Fischer, °Giveni;. Carson, 4 W. X. C. 54. 4 Pa. St. 414; Shad's Estate, 25 'Evans r. Meylert, 19 Pa. St. 402 ; Pittsb. L. J. 145. McCiillough V. WUson, 21 Pa. St. 436. " Helmbold v. Man, 4 Wh. 410. MORTGAGES. 197 prevails against any grants,^ or leases/ or dedications of highways,^ made by the mortgagor, subsequently. The judgment is in rem only, and when formally set out, is, that the land described in the sci. fa., or so much thereof as is necessary, be sold for the payment of a certain sum of money.* If, therefore, no land is described in the prcecipe, or the sci. fa., or other parts of the proceedings, no valid judgment can be entered." And a general judgment will be applied to such land as is described in the sci. fa., even if this be erroneous.* The defendant or the terre-tenants are not personally liable for costs, but the premises only,'' unless the terre-tenants are admitted to defend on the condition that if they fail, they shall pay the costs.* The mortgagor who has sold the jd remises is not affected by the judgment recovered, except indirectly, on his covenants of title,® and if he was discharged from the action, by the substitution of the name of his grantee, he was not incompetent as a witness, on the ground of interest.^" If the defendant does not appear, judgment by default should be taken, and the trial then proceed against the terre-tenant}^ The judgment rendered is for the principal and interest down to the trial.^ A personal judgment against the mortgagee may be 'De Haven i'.Land.ell,31Pa.St.l20. tenants are liable for costs, the jury ' McCall V. Lenox, 9 Serg. i E. 302. must be sworn as to them, though 'King r. ilcCulh', 3S Pa. St. 76. they have disclaimed the premises. ' Wilson V. MoCullough, 19 Pa. St. » Hoffman v. Lee, 3 W. 352. 77; Cadmus v. Jackson, 52 Pa. St. " Perkins r. Johnson, 19 Pa. St. 510. 295 ; Wickersham v. Fetrow, 5 Pa. " Roberts t>. Williams, 5 Wh. 170. St. 260; Eidgwaj- v. Longaker, IS " Magaw?;. Stephenson, 1 Grant 402. Pa. St. 215; Magraw v. Pennock, 2 If two mortgages are executed simul- Grant 89; Myers i'. White, 1 E. 353; taneously for purchase money, but Shrom v. Williams, 43 Pa. St. 520. one shows on its face that it is subject 'Wilson V. McCullough, 19 Pa. St. to the other, the judgment on the 77. But, see Glass v. Gilbert, 58 Pa. former should be entered expressly St. 266. subject to the latter; but if this is ® Green ^. Scarlett, 8 Grant 228. not done, the same result can be 'Hersey v. Turbett, 27 Pa. St, 418. reached by incorporating the condi- * Wickersham v. Fetrow, 5 Pa. St. tion in the sheriff's deed, under a 260. Yet, in Roberts v. AVilliams, 5 sale under the former. Pease v. Wh. 170, it is said, that since the terre- Hoag, 11 Phila. 549. 198 LAW OF LIENS. set oflf against the judgment upon the mortgage.^ When, several terre-tenants appearing and defending, verdict and judgment are rendered against one, and a verdict is rendered for the other, but no judgment is entered, and the judgment Tendered cannot be supported, except on grounds that would support a verdict and judgment against the other, the terre- tenant against whom no judgment was rendered may take a writ of error.^ Execution. § 160. The act of 1705 prescribes the writ of levari facias and requires the sheriff to serve one of the notices of sale on the defendant. This notice need not be in writing, though, under a rule to set the sale aside, the sheriff must prove it to have been made.* After a sale and confirmation thereof, the title of the sheriff's vendee cannot be attacked for want of affirm- ative evidence that the notice was given ; this will be pre- sumed.'' A terre-tenant cannot, under rule to set aside the sale, object that the notice was not served on the mortgagor, who had actual notice before the sale, the terre-tenant not appearing to have suffered any injury.* When the defendant dies after judgment, it is uot necessary to warn his personal representatives before issuing a levari,^ and the mortgagee is not prevented from taking execution of his judgment, because, since its recovery, he has become the devisee of the mort- gagor.' The levari must follow the description of the prem- ises in the sci. fa. ; a mistake in the latter cannot be corrected in it.* But an omission of a description in the &ci. fa. may be supplied even in a pluries levari facias, as against persons claiming title paramount to the mortgagor.' A judgment on a sci. fa. on a chattel mortgage, is executed by a levari ' Ryan v. Casey, 1 tearson 153. Huiisecker v. Thomas, 89 Pa. St. ^ Cadmus i>. Jackson, 52 Pa. St. 295. 154. Contra, are Wallace's Adm. ■«. ^Passmore v. Gordon, 1 Bro. 320. Holmes, 40 Pa. St. 427; Cadmus v. * Topper V. Taylor, 6 Serg. & E. 172. Jackson, 52 Pa. St. 295. ^ Fidelity Ins. Co. v. Clendenon, 6 ' Linn v. Peters, 2 Pearson 169. W. N. C. 286. « Green v. Scarlett, 3 Grant 228. "Taylor v. Young, 71 Pa. St. 81; "Glass v. Gilbert, 58 Pa. St. 266. MORTGAGES. 199 yacia.^} Exemption for $300 cannot be claimed against a mortgage, by the mortgagor." For this reason it cannot be asserted against a lien prior to the mortgage and divested by the sale.^ An alias^ or later writs'^ of levari facias may issue, when the sheriff returns to the former writ that he has not sold the property. That the writ directs the sheriff to have the money, without commanding him to have it out of the mortgaged pi'emises, is an omission which the prcBcipe will ■cure." A return by the sheriff that he has struck off the premises for so much, but, since he could not make title, they remain unsold, is substantially a return of unsold, and another levari may issue.'' The mortgagee may purchase at the sale under his mortgage, though the premises sell for less than the debt and costs.'* Courts' Control of Execution. § 161. Notwithstanding proceedings on the mortgage in a common law court,'' or the issue of a levari facias on a judgment recovered therein," the orphans' court may stay proceedings, in order that the administrator of the deceased mortgagor may make sale of the premises. Under the act of 18th April, 1861, granting a stay of all civil process against persons in the service of the United States, an alias levari was properly stayed, though, on a judgment confessed before the passage of the act, there had been an agreement for a stay of execution until a certain date, which had elapsed .^^ And, on the jDCtition of the terre-tenant, not a party to the judgment on the mortgage, execution was stayed so long as 'Greene v. Tyler & Co., 39 Pa. St. « Peddle v. Hollinshead, 9 Serg. & S61. " E. 277. 2 Gangwere's Appeal, 86 Pa. St. 466. ' IbuL ^ Huffort's Appeal, 10 W. 2s\ G. 529. * Blythe v. Richards, 10 Serg. & E. *Breitenbach v. Bush, 44 Pa. St. 261. 313; Topper v. Taylor, 6 Serg. & R. 'Fitzsimmon's Appeal, 40 Pa. St. 174. 422. ^Gla.ss V. Gilbert, 58 Pa. St. 266; 'MVallace's Adm.r. Holmes, 40 Pa. Peddle v. Hollinshead, 9 Serg. & K. St. 427. 277. " Breitenbach v. Bush, 44 Pa. St. 313. 200 LAW OF LIENS. the mortgagor might be in the army.^ Under the act of 22d April, 1856, [P. L. 534,] providing for the regulation of the order in which several premises bound by the same lien may be sold, the petitioner must allege that the mortgage is a lien on his land, and the order of the court must give the option to the mortgagee to accept his debt and make an assignment of the mortgage, or proceed to sell in the inverse order of the several conveyances of parts of the mortgaged land.^ If one who has j^urchased a part of the mortgaged premises, undertook to pay the mortgage, as a part of the consideration, the part conveyed to him will be ordered to be sold first.* A. and B. jointly purchased two tracts, giving a mortgage on them for the purchase money, and then made amicable partition. A. having paid a part of the mortgage, it was competent for the court, on his offering to pay the residue of his proportion, to direct B.'s tract to be first sold.* Payment and Satisfaction. § 162. The act of 3d April, 1851, [P. L. 871,] provides for the payment into court of any mortgage by the mortgagor, whereupon the court shall decree that satisfaction be entered upon the mortgage. When a mortgage is payable " in five years from the date thereof," the court cannot compel the mortgagee to accept payment before the expiration of that time." The mortgagor must pay interest down to the day of paying his money into court, though the mortgagee has for a long time been dead, and there has been no one in the state to receive payment," and, besides the debt and interest, costs and poundage, if any, must be paid into court.' § 163. The act of 10th April, 1849, [P. L. 621,] provides for the case of lost or destroyed mortgages, of which the 'Drexel r. Miller, 49 Pa. St. '2W>. * Roddy's Appeal, 72 Pa. Si. OS. ^ Phelp=' Appeal, 10 W. X. C. .5i5 ; ' Petition of Jacob Kohler. 9 W. >'. Arna's Appeal, 6-5 Pa. St. 72. C. 527. 'Arna'.-. Appeal, 65 Pa. St. 72. In ^Bouillou's Estate, W. X. C; 14. this case, both mortgagor and terre- ^ In re Bedford Street Mission, 1 tenant were petitioners. W. X. C. 100. MORTGAGES. 201 mortgagor desires to make, or the mortgagee to compel, payment. Under this act, the court declines to decree an entry of satisfaction on the record of the mortgage, without notice to all possible interested parties, by publication, though the mortgagee admits that the debt has been paid, since he may have assigned the mortgage before payment, or one of several mortgagors may be entitled to subrogation.^ § 164. The act of 11th June, 1879, [P. L. 141,]^ gives the courts of common pleas power to decree satisfaction of mort- gages which have remained unsatisfied for more than six months after the holders thereof shall have been fully paid. A terre-tenant may petition under this act,^ and a conveyance of property to the mortgagee, in consideration of the latter's procuring a conveyance of the mortgaged premises to him, and releasing the mortgage, is payment, in the meaning of this act, as against a subsequent hona 'fide assignee of the mortgage, who made no inquiry of the mortgagor, although the mortgage was permitted to remain with the mortgagee.* § 165. The act of 28th May, 1715, [1 Sm. L. 95,] requires under penalty, a mortgagee, on receiving full satisfaction, to enter satisfaction on the margin of the record of the mort- gage, at the request of the mortgagor. On receiving partial satisfaction only, the mortgagee is under no such obligation, nor when the satisfaction is obtained only by a sheriff's sale of the mortgaged premises.' The act of 13th April, 1791, [3 Sm. L. 32,] imposing a penalty for not entering satisfaction of a judgment, applies to a judgment on a sci. fa. sur mort- gage.^ That the debt, interest and costs, are paid to the sheriff, after execution has issued, and that officer so returns, does not discharge the mortgagee from the duty of formally 1 Petition of Thomas Banes, 7 W. under peculiar circumstances, see N, C. 128. Petition of John Gunther, 9 Pa. St. ^ See act of 28th April, 1868, [P. L. 191. 1151.] ° Pierce v. Potter, 7 W. 475. 'Sellers c. Benner, 9 W. N. C. 88. « Henry v. Sims, 1 Wh. 186. *Ilnd. For decree of satisfaction 202 LAW OF LIEXS. satistymg the judgment.^ When the judgment is satisfied, the prothoQotary must make a certificate thereof, at the request of the defendant ; and the recorder must, on exhibi- tion of it to him, enter satisfaction on the record of the mortgage.^ On the death or removal from the state, of the mortgagee, after payment of the mortgage, the court may decree satisfaction of record,^ and when the mortgage is pay- able by installments, the holder thereof, on receiving any installment, must receipt for the same on the record of the mortgage.* When the mortgagee endorses, in the presence of two witnesses, on the mortgage and accompanying bonds, that they are satisfied, the recorder must, when they are pro- duced to him, together with a certificate from the president judge of the proper court, enter satisfaction on the record.' 1 Allen r. Conrad, 51 Pa. St. 487. to be forged, see Act of 27th ilarch, 2 Act of 3d April, 1860, [P. L. 630.] 1862, [P. L. 192.] 'Act of 31st March, 1323, [8 Sm. =Act of 11th April, 18-56, [P. L. L. 131.] 304.] *Ibid. As to mortgages alleged LIEK OF JUDGMENTS. 203 CHAPTER III. LIE^' OF JUDGMENTS. Its Origin. § 166. The lien of a judgment rests on the constant con- struction of the statute of Westminster II. c. 18, which first made lands in England liable to execution by means of the writ of elegit. From this liability to execution, the conclu- sion was drawn that the judgment itself was a lien upon the debtor's real estate.'^ The successive acts of 1688, 1693, 1694, 1700 and 1705, made lands in Pennsylvania subject to exe- cution for debt, and here, as in England, the judgment has from that circumstance been uniformly held to be a lien upon them.^ If, for any reason, the creditor has no right ever to realize his debt from the land, his judgment is not a lien,^ though it may be a lien before the right to execution has ripened.* What Judgments are Liens. § 167. Judgments which affect status, or which determine the projjerty or the right of possession of any specific thing, whether it be land or chattel, to be in any person, do not concern us. Only such judgments can be said, in any proper sense, to be liens, as adjudge to one party the payment by another of a sum of money. But judgments of this class are not liens, unless they are, as to the amount of money to be paid, certain and determinate. A judgment for want of an appearance, in an action in case, having been entered with blanks for the amount of money, which were not filled up 1 Reed's Appeal, 13 Pa. St. 476; St. 126; Leedom •!;. Plymouth E. K. Allen V. Reesor, 16 Serg. & R. 10. It Co., 5 W. & S. 265; Beam's Appeal, ■was not a lien at common law. 19 Pa. St. 453; Prevost ti. Gorrell, 5 Brooke v. Phillips, 83 Pa. St. 183. W. N. C. 151. ^Krause's Appeal, 2 Wh. 898. *Sinkett v. Wunder, 1 M. 361. ^Schaffer v. Cadwallader, 36 Pa. 204 LAW OF LIENS. until three years afterwards,' and another confessed by an attorney, the "sum to be liquidated by the prothonotary," who, however, did not liquidate it until a year afterwards,^ were not liens, as against other judgments entered during these intervals. On the other hand, judgments which definitively ascertain a sum certain to be due by one party to the other, are liens as against later liens,' or subsequent purchasers of the debtor's land.* A judgment entered generally, will be deter- minate, if the record furnishes the means of giving certainty to it. When a specific sum is claimed in the declaration,' or statement of balance due on book account," or even in the writ, there being no declaration filed,' the general judgment, though by default, will be rendered certain by relation to it, whether the form of action be debt* or case.^ If a judgment entered by confession on a bond, is opened to permit the defendant to defend, a general verdict and judgment ren- dered in the trial of the issue, will be explicated by reference to the bond and the original judgment entered by confession upon it.'° A judgment confessed in an amicable sci. fa. to revive a judgment designated by number and term, will be understood to be for the amount of the original judgment, interest and costs.'' A judgment by default on a penal bond is construed to be a judgment for the penalty.'^ 1 Phillips V. Hellings, 5 W. & S. 44. Ubid.; Fulton's Estate, 51 Pa. St. ' Phila. Bank v. Craft. 16 Serg. & 204. E. 347. ' Lewis v. Smith, 2 Serg. & R. 142 ; ^ Commonwealth v. Baldwin, 1 W. MoClung i'. Murphy, 2 M. 177 ; Hays 54; Hays v. Tryon, 2 Miles 208 ; Ful- ■!'. Tryon, 2 M. 208 ; Sellers v. Burk, ton's Estate, 51 Pa. St. 204; Clippin- 47 Pa. St. 344; Bryan v. Eaton, 4 W. ger V. Miller, 1 P. & W. 64 ; Helvete N. C. 493. V. Rapp, 7 Serg. & R. 306. " Fulton's Estate, 51 Pa. St. 204. * Sellers v. Burk, 47 Pa. St. 344; " Clippingeru. Miller, IP. & W. 64; Fursht V. Overdeer, 3 W. & S. 470. Appeal of Foglesong Loan Ass., 89 ^Commonwealth v. Baldwin, 1 W. Pa. St. 293. 54; Lewis v. Smith, 2 Serg. & R. 142; " Fursht v. Overdeer, 3 W. & S. 470. McClung V. Murphy, 2 M. 177 ; Bryan A "judgment on verdict " is such a V. Eaton, 4 W. N. C. 493. judgment as, upon the verdict, the " Hays V. Tryon, 2 ]\I. 208. party was entitled to. Shirtz v. Shirtz, 'CommonweaUhi;.Baldwin,lW.54. 5 \V. 255. LIEN OF JUDGMEXTS. 205 § 168. When, on a bond with warrant of attorney, the prothonotary, at the instance of the obligee, enters a suit, with a copy of the penal sum and the real debt in the bond, and then writes that the plaintiff files of record a judgment bond, describing it, but does not say that he enters judgment, the court will intend that a judgment was designed.^ A judg- ment for want of a plea, in assum2)sit on a valued policy of marine insurance, the declaration stating the vessel to be totally destroyed, and claiming the value fixed in the policy, is a determinate judgment,'^ and so is a judgment of non-suit, which carries costs ; and the computation of the costs will have relation to the judgment.' So, of a judgment for $6,000, costs, and an attorney's commission of five per cent.* A payment by the defendant, of the debt and interest is not an entire satisfaction of the judgment against him, which will remain a lien upon his land for the costs as against a terre-tenant^ and a judgment in favor of the defendant is a lien for the costs, and may be revived as such." Under the act of April 16th, 1849, [P. L. 663,] which makes it the duty of the common pleas to direct who shall pay the costs attending a commission of lunacy, an order or decree of the court, charging them upon the estate of the lunatic, is necessary to constitute them a lien u]3on his land.^ A judgment entered August 31st, on motion, for want of an affidavit of defence in an action of assumpsit on a promissory note, a coj^y of which was filed, was a lien from that day, though the damages were not liquidated until September 2d.* ^ Helvete v. Rapp, 7 Serg. & E. 306. both the legal and equitable plaintiflF. ^Sellers v. Burk, 47 Pa. St. 344. Gifford i;. Gifford, 27 Pa. St. 202. See Watkins v. Phillips, 2 Wh. 208, * Schmidt's Appeal, 82 Pa. St. 524. as to the power of the prothonotary ^Altman v. Klingensmith, 6 W. to liquidate a judgment. 445. 2 Park t;. Webb, 3 Phila. 32. If « Stewart v. Peterson, 63 Pa. St. 230. there is a use-plaintiff of record, the ' Malone's Appeal, 79 Pa. St. 481. judgment for the defendant will bind « Bryan v. Eaton, 4 W. N. C. 493. 206 LAW OF LIENS. § 169. A judgment for a part of the plaintiflf's claim, con- ceded to be due by the affidavit of defence, entered under a rule of court permitting it to be done, is so far final as to be a lien, and susceptible of execution, though the trial may proceed for the disputed balance of the claim, and another judgment may be entered therefor.' A judgment by con- fession or on warrant of attorney, by nil dicit, or non sum informatus,' or for want of an appearance,^ may be opened bv the court after the term in which it was rendered,* and within any reasonable period of time." When opened, such judgment ceases to be final in the sense that an execution can issue upon it, in the absence of an express stipulation,* but its lien continues.'' An irregularity for which a judg- ment may be set aside or reversed does not interfere with its being a lien until it is set aside or reversed,* e. g., that a judg- ment is entered on a warrant, before the breach which justified its entry,' or on the very day of the maturity of the bond,'" or in one court, when the warrant was to confess in another court," or in the wrong county ,^^ or when the president of a corporation confessed judgment for it, without authority,'^ or when on a sci. fa. to revive a judgment, judgment was confessed by one not empowered," or by an actual terre- 'Eussell r. Archer, 76 Pa. St. 473. 'Fulton's Estate, 51 Pa. St. 204 A judgment for the penalty of a Bredin v. Gilteland, 67 Pa. St. 34 bond against one of two defendants, Steinbridge's Appeal, 1 P. & W. 481 for want of an affidavit of defence, Carson v. Coulter, 2 Gr. 121 ; Ham v. will not prevent proceeding against Smith, 5 W. N. C. 390. the other defendant. Common- * Lowber's Appeal, 8 W. & S. 387 wealth 11. McCleary, 92 Pa. St. 188 ; Eoemer v. Denig, 18 Pa. St. 482 Finch V. Lamberton, 62 Pa. St. 370. Davidson v. Thornton, 7 Pa. St. 128 Comp. O'Neal v. O'Neal, 4 W. & S. Ramsey v. Linn, 2 Eawle 228 : Dick- 130 ; McKinney v. Mitchell, 4 W. & erson's Appeal, 7 Pa. St. 255 ; Butter- S. 25. field's Appeal, 77 Pa. St. 197. ^Riegel v. Wilson, 60 Pa. St. 388; 'Lowber's Appeal, 8 W. & S. 387. Clark V. Douglass, 62 Pa. St. 415. "Eoemer v. Denig, 18 Pa. St. 4S2. ' Gilleland v. Bredin, 63 Pa. St. 393. " Hauer's Apt)eal, 5 W. & S. 473. ' Eiegel v. Wilson, 60 Pa. St. 388 ; '" Fullerton's Appeal, 46 Pa. St. 144. Clark V. Douglass, 62 Pa. St. 415. "Drexel's Appeal, 6 Pa. St. 272. 5 Bredin v. Gilleland, 67 Pa. St. 84. "Davidson v. Thornton, 7 Pa. St. « Ham V. Smith, 5 W. N. C. 390. 128. LIEN OF JTJDGJIENTS. • 207 tenant, not named in the sci. fa., nor returned as such by the sheriff, though the sci. fa. named as terre-tenants those who had preceded him in the title,^ or when the judgment of revival was entered in a county to which the original record and papers had been transmitted, after its separation from the county in which the primary judgment was rendered.^ In general, it may be said that only a void judgment is incapable of giving or continuing a lien.^ § 170. Judgments on bonds or other instruments condi- tioned for the performance of some collateral act by the defendant or another, though in an important sense not final and absolute adjudications that the sum mentioned therein is due, are nevertheless liens. Judgments on bonds given to the commonwealth by public oflBcers, are declared to be liens on the real estate of the defendants, by the act of June 14th, 1836, [P. L. 639.] A judgment for the penalty of an execu- tor's bond conditioned for the faithful discharge of his duties, was a lien.* So was a judgment on a single bill to secure the plaintiff against subsequent payment of any notes^ or their renewals ° made or endorsed by him for the accommodation of the defendant, and such indemnity may be made to apply ' Dickerson's Appeal, 7 Pa. St. 255. any intention that the second note -Ramsey i'. Linn, 2 R. 22S. should be a payment of the original 'Edwards' Appeal, 66 Pa. St. 89. debt, the judgment will apply to the *Arrison v. Commonwealth, 1 AV. renewal as well as to the original 874. note, so far as later judgments are 'Hartley v. Kirlin, 45 Pa. St. 49; concerned. Appeal of Shrewsbury Webster's Appeal, 86 Pa. St. 409; Savings Institution, 37 Leg. Int. 413. Appeal of Mifflin County S'ational But, taking a renewal note would Bank, 38 Leg. Int. 349. discharge a surety who has mort- " Moorehead v. Duncan, 82 Pa. St. gaged his property to secure pay- 488. As against later lien creditors, ment of a specified note. Ayres v. a judgment to indemnify a surety ■\Vattson,57Pa. St. 360. And it would for a note drawn or endorsed by him, extinguish the encumbr;»nee as to a \& prima facie an indemnity against mortgagee of the premises bound, the debt. Hence, if the note is sur- whose mortgage was taken before or rendered to the creditor, and a re- on the day of the renewal. Moore- newal note is executed to him by the head v. Duncan, 82 Pa. St. 488. principal and surety, but without 208 LAW op LIE^S. not only to notes already executed, but also to notes to be exe- cuted in the future.^ A judgment entered for sums of money to be advanced to the defendant in the future, whether the plaintiff has bound himself to make them,^ or retains free option,^ will also be a lien. A judgment confessed by an officer to indemnify his surety against his contingent liabili- ties,* or by a lessee to his sureties for the rent, against liability for any defaults in the payment thereof,® or by an obligor, to secure the support of the obligee during her natural life, and to pay her annually a fixed sum of money," or to secure the payment quarterly to the county of a sum of money for the support of a lunatic,'' will be a lien, as will also a judgment in a penal sum to secure the payment of two prior notes representing separate debts and their renewals.* Judgments on Other Liens. § 171. Though judgments recovered upon other liens, e. g., mechanics' liens, mortgages,' recognizances in the orphans' court as to lands of the principal cognizor,^" are not themselves liens, yet land not owned by the sheriff at the date of his recognizance will be bound by a judgment recovered in a sci. fa. upon that instrument, after its acquisition.^^ So a judgment upon a sci.fa. to revive a personal judgment, is a lien on property which has vested in the defendant since the rendition of the original judgment.^^ But judgments recovered 1 Hartley v. Kirlin, 45 Pa. St. 49; «Rutty's Appeal, S4 Pa. St. 61. Kerr's Appeal, 92 Pa. St. 236. For 'Silverthorn v. Hollister, 87 Pa. St. judgment in the nature of an in- 431. Comp. Weikel v. Long, 55 Pa. demnity, see Reynolds v. Lowry, 6 St. 288; Vogel v. Hughes, 2 M. 379. Pa. St. 465; Commonwealth ■«. Rogers, ^Maher's Appeal, 91 Pa. St. 516. 4 CI. 252 ; Day v. Willy, 3 Brewst. 43. « ChambeVs v. Carson, 2 Wh. 365. "Parmentier v. Gillespie, 9 Pa. St. '"Morris' Estate, 4 Pa. St. 162. 86 ; Harner's Appeal, 9 W. N. C. 101. " Fricker's Appeal, 1 W. 393. ^Ter Hoven v. Kerns, 2 Pa. St. 96; '^Clippinger v. Miller, 1 P. & W. Shenk's Appeal, 33 Pa. St. 371; 64 ; Boyer v. Rees, 4 W. 201 ; Fursht Hulseman v. Houser, 4 Phila. 118 ; v. Overdeer, 3 W. & S. 470 ; Little v. JMcClure v. Roman, 52 Pa. St. 458. Smyser, 10 Pa. St. 381; HofF's Ap- ^McCann v. Farley, 26 Pa. St. 173. peal, 84 Pa. St. 40; Lamb's Appeal, 5 Borland's Appeal, 66 Pa. St. 470. 89 Pa. St. 407. LIEX OF JUDGMENTS. 209 against executors or administrators, for debts of their deced- ents, are not themselves liens : they simple prolong and give effect to the lien of the debts.^ The Courts. § 172. Judgments entered in the supreme court, in the exercise of the original jurisdiction possessed by it prior to the act of 1799, which established circuit courts and abolished courts of nisi prius in the several counties of the state, except Philadelphia, were liens." By the act of 1836, the supreme court may either order the records of cases brought from the lower courts, back to those courts for execution of the judgment which it may enter, or it may order execu- tion of its judgment to be done by process issuing from itself. It would seem, therefore, that when the latter method is adopted, the judgment of the supreme court is, though the record be not remitted, a lien on lands in the county whence the record came.^ A judgment of reversal in the supreme court, accompanied by an award of restitution, is a lien.* Judgments in the circuit courts of the United States are liens in those states in which judgments of the state courts are such.° Inchoate Judgments are not Liens. § 173. Under the amicable arbitration act of 16th June, 1836, an award, when filed, will, if proper notice of the fil- ' Wills t'. Gilson, 7 Pa. St. 154; Fet- either party to a cause pending in terman v. Murphy, 4 W. 429 ; Trevor the common pleas, to remove it at V. Ellenberger, 2 P. & \V. 94; Penn any time before trial to the supreme V. Hamilton, 2 W. 53; Brobst v. court. Chambers v. Carson, 2 Wh. Bright, S W. 124 : Aurand's Appeal, 365. See Jack r. Jones, 5 Wh. 321. S4 Pa. St. 151; Kelly's Appeal, 77 = See article in .37 Leg. Int. 226. Pa. St. 232; Shearer v. Brinley, 76 ^Boal's Appeal, 2 B. 37. See Pa. St. 300; Maus v. Hummel, 11 Hughes' Appeal, 90 Pa. St. 60. Pa. St. 228; Bredin v. Agnew, 8 Pa. ° Ex parte McGill, 6 Pa. St. 505 St. 233. Riland v. Eckert, 23 Pa. St. 215 nVhite V. Hamilton, 1 Y. 183; Thompson v. Phillips, 1 Bald. 246 Kalston <,, Bell, 2 Dall. 158 ; Ulshafer Prevost v. Gorrell, 5 W. N. C. 151 V. Stewart, 71 Pa. St. 170. Before the Massingill v. Downs, 7 How. 760 act of 1799 it was competent for Bayard v. Lombard, 9 How. 530. 210 LAW OF LIEXS. ing is served on the opposite party aud no exceptions are entered within a limited time, become a judgment. It is not a lien as to other lien creditors, until it is made absolute according to the terms of the act. Hence, when the award was filed and entered nisi, and, two days later,, final judgment was entered, the lien began with the latter day.^ For a similar reason, the award of a jury in favor of the defendant, under the defalcation act of 1705, is not a lien.- Mesne orders and decrees, made in the pro- gress of an action, are not liens, though they command the payment of money. Thus, an order made in proceedings in divorce a mensa et tlioro, pendente lite, that the husband, the respondent, should pay the libellant $60 for counsel fees, $75 for her past support, and $5 per week for the future, was not a lien on the respondent's lands, as against judgments recovered later.^ Origin of the Lien. § 174. Xormally, the lien of a judgment begins with the date of the judgment itself, because its mere existence is the constitutive fact to which lien rights are attached.* There is, however, one remarkable exception. When a judgment is confessed to indemnify the plaintiff for advances to be made, or for liabilities to be assumed by him in the future,, but which he has not bound himself to make or assume, such judgment becomes a lien for each advance or assumption of liability, from the date of such advance or assumption. One such judgment may thus represent several liens of different origins. When A. confessed a judgment for $10,000 to a bank, conditioned to pay all notes already drawn or endorsed, 'Stephens' Executors' Appeal, SS * Judgments binding an equitable- Pa. St. 9. estate, under articles, are no excep- ^ Ramsay's Appeal, 2 W. 228. tion to this principle. Wilson v. 'Grove's Appeal, 68 Pa. St. 148. Stoxe, 10 W. 434. See Wetmore c. Debt on such a decree by a court of Wisner, 2 Luz. L. Obs. 203; Forney a foreign state, cannot be brought in v. Royer, 3 Luz. L. Obs. 162. this state. McClung v. McClung, 11 W. N. 0. 122. LIEX OF JUDG-AIEXTS. 211 or to be drawn and endorsed by A., and discounted by the bank, the bank, however, not obligating itself to discount any, such judgment, as against another entered three years afterwards by another creditor, was a lien for only S84o, the amount of notes discounted at the time of the rendition of the later judgment.^ When the future advance is not optional, but obligatory, the judgment is a lien from its date," and this obligation may be assumed by giving the defendant a promissory note, to be paid so soon as a prior judgment encumbering his lands should be satisfied, but not in fact paid until a later judgment has been recovered against the defendant.^ Relation of Lien. § 175. With the exception just noted, the lien of the judg- ment begins Avith its rendition, but in certain cases, once begun, it retroacts to some anterior period, and prevails against interests accruing after that anterior period and before the recovery of the judgment. At common law, the judgment related back to the first day of the term in which it was entered.* The third section of the act of 21st March, 1772, recognizes this relation, and abolishes it as against, but only as against, purchasers bona fide for valuable consideration, of lands, tenements and hereditaments to be charged thereby. The term beginning September 4th, a judgment recovered September 16th, during it, was a superior lien to a domestic attachment issued September 5th.° ^Ter Hoven v. Kerns, 2 Pa. St. 96 Shenk's Appeal, 33 Pa. St. 371 Hulseman v. Houser, 4 Phila. 118 McClure v. Eoman, .52 Pa. St. 458 Judgments to indemnify tlie plaintiff from loss as surety for the perform- ance by the defendant of certain acts or duties, belong to this class. Kerr's Appeal. 92 Pa. St. 236. Comp. Arrison v. Commonwealth, 1 W. 874. Parker I'. Jacoby, 3 Grant 300. ■'Boyer's Estate, 51 Pa. St. 432: ^Parmentier r. Gillespie, 9 Pa. St. Fulton's Estate, 51 Pa. St. 204. It 86; Moroney's Appeal,24Pa. St.376; is here intimated that a judgment Bank of Montgomery County's Ap- would relate to the first day of the peal, 36 Pa. St. 170. Comp. Taylor term as against an assignment for V. Cornelius, 60 Pa. St. 187. the benefit of creditors. 'Earner's Appeal, 9 W. X. C. 101. 'Hooton v. Will, 1 Dall. 450. 212 LAW OF LIEXS. Relation to Other Lien. § 176. When a judgment is recovered as a means of enfor- cing and continuing a prior lien, its lien is merged in the latter, and therefore relates to the same point of time. Thus, a judgment upon a sci. fa. issued to revive a judgment, sim- ply prolongs the lien of the original judgment, as to lands bound by it.^ The lien of a judgment recovered for a debt which is made a lien by statute, relates to the origin of the debt.^ Thus a judgment in favor of a contractor with a rail- road company, recovered in 1870, for work done in 1857, jorevailed against a mortgage executed in 1859, and the pur- chase at a sheriff's sale thereunder, in 1866, in consequence of the resolution of 21st January, 1843, [P. L. 368.]' A judgment on a recognizance to secure payment of the prin- cipal of a widow's dower, at her death, to the heirs entitled, would relate to the recognizance.* When a deed charges the land granted in it, with the payment of a sum of money, a judgment given on the bond made at the same time, will relate to the date of the conveyance, as against one who pur- chased the premises from the grantee before the recovery of the judgment." So, if an annual rent is reserved in a deed, secured by covenants, a judgment on the covenants for arrears, prevails over prior judgments against the grantee.'^ The lien of a judgment confessed on the bond which accom- panies a mortgage,' or confessed before a justice of the peace for interest falling due, and transcripted into the common pleas,' or recovered in the common pleas for the penalty of ^ Irwin i;.Nixon'sHeirs,ll Pa St.419. "Bury v. Sieber, 5 Pa. St. 431. 'De Witt's Appeal, 76 Pa. St. 283. "Bantleon v. Smith, 2 Binn. 146. 'Tyrone, etc., E. R. Co. i). Jones, See Wertz's Appeal, 65 Pa. St. 306; 79 Pa. St. 60; Shamokin Valley R. Devine's Appeal, 30 Pa. St. 348. R. Co. V. Malone, 85 Pa. St. 25 ; Fox ' McCall v. Lenox, 9 W. & S. 302. ^'. Seal, 22 Wallace 424; Pittsb., etc., A lease made between the date of R. R. Co. V. Marshall, 86 Pa. St. 187. the mortgage and the judgment was * Hillbish's Appeal, 89 Pa. St. 490. divested by a sale. A judgment confessed, there being * Hartz u. Woods, 8 Pa. St. 471. An no recognizance, would be a lien intermediately acquired title was di- only from its date. vested. LIEX OF jrDGMEXTS. 213 the bond and accrued interest in arrears/ or for some but not all of the several bonds secured by the same mortgage/ operates back to the date of the mortgage, as against inter- aaediate liens and interests.^ If, after the execution of a mortgage upon a mill, the mortgagor severs and sells a lathe, a part of the mill, it can be levied on in execution and sold, under a. fi. fa. based upon a judgment recovered on the mort- gage bond.* The successive installments of interest of the principal sum charged by a will on land, for the benefit of the testator's widow, are liens relating to the death of the decedent ; judgments recovered therefor are consequently of equal rank, and must share pro rata in the proceeds of a judicial sale of the land." Relation of Judgments for Purchase Money. § 177. As will be seen hereafter, the equitable title of a purchaser of land, whether by parol or by articles of sale, will be bound by judgments recovered against him during the existence of that title, which judgments, instantly upon the conveyance, will grasp, as of the date of their recovery, the defendant's interest in the land thus rendered complete. If, however, at the time of the conveyance, purchase money is secured by a bond or note, with warrant of attorney, and the vendor, with a view to keep a lien on the land until he is paid, causes judgment to be entered on the instrument as soon as practicable, the judgment so entered will relate to the origin of the equitable title of the vendee, prevailing against all liens since imposed on it.'' The judgment for purchase money may be entered on some day before that of ^Clarke !■. Stanley, 10 Pa. St. 472; will be a superior lien to that of Berger r. Heister, 6 Wh. 209; Pierce workmen, as respects the chattel V. Potter, 7 W. 475. mortgaged, if the mortgage was ^Commonwealth r. Wilson, 34 Pa. made before their lien attached. St. 63; Cross- v. Stahlman, 43 Pa. St. Dunn v. Megarge, 6 W. X. C. 204. 129, ° Mohler's Appeal, 5 Pa. St. 418. = De Witt's Appeal, 76 Pa. St. 283. ^In Cake's Appeal, 23 Pa. St. 186, *Hoskin r. Woodward, 45 Pa. St. the same principle is applied to a 42. So a fi. fa. on a judgment purchase-money mortgage as against founded on a chattel-mortgage bond prior judgments, and in Parke v. 214 LAW OF LEEXS. the conveyance,^ or on the same day, at an hour before or after- the delivery of the deed. When entered the day following that on which the deed is delivered, its lien is postponed to that of prior judgments,^ unless circumstances make it impracticable to enter it sooner, and the purpose of the vendor to preserve a first lien is manifest by his conduct at the time of his conveyance, and down to the entry. A., a feeble widow, having no male person about the house, executed, at a point eight miles from the county seat, a deed late in Xovember, between three and four o'clock p. m. of the day, but, finding it impossible to reach the prothonotary's office that night, waited until the following morning, when, starting very early, she arrived there before sunrise, and prior to the opening of the oflice, and withia fifteen hours of the delivery of the deed. The lateness of the hour at which she had delivered the deed was occasioned by her not being able to find the justice before whom she was to acknowledge, and by other unforeseen circumstances. Her judgment was decided to be superior in lien to prior judg- ments against the equitable title of her grantee.* When A. and B., co-tenants, sell their land to C, who gives a judgment note to each, for his one-half of the purchase money, and, the place of sale being twenty-four miles from the county seat, judgments are entered the next day, these judgments must share pro rata for the purchase money." A purchase- money judgment entered seventeen days,* or two years^ after 2seeley, 90 Pa. St. .52, as against me- 422. See Foster's Appeal, .3 Pa. St. chanics' liens for building under- SI ; Lyon c. McGutiey, 4 Pa. St. taken by the vendee before the eon- 126. vej-ance. In Stoner i. >"etf, -50 Pa. 'Watts v. Steel. 1 Pa. St. 3S6. St. 2.5S, a purchase-money judgment * Snyder's Appeal, 91 Pa. St. 477. prevailed against mechanics' liens What if the day following the con- fer the building of a saw mill, begun veyance had leen Sunday'? See by the vendee before the conveyance. Jacob's Appeal, 2-3 Pa. St. 477. 'Zeigler's Appeal. BO Pa. St. 471; ^Batz's Appeal, 10 W. X. C. 172. S\'aters' Appeal, 35 Pa. St. 523. «Lyon v. McGuffey, 4 Pa. St. 126. ^Love v. Jones, 4 W. 46-5. Here 'Kyle's Appeal, 4-5 Pa. St. 353. an hour elapsed. Stoner v. Xeff, 50 Comp. Episcopal Academy i\ Frieze, Pa. St. 2oS ; Eckert r. Davis, 4 Phila. 2 W. 16. LIEX OF JUDGMENTS. 215 the conveyance, was postponed to prior liens against the grantee. Ttie grantor may, by recording a deed which releases all the grantor's " claim and demand whatsoever," €stop himself from asserting the lien of his judgment for purchase money, entered before he conveyed the land.' A judgment confessed by a corporation, for land previously taken by it under the power of eminent domain, may be regarded as for the purchase money, and as simultaneous with the complete vesting of title to the land ; it will, therefore, prevail against a mortgage executed before by the corpora- tion.^ An orphans' court sale in partition is distinguished from private sales in this, that no title, legal or equitable, is acquired by the vendee, until he complies with the terms of sale authorized by the court. A judgment against him before such compliance, finds no estate to seize, as against a judgment for the purchase money entered the second day after the making of the deed, Sunday intervening.^ Relation Dependent on Judicial Sale. § 178. The relation of the lien of a judgment for purchase money, presujoposes the conveyance of the legal title to the vendee. Upon his equitable title, such a judgment is no lien. But it is not necessary that the legal title should be conveyed by deed from the vendor. He may employ a sheriff's sale on his judgment for purchase money, as a means of transferring it. Hence, if, after judgments have attached to the equitable title of the vendee, judgments are entered for the unpaid purchase money, and the vendor issues execu- tion thereon, and thus causes the land to be sold, he sells not merely the equity of the vendee, but the entire title, and his purchase-money judgments are payable from the proceeds, in preference to prior judgments against the vendee.* ' Waters' Appeal, 35 Pa. St. 523. ''Day v. Lowrie, 5 W. 412; Hor- ' Appeal of Borouglj of Easton, 47 bach v. Eiley, 7 Pa. St. 81 ; Cannon Pa. St. 255. 1. Campbell, 34 Pa. St. 309; Vier- ^ Jacob's Appeal, 23 Pa. St. 477. heller's Appeal, 24 Pa. St. 105. 216 LAW OF LIEXS. What are Purchase-Money Judgments. § 179. A judgment for purchase money is, normally, one in which the vendor is plaintiff and the vendee is defend- ant, and the consideration for which is the purchase money of the land. It need not show on its face that it is such.^ A judgment confessed by the vendee to one from whom he bor- rows the money to be paid to his vendor,^ or to one who is endorser, for his accommodation, of the note on which the purchase money has been borrowed,^ is not for purchase money, and is postponed to judgments previously recovered against the vendee after the inception of his equity. Hence, when one who has an equitable life-estate purchases the legal title in fee, and, on the same day, confesses a judgment for money borrowed by her and paid to the vendor, a judgment previously recovered against her, binds the entire title, legal and equitable, in the life-estate, and, from the proceeds of the sale of the entire life-estate, must be paid.* A judgment for money borrowed by the vendee, to be paid to the vendor, though the bond on which it is entered recites that it is for purchase money, will not, when there has been no treaty or communication between the vendor and the vendee, be regarded as a purchase- money judgment, as respects a judg- ment previously recovered against the vendee," or even as respects a widow's claim for the $300 exemption." An administrator sold land, under an order of the orphans' court, for the payment of debts, but, for convenience, the vendee gave judgments to certain of the decedent's creditors for their debts, and also to the guardian of the minor chil- dren for the excess beyond the debts, which would be pay- able to them. The bonds on which the judgments were entered recited thai^ they were for purchase money. The defendant could not claim the §800 exemption as against ' Cohen's Appeal, 10 \V. X. C. 544. *Hoffman's Estate, 2 Peai-son 317. ^ Merkel'.s Appeal, 10 W. X. C. 116. ^ Lynch v. Dearth, 2 P. & W. 101. ^Ibid. «Xotte's Appeal, 45 Pa. St. 361. LIEX OF JrDGMEXTS. 217 these judgments, which, as to him, must be taken to he for purchase money/ § 180. Though money is lent to the vendee on condition .that the judgment confessed by him therefor shall have pri- ority to one confessed to the vendor for purchase money, to ■which condition the vendor assents, and though the judgment to the lender purports to be for the consideration money, it ■will not be treated as a purchase-money judgment, as against a bona fide assignee of the judgment confessed to the vendor.^ When, however, it is agreed between A., B. and C, that C. shall advance the money due by B. to A. on a contract of sale of land, and that simultaneously with the delivery of the the deed, a judgment shall be confessed by B. to C for the money lent, and a judgment, purporting to be for purchase money, is confessed to C. when the deed is delivered, A. receiving at the same time the purchase money so lent, this judgment is a prior lien to a judgment j^reviously obtained against B., subsequently to the origin of his equitable title under articles.^ If land is sold by A. to B., subject to a prior mortgage to C, and on the day of the conveyance C. satisfies his mortgage, and B. confesses judgment to him for its amount, fhis judgment is for purchase money as against another con- fessed to A. for a part of the purchase money.* A judgment including both the purchase money of the land and an inde- pendent debt, has the privileges of a purchase-money judg- ment only as respects the former. Hence, if two co-tenants jointly sell their land to another, who confesses a judgment to one for his share of the purchase money, and to the other for his share thereof, plus an old debt, these judgments share equally in the proceeds of a sheriff's sale of the land ; the larger judgment can receive more than the smaller, only after '■Wiley's Appeal, 90 Pa. St. 173. purchase money ought apparently ''Hendrickion's Appeal, 24 Pa. St. to have been paid first. 363. Here the two securities shared ^Campbell & Pharo's Appeal, 36 pro rata, whereas the judgment for Pa. St. 247. * Cohen's Appeal, 10 W. N. C. 544. 218 LAW OF LIENS. this is fully satisfied.^ If A. sells to B. both real and personal property, and bonds are taken for the entire consideration, a judgment entered thereon, on the day of the conveyance, will take precedence to judgments entered previously, so far as the value of the realty is concerned, when this can be ascertained/ Fraudulent Conveyances. § 181. Judgments recovered against one who has aliened his land for the purpose of hindering, defrauding or delaying his creditors, relate to the date of such alienation, against the fraudulent grantee himself, or those deriving title to the land, or liens upon it, from him, with notice of the fraudulent character of the alienation.^ A voluntary conveyance of property is void as to existing creditors, and any conveyance from a husband to his wife, or to a trustee for her, will prima facie be deemed voluntary, as to contemporaneous creditors. The wife must show affirmatively that there was a consider- ation other than moneys obtained from her husband.* A conveyance by a son to his father, who extinguishes a debt due by the son, and jjays the balance of the purchase money in cash, is valid against existing creditors of the son, the father having no fraudulent purpose in obtaining the con- veyance.' A sale of a man's property to his sons, on bonds not due for a long time, is invalid as to existing creditors who will be hindered or delayed thereby, without respect to the good faith of the grantor.** So, if the conveyance is in consideration of a support to be furnished to the grantor, or his wife, or child,^ though in addition the grantee may 'Batz's Appeal, 10 W. >'. C. 172. ney v. Good, 21 Pa. St. .340; Gamber ^Neagleys Estate, 2 Pearson 3(J9. i-. Gamber, 18 Pa. St. 36.3. ■Simon i: Gibson, 1 Y. 291 ; Reich- 'Reehling v. Byeis, 9 W. >". C. 359. art ?■. Castator, .5 Binn. 109; Sherk r. *Hennon v. McClane, SS Pa. St. Endress, 3 W. k S. 2.55; Eyrick v. 219; Kepner !■. Biirkhardt, -5 Pa. St. Hettrick, 13 Pa. St. 4SS : Huey's Ap- 47S : Adlum v. Yard, 1 E. 163. peal, 29 Pa. St. 219; Killinger c. Rei- 'Hennon v. McClane, SS Pa. St. denbauer, 6 Serg. & R. 531 ; Heath v. 219 ; Johnstone v. Harvey, 2 P. & W. Page, 63 Pa. St. l(h. • 82; Sanders v. Wiigonieller, 19 Pa. * Wilson !■. Silkman, 97 Pa. St. 509; .Si. 248. Gault V. Saffin, 44 Pa. St. 307 ; Kee- LIEN OF JUDGMENTS. 219 undertake to pay the grantor's debts.^ A fraudulent intent on the part of the grantor alone, will not vitiate the convey- ance.^ A conveyance, fraudulent as to debts existing at the time it is made, is not, on that account, fraudulent as to debts contracted subsequently,^ and no conveyance of land can be fraudulent as to creditors who become such with knowledge thereof.* If, however, the grantee confesses to A. that the conveyance to him was designed to defraud existing creditors, and that the real interest in the land continues in the grantor, and A., relying on this statement, subsequently lends money to the grantor, the conveyance will be void as to A.'s debt.°^ If, after a judgment is recov- ered, the defendant, while it is a lien on his lands, makes a voluntary conveyance thereof to his wife, this conveyance is not fraudulent as to such judgment, '^ and therefore the wife, like any other terre-tenant, must be made a party to the sci. fa. for the revival of the judgment.' Simultaneousness. § 182. The lien of a judgment relates to the beginning of the day in which it is entered ; or, in other words, a day is the unit of time, fractions of which are not regarded in determining the origin of the lien of judgments. Judg- ments entered at any hours of the same day, are of equal rank, and must share jjro rata in the proceeds of the land.** ^ Jol\nstonei;.Harvey,2P.&W.82; surplus; after paying these debts, in Sanders v. Wagonseller, 19 Pa. St. 248. preference to tlie grantee. ^Reehlingi;. Byers, 9 W. N". C.359. ^Nippe's Appeal, 75 Pa. St. 478; ''Harlani^.Miiglaughlin, 90Pa. St. Williams v. Davis, 69 Pa. St. 27; 293; Snyder v. Crist, 39 Pa. St. 499; Ehoad's Appeal, 11 W. N. C. 276. Monroe v. Smith, 79 Pa. St. 459; 'Khoad's Appeal, 11 W. N. C. 276. Kimble v. Smith, 9 W. N. C. 357. It is not within the scope of this * Monroe v. Smith, 79 Pa. St. 459; work to treat fully the subject of Snyder v. Crist, 39 Pa. St. 499. fraudulent conveyances. = Mowry's Appeal, 9 W. K C. 362. «Metzler v. Kilgore, 3 P. & W. 245 ; If, subsequently to A.'s loan, the Commonwealth v. Gleim, 3 P. & W. land is assigned by the grantee for 417; Emerick v. Garwood, 1 P. A. the benefit of the creditors of the Brown 20; Claason v. Eichbaum, 2 assignor's ancestor, from whom the Grant 130; Ladley v. Greighton, 70 land descended, A. is entitled to the Pa. St. 490; Long's Appeal, 23 Pa. 220 LAW OF LIENS. Mortgages, though treated as estates in land, inter se, are, as concerns judgments, liens merely; judgments entered and mortgages recorded the same day, are liens of equal rank.'- If a judgment is recovered by one creditor, and at a later hour on the same day another creditor issues execution on a judgment which itself is not a lien, and the land is levied on, on the same day, the lien of the judgment and that of the levy under the^. fa. will be synchronous, and will share ratably the proceeds of a sheriff's sale of the premises.^ When the exact time of the entry of a judgment cannot be ascertained, it will relate to the first moment of the day, as against an assignment for the benefit of the creditors, made the same day, and at an ascertained hour thereof.'* A judg- ment binds the fund produced by a sheriff's sale of the real estate, though it is not entered until some hours after the sale, but on the same day.* The exact moment of the entry of a judgment may be inquired into, in order to ascertain whether the defendant was then dead ;° and, since a power of attorney to confess judgment authorizes a confession in one court only, the exact minute of each of two confessions St. 299; Lanning v. Pawson, 38 Pa. Pa. St. 179; Eigler v. Light, 90 Pa. St. 480; Small's Appeal, 24 Pa. St. St. 235; Claason's Appeal, 22 Pa. St. 398; Boyer's Estate, 51 Pa. St. 432; 359; and Hendrickson's Appeal, 24 Neff V. Barr, 14 Serg. & E. 166 ; Mc- Pa. St. 363. Clure I'. Roman, 52 Pa. St. 458; Bow- = Wilson's Appeal, 90 Pa. St. 370. ers' Appeal, 68 Pa. St. 126; Wall's In this case the liens were not in fact Appeal. 84 Pa. St. 101 ; Cohen'Ss,Ap- synchronous, because the levj' in peal, 10 W. N. C. 544; Kerr's Ap- execution was made on a day subse- peal, 92 Pa. St. 236. quent to tliat of the rendition of the ^Claason v. Eichbaum, 2 Grant competing judgment. 130; Claason's Appeal, 22 Pa. St. = Boyer's Estate, 51 Pa. St. 432. 359; Doolittle i;. Beary, 2 Phila. 316 ; •Small's Appeal, 24 Pa. St. 898. Magaw V. Garrett, 25 Pa. St. 319; Jadgaients entered fourdays (Small's Boyer's Estate, 51 Pa. St. 432; Hen- Appeal), or two days (Hahni). Smith, drickson's Appeal, 24 Pa. St. 363; 1 P. & W. 482; Fackler v. Bale, 1 Coyne V. Souther, 61 Pa. St. 4.55. But Pearson 171), after the sale, cannot a parol agreement that the mortgage share in the proceeds. The defend- shall have priority, will be enforced. ant or his assignee will take them in Maze V. Burke, 35 Leg. Int. 396, with preference, which compare Ayres' Appeal, 28 ^Lanning i'. Pawson, 38 Pa. St. 480. LIEN OF JUDGMENTS. 221 made thereon, in two courts, may be inquired into, to decide "which is valid.^ As against purchasers and assignees for the benefit of creditors, the exact moment of the rendition of a judgment may be examined, in order to determine 'priority.^ Subject of the Lien. § 183. The lien of judgments binds real estate only. This is recognized by innumerable decisions' as well as by several acts of assembly, e. g., the third section of the act of 21st March, 1772, [1 Sm. L. 390,] the act of 4th April, 1798, [3 Sm. L. 331,] the fourteenth section of the act of 20th March, 1799, [3 Sm. L. 358.] Hence, a judgment does not bind the interest of a lessee in a lease for the term of twelve months, and so, from year to year, so long as both parties please, with a covenant not to assign without special license, and a proviso that if the lessor should determine the lease, the lessee should be re-imbursed all reasonable expenses; such lease vests no freehold interest in the lessee,* nor is a term of years of very great length and value bound by a judgment.^ When a will peremptorily directs the sale of the testator's land and distribution of the proceeds, it is transmuted into personalty, and judgments recovered against the heirs find nothing to which to attach themselves as liens.° But, if the 'Neff V. Barr, 14 Serg. & R. 166. 13 Serg. & R. 330 ; Morrow v. Bren- = Long's Appeal, 23 Pa. St. 297; izer, 2 R. 184; Gray v. Smith, 3 W. Maynard v. Esher, 17 Pa. St. 222; 289; Davis' Appeal, 83 Pa. St. 348. Bank v. Gorman, 8 W. & S. 304; Comp. Burr •«. Sim, 1 Wh. 252; Alli- Ladley v. Creighton, 70 Pa. St. 490. son v. Kurtz, 2 W. 185 ; Silverthorn 'Bank v. Crevor, 2 R. 224; Fry- r. McKinster, 12 Pa. St. 67; Parkin- hoffer V. Busby, 17 Serg. & R. 121; son's Appeal, 32 Pa. St. 455; Wilson Commissioners t'.Henry,3P.&W.26. v. Shoenberger's Exr., 34 Pa. St. 121; *Krause's Appeal, 2 Wh. 398. McClure's Appeal, 72 Pa. St. 414. Comp. Dalzell v. Lynch, 4 W. & S. The direction to sell must be positive 255, which decides that a lease for and explicit; if it is subject to a ten years may be sold on fi. fa. ; future contingency, conversion is and William SI). Downing, 18 Pa. St. 60. wrought only on the happening of ^Bismarck Building Ass. 0). Bolster, this contingent event. Nagle's Ap- 92 Pa. St. 123. peal, 13 Pa. St. 260; Bleight v. The « Stuck V. Mackey, 4 W. & S. 197; Bank, 10 Pa. St. 131 ; Stoner v. Zim- Brolasky v. Gally's Exr., 51 Pa. St. merman, 21 Pa. St. 397 ; Anewalt's 509 ; Allison's Exr. v. Wilson's Exr., Appeal, 42 Pa. St. 417 ; Chew v. Nick- 222 LAW OF LIENS. persons entitled to the proceeds agree with each other and the executors to accept the land as such, the personalty is reconverted into realty, and judgments against any of such persons, recovered after this reconversion, will bind the interest of the defendant therein.^ The election to take the land may be shown by parol, and, when possession of the land was taken by the heir, in pursuance of it, and con- tinued for twenty-one years, the title was treated as vesting at the date of taking possession.^ The election, however, must always be manifested by some unequivocal act.^ Though the purpose of the direction to convert cannot be carried out, because void, as, for example, when it is for a charitable use, and the will was made within thirty days of the decedent's death, the direction to convert nevertheless stands.* An order of the orphans' court for sale of land in partition, which the heirs decline to take at the valuation, is not a con- version until actually carried out. Hence, judgments recov- ered against one of the heirs, after such order is issued, but before the sale, become liens on his undivided interest, and will take the proceeds of the sale of his purpart in prefer- ence to a subsequent assignee of the heir.^ Partnership Real Sstate. § 184. Land belonging to a partnership must, so far as the partners individually are concerned, be applied, according to the equities between them, to the payment of partnership lin, 45 Pa. St. 84. A declaration by peal, 85 Pa. St. 339. Comp. Neely the testator, after ordering the ex- v. Grantham, 58 Pa. St. 433. editors to sell his land and divide ^ Stuck v. Maekey, 4 W. & S. 197 ; the proceeds among his heirs, that Willing v. Peters, 7 Pa. St. 287; if they all shall agree to a division Simpson v. Kelso, 8 W. 247 ; Smith of the land as such, among them- v. Starr, 3 Wh. 62 ; Rice v. Bixler, 1 selves, they need not sell, does not W. & S. 445. make the order to sell contingent; ^ Stuck v. Maekey, 4 W. & S. 197. the land is converted from the time "Willing v. Peters, 7 Pa. St. 287. of testator's death, and judgments * Evans' Appeal, 63 Pa. St. 183; afterwards recovered against one of Davis' Appeal, 83 Pa. St. 348. the heirs are not liens. Jones v. ^ Appeal of John Withers, 14 Serg. Caldwell, 97 Pa. St. 42; Laird's Ap- & R. 185. LIEX OF JTJDGMEXTS. 223 debts.^ Each partner's interest is an interest in what shall appear, upon a final settlement, to be due him. Since the partner has no estate in the land as such, he cannot commu- nicate any greater interest to a creditor. Hence, a judgment against a partner for a private debt, is not a lien upon part- nership real estate,- and a purchaser from the firm takes free from the encumbrance of judgments against members thereof.* A mortgage by a firm is payable from the proceeds of a sale of the firm's land, notwithstanding prior judgments against individual members.* If a judgment against one or more members of a firm is for a firm debt, it becomes a lien on the partnership land,' and a judgment against A., B. and C, not styled partners, may be shown by parol to be against them as partners, for the purpose of letting it in upon the pro- ceeds of a judicial sale of the partnership real estate.'^ If a judgment is confessed by a partner against the partners as such, though without authority from his copartners, it will, though void as to them individually, be binding as to the firm property.^ If the action is brought against a firm, one j)artner not being summoned, a judgment recovered against the other will bind the partnership realty,* and, when one of two partners gives a note, reciting that it is for a firm 'Miley v. Wood, 71 Pa. St. 488; ^Xj^yip,. y_ Henderson, 17 Serg. & Kramer v. Arthurs, 7 Pa. St. 165; R. 459. But a debt contracted for Erwin's Appeal, 39 Pa. St. 535. the purchase of land by one partner, ^ Miley v. Wood, 71 Pa. St. 488 ; to whom the deed is made, does not Kramer v. Arthurs, 7 Pa. St. 165; become a partnership debt, because Lancaster Bank v. Myley, 13 Pa. St. the land is intended for and is sub- 544 ; Erwin's Appeal, 39 Pa. St. 535 ; sequently conveyed to the firm. Eidgway, Budd & Co.'s Appeal, 15 North Penns3'lvania Coal Co.'s Ap- Pa. St. 177; Overholt's Appeal, 12 peal, 45 Pa. St. 181. Pa. St. 222; Taylor v. Henderson, 17 "Overholt's Appeal, 12 Pa. St. 222. Serg. & K. 453 ; Lathrop & Dale's . ' Vandike's Appeal, .57 Pa. St. 9 ; Appeal, 1 Pa. St. 512. Grier v. Hood, 25 Pa. St. 430 ; Kelly's ' Miley v. Wood, 71 Pa. St. 488. Appeal, 16 Pa. St. 59 ; Koss v. Howell, * Lancaster Bank v. Myley, 13 Pa. 84 Pa. St. 129; Erwin's Appeal, 39 St. 544. In Lathrop & Dale's Appeal, Pa. St. 5.35. ] Pa. St. 512, the individual creditor * Commonwealth v. Rogers, 4 CI. shared in the proceeds of the firm 252. property only by subrogation. 224 LAW OF LIENS. debt, with warrant of attorney to confess judgment, and signs it with the name of the firm, an execution on the judg- ment entered on this warrant will be stayed only as to the individual property of the other members of the firm : not as to the partnership property.^ When land is conveyed by deed to A., B. and C, "doing business under the style of A., B. it Co., their heirs and assigns," the land belongs to them as partners, and a judgment against them on a note signed and sealed by them severally, but to whose signature is affixed the expression "doing business under the style of A., B. & Co.," is a lien on the lands, and may be revived against terre-tenants who bought them since it was entered.^ A judg- ment against a partnership, by the name of the firm, is not void, and will be supported for the purpose of distribution of the proceeds of the firm property.^ Though money loaned to a member of the firm, to be used by it, does not therefore become its debt, it may legitimately assume repayment of the money, though in failing circumstances, and a judgment against it therefor, cannot be impeached by other creditors.* § 185. In order to exempt property, as firm property, from the lien of judgments against the individual partners, it is necessary that this property should have been conveyed to the partners as such, and not barely as tenants in common or joint tenants.® If the deed conveys to them as tenants in common, it is not competent to show by parol that they were in fact partners, and as such purchased the premises,'' for the ^Ross V. Howell, 84 Pa. St. 129. "Ridgway, Budd & Co.^s Appeal, 2 LaufFer v. Cavett, 87 Pa. St. 479. 15 Pa. St. 177 ; Hale v. Henrie, 2 W. 'Merkle's Appeal, 33 Leg. Int. 358. 143; Black r. Seipt, 84 Leg. Int. 66; * Siegel V. Chidsey, 28 Pa. St. 279 ; Holt's Appeal, 3S Leg. Int. 430 ; Ap- Walker v. Marine National Bank, 11 peal of Geddes, 84 Pa. St. 482 ; Hard- W. X. C. 142. A judgment confessed ing v. Devitt, 10 Phila. 95. Land by the borrowing partner against the granted to A. and B., in their indi- firm will be valid onl}' against him- vidual names, does not become the self, if the firm has not ratified his property of a partnership subse- act of borrowing. Vandegrift v. quently formed by A., B. and C, Eedheffer, 11 W. K. C. 484. merely because the firm pays a part ° Vandike's Appeal, 57 Pa. St. 9. of the purchase money, and makes LIE^" OF jrDGJIEXTS. 225 purpose of varying the rights of lien creditors and purchasers. When, by the language of the deed/ or of the articles of agree- ment, where no deed has been executed,^ the grantees take as tenants in common, a judgment against one or more partners for their private debt, is a lien on their several undivided interests. Nor is the application of this principle different ^yhen the judgment is for a loan of money to a partner, which he is to use in purchasing an interest in the partnership, and an undivided one-third of the real estate used for partnership purposes.^ If the equities of the partners are alone at stake, parol is admissible to show that though the deed is to A., B., C and D., as tenants in common, they in fact bought the land as partners, for partnership purposes, and with partner- ship assets. Hence, if such is the case, when a sale of the j)remises takes place under a mortgage for purchase money, the proceeds, after satisfying the mortgage, will go to the surviving partner, the others having withdrawn or died, and the partnership account being still unsettled.* When land Avas sold by A. to B., who in fact bought for himself and C. and D., as partners, and the land was devoted to partnership uses, a judgment given by B. to A. for the purchase money, at the time of the conveyance, was a lien upon the entire interest in it,'^ and if a deed is made to A., who in fact is trustee for several partners, partnership money paying the •consideration, the trust may be shown by parol, and judg- , improvements on it. Lefevre's Ap- judgments against A. Ebbert's Ap- peal, 69 Pa. St. 122. If lots are con- peal, 70 Pa. St. 79. veyed to A. and B., their heirs and ' Hale v. Henrie, 2 W. 143. The assigns, judgments against either A. same is true of a mortgage. Mc- or B. are liens on his undivided in- Dermat v. Lawrence, 7 Serg. & R. terest, though the lots are bought for 438; Cummings'Appeal,2.5Pa.St.268. partnership purposes, and are paid ^Erb & Matter's Estate, 1 Pearson for out of partnership assets; these 98; Holt's Appeal, 38 Leg. Int. 430; facts, however, nowhere appearing Appeal of Geddes, 84 Pa. St. 482. in the deed of conveyance. Hence, 'Foster v. Barnes, 2 W. N. C. 700. -a judgment confessed by A. to B., on * Abbott's Appeal, 50 Pa. St. 234; a settlement of the partnership ac- Foster v. Barnes, 2 W. IS". C. 700. ■counts, was postponed to earlier ^ Billmeyer v. Slifer, 2 Pittsb. 539. 226 LAW OF LIl^XS. ments against the partnership will be a lien on the land to the exclusion of judgments against the individual members of it for private debts.^ If A., owning land, forms a partner- ship with B., agreeing in parol to convey it to the firm, and improvements are made on it by firm assets, and i,t is occu- pied for firm purposes, but no deed or other instrument evidences the title of the firm, it nevertheless continues to be the property of A. and will be bound by judgments recovered against him individually.^ But, land bought by one partner in his own name, but for the firm, becomes the firm's when he executes a declaration of trust in its favor, and the pro- ceeds of the land must then be applied to partnership debts.* § 186. While a judgment for an individual debt is not a lien upon partnership realty, judgments against the partner- ship are a lien on all the estate, private and associate, of the partners, according to the order of their rendition.* And a judgment by one firm against another, containing one of the same members, is a lien against the individual estate of the partners, standing as a security for what shall be found due eventually between the firms." The act of April 14th, 1838, [P. L. 467,] permits one firm to sue another, notwithstanding that the same person or persons may be in both firms. It does not, however, authorize suit by one partner against the firm, for a debt due him on partnership account, though a statement has been made by the firm ascertaining a certain sum to be due him,'' nor by one who is a partner in a firm,, for a debt due from the firm to him on notes of the firm payable to his order,' or on other special contracts.^ 'Kramer 1'. Arthurs, 7 Pa. St. 165; St. 512. See York Bank's Appeal, Erwin's Appeal, 39 Pa. St. 535. See 36 Pa. St. 458. Coder r. Huling, 27 Pa. St. 84; Lacj- ^Commonwealth !'. Rogers. 4 CL V. Hall, 37 Pa. St. 360. 252 ; Tassey v. Church, 6 W. et S. 465. ''McCormick'sAppeal,57Pa.St.54. "McFadden v. Hunt, 5 W. & S. 'North Pennsylvania Coal Cq.'s 468. Appeal, 45 Pa. St. 181. ' Hall v. Logan, 34 Pa. St. 331. *Cummings' Appeal, 25 Pa. St. 'Miller r. Knauff, 3 Penna. E. J. 268 ; Lathrop & Dale's Appeal, 1 Pa. 225 ; Price v. Spencer, 7 Phila. 179. LIEN OF JUDGMENTS. 227 Real Estate. § 187. It is a doctrine often reiterated, that every estate in land is bound by the lien of a judgment,^ whether the owner be seized or disseized.^ A judgment is a lien on a fee which is charged with a perpetual ground-rent,^ or on the ground-rent issuing therefrom;* upon a life estate;" upon the interest of a widow under the intestate laws, in the lands of her husband after his decease ; "^ upon the life-estate of the husband in the wife's owelty in her ancestor's lands, allotted to the other heirs in partition;'' upon the second husband's estate in his wife's life-estate as a widow in the lands of her deceased former husband.^ Since, after the execution of a mortgage, the mortgagor retains a legal estate in the land, sub- ject to the encumbrance, a judgment recovered against him, binds that estate, and no subsequent release of the equity of redemption, in whatever form, will discharge its lien.' Un- divided interests in land are subject to the lien of judgments against the owners thereof, and when partition is effected, by which a part of the land is set off in severalty to the defendant, • the lien is concentrated upon the part thus set off.^" A. and B., being co-tenants of lands in two counties, judgments were recovered against A. in both counties, after which partition was effected, the land in one county being allotted to A., and in the other to B., but the owelty charged on B. exceeded 'Krause's Appeal, 2 Wh. 39S ; ■ Beard r. Deitz, 1 W. 309 ; Bank v. Becker's Appeal, 27 Pa. St. .52 ; Lynch Stauffer, 10 Pa. St. 398. r'. Dearth, 2 P. & W. 101; Auwe'rter « Parker v. Stuckert, 2 M. 278; V. Mathiot, 9 Serg. & R. 397 ; Russell's Bachman v. Chrisman, 23 Pa. St. 162. Appeal, 15 Pa. .St. 319; Drysdale's The wife's initial right of dower in Appeal, 1-5 Pa. St. 4-37 ; Mitchell v. her husband's land, is bound by a Hamilton, 8 Pa. St. 486 ; Stephens' judgment again.st him, and extin- Appeal, 8 W. & S. 186. guished by a sale thereunder, thougli. ^ilitchellr. Hamilton, 8 Pa. St. 486. after the husband's death. Thomas 3 III re John Vandevender, 2 Br. 303. r. Harris, 43 Pa. St. 231 ; Directors of « Sellers v. Burk, 47 Pa. St. 344; Poor i). Eoyer, 43 Pa. St. 146. Davis V. Ehrman, 20 Pa. St. 2-56 ; E£ "Directors of Poor v. Royer,43 Pa. 2)iirtf' Peneveyre, 6 W. & S. 446. St. 146. ^Hoffman's Estate, 2 Pearson 317. '"Bavington v. Clarke, 2 P. & W. *Shaupe v. Shaupe, 12 Serg. & R. 11.5. Comp. Long's Appeal, 77 Pa. 12; Thomas v. Simpson, 3 Pa. St. 60. St. 1.51. 228 LAW OF LIEXS. that charged on A. ; B. was compelled to pay to the lien creditors of A., only the dijfference between the two owelties, though the eflfect was to give advantage to the creditors who had liens on the lands allotted to A., over those whose liens had been in the other county.^ Whatever fixtures are incorporated into the land, e. g., machinery in a mill, are bound by the lien of the judgment, and the removal of the fixtures, with a view to defrauding the judgment creditor, will be enjoined.^ If land is conveyed to A., in trust for B., A.'s interest in the land is measured by his right to re-imbursement for what he has paid or obligated himself to pay, in procuring the conveyance. The proceeds of a sheriff's sale of the land, under a judgment against A. for the purchase money, must be applied, after satisfaction of this judgment, which is A.'s^sole liability for the purchase of the land, to judgments against B.^ § 188. When, the husband having contracted ,to purchase a house, and paid a part of the price, the title was conveyed to his wife, on her paying the residue, as security for re-im- bursement, a judgment against him bound the house, subject to the duty of repaying the wife her advancement.* The estate of the cestui que trust cannot be diminished, or that of the trustee enlarged, for the benefit of judgment creditors, because of the failure on the part of either to give notice to such creditors, before their judgments are obtained, of the character of the trust estate." A. conveyed land to B., by deed, taking a judgment for the purchase money. B., without A.'s knowledge, intended the land for a firm com- posed of B., C. and D. It was devoted to the firm uses, and, by means of firm assets buildings were erected on it. A.'s judgment bound the whole interest in the land, but one who 1 Machette's Estate, 4 W.N. C. 371. *Eeed's Appeal, 13 Pa. St. 476; ^Steinmetz v. Witmer, 1 Pearson Shryock ■!). Waggoner, 28 Pa. St. 430 ; 524. Hiester r. Fortner, 2 Binn. 40; Mar- = Reed's Appeal, 13 Pa. St. 476. tin v. Jackson, 27 Pa. St. 504; Cover * Buttertield's Appeal, 77 Pa. St. 97. v. Black, TPa. St. 493. LIEN OF J€DGMEXTS. 229 bought at a judicial sale of the land as B.'s, with notice of the equities of C. and D., held subject to the duty of convey- ing an undivided one-third to each of them on their paying their share of A.'s judgment.-' When a legacy coming to a wife, is invested in real estate, the husband contributing an amount necessary to comj)lete the purchase, and the title is conveyed to a trustee for the wife, to be free from the control of her husband, the only interest of his which is subject to tbe lien of judgments, is the right to the sum of money which he has contributed.' Several persons holding liens against land belonging to a congregation, agreed that one of their number should purchase it, hold it in trust for them all, sell it, and distribute the jjroceeds ratably, paying any excess to the congregation. A judgment against the purchaser bound his interest, and on a sale of the property in accordance with the trust, the amount payable to him must be appropriated to it, notwithstanding an assignment of his interest, after the recovery of the judgment.^ § 189. Similar to the relation of a trustee of the legal title, to the cestui que trust, is, as regards the lien of judgments, that of a vendor of land, before conveyance of the legal title, to his vendee. The vendor holds the legal title as security for the payment of the purchase money, and a judgment recovered against him, after the rise of the equitable title of the vendee, will attach to the land only to the extent of the money yet due on the contract.* Hence, when A. contracts to sell land to B., who, having paid a portion of the purchase money, assigns his interest to C, and then A. conveys the legal title to B., taking a judgment for the purchase money, 'Billmeyer v. Slifer, 2 Pittsb. 539. 424; Siter'a Appeal, 26 Pa. St. 178 'Lichtyr. Hager, 13Pa. St. 565. Crownis' Appeal, 28 Pa. St. 139 'Drysdale's Appeal, 1.5. Pa. St. 457. Barnes'. Appeal, 46 Pa. St. 350 *McMullen v. Wenner, 6 Serg. & Fasholt v. Eeed, 16 Serg. & R. 266 E. 18; Zerns v. Watson,- 11 Pa. St. Stewart x'. Coder, 11 Pa. St. 90; Tay- 260; Patterson '.s Estate, 25 Pa. St. lor r. Preston, 79 Pa. St. 436; Holt's 71; Catlin v. Kobinson, 2 W. 373; Appeal, 38 Leg. Int. 431 ; Appeal of Cahoon -u. Hollenback. 16 Serg. & R. Geddes, 84 Pa. St. 482. 230 LAW OF LIEXS. B. holds the legal title as trustee for C, and judgments after- wards recovered against B., bind only B.'s right to receive the purchase money due by C. Such judgments, therefore, are no defence to an action by B. against C. for the unpaid purchase money.^ The trust relation between the vendor and vendee of land, the former of whom retains the legal title, cannot affect a judgment recovered against the vendor before the contract was entered into. A sale of the land on it, divests the interest of both vendor and vendee, but, after satisfying the judgment, the vendee is entitled to so much of the remaining proceeds as exceed the amount due on his contract.^ Squitable Interests. § 190. Under articles for the sale of land, the vendee acquires an equitable title to the land, which may be bound by judgments recovered against him after its inception,^ and Avhenever, under a parol contract, the vendee could insist in equity upon the conveyance of the legal title to him, by complying with the conditions of the sale, a judgment against him will attach to that equity.* If, after payment of one- half of the purchase money under a parol contract, a judg- ment is recovered against the vendee, and then the residue ^ Taylor v. Preston, 79 Pa. St. 436 ; charge of his covenant in the articles Poster V. Trout, 2 Serg. & E. 11. The to pa}- the purchase money. Fasholt same principle applies when the v. Reed, 16 Serg. & R. 266. vendee under articles' contracts to 'Russell's Appeal, 13 Pa. St. 319; sell his interest to another, though Poster's Appeal, 3 Pa. St. 79; Richter the legal title is never conveyed to !'. Selin, 8 Serg. &R. 425; Carneghan the former. His interest in the con- ■!). Brewster, 2 Pa. St. 41 ; Purviance tract is a security for the purchase v. Lemrnon, 16 Serg. ifc E. 292; Ca- money, and judgments recovered hoon r. Hollenback, 16 Serg. & R. against him are a lien on this inter- 425; Semple v. Mown, 4 Phila. 86; est. Appeal of Geddes, 84 Pa. St. CarkBoff r. Anderson, 3 Binn. 4; 482. Cake's Appeal, 23 Pa. St. 186 ; Lynch 2 Crownis' Appeal, 28 Pa. St. 139 ; v. Dearth, 2 P. & W. 101 ; Hartman Siter's Appeal, 26 Pa. St. 178 ; Barnes' r. Stahl, 2 P. & W. 223 ; Baird v. Lent, Appeal, 46 Pa. St. 350. The vendee, 8 W. 422; Neagley's Estate, 2 Pear- under articles, may pay judgments son 309. recovered against his vendor before ''Pugh v. Good, 3 W. & S. 56; Au- the contract of sale, in partial dis- werter v. Mathiot, 9 Serg. & R. 397. LIEIS" OF JTJDGMEXTS. 231 of the purchase money is paid, and the title is conveyed by his direction to A., in trust for him, a sheriff's sale on this judgment will divest the estate of both A. and the vendee.^ When, under a parol contract, no money is paid, and though possession is taken by the vendee, it does not appear to have been taken with the consent of the vendor, a judgment recovered against the vendee will bind the interest which he acquires in virtue of a subsequent ratification of the contract by the vendor, who conveys the legal title in accordance therewith.^ If, after contracting to purchase land, A. dies, •devising a life-estate therein to B., and the fee to C, a judg- ment recovered against B., binds the equitable life-estate.^ If, at a sale by an administrator, under an order of the orphans' court for the payment of debts, A. becomes a pur- chaser, but fails to pay the purchase money on the day men- tioned in the conditions of sale, he acquires no title; since, in such a sale, time is of the essence of the contract. Hence, when the day on which payment ought to have been made was April 1st, 1849, but the first partial payment was made May 19th, 1849, when the deed was delivered, a judgment entered on April 4th, 1849, was not a lien as against one entered by the administrator for the residue of the purchase money on May 21st, 1849.* § 191. A sheriff's vendee, after acknowledgment of the deed, which is, however, retained until payment of the pur- chase money, has an equitable estate, and this estate may be bound by a judgment against him.' So has he between the date of the sale and of the acknowledgment of the deed." Under a lease from A. to B., for forty-nine years, which stipulates that B. is to erect improvements, for which, at the expiration of the term, A. shall pay him, or, if he shall fail iRoth V. Humrich, 76 Pa. St. 12.s. ^Hartman v. Stahl, 2 P. & W. 225. ^Appeal of Lloyd, Huflf & Watt, "Morrison v. Wurtz, 7 W. 437; S2 Pa. St. 485. Slater's Appeal, 28 Pa. St. 169; Car- ' Hoffman's Estate, 2 Pearson 317. ver's Appeal, 89 Pa. St. 276. Comp. * Jacob's Appeal, 23 Pa. St. 477. Stoever v. Eice, 3 Wh. 21. 232 LAW OF LIEXS. to do so, B. shall have a right to purchase the lot in fee- simple at a valuation, B. acquires an interest before the end of the term which may be bound by a judgment recovered against him.^ A father, by articles with his son,, agrees that his land shall become the son's, at the death of himself and wife, the son paying his debts, supporting himself and wife, during their lives, and paying certain sums to a daughter. The son entered into possession, paid some of the debts, and furnished a support to hid parents with which they were substantially satisfied. Judgments were recovered against the son. Afterwards, the father dying, other judgments were i"ecovered against him, on which the land was sold. The judgments obtained before the father's- death were first payable from the proceeds.^ If the legal title is conveyed to A., as trustee for B., A. has a beneficial interest only to the extent of the money paid by him in acquiring the title. The equitable title is in B., to the extent of the entire value of the land, lees the money thus due to A., and will be bound by judgments against B.,^ and judgments against A. are not entitled to be paid out of the proceeds of a sale of the premises on a mortgage executed by A., under B.'s direction, with the understanding that it was to bind B.'s equity, for whose benefit the money was lent on the mortgage ; after satisfying the mortgage, judg- ments against B. will take the proceeds.* An insolvent debtor who has assigned his land for the paj'ment of his debts, has a resulting equity to such part of it as shall remain after the debts are paid. A judgment recovered against him after the assignment, will attach to this equity.* Hence, when such resulting interest is sold in execution,, the judgment creditor, not the assignee or the trustee in 'Ely V. Beaumont, 5 Serg. & R. 'Reed's Appeal, IS Pa. St. 476; 124. Conip. Kraiise's Appeal, 2 Wh. Lichty v. Hager, 13 Pa. St. 565; But- 308. terfield's Appeal, 77 Pa. St. 197. ^Louderrnilch v. Loudermilch, 2 * Stiles r. Bradford, 4 R. 393. Pearson 134. MVebb v. Dean, 21 Pa. St. 29. LIEX OF JUDGMEXTS. 233 insolvency, is entitled to the proceeds.^ A judgment is a lien on the right to perfect a title to land, growing out of actual settlement of it.^ § 192. A vendee under articles, having paid no part of the purchase money, but having gone into possession and made improvements of the premises, may surrender his rights, and one who acquired a judgment against him nine years after such surrender, obtained no lien upon any interest in virtue of the articles.^ Six persons, combining to jDurchase land in common, execute each, as principal, a bond, Avith the others as sureties, for the purchase money. The title is conveyed to one of the six as trustee for all, who takes possession, pays taxes, makes improvements. One of the six having paid none of the purchase money, renounces his right to any share in the land, and his bond is paid by the other five. A judgment recovered against him after this renunciation was not a lien on the land.* Land on -which Judgment is not a Lien. § 193. When real estate is devoted to a public use, and cannot, therefore, be taken in execution, it is not subject to the lien of judgments. As enjoying this immunity, may be enumerated turnpikes,^ a strip of land bought by a city with a view to making it into a street," the land which forms the bed of a canal.^ Under the railroad act of 1849, a company acquires only an easement in the land taken by it for the highway, which is not bound by a judgment;^ but, if the company purchases lots, with a view to making a canal-basin on them, for facilitating the loading and discharging of cars, ' Shaeffer v. Child; 7 W. 84 ; Ebright " Schaifer v. Cadwalader, 36 Pa. St. V. Bank, 1 AV. 397. 126. 2 Myers v. Myers, 8 W. 430. 'Spear v. Allison, 20 Pa. St. 200; ' Raffensberger v. Cullison, 28 Pa. Canal Co. v. Bonham, 9 W. & S. St. 426. 27. * Deitzler c. Mishler, 37 Pa. St. 82. * Western Penna R. R. Co. v. John- 5 Beams' Appeal, 19 Pa. St. 453; ston, 59 Pa. St. 290; Leedom v. Ply- Ammant v. Turnpike Co., 13 Serg.. & mouth R. R. Co., 5 W. & S. 265. R. 210. 234 LAW OF LIENS. but does not incorporate them into its road by some decisive act, these lots can be bound by a judgment and sold there- under in execution/ By analogy, a gratuity granted by the state to a citizen of Chambersburg, whose house, encumbered by the lien of a judgment, was destroyed during the invasion of the Confederate forces in the late civil war, cannot be claimed by the judgment creditor.^ Churches may be bound by judgments.'^ Synchronous Ownership. § 194. It is a general principle that a judgment binds only such estate of the defendant as he has at the moment of its recovery. If the estate has passed from him, before its recovery, the judgment is no lien,* though the alienation is by an assignment for the benefit of creditors.** But, if judgments are recovered on a certain day, the exact hour not appearing, and on the same day, at an ascertained hour, the defendant makes an assignment for the benefit of cred- itors, the judgment will attach to the real estate assigned." When the exact moment of the alienation and of the entry ' of the judgment is known, the latter is a lien only when its entry in fact precedes the alienation.'' If, on the same day on which a judgment is recovered against A., he acquires laud by purchase at sheriff's sale,* or otherwise, the judg- ment attaches to it. A judgment of revival binds land acquired by the defendant since the rendition of the orig- inal judgment, and owned by him at tl^e time the judgment of revival is entered." Lands acquired by the defendant ' Shamokin Valley E. E. v. Liver- Fulton's Estate, 51 Pa. St. 204 ; Emlen more, 47 Pa. St. 465. v. Bogg's Adm. 2 Y. 167. '' Gillan v. Gillan, 55 Pa. St. 430. ^ Boyer's Estate, 51 Pa. St. 432. 5 Ladd v. The Church, 6 Phila. 591. ' Mechanics Bank v. Gorman, 8 W. ♦Helfrich's Appeal, loPa. St. 382; & S. 304; Ladley v. Creightun, 70 Sitting's Appeal, 17 Pa. St. 211. Pa. St. 490. Judgments entered after the sheriff's * Slater's Appeal, 28 Pa. St. 169. sale of defendant's land, are liens 'Clippingerti. Miller, 1 P. &AV. 64; neither on the land nor on the pro- Boyer v. Rees, 4 W. 201 ; Furst v. ceeds. Small's Appeal, 24 Pa. St. 398. Overdeer, 5 W. & S. 470. ='Mellon's Appeal, 32 Pa. St. 121; lilEX OF JUDGMENTS. 235 after the recovery of a judgment against him, are not bound by it.^ Hence, if the owner of an undivided interest in land acquires another such interest therein, after a judgment has been recovered against him, this judgment is a lien on the fractional interest owned at the time of its rendition, but not on the later purchased one.- So, if, after judgment has been recovered against him, a life-tenant acquires the fee,^ or the iee charged with an equitable estate in remainder,* the lien of such judgment does not grasp the fee. A judgment against A., in the life-time of his ancestor, does not attach to the lands which descend to him, on the death of the latter." An estate in remainder, whether vested or contingent, is not, when the period for enjoyment thereof arrives, a new acqui- sition, and a judgment recovered against its owner before the time for enjoyment, will be a lien upon it." If a will grants an estate in the testator's land to A., with a reversion to his heirs generally, one of whom is A., a judgment recov- ered against A. before the contingency has happened on which his estate thus reverts to the heirs, will bind his share of the estate after the reversion has taken place.'' And, after B. had aliened property for the purpose of building a school- house and church, with the condition that, if the buildings should ever be used for other purposes, the title should revert to him, a judgment recoveped against him, before breach of the condition, bound his reversionary interest, and the pur- 'Colhoun V. Snider, 6 Binn. 135; C. 319; In re John Vandevender, 2 Bundle i'. Ettwein, 2 Y. 23; Com- Br. 305; Collingwood r. Casson, 2 \V. monwealth v. McKisson, 13 Serg. & & S. 220; Shaeffer v. Child, 7 W. 84; E. 144 ; Hastings' Case, 10 W. 303 ; Custer v. Detterer, 3 W. & S. 28. Morehead v. McKinney, 9 Pa. St. 265 ; ^ Dennison's Appeal, 1 Pa. St. 201. ITcMurray v. Hopper, 43 Pa. St. 468 ; ' Ibid. HoflF's Appeal, 80 Pa. St. 40; Kem- * Hoffman's Estate, 2 Pearson 317. merer v. Tool, 78 Pa. St. 147 ; Stiles ^ Estate of Elizabeth Jacoby, 9 r. Brock, IPa. St. 215; Davis r.Ehr- Phila. 311; Luudermilch v. Louder- man, 20 Pa. St. 256 ; Little v. Smyser, milch, 2 Pearson 134. 10 Pa. St. 881; Beekman's Appeal, ^Ogdeni;. Knepler, 1 Pearsbn 145. 38 Pa. St. 385 ; Meily v. Wood, 71 ' Amelong v. Dorneyer, 16 Serg. & Pa. St. 488; Gheen's Estate, 5 W. X. R. 323. 236 lAW OF LIEXS. chaser thereof in execution, could take advantage of the subsequent breach.^ Land which is inherited after judg- ment against the heir, is not bound by it.^ * § 195. A judgment entered against a vendee under articles, becomes a lien, as we have seen, on his equitable title. This title becomes more and more valuable, with the successive payments of the purchase money, until, with the completion of these payments, the vendee gains an unconditioaal right to the conveyance of the legal title and to the enjoyment of the premises as legal owner. The judgment attaches itself to the increasing beneficial interest of the vendee, and, when the deed is executed, it grasps the entire legal title.^ When the equitable owner of the fee, subject to the unpaid purchase money, devised it to A. for life, and the remainder thereof to B., in fee, and A. subsequently purchased the legal title by paying the unpaid purchase money, a judgment recovered against him while he was tenant for life, and before he ac- quired the legal fee, attached to both the legal and the equit- able life-estates when- they merged in A.* , Except as against judgments for the purchase money, entered simultaneously with the conveyance, judgments again s^t the equitable owner are liens on the entire title, from the day of their rendition.'* Judgments entered by the vendor for purchase money, before the conveyance, will attach to the entire title, when the deed is delivered, and relate to the date of the contract of sale.* McKissick y. Pickle, 16 Pa. St. 140. Riehter v. Selin, 8 Serg. & E. 425; ■^ Gheen's Estate, 5 W. N. C. 319. Appeal of Borough of Eastoii, 47 ^Foster's Appeal, 3 Pa. St. 79; Pa. St. 255; Snyder's Appeal, 91 Pa. Cake's Appeal, 23 Pa. St. 186 ; Love St. 477. V. Joiies, 4 W. 465 ; Lynch v. Dearth, 'Hoffman's Estate, 2 Pearson 317. 2 P. & W. 101 ; Morrison r. Wurtz, 7 'Ibid. They take precedence to W. 437 ; Slater's Appeal, 28 Pa. St. a mortgage e.xecuted by the grantee 169; Dennison's Appeal, 1 Pa. St. at the time the deed is delivered, 201 ; Stephens' Appeal, 8 W. & S. but not for purchase money. Mer- 186; Semple !'. Mown, 4 Phila. 85; kel's Appeal, 10 W. X. C. 116. See Episcopal Academy ;'. Frieze, 2 W. note 3. » 16; Watts r. Steel, 1 Pa. St. 386; MVaters' Appeal, 35 Pa. St. 523; Kussell's Appeal, 15 Pa. St. 319; Zeigler's Appeal, 69 Pa. St. 471. LIE^T OF JUDGJIEXTS. 237 Special Limitations of Lien. § 196. A judgnaent against a married woman on her bond for purchase money of land sold to her, is valid only with respect to the land bought by her/ The lien of a judgment may be restricted by an agreement between the plaintiff and the defendant, that it shall be confined to certain designated real estate.^ But an agreement that the judgment is to be a lien on a particular tract, does not imply that execution cannot be had of other tracts.^ It is otherwise when the stipulation is that the money is "to come out of no other property but the one sold."* A general amicable revival of a judgment with restricted lien, will exempt it from the restriction ; to preserve the original limitation there must be an express agreement at the the time of revival;^ but when, after a judgment whose lien is confined by agreement, is recovered, the defendant dies, a revival of the judgment against the administrator only, will not broaden its lien as a judgment. As a debt, its lien extends to all the lands of the decedent, but the widow and heirs must be parties to its revival.* Agreements with respect to the lien of judgments may be made in parol, and will be enforced for the benefit of terre-tenantsJ The memorandum entered on a premium note by a mutual insurance company, under the 6th section of the act of 13th April, 1833, is a lien only on the insured property, and the execution issued thereon can have no wider scope.* A building association without authority of ^Pattei'Son'ii.Eobinson,2oPa.St.82; *Irwin v. Shoemaker, 8 W. & S. 75. Wolbach V. Lehigh Build. Ass., 84 Pa. ° Dean's Appeal, 35 Pa. St. 405. St. 211; Sawtelle's Appeal, 84 Pa. St. "McMurray's Adm. v. Hopper, 43 306 ; Mumma u. Weaver, 2 Pears. 172. Pa. St. 468. 2 Stanton v. White, 32 Pa. St. 358 ; ' Sankey v. Peed, 12 Pa. St. 95. But Aycinina v. Peries, 2 Pa. St. 286 ; an agreement to limit the lien, incon- McMurray v. Hopper, 43 Pa. St. 468; sistentwith a written contract, should Dean's Appeal, 35 Pa. St. 405. In be established by clear and convin- Stiles V. Bradford, 4 R. 393, is an ex- cing proof. Wilkinson v. Conrad, 10 ample of such restriction. W. N. C. 22. ^Stanton ■». White, 32 Pa. St. 358. « Halfpenny v. People's Fire Ins. But this is hard to reconcile with Co., 85 Pa. St. 48. Adams v. Bush, 5 W. 289. 238 LAW OF LIENS. law purphased land, giving a bond for the purchase money. Subsequently, the act of 17th June, 1878, [P. L. 214,] validated all such purchases previously made. The effect of this was to legalize an action on the bond, but the judg- ment recovered thereon bound only the land whose price the bond was given to secure.^ Territorial Scope of the Lien. § 197. It was formerly held that judgments of the supreme court, in actions over which it had original jurisdiction, were liens on all lands of the party against whom they were ren- dered, within the limits of the state.^ The fourteenth section of the act of 20th March, 1799, [3 Sm. L. 358,] provides that no judgment rendered in the supreme court (or in the circuit court) shall be a lien on real estates, excepting in the county in which such judgment shall be rendered.^ A judg- ment of reversal, accompanied by a writ of restitution, is a lien only in the county in which the original judgment was entered.* A judgment in a circuit court of the United States binds lands situate anywhere within the circuit.'* A judg- ment recovered in the circuit court for the western district of Pennsylvania, is a lien over the entire state.^ Judgments recovered in the courts of the several counties of the state, are liens upon the party's lands within the limits of the county.'' Special legislation was necessary to furnish a lien, to the creditor beyond the county in which he originally ' Faulkner's Appeal, 11 W. N. C. 48. "Prevost v. Gorrell, 5 W. N. C. ^ White V. Hamilton, 1 Y. 183; 151. Ealston v. Bell, 2 Dall. 158; Snyder 'Arrison v. Commonwealth, 1 W. V. Commonwealth, 3 P. & W. 286; 374; Cowden v. Brady, 8 Serg. & E. Ulshafer v. Stewart, 71 Pa. St. 170. 505 ; Stanton v. White, 32 Pa. St. 35S ; 'In Schnitzel's Appeal, 49 Pa. St. Jameson's Appeal, 6 Pa. St. 2S0; 23, a judgment in the supreme court Stiles v. Brock, 1 Pa. St. 215; Bank was a lien claiming appropriation of v. Crevor, 2 R. 223 ; Knauss' Appeal, moneys made by sheriff's sale. 49 Pa. St. 419 ; McCiillough's Appea , *Boal's Estate. 2 E. 37. 34 Pa. St. 248; Brandt's Appe.-il, 16 ^Ex parte McGill, 6 Pa. St. 505; Pa. St. 343; Bruner'a Appeal, 7 W. Messingill r. Downs, 7 How. 760. & S. 270. t LIEX OF JCDGMEXTS. 239 recovered judgment.^ The death of the party against whom the judgment is rendered, makes the debt which it represents a lien throughout the state.^ When, after a judgment has been recovered in a court of any county, the county under- goes subdivision, the lien of the judgment continues to extend to the former limits of the county, unless the act of assembly under which the partition is effected, provides otherwise, and a revival of the judgment in the original county is as effectual as if no such partition had taken place. A judgment was entered in Cumberland county, which, sub- sequently, in 1820, was divided, and Perry county was erected from a portion of it. A sei. fa. to revive, issued from the Cumberland county common pleas in 1822 and 1823, and succeeding years, was sufficient to keep the lien of the judg- ment alive until 1835.* And, when Clinton county was erected from a part of Centre county, the division line run- ning across a tract of land owned by A., against whom a judgment had already been obtained in Centre county, this judgment continued to bind the entire tract by reason of proper revivals of it in the county in which it was originally entered.* Forest county was, by resolution of April 11th, 1848, separated from Jefferson county, and erected into a new county, but, until organized for judicial purposes, it was to continue attached to Jefferson for such purposes. There being no prothonotary, register, or other judicial officers elected in the new county until December 21st, 1857, a judgment recovered in the common pleas of Jefferson ^Act of 16th April, 1840, 2d April, 1S52, [P. L. 5S4,] provides ih^t when 1841, 16th April, 1S4.3, May 4th, a new county is erected, judgments 1852. may be transferred thereto from the ^McMillan v. Bed, 4 W. & S. 2.37. original count}-, and effectually re- Comp. Mc^Iurrays Adm. v. Hopper, vived by sci. fa. issued ^'ithin five 43 Pa. St. 468. years of the original judgment, ^West's Appea^ 5 \V. 87; Hart & though the original judgment be Co.'s Appeal, 8 Pa. St. 185. not revived. Mellon v Guthrie, 51 * Hay's Appeal, 8 Pa. St. 182. The Pa. St. 116. first section of the act of 4th May, 240 LAW OF LIENS. county, on November 5th, 1857, was a lien on the defend- ant's lands situate in Forest county.^ Transfer of Judgment. § 198. Except in the cases just indicated, a lien, by judg- ment, can be obtained in another county than that in which the judgment was originally entered, only in virtue of the provisions of the act of 16th April, 1840, [P. L. 410.]' This act authorizes the filing of record in the county in which a lien is sought, of a certified copy of the whole record in the case, whether the original judgment was entered by the court from which the record is exemplified, or was rendered by a justice of the peace, and from him tran.-cripted into the court from which the exemplification is taken. The prothonotary who receives a certified copy, must forthwith transcribe the docket-entry thereof into his own docket. As to lien, revivals, executions, etc., the transferred judgment shall have the same force as if the judgment had been entered, or the justice's transcript filed originally in the court to which it is thus transferred. The death, of either party to the original judgment before transfer, shall not make the substitution of his personal representative necessary before such transfer; it may be made afterwards in the court to which the judgment is transferred.^ The transfer of a judgment does not destroy or impair the lien of the original judgment, or of any previous transfers of it into other counties.* § 199. The certificate of the prothonotary of the court in which the original judgment is entered, accompanying the exemplification, must describe it as a true copy of the record, ^ McCuUough's Appeal, 34 Pa. St. ' Section 11, act 16th April, lS4o, 248. ' [P. L. 540.] ^Section 11, act of April 2d, 1841, * Section 7, act April 4th, 1843, [P. [P. L. 142,] extends the provisions of L. 132.] It may be transferred to all this act to judgments entered in the the counties of the state. Wilkinson supreme court for the eastern district v. Conrad, 10 W. X. C. 22. of Pennsylvania. LIEX OF jrDG3IE>rT.S. 241 or a true copy of the entire record. A certificate that "the foregoing docket entry" is as full and complete as the same now remains of record, shows on its face that the copy only partially exhibits the record, and the exemplification which it accompanies will be stricken off.^ If the certificate pur- ports that the accompanying copy is a full and complete one, evidence aliunde may be given that an attachment execution, of which the copy makes no mention, had issued from the original court, and was outstanding when the exemplification was taken, and an execution on the transferred judgment will then be set aside.- The transfer of a judgment must be directly from the county in which it was originally rendered; there can be no valid exemplification of an exemplification, even though the second exemplification is into a new county carved out of the county into which the judgment had been transferred by the first exemplification. Thus, a judgment entered in Clarion county, was transferred to Jefferson ; and after Forest county was separated from Jefferson, a copy of the record in the latter county was transferred to Forest. After a sci. fa. had issued on this transferred judgment in Forest county, and a judgment had been recovered thereon, by default, and the defendant's land sold thereunder, a rule to show cause why the judgment by default, and the copy of the judgment on which the sci. fa. had issued, should not be stricken off, was made absolute." j 200. The traiisff'rred judgment becomes a lien from the date of its entry ; it does not relate to the date of the original judgment, even though the county in which it is entered has been erected out of that in which the original judgment was entered, since its recovery, and though at the time of the transfer, the original judgment was a lien in full life upon ' Updegraff ■«. Perry, 4 Pa. St. 291. A sale on such a judgment before it ^ Bank of Chester County y. Olwine, is stricken off, will convey a good 3 CI. 607. title to the land. Duff v. Wynkoop. 3 Mellon V. Guthrie, 51 Pa. St. 116. 74 Pa. St. .300. Q 242 LAW OF LIENS. the lands in the new county.-' The lien of the transferred judg- ment continues for five years from its entry, though the lien of theoriginal judgment may at the timeof its transfer have nearly spent itself. A judgment was entered in Lehigh county on 2d April, 1856, and was transferred to Northampton county on 14th January, 1859. The transferred judgment was a lien at the time of the sheriflf's sale of the defendant's prop- erty, 18th April, 1863.^ When the original judgment is set aside for irregularity after it has been transferred to another county, the transferred judgment ceases to exist as a lien ; and if, in subsequent proceedings in the original county, a second judgment is entered, this will not re-establish the transferred judgment; the second judgment must be itself transferred.^ When the court in which the original judgment was entered, gives leave to the defendant to pay the amount of the judgment and costs into court, and payment is accord- ingly made, all proceedings on the transferred judgment, begun previously, will be suspended, save to collect its own proper costs.* The court into which a judgment is transferred cannot grant an issue to inquire into the bona fides or con- sideration of the judgment; its jurisdiction is limited simply to the giving effect to the judgment, by preserving its lien,* and by execution of it." But if an administrator appointed ' Hay's Appeal, 8 Pa. St. 182. execution issued on the transcript. "^ Knauss' Appeal, 49 Pa. St. 419. Baker v. King, 2 Grant 254. Agnew, J., seems to imply that the ^In Qallaugher v. Caldwell, 22 Pa. transferred judgment would have St. 300, a set. /a. issued on the exem- been a lien, if the lien of the origi- plification. nal judgment had ceased, at the ^Estate of Gordon, 9 Phila. 350. time of the transfer. If nfi.fa. has issued on the original 'Brandt's Appeal, 16 Pa. St. 343. judgment, and been returned levied After the original judgment is on real estate, and a_^. /a. then issues stricken off, the transferred judg- on the transferred judgment, the ment will be stricken off. Banning plaintiff will be compelled by the •y. Taylor, 24 Pa. St. 297. court in which the transcript is filed, *King V. ISfimick, 34 Pa. St. 297. to elect on which execution he will But a stay of execution on the origi- proceed. Ames Plough Go. v. Lloyd, nal judgment will not make it the 2 W. N. C. 48S. See, also, Leedom 4uty of the court into which the v. Jones, 1 Leg. & Ins. Rep. 85. judgment is triansferred, to stay an lie:jj of judgments. 243 in Philadelphia county, obtains an order o"f the orphans' court therein, to sell decedent's lands lying in Bucks county, and thereupon obtains a decree from the orphans' court of Bucks for the sale thereof, and the plaintiff in a, judgment which has been transferred to that county from Philadelphia, becomes the purchaser, and insists on the right to give credit on his judgment, rather than to pay his bid in cash, the orphans' court of Bucks county . has authority to inquire whether the consideration of the judgment, given to indemnify the plaintiff for making a draft for the decedent's accommo- dation, has not since failed, the plaintiff having got it back without being obliged to pay it.^ The court into which the judgment is transferred may issue all the writs of sei. fa. that may be necessary to accomplish the purpose of the transfer.^ Though a warrant of attorney authorizes the con- fession of a judgment in any court save those of Philadelphia, the judgment entered thereon in Bucks county may be trans- ferred to Philaddphia and become a valid lien on the defend- ant's property therein,^ and if the defendant has any defence on original grounds, or on any well-grounded claim to equita- ble relief, by which the operation of the judgment might be restricted or its lien in any way limited, he must apply to the court in which the original judgment was entered ; the court into which it is transferred cannot strike it off or set aside the execution thereon, for any such reason.* Duration of the Lien. § 201. The lien of a judgment, originating by construc- tion of the statute of Westminster II., was, prior to the act of April 4th, 1798, [3 Sm. L. 331,] without limitation of time.* It still remains indefinite in duration, as respects the defendant himself, and after paying judgments that are in full life, from the proceeds of a sheriff's sale, the surplus ' Gordon's Appeal, 98 Pa. St. 361. 'Ibid. 2 King V. Nimick, 34 Pa. St. 297. * Aurand'e Appeal, 34 Pa. St. 151 ; ' Wilkinson v. Conrad, 10 W. N. C. Fetterman v. Murphy, 4 W. 424. 244 LAW OF LIEXS. must be paid to those that are more than five years old, and unrevived, rather thau to the defendant himself.^ The widow, heirs and devisees of the defendant, acquire his land subject to the lien of judgments obtained against him in his life-time, which lien continues indefinitely as against them, as it would against himself Thus, a judgment obtained against him five years before A.'s death, continued a lien thirteen years tjiere- after, and a sheriff's sale on it, then taking place, divested the title of the heir.^ On a judgment obtained against B. six years before his death, a Sci. fa. to revive was eflFectually issued against administrator and heirs thirteen years there- after,'^ and on another, rendered against C, four years before his death, a sci. fa. was in time, issued nineteen years after his death, as against the widow, heirs and devisees.* The lien of ' a judgment against A. continues indefinitely as against his general creditors, after his death. More than eleven years before A.'s death, a judgment was recovered against him, but was never revived, and, two years after his death, the land originally bound by the judgment was sold under an order of the orphans' court, for the payment of his debts. This judgment was entitled to the proceeds before general creditors.^ There is no limit to the duration of the lien of a judgment as against property conveyed by the defendant in fraud of the plaintiff therein ; a revival by sci. fa. within five years of its rendition, or, the defendant dying, within five years of his death, is unnecessary.*^ The lien of a' judg- ment for arrears of ground-rent,' or upon a sci. fa. s^ir 1 Brown's Appeal, 91 Pa. St. 485. Marsh v. Haldeman, 2 CI. 234; Her- = Fetterman v. Murphy, 4 W. 428 ; shy v. Shenk, 58 Pa. St. 382 ; Shearer Irwin V. Nixon's Heirs, 11 Pa. St. 419. v. Brinley. 76 Pa. St. 300 ; Bennett v. ''Brobst V. Bright, 8 W. 124. In Pulmer, 49 Pa. St. 155; Brindley's Wells V. Baird, 3 Pa. St. 351, the sci. Appeal, 69 Pa. St. 295; McMillen v. fa. issued eleven years after the Red, 4 W. & S. 237; Baxter v. Allen, death of the defendant, which oc- 77 Pa. St. 468. curred shortly after the judgment ^ Aurand's Appeal, 34 Pa. St. 151. was recovered against him. ° Miner v. Warner, 2 Grant 448. *Konigmaker v: Brown, 14 Pa. St. 'Wills v. Gibson, 7 Pa. St. 154. 269. For the same principle, see LIEX OF JUDGMEXTS. 245 mortgage/ or for the principal of the widow's third charged on land/ or upon a bond accompanied by a mortgage, unless, from the circumstances, the terre-tenant, when he bought the premises, had reason to think the mortgage satisfied,* and the lien of a judgment in favor of the commonwealth,* , or in favor of laborers, contractors, etc., for service rendered in the construction of a railroad, under the resolution of 1843,° are unlimited in duration. The Five Years' Limit. § 202. The second section of the act of 4th April, 1798', ,[3 Sm. L- 331,] and the first section of the act of 26th March, 1827, [9 Sm. L. 303,J limit the lien of a judgment to five years from the day of its entry,® unless the measures there indicated to prolong it, are properly pursued. The twenty- fifth section of the act of February 24th, 1834, [P. L. 77,] provides that when the defendant dies, all judgments which were at that time a lien on his real estate, shall continue such for five years after his death, though not revived by sci. fa. or otherwise, and shall preserve the rank they had at the ' . , time of his death. /This limitation prevails as respects judg- . • ment creditors of the heirs of a deceased defendant. /Their ye>*— * . tO c judgments, though obtained while that against the decedent = "^-^A - is in full life, will take precedence, if the latter is not revived ^ . ^1 within the sj^ecified period.'' AVhen several judgments have j-- ' been obtained against A. in his life-time, whose lien continues to the time of his death, any of them which is not revived within the time limited in the statutes above cited, will be postponed to those of them, though later, that are not sufiered to lose their lien.* A judgment not revived in five 'Helmbold v. Man, 4 Wh. 409. day of the term in which the judg- ^Hillbish's Appeal, 89 Pa. St. 490. ment was entered. Poole v. William- 3 Brown v. Simpson, 2 W. 233. .son, 4 E. 316. * Commonwealth I'. Baldwin, IW 54. 'Jack v. Jones, 5 Wh. 321. 'Fox V. Seal, cited Tj'rone, etc., E. *Penna., etc., Bank v. Crevor, 2 E. E. Co. V. Jones, 79 Pa. St. 60. 224; Fryhoflfer v. Busby, 17 Serg. & « Under the act of 1798, the five E. 121; Downey's Appeal, 2 W. 297 ; years were computed from the first IMarsh v'. Haldeman, 2 CI. 234. 246 LAAV OF lilEXS. years, loses its lien, as against judgments recovered during its life,^ or afterwards, unless the defendant dies before the five years have elapsed. In that case, under the act of 1834, above cited, the lien continues for five years from his death. Hence, when the defendant died four years after the judg- ment was recovered against him, it continued a lien until a sheriff's sale thereunder, which took place three years after his death.^ A judgment ceases to be a lien after five years, as against one who purchased the premises within that period,^ though he promised the defendant to pay this judg- ment on account of the purchase money,* except when the defendant, after conveying the land, dies within the five years. The act of 1834 will in that case continue the lien for five years from the defendant's death,** but the death of the terre-tenant does not have the effect of continuing the lien beyond five years from the recovery of the judgment,* though he be the defendant's assignee for the benefit of creditors.' § 203. The lien of a judgment is lost if not revived in five years, as against a mortgage,^ a voluntary assignment in trust for the benefit of creditors,^ or an assignment to trust- ', Armstrong's Appeal, 5 W. & S. 'Davis v. Ehrman, 20 Pa. St. 266; 852 ; Commonwealth v. Barker, 2 P. Zerns v. Watson, 11 Pa, St. 260 ; & W. 232; Lesher v. Gillingham, 17 Sniyser v. Little, 10 Pa. St. 381. Serg. & E. 123 ; Hay's Appeal, 8 Pa. *Eudy's Appeal, 9 W. N. C. 808. St. 182; Stephens' Exrs.' Appeal, 38 ^Nicholas v. Phelps, 15 Pa. St. 86; Pa. St. 9 ; Westmoreland Bank v. Downey's Appeal, 2 W. 297. Eainey, 1 W. 26 ; Pennock v. Hart, « Judson «. Lyle, 8 Phila. 98. 8 Serg. & E. 369 ; Jameson's Appeal, ' Fulton's Estate, 51 Pa. St. 204. 6 Pa. St. '280; Bank of North America « Pierce v. Gardner, 82 Pa. St. 211; v. Fitzsimmons, 3 Binn, 842; Penna. Poole y. Williamson, 4 E. 316; Bank Manuf. Bank v. Crevor, 2 R. 223; of North America ^). Fitzsimraops, 3 Euth's Appeal, 64 Ea. St. 178. That Binn. 342 ; Vitry v. David, 3 E. 8 ; a later judgment creditor knew of Black \). Dohson, 11 Serg. & E. 94; the lien of the prior judgment before Edwards' Appeal, 66 Pa. St. 89. giving credit, will not preserve the ' Fulton's Estate, 61 Pa. St. 204 ; lien of the prior judgment not re- Stirk's Appeal, 2 W. N. C. 673. An vived. Eudy's Appeal, 9 W. N. 0. agreement between the lien credit- 308. ors that the assignee's sale of the ''Directors of the Poor v. Eoyer, land shall be free from the liens, and 43 Pa. St. 146. that the proceeds shall be distributed LIEN OF JUDGMENTS. 247 «es' under the insolvent law, made during the life of the judg- ment lien. When, after mortgaging his land to A., and suffering a judgment to be recovered by B. against him, C. •conveyed his land to his wife, in fraud of other creditors, during the life of B.'s judgment lien, a failure to revive this ju'dgment within five years of its recovery, postponed it to judgments recovered against C. subsequently to the transfer of the land to his wife. After paying A.'s mortgage from the proceeds of a sheriff's sale thereunder, the judgments of' creditors whom the transfer to the wife defrauded, though recovered after the transfer, were entitled to payment. Any balance would go to the wife, whose title was valid as against B.^ A fortiori judgments are not liens, as against those who acquire proprietary or lien rights with respect to land of the defendant, after they are more than five years old, and no steps have been taken to revive them.^ Judg- ments for a penalty, designed to be a security for the future performance of some duty on the part of the defendant, require revival within five years from the date of their «ntry, though the contingency against which they are intended to be a guarantee, has neither ceased to be possi- ble, nor been actualized. Thus a judgment for the penalty ■of an administration bond ceases to be a lien in five years, unless revived, though the administration is not yet com- pleted.* A similar principle would obtain with respect to judgments to secure future advances, or to guarantee against liabilities already assumed, or to be assumed, though not yet made absolute.' The act of 28th March, 1803, requires suits according to the legal priority of the * Section 3, act of 26th March, 1827, judgments, will not dispense with a [9 Sm. L. 303;] Arrison v. Common- revival of any judgment. wealth, 1 W. 381. ^Shaeffer v. Child, 7 W. 84; Com- *Wien v. Albright, 10 L. Bar. 53. monwealth v. Lelar, 13 Pa. St. 22; In Maher's Appeal, 91 Pa. St. 516, a Oloninger v. Hazard, 4 Phila. 354; judgment for the penalty of a bond Ehright v. The Bank, 1 W. 397. conditioned for the payment of two ^Ehoads' Appeal, 11 W. N. C. 276. notes, was revived after one had been ''Arrison v. Commonwealth, 1 W. paid, but the revival was for the S81. whole penalty. 248 lAW OF LIEXS. against sureties on sheriJOFs' bonds, to be broilglit within five years of their dates. Hence, though a cautionary judgment for the penalty of the bond has been recovered in a suit by A., B.,cannot, after the lapse of five years from the execution of the bond, sustain a sci. fa. upon the judgment for the penalty. Its lien is lost as to B.'s claim for damages."^ Judgments in the circuit court of the United States fall under the limitations of the acts of 1798 and 1827." Computing the Five Years. § 204. The five years during which the lien of a judgment continues, expire with the close of the fifth day correspond- ing in number and month with that on which it was entered, succeeding the day of its entry. Thus, when a transcript of a justice's judgment was filed in a term beginning with the sixth day of January, 1823, its lien expired at the end of the sixth day of January, 1828, under the act of 1798, which made the lien run for five years from the first day of the term in which the judgment was . entered.^ On a judg- ment entered 18th September', 1814, a sci. fa. issued ISth September, 1849, would be in time.* A judgment entered 26th March, 1836, was efiiciently revived by an agreement filed 26th March, 1841, as against a judgment entered in 1840.' A judgment entered 31st December, 1874, ceases to be a lien on 31st December, 1879,* and the lien of one entered 30th November, 1850, expired on the 30th Xovember, 1855.'^ When Revival is Unnecessary. § 205. The lien of a judgment is confined to real estate, and a discharge of it therefrom, by a judicial or quasi- judicial sale, makes the further continuance of its lien, as to ' C(iiimionwealth v. Raine)* 4 W. CI. 207. the judgment being entered & S. 1S6. April -22(1, 1S37, a sci. fa. issued 18th ^Thompson!'. Phillips, 1 Bald. 246; April, 1S42, served 22d April, 1S42, Biland v. Eckert. 23 Pa. St. 215. is said to have been served within 'Appeal of Betz, 1 P. & W. 271. the period of lien. Comp. Lysle v. < Hock's Appeal, 1 Pittsb. 32.3. Williams, 15 Serg. ^t R. 135. * Green's Appeal, 6 \Y. &, S. 327. ' Dean's Appeal, 35 Pa. St. 405, per ' Reynolds' Appeal, 10 W. N. C. Conyngham, P. J. 424. In Commonwealth v. Rogers, 4 LIEX OF JUDGMENTS. 249 this land, impossible. Hence, if such a sale takes place during the life of the lien of the judgment, its right to share in the proceeds does not depend on its revival afterwards, though they be not distributed until more than five years from its rendition have elapsed.'^ When an assignee for the benefit of creditors, sells the assigned land, under an order of the court of common pleas, made in pursuance of the act of 17th February, 1876, [P. L. 4,] and this sale is confirmed ■within the period of five years from the entry of judgments against the assignor, they are entitled to share in the proceeds, in the order of their rendition, though distribution is not made till more than five years after the recovery of some of them."^ For a similar reason, there is no necessity to prose- cute a sci. fa. to revive, to judgment, as to the proceeds of a judicial sale of the land bound by it, which takes place, pending the sci. fa. and before judgment thereon.^ Lien rights are fixed, as respects a sale by an administrator for the payment of debts,* or by an assignee for the benefit of creditors," on the day of its confirmation ; and as respects a sheriff's sale, on the day of the sale, if the deed be subse- quently acknowledged and delivered.^ Method of Revival. § 206. The 2d section of the act of 4th April, 1798, [3 Sm. L. 331,] required the issue of a writ of sci. fa. within five years from the first day of the term in which the judgment was entered, in order to prolong its lien beyond that period. 1 Coinmonwealtli v. Gleim, 3 P. & «Bachdell's Appeal, 56 Pa. St. 386. ^,y. 417. Hence, a ground-rent installment ^ Carver's Appeal, 89 Pa. St. 276 ; becoming due between the day of Toralinson's Appeal, 90 Pa. St. 224; sale, September 23d,J835, and of its Herbst's Appeal, 90 Pa. St. 353. confirmation, 26th April, 1S33, was ^Commonwealth v. Rogers, 4 CI. not paj'able from the prpceeds. 252; Holm's Appeal, 1 Am. L. J. 78. Walton v. West, 4 Wh. 221. And *Kamsev's Appeal, 4 W. 71. See judgments against the sheriff's ven- remarks on this case, Carver's Ap- dee, between the day of sale and the peal, 89 Pa. St. 277. acknowledgmentofthedeed,arelieiis ^Carver's Appeal, 89 Pa. St. 277; on his title. Morrison c. Wurtz, 7 W. Tomlinson's Appeal, 90 Pa. St. 224. 437 ; Slater's Appeal, 28 Pa. St. 169. 250 LAW OF LIEXS. Judicial construction, however, invented several substitutes for the sci. fa. If the court opened the judgment, to let the defendant into a defence, on condition that the judgment and the execution thereon should remain as a security, the lien was kept alive.^ A judgment entered 11th November, 1822, on which an execution issued to January Term, 1823, was, on rule, opened on 26th March, 1823 ; and, the issue not yet having been tried, a sci. fa. to continue the lien issued in 1830, shortly before the defendant's real estate was sold. The judgment was entitled to the proceeds as a lien.^ When there was a stay of execution, the five years began to run only from the expiration of the stay,' provided the stay appeared on the docket.* A future time fixed for the payment of the judgment by the agreement of the parties, had the effect of a stay," if the record disclosed it.* A judgment entered loth November, 1810, with stay of execu- tion until 16th April, 1811, was effectively revived by a sci. fa. issued 15th April, 1816,'' and the lien of a judgment entered 23d July, 1819, with stay of execution for nine months, was a lien on 22d April, 1825.* While the issue of an execution, levied on personal property, did not preserve the lien of the judgment beyond five years from its rendition,' a levy thereunder upon land, whether within a year and a day,^" or afterward," from the rendition of the judgment, preserved the lieu as to thisland indefinitely, but not as to land not levied on.^^ 1 Pricker's Appeal, 1 W. 393. Estate, 4 W. 344; Westmoreland 'Ibid. Bank u. Rainey, 1 W. 26; Brown v. ^Pennock v. Hart, 8 Serg. & E. Campbell, 1 W. 41 ; Commonwealth .369; Meason's Estate, 4 W. 344; c. McKisson, 13 Serg. & R. 144. Brown v. Simpson, 2 W. 233. " Boat's Estate, 2 R. 37 ; Shearer v. * Meason's Estate, 4 W. 344. Brinley, 76 Pa. St. 300. ' Ibid. 1- Todd V. McCulloch, 3 P. & W. 444 ; « Bombay D.Boyer, 14 Serg. & E. 253. Commonwealth v. Barker, 2 P. & W. ' Pennock ti. Hart, S Serg. & E. 369. 232 ; -Eighter v. Eittenhouse, 3 E. «Browni). Simpson, 2 W. 233. 273; Brown v. Campbell, 1 W. 41; 'Betz's Appeal, 1 P. & W. 271. Commonwealth r. McKisson,13Serg. "Young V. Taylor, 2 Binn. 21S; & E. 144. A capias ad satisfaciendam Pennock v. Hart, 8 Serg. & E. 369; issuedl>eforel798didnotpreservethe Ebrighit r. Bank,l W. 39/; Meason's lien. 1'hompsont).Phillips,lBald.246. LIEX OF JUDGMENTS. 251 § 207. The first section of the act of 26th March, 1827, [9 Sm. L. 303,] enacts that the issue of an execution within a year and a day from the rendering of the judgment, or a stay of execution, or the appointment of a time subsequent to the date of the judgment for the payment of the money for which it may be rendered, or any other condition or contin- gency attached to the judgment, shall not preserve the lien of the judgment longer than five years from its rendition. This can be accomplished only by the issue of a writ oisci.fa., or by an agreement of the parties and terre-tenants filed in writing and entered on the proper docket, within the period of five years from the entry of the judgment. The courts have en- forced the literal requirements of this statute. An execution did not continue the lien of the judgment,^ though issued and levied on land which the defendant had previously aliened, only forty-five days before the expiration of five years from the rendition of the judgment, and the sale took place seven- teen days after the expiration thereof.' Though the defend- ant's land has been extended in execution, and retained by him at a fixed rental, some of the installments of which have been paid to the first judgment creditor, this judgment will lose the right to receive the future installments so soon as five years elapse from its rendition, without revival.^ The pendency of a writ of error to the judgment,* or an agree- ment between the plaintiff and defendant that execution shall not issue until some other judgment creditor issues execution, neither prevents nor dispenses with the issue of a ■ici. fa. to revive.^ No rule of court, e. g., a rule to open a judgment and stay proceedings thereon," or any other process or proceeding thereof, can obviate the necessity of revival in 'Gloningerr. Hazard, 4 Phila. 354; *Boyer v. Eeese, 4 \X. 201; Ful- Ebright i-. Bank, 1 W. 397; Riland ton's Estate, 51 Pa. St. 204; Buildii.u V. Eckert, 23 Pa. St. 219 ; Jameson's Ass. v. Byrne, 6 \V. X. C 253 : St/c: t Appeal, 6 P:i. St. 280. Appeal. 21 Pa. St. 86 ; Eldied v. Hmz- -Davi.s V. Ehrman, 20 Pa. St. 256. lett's Adm., 38 Pa. St. 16. ^Reynolds' Appeal, 10 W. X. C. H^add !■. Chiin^h, 6 Philn. .V.a. 424; Stephens' Executors' Appeal, ^Fricker's Appeal, 1\V. 393. 38 Pa. St. 9. 252 LAAV OF LIENS. five years from its entry, of any judgment whatsoever.^ A. entered a judgment against B. on a bond for the purchase money of land, on 5th June, 1843. It was opened on 31st January, 1844, and on 1st March, 1844, on a case stated, the court entered judgment for the defendant. On 12th April, 1851, the supreme court reversed the judgment of 1st March, 1844, and rendered judgment for tlie plaintiff. The lien of plaintiff's judgment was, however, lost, as against another rendered 2oth November, 1850, because it was not revived by sei. fa. within five years of its original entry.' A judg- ment on an administration bond, not revived in five years, ceases to be a lien, though the administration has not been completed,^ and a judgment payable more than five years from its entry, must be revived.* Amicable Revival. § 208. The first section of the act of 26th March, 1827, [9 Sm. L. 303,] prescribes as one of the methods of revival, an digreement of the parties and terre-tenants, filed in writing, and entered on the proper docket. The validity of this method had been recognized under the act of 1798.* Such revival, though the judgment confessed thereon attaches to property acquired by the defendant since the original judg- ment was entered, will be valid as to this property, notwith- standing that, within four months, the defendant was declared a bankrupt." A married woman may revive a judgment entered against her after coverture, on a bond executed by her dum sola, by an agreement signed by herself aild her hus- band.^ No special form of agreement is necessary. It may contain a prmcipe signed by plaintiff and defendant, direct- ing the prothonotary to enter an amicable sci. fa,, to revive ^Section 3. act 26th March, 1>-., ^Lesher v. Gillingham, 17 Serg. & [9 Sm. L. 303.] E. 123; Boal's Appeal, 2 E. 38; Vitry 2 Styer's Appeal, 21 Pa. St. 8fi. v. D.'iuci, 3 E. 8 ; Clippinger v. Miller, Mrrison f.Commonwealth,lW374. 1 P. & W. 61. 'Giische V Peterman, 3 \V. ifc S. ^Kemnierer c.'Tool, 78 Pa. St. 147. .3"il ; Xyman's .-Appeal, 71 Pa. St. ' Brunner's Appeal, 47 Pa. St.'67. 447 ; Day v. \\'illy, 3 Brewst. 43. ^ LIEX OF JUDGMENTS. 253 judgment post annum el diem in the case whose style is given above it, followed by an agreement, signed and sealed by the defendant "to the above amicable sci. fa." authorizing a con- fession of judgment on the same, to have the same effect in law as if a sci. fa. had issued;^ or the proicipe may be omitted.^ A written acknowledgment, by the defendant in a judgment, that it is in full force., entered on the docket of the court, is sufficient to keep the judgment alive,^ but an agreement written by the defendant's attorney on the prcecipe for an execution, and copied into the docket, that an execution may issue on the judgment, which is more than a year and a day old, without any revival of the same, is not a revival thereof and will not preserve its lien.* The signature of the plaintiff is not essential ; that of the defendant is enough.* If there are several defendants, it is not requisite that all of them should join in the revival ; this will be good as to the land of those who enter into it.^ If there is a terre-tenant, the revival is invalid, unless he joins in it,^ even as against later judgments,* though he is a witness to the agreement of revival,* and the deed by which he became terre-tenant is not recorded,^" but its existence is known to the plaintiff at iM'Clear3-'s Appeal, 1 W.&S. 299; » Keed's Appeal, 7 Pa. St. 65 ; Eam- Dreifus v. Denmark, 11 Phila. 612; sey v. Linn, 2 R. 229; Clippinger v. Lesheri).Gillingham,17Serg.&E.123. Miller, 1 P. & W. 64. ^Eamaey r. Linn, 2 R. 229; Clip- « Edwards' Appeal, 66 Pa. St. 89. pingerr. Miller, 1 P. & \V. 64; Nixon SeeBuffingtonD.Barnard,90Pa.St.63. V. M'Callmont, 6 W. & S. 159. 'Section 1, act 26th March, 1827, = Boal's Appeal, 2 R. 37. [9 Sm. L. 303 ;] Lusk v. Davidson, 3 * Commonwealth v. Barker, 2 P. & P. & W. 229; Fursht v. Overdeer, 3 W. 232. A judgment of revival by W. & S. 470; Davis v. Ehrman, 20 agreement is not a judgment on a Pa. St. 256. warrant of attorney; it is a confession ^Rudy's Appeal, 9 W. N. C. 308; by the defendant himself. Hence, Rhoads' Appeal, 11 W. N. C. 276. for refusal of the court of common This is true, though the later judg- pleas to open such a judgment, the ment creditor knew of the lien of act of 4th April, 1877, there is no the prior judgment before his debt appeal. Lamb's Appeal, 89 Pa. St. 407. was contracted. Rudy's Appeal. The same is true if the judgment of 'Eickes' Appeal, 71 Pa. St. 447. revivalis upon two niAife. Glaub's Comp. Ramsey i;. Linn, 2 Rawle 229. Appeal, 11 W. N. C. 297. " Armstrong'sAppeal,5W.&S.352. 254 LAW OF LIEXS. the time of revival.^ If the land has been aliened, the lien of the judgment will be preserved as to it, by an agreement entered into by the terre-tenant alone.' § 209. The name of the use-plaintiff" in the agreement is. sufficient, if the judgment revived is otherwise distinctly indicated by number and term.^ Several judgments against the same defendant, obtained at different times, by A., or by others to A.'s use, may be consolidated in one judgment of revival, by an agreement referring to them by their numbers and terms, accompanied by a calculation of the aggregate, filed with the agreement; and this consolidated judgment may be in like manner subsequently combined with other judgments having the same plaintiff and defendant, by a second agreement to revive.* The amicable sd. fa. must be separately docketed with its proper number, to the term to which it is filed.* When a judgment, No. 65, August Term, 1832, was revived by agreement endorsed by the prothono- tary, Xo. 128, January Term, 1837, and entered April 24th, 1837, and below the record of the original judgment the prothonotary entered, " amicable scire facias to January Term, 1837, Xo. 128," but made no entry in his docket at the place where such entry should have been made for Xo. 128, January Term, 1837, the lien of the judgment was lost as to subse- quent judgment creditors.' An agreement to revive what is styled a judgment, described by number and term, will sup- port the judgment entered thereon, though the so-called original judgment was not such.' The lien of a judgment, though originally restricted to certain lands of the defendant, will extend to all his real estate in the county, if the amicable revival does not renew the restriction.* A judgment entered on 26th March, 1836, may be effectivery revived by agree- iRudy's Appeal, 9 W. ^^ C. 308. ' Ihid. Here the terre-tenant had agreed to ^Ibid. pay the judgment as a part of the ^M'Cleary's Appeal, 1 W. & S. 199. purchase money. ' Ramsey v. Linn, 2 R. 229. Comp. = Same's Appeal, 26 Pa. St. 184. Cash v. Tozer, 1 W. & S. 525. ^Reed's Appeal, 7 Pa. St. 65. ^Dgan's Appeal, 35 Pa. St. 405. LIEX OF JTJDGJIEJSTTS. 255 ment filtfd 26th March, 1841.^ If, ou a note for $2,000, pay- able two years after date, without interest, a judgment is entered on the day of its date, and subsequently, other notes for installments of the interest, which were taken at the same time, not being paid, a judgment of revival is confessed for the principal, together with the interest from the date of the entry of the judgment, this revival is good, as to creditors obtaining judgments after the original and before the revival, but only for the principal and the interest from the time originally stipulated.^ When the Scire Facias May Issue. § 210. The sci. fa. must be sued out within five years from the day on which the judgment was entered.^ If issued on the last day of this period it is in time, though service can- not be had within that period, nor, indeed, before the ensuing return day.* Hence, in practice, the writ issues at very dif- ferent distances before the expiration of the term of lien, e. g., on the day before its expiration,* on the third day before,® on the tenth day before,'' on the twenty-fifth day before,* the twenty-ninth day before," five months and six days before,^* five months and seven days before.^^ The date mentioned in the docket, rather than that of the prmcipe, is decisive of the date of the issue of the writ. Hence, when on a prmcipe dated September 18th, 1849, for a sci. fa. on a judgment which had been entered September 18th, 1844, a sci. fa. was 1 Green's Appeal, 6 W. & S. 327. 128; Green's Appeal, 6 W. & S. 327; ^Kimmel's Appeal, 91 Pa. St. 471. Silverthorn v. Townsend, 37 Pa. St. That the syllable out was erased from 263 ; Hock's Adm.'s Appeal, 1 Pittsb. the word " without," preceding the 325. word " interest," on the note, at the * Pennock v. Hart, 8 Serg. & R. 369. time the judgment of revival was .'^Topley's Appeal, 18 Pa. St. 424. entered, but without design to de- ''Kirby v. Cash, 93 Pa. St. 505. fraud other creditors, will not vitiate ^Lichty v. Hochstettler, 91 Pa. St. the judgment, no alteration being 444. made in the continuance and judg- '' Fursht v. Overdeer, 3 W. & S. 470. ment dockets. "Davidson v. Thornton, 7 Pa. St. ' Section 1, act 26th March, 1827, 128. [9 Sm. L. 303.] " Silverthorn v. Townsend, 37 Pa. * Davidson v. Thornton, 7 Pa. St. St. 263. 256 LAW OP LIENS. docketed September 19th, 1849, it was decided to have been issued on this last day, and therefore to have been too late.^ To sue out a sci. fa. within five years, implies that it be written, signed by the proper officer, sealed and issued before the lapse of that time.^ The Writ. § 211. The sci. fa., when it issues, must have all the requi- , sites of a valid writ. It must correctly recite the judgment on which it is founded.' A judgment entered by the supreme court, on a special verdict or case stated, is one that the court below ought to have entered, and, when remitted to the latter court, may be described in the sci. /a. as a judgment thereof* When the original judgment was for the use of S. R., but was described in the writ as for the use of E,. E., the lien was lost as to one who purchased the defendant's land, after five years had elapsed from the entry of the principal judg- ment.^ On a sci. fa. reciting a judgment for $443.17, no judgment could be entered against the defendant, the original judgment being in fact for $987." But the variance must be substantial. A judgment for a penal sum to secure a real debt, may be effectually revived by a sci. fa. which recites a judg- ment for th& real debt only.' The recital of a judgment for $1,319.64, the judgment in fact being for $1,312.14 and costs, the latter amounting to $7.50, is not erroneous.* A judgment in partition in the common pleas, awarding land subject to $278.04 owelty, cannot be properly recited as one 'Hock's Adm.'s Appeal,! Pittsb. of the name of the use-plaintiff is not Si'o. a variance. Peterson v. Lothrop, 34 ■'Ibid. Pa. St. 223. " A judgment on a set. fa. -which is * Walker v. Pennell, 15 Serg. & R. variant from the original, will cure 68. the irregularity. Buehler's Heirs v. ' Dougherty's Estate, 9 AV. & S. 189 ; Bufl&ngton, 43 Pa. St. 278. Fursht v. Ov'erdeer, 3 W. & S. 470. * Shaw V. Boyd, 12 Pa. St. 215. Comp. Hersch v. GroflT, 2 W. & S. 449. " Arrison v. Commonwealth, 1 W. ' Park r. Webb, 3 Phila. 32. In 374. But if a judgment "S. L. for Altman v. Klingensmith, 6 W. 445, u"rS. 261 its lien.^ Such a one must not be made a party to the sci. fa., and, if he is, omission to include him in the judgment rendered will not be erroneous.^ If A., owner of land, appoints B. her agent to farm it for her, and, after B. enters into possession, a judgment is recovered against him, one who purchases the land from A. is not a terre-tenant as to the judgment against B.'* If one whose title is not derived from the defendant,* or was derived from him before the judgment was recovered,' is cited as a terre-tenant, a judgment recovered against him will not be conclusive of his title, even if he appears and defends." When the lien has expired, one who then purchases the land previously bound, takes it free from the encumbrance of the judgment, and if such a one is cited as terre-tenant, and fails to appear and defend, a judgment of revival against him will not conclude him;'' nor will it, though he unsuccessfully defends, but the costs in that case will be enforced against him personally;* and if he is cited as terre-tenant and pleads that the judgment is not and never was a lien on his land, he is entitled to have an issue formed and tried thereon ; the court cannot strike it off, and decree that he shall pay the costs.' § 215. Properly speaking, a terre-tenant is one who bought the land while the judgment was a lien. If such a one is called in, but for want of appearance judgment is entered against him, he will be concluded, though the sci. fa. did not 1 Chahoon -!'. Hollenback, 10 Serg. => Mitchell v. Hamilton, 8 Pa. St. & K. 425 ; Colwell v. Easley, 83 Pa. 486. St. 31 ; Jarrett v. Tomlinaon, 3 W. & *Ibid. S. 114; Drum v. Kelly, 34 Pa. St. 415. ^Jarrett v. Tomlinson, 3 W. & S. If the plaintiff names one 36 terre- 114; Drum v. Kelly, 34 Pa. St. 415. tenant in his prascipe, and issue is ^Ibid.; Mitchell v. Hamilton, S joined as to the discharge of the lien, Pa. St. 486. To the contrary, are the terre-tmant is not bound to give Minier v. Saltmarsh, 5 W. 293 ; evidence that he became a purchaser Kiehnerr;. Dangler, 1 W. 424. Comp. after the entry of the judgment. Colwell v. Easley, 83 Pa. St. 31. Silverthorn v.Townsend, 37 Pa. St. 263. ' Dengler v. Kiehner, 13 Pa. St. 38. '' Chahoon v. Hollenback, 16 Serg. * Haskins v. Low, 17 Pa. St. 64. ^ R. 425. " Colwell v. Easley, 83 Pa. St. 31. 262 LAW OF LIEXS. issue until the lapse of the lien, by the expiration of five years from the rendition of the judgment.^ A vendee under articles executed before a judgment is recovered against the vendor, is not a terre-tenant whom it is necessary or proper to make a party to a sci. fa? If, after land of the plaintiff, contiguous to land of the defendant in a judgment, has been mistakenly included in a levy under the execution, founded on such judgment, it is sold by the plaintiff to another, and subsequently the judgment is also assigned, and a sci. fa. issues upon it, to which the alienees of the plaintiff's land are cited as terre-tenants, and appear, they are not concluded by the judgment of revival; holding no lands under title derived from the defendant, they could not resist a revival of the judgments.^ If the legal title is in A. and the equitable in B., and B., subsequently to the entry of a judgment against him, conveys his interest to C, C. is a terre'tenant, not A., or any one to whom A. transfers the legal title, except C* A., against whom were judgments, contracted to sell his land to B., and B. almost at the same time contracted to sell it to C. Subsequently, before A.'s deed to B., or B.'s to C, was exe- cuted, and before A. surrendered possession of the premises, sc?'. fas. issued and were served on A. alone. After this, and at the date of the execution of the deed from B. to C, it was agreed between B. and C. that C. should apply as much as was neces- sary of the purchase money to liens on the land. It was held that C. was justified in paying these judgments. The service of the sci. fa. on the defendant, who still occupied the land, and who, though he had contracted to convey it, had not exe- cuted a deed therefor, was sufficient to keep alive the lien.' § 216. If the defendant in a judgment contracts to sell his land, a subsequent sci. fa. served on him alone, will keep the ' Colborn v. Trimpey, 36 Pa. St. 463. " Geiger v. Hill, 1 Pa. St. 509. The ^Meehan!;. Williams, 48 Pa. St. 238. facts are confusedly given, but the ■'Hunter v. Hulings, 37 Pa. St. 307. opinion of Gibson, C. J., shows that ■* Chahoon v. Hollenback, 16 Serg. they were apprehended as above & R. 42.5. stated. 9^^ LIEX OF JUCaHEXTS. 263 lien alive upon his legal title to the extent of the purchase mon^ still unpaid, but it would bind no more.^ An assignee for the benefit of creditors is not a terre-tenant entitled to notice ■of a sci. fa.^- nor an assignee under the insolvent laws,^ nor a naked trustee; service on the cestui que trust, in whom is the whole beneficial interest, is sufficient,* but service of a sci. fa. on a trustee for the sej)arate use of a married woman, of land which was acquired expressly subject to the lien of the judg- ment, is sufficient to preserve its lien, as against other lien- ■creditors.^ The widow, heirs, or devisees of the deceased ■defendant need not be parties to the writ or served there- with." Only one who acquires from the defendant subse- quently to the judgment, a freehold interest in land, such as can be bound by the judgment, can be a terre-tenant, or be ■entitled to be made a party to a revival of a judgment.'^ Hence, a tenant from year to year, of the defendant, need not be served.' If the defendant in a judgment, after con- tracting to convey his land, remains in possession of it until the time for delivering the deed, a sci. fa. served on him alone, while thus in possession, will preserve the lien not only as to the unpaid purchase money due him, but as to the title of the vendee, or of a subsequent vendee of this vendee. The defend- ant is an occupant of the land, in the sense of the act of 4th April, 1798, [3 Sm. L. 331.]" For this reason, service on the ^Geiger v. Hill, 1 Pa. St. 509. nettti. Fulmer,49 Pa. St. 1-35; Shearer ^Fulton'.-; E.state, 51 Pa. St. 20-i; v. Brinley, 76 Pa. St. 300; Irwin v. Dohner'.s Estate, 1 Pa. St. 101. But Xixon's Heirs, 11 Pa. St. 419. he may be notified. Kirby r. Cash, 'Pulton's Estate, 51 Pa. St. 204; S3 Pa. St. 505. Catlini). Robinson, SW. 379; Mitchell ^Commonwealth e. Lelar, 13 Pa. i'. Hamilton, y Pa. St. 486. St. 22 ; Wrigley v. Whitaker, 2 W. X. » Clippinger v. Miller, 1 P. & W. 64. C. 420. It does not appear here But his own interest as lessee would whether the sheriff's .'^ale did not not be bound by the judgment on take place within five years from the the act. fa., unless he had notice and entry of-.the original judgment. opportunity to defend. * Bowers v. Harner, 3 Phila. 146. '> Geiger v. Hill, 1 Pa. St. 509. Mc- ^Dickerson's Appeal, 7 Pa, St. 255. Cray v. Clark, 82 Pa. St. 4.57, is in- "McMillen v. Red, 4 W. & S. 237; consistent herewith. Eiland v. Eckert, 23 Pa. St. 215 ; Ben- 264 LAW OF LIENS. defendant in possession, after having made an assignment for the benefit of creditors, is sufficient to preserve the lien, as against the assignee and the creditors/ An occupan is also a lessee in possession under a terre-tenant"^ on whom service may be had when service on the terre-tenant is impracticable because he is unknown or is not within reach of the process of the court.^ The eighth section of the act of 16th April, 1849, [P. L. 664,] provides that if the deed by which land has been conveyed by the defendant in a judgment is not on record, or the alienee is not in actual possession of the land, by himself or his tenant, a sci. fa. to which the defendant only is a party, will effectually revive the lien. When a tenant is in possession, and the sci. fa. is served neither on him nor on the terre-tenant under whom he holds, the lien is lost, though the deed is not recorded.* If the plaintiff in the judgment has actual notice of the sale of the defendant's title to A., he must make A. a party to the sd.fa., though the articles of agreement are not on record, and neither A. nor a tenant of his is in possession.^ The Mandate of the Writ. § 217. The acts of 4th April, 1798, and of 26th March, 1827, require, to continue the lien of the judgment, that the plaintiff " shall sue out a writ of scire facias to revive tlie same." The statute of Westminster II., as modified by the 4th section of the act of 16th April, 1845, [P. L. 538J requires a sci. /a* to issue on a judgment which is five years old, before an execution can issue upon it. This is the sci. fa. quare executionem non^ and commands the sheriff to make 'Dohner's Estate, 1 Pa. St. 101; there was actual notice; and in Fulton's Estate, 51 Pa. St. 204. Rudy's Appeal, 9 W. X. 0. SOS, the ^Mitchell V. Hamilton, 8 Pa. St. terre-tenant had agreed to pay the- 486; Dohner's Estate, 1 Pa. St. 101. judgment as a part of the purchase ' Clippinger v. Miller, 1 P. & W. 6-1. money. 'Schoch V. Bankes, 20 Pittsb. L. J. « Also called the scire facias post 191 ; 1 Leg. Chron. 218. annmn ct diem. Meason's Estate, 5- »McCray v. Clark, 82 Pa. St. 457. W. 464; Phila. Fire, etc., Co.'s Ap- In Fickes' Appeal, 71 Pa. St. 447, peal, 2 Pa. St. 263. Yet the fourth, XIEX OF JUDGMENTS. 265 known to the defendant to appear and show cause why the plaintiff should not have execution against him for the debt."^ This form of writ may be used for the purpose of reviving the judgment,- and though it cannot regularly issue unless the debt is due, this irregularity can be taken advantage of only in the action itself, in the court whence the writ issues, or on error in the supreme court ;^ collaterally such a sci. fa. will support the lien, e. g., in the distribution of the proceeds of a judicial sale of the defendant's land.* The more ajjpro- priate writ, however, is one which commands the sheriff to make known to the defendant that he appear in court and show cause why the judgment ought not to be revived and continue a lien on his real estate during another period of five years," and not unfrequently the writ used combines the mandate of the sci. fa. quare executionem non, with that of the proper sci. fa. to revive and continue the lien, calling on the defendant to appear and show cause why the judgment " ought not to be revived and continue a lien on his real estate during another term of five years, and why the plain- tiff ought not to have execution against him for the debt, interest and costs," etc." The judgment thereon may be for a revival of the judgment only; execution being refused for proper cause, e. g., that a fi. fa. is outstanding.' section of the act of 6th May, 1844, ^Gasche v. Peterman, 3 W. i S. [P.L.565,] directs that all judgmenis 851. Comp. Falkrier v. Franklin Ins. theretofore entered on writs oisci. fn. Co., 1 Phila. 183 ; Sinkett v. Wander, q. e n. shall have the same effect to 1 .M. 361. revive the lien of the original judg- •'Dougherty'* Estate, 9 W. & S. ISO; raent, as if entered on writs of sci. fa. Phila. Fire, etc., Co.'s Appeal, 2 Pa. post annum et diem. ' St. 2C3, interlocutory remarks of 1 Ga.-che v. Peterman, 3 W. & S. .351. Gibson, C. J. 2Dougherty'sEstate,9 W.&S. ISO; * Building Ass. v. Byrne, W. ^^ Pennock i: Hart. 8 Serg. & B. 369 ; 0. 253. Bennet v. Keed, 10 W. 396; Furslit "^ Cowling v. McGregor, 91 Pa. St. r. Overdeer, 3 W. & S. 470; Davis v. 410 ; .Jarrett c. Tomlinson, 3 \V, & S. Ehrman, 20 Pa. St. 256 ; Phila. Fire, 114 ; Pittsb., etc., R. R. Co. v. Maj-.sh- etc.Co.'s.lppeal, 2Pa,St.263;Boyer • all, 85 Pa. 'St. 187. r. Eees,4W. 201; Stewart t). Peterson, 'Gist u. Wilson, 2 W. 30; Stewart 63 Pa. St. 230 ; Eby's Case, 9 W. & S. v. Peterson, 63 Pa. St. 230. 145. 266 LAW OF LiEsrs. Sfiect of Scire Facias on Length of Lien. § 218. The mere issue of the sci. fa. within five years of the rendition of the judgment, continues its lien for the period of five years from the date of such issue/ whether it be served or not. If not served, an alias writ may issue, at any time within five years of the issue of the sci. fa? Hence when, the lien of the judgment expiring 27th February, 1877, a sci. fa. was issued on 2d February, 1877, to revive it, and was served 13th February, on the defendant alone, an alias sci. fa. for the purpose of bringing in the terre-tenants Yf&s in time, when issued 6th April, 1878, and on error, judgment was entered for the plaintiff in the supreme court.^ So, on a judgment rendered 12th October, 1872, a sci. fa. issued 2d October, 1877, and was served on one of several terre-tenants. An alias issued 7th January, 1879, which was served on the other terre-tenants. Judg- ment was entered against them in the supreme court.* On a judgment entered on 23d January, 1851, a sci. fa. was issued I6th August, 1855, and was served on the terre- tenant, but not on the defendant. An alias was issued "/th April, 1858, likewise served on the terre-tenant alone. Both writs were returned nihil as to the defendant. The plaintiff was entitled to a judgment of revival.^ The sci. ^But not from the end of the first ^Meason's Estate, 4 VV. 341 ; Top- period of Ave years, as was intimated ley's Appeal, 13 Pa. St. 424; Lichty in the obscure case of Poole v. Wil- v. Hochstettler, 91 Pa. St. 444 ; Silver- liamson, 4 E. 317. In Moore v. Kline, thorn v. Townseud, 37 Pa. St. 263. 1 P. ifc W. 129, judgment was entered ' Lichty v. Hochstettler, 91 Pa. St. in >vovember, 180S; sci. fa. issued to 444. Though the return to the first AugustTerni,1810;and,aftertheplea writ is tarde dcti**, the defendant ap- of payment with leave was in, a trial pearing, an alias, issued after the tookplace2-3thAugust,1825. on which lapse of five years from the original day judgment was entered. Rogers, judgment, and served on the terre- J., remarked that, independently of tenant, will preserve the lien. David- the statute, "the judgment and the son v. Thornton, 7 Pa. St. 12S. lien were co-extensive," and that " it *Kirby v. Ca§h, 93 Pa. St. 505. is the same now when a sci. fa. has ' ^Silverthorn v. Townsend, 37 Pa. in fact issued within the term of five St. 263. Comp. Reynolds' Appeal, 5 years." W. N. C. 184; Westmoreland Bank LIEX OF JrDGJIE^■TS. 267 fa. alone, though properly served, cannot prolong the lien of the judgment beyond five years from its issue; but a judgment must be obtained upon it within that time. The law does not recognize the possibility, when due diligence has been used, that the plaintiff should fail to obtain one in that period.^ Hence, when judgment was not entered on the sex. fa. until thirty-four days, or thirty-eight days, after the expiration of five years from its issue, the lien was lost as to judgments recovered since the original judgment, and before the issue of the sci. fa.; nor were the facts that the defendant had assigned his lands for the benefit of creditors before the sci. fa. issued, and that the assignee had died nearly eight months before the lapse of five years thereafter, a legal excuse, such as would save the lien.^ Service of the Scire Facias. § 219. As we have seen, all the steps necessary to a recov- ery of a judgment, must be taken within five years from the issue of the sci. fa. The first of these is to procure an appearance of the defendant and terre-tenant^ or, to do what is th^ equivalent. The writ should be served on the terre- tenants and the defendant.* If service is had on neither, for want of time, and the sheriff therefore returns tarde venit," or, if failing for some other cause to serve it on the defend- ant,* or on the terre-tenant^ or on one of several te7Te- i'. Eainey, 1 W. 20. When a sci. fa. 79 Pa. St. 64. But in Helvete v. was served, but no appearance of de- Eupp, 7 Serg. & R. 306, a subsequent fendant was entered for two years, judgment creditor was permitted to and then two rules to plead were defend. served on him, neither of which was ''It cannot be properly served be- complied with, judgment was prop- yo7id the state, Chahoon v. Hollen- erly entered by default for the plain- back, 16 Serg. & R. 42-5. tiff. Davis •«. Jones, 12 Serg. & R. 60. ^Davidson v. Thornton, 7 Pa. St. ^ Meason's Estate, 4 W. 341; Lichty 128; Pennock v. Hart, S Serg. & R. V. Hochstettler, 91 Pa. St. 444. 369. See West v. Nixon, 3 Grant 236. 2 Fulton's E.-tate, 51 Pa. St. 204. "Silverthorn v. Townsend, 37 Pa. ■''A mere lien creditor is not entitled St. 263. to notice. Lesher r. Gillinghara, 17 'Lichty v. Hochstettler, 91 Pa. St. Serg. & R. 123 ; Fox v. Seal, quoted 444. 268 LAW OF LIENS. tenants^ he returns as to the parties not served, nihil habet, an alias sci. fa. should issue, but against the party not served alone, reciting the former writ.^ It may issue at any time ■within five years from the date of the issue of the sci. fa., provided that the obtaining of a judgment within that period will be practicable.^ This alias writ should be served on the party not served with the sci. fa.,^ but service of it on those already served would be superfluous.* If the parties not served in the first writ are also not served in the second writ, the return of nihil habet will be made." When two returns of nihil have been made, this is equivalent to service, and a judgment may be taken against the party concerning whom they have been made, as for default of appearance,^ except when the defendants are the executors or administra- tors of the defendant, now deceased, in the original judg- ment. In that case, under the act of 6th April, 1859, [P. L. 384,] if the executor or administrator resides within the state, a judgment against his decedent should not be revived on two nihils without giving him actual notice, and, since he has twenty days after service given him by the act ' Kirby v. Cash, 93 Pa. St. 505. after a return of tarde venit to the ■^Eej'nolds' Appeal, 5 W. N. C. 184. first writ, the plaintiff is not bound ^ Liehty v. Hochstettler, 91 Pa. St. to accept the appearance, but may 444; Kirby i,'. Cash, 93 Pa. Bt. 505; issue an alias which may be served Silverthorn v. Townsend, 37 Pa. St. on him. Davidson v. Thornton, 7 263 ; Meason's Estate, 4 W. 344. Yet, Pa. St. 128. if the sheriff never makes return to ^Compher v. Anawalt, 2 W. 490; the first writ, but one of two defend- Chahoon i'. Hollenback, 16 Serg. & ants appears, failure to issue the alias R. 425 ; Bennet v. Reed, 10 W. 396. sci. fa. till two years later, and after In Kirby v. Cash, 93 Pa. St. 5l)5, the five years have elapsed from the return to the sci. fa. was as to the entry of the original judgment, will defendants won «si; in Share u. Becker, destroy the lien as to the defendant 8 Serg. & R. 239, it was as to one of who did not appear to the first writ. two defendants, non est inventus. Reynolds' Appeal, 5 W. N. C. 184. 'Chahoon r. Hollenback, 16 Serg. * Liehty V. Hochstettler, 91 Pa. St. & R. 425 ; Compher v. Anawalt, 2 W. 444. 490 ; Chambers v. Carson, 2 Wh. 365 ; ^Silverthorn v. Townsend, 37 Pa. Bennet v. Reed, 10 W. 896; Jack v. St. 263. If the defendant appear Jones, 5 Wh. 321. LIEW OF JUDGMENTS. 269 of 24tli February, 1834, [P. L. 77,] to appear, judgment could not properly be taken on a return of two nihils until the lapse of that time from the return day of the alias sci. fa} Abandonment of Scire Facias. § 220. As we have seen, the mere issue of a sci. fa. within five years from the rendition of the judgment, if it com- mands notice to the proper parties, will keep the lien alive for five years therefrom. This effect may be modified, how- ever, by conduct of the plaintiff", amounting to an abandon- ment of the writ. When a sci. fa. to June Term, 1827, was returned "scire feci" as to all the defendants, the issue to January Term, 1828, of another sci. fa., which did not pur- port to be an alias, in forgetfulness of the first writ, perhaps, was an abandonment of the first, and, the judgment being five years old on 9th November, 1827, its lien wac- lost.^ But, when a sci. fa. issued 16th August, 1855, was returned "served" as to the terre-tenant, and nihil as to the defend- ant, an alias scire facias dug&mst both, issued 7th April, 1858, to which the sheriff" made the same return as to the sci. fa., was a prosecution and not an abandonment of the original sci. fa} So, when, on 26th September, 1872, a sci, fa. issued against A. and B., two joint defendants, and was never re- turned, but A. entered an appearance about the time it should have been returned, the issue of another against both defendants on a prcecipe calling for an alias, on 8th October, 1874, (nearly two years after the expiration of five years from the entry of the judgment,) and the return of service thereof on both A. and B., were not an abandonment of the first sci. fa. as to A., but a due prosecution thereof, the second sci. fa. being docketed in the same case as the first, and both writs appearing by the docket to have been entered or issued from 'Ball V. Nicholson, 1 Pearson 285. =Meason's Estate, 4 W. 341. Herea judgment sixty-one years old 'Silverthorn v. Townsend, 37 Pa. ■was revived by sd.fa. St- 263. 270 LAW OF LIEXy. the same original case.^ On a judgment entered Xovember 8th, 1842, a sci.fa. issued on Xovember 5th, 1847, to which, seven days afterwards, counsel appeared for defendant and waived service. The defendant, informed of the issue of the writ, agreed to sign an amicable confession of judgment, to be filed to the suit of November 5th, 1847. An amicable sci. fa. referring to the writ was entered, but, by mistake of the prothonotary, to April Term, 1848, and, on July 3d, 1848, the judgment which was then confessed, and was intended to be on the writ of November 5th, 1847, was entered to the amicable sci. fa. This was not an abandon- ment of the sci. fa., and, the defendant's real estate being sold judicially in October, 1849, the judgment of November 8th, 1842, received the proceeds.^ Mere inaction for a time short of five years from the issue of the sci. fa., will not be deemed an abandonment of the writ, e. g., neglect to issue an alias for six,^ or fourteen,* or fifteen months,^ or two years and eight months after the original writ," which has been returned tarde venif or nihil ;^ or, the writ having been served, omission for two years, notwithstanding default of appearance, to take steps to obtain a judgment.^ But, when ' Ee.vnolds' Appeal, 5 W. N. C. 184. * Lichty v. Hochstettler, 91 Pa. St. • Compare case referred to in Moore 444. Westmoreland Bank v. Rainey, V. Kline, 1 P. & W. 129. The alias 1 W. 26, which decided that if a sci. sci.fa. should recite the mandate of fa. is returned nihil, it is abandoned and return to its predecessor, but by a failure to issue an alias until the this is not essential. It will be valid, fifth succeeding term, is not now the though it be an exact copy of the law. original sci.fa., if it is in fact intended ^Kirby v. Cash, 93 Pa. St. 505. to be an a/jas. That it is referred to ^Silverthorn v. Townsend, 37 Pa. on the docket as an alias, is evidence St. 263. of this intent, the second writ issuing 'Davidson v. Thornton, 7 Pa. St. to the second term after that to 128 ; Pennock v. Hart, 8 Serg. & R. which the first issued, which had 369. been returned farde venit. Davidson ^Lichty v. Hochstettler, 91 Pa. St. V. Thornton, 7 Pa. St. 128. 444; Kirby v. Cash, 93 Pa. St. 505; ^Topleys Appeal, 13 Pa. St. 424. Silverthorn v. Townsend, 37 Pa. St. 'Davidson v. Thornton, 7 Pa. St. 263. 128; Pennock v. Hart, 8 Serg. & R. 'Davis v. Jones, 13 Serg. & R. 60. 369. LIEN OF JUDGMENTS. 271 to a sci. fa. issued 2d November, 1820, the retura "scire feci" was made, and no attempt was made to obtain judg- ment for want of an appearance until 1st January, 1827, the lien was lost.^ § 221. As the plaintiff may abandon a sc-i. fa. to his detriment, so he may to his advantage. Hence, if he issues one, to which he fails to make terre-tenants parties, and prosecutes it to judgment, he may subsequently neglect both the sci. fa. and the judgment thereon, and, reverting to the judgment which was obtained prior to the defendant's alien- ation, he may effectively issue a sci. fa. thereon, within five years of its rendition, against the defendant and the terre- tenantsl' The judgment reverted to may be the original,^ or a judgment of revival,* and only one intermediate judgment of revival may be pretermitted," or more," and the judgment passed by may have been obtained adversely,' or on an ami- cable sci. fa.^ A sci. fa. on a judgment of revival, obtained against the defendant alone on a sci. fa. which had issued after the alienation of his land, will not support the lien, as against the terre-tenant, though it issue within five years from the entry of the original judgment.^ Effect of Judgment on Length of Lien. § 222. The sci. fa. alone, as we have seen, when issued in five years from the date of the judgment, will continue its lien for five years from its issue. Within this time judgment must be recovered upon it. The judgment, when recovered, does not continue the lien for five years from the expiration ©f five years after the date of the original judgment, i. e., for ' Vitry i). Dauci, 3 E. 9. « Little v. Smy^er, 10 Pa. St. 381. 2 Fursht V. Overdeer, 3 W. & S. 470. ' Fursht v. Overdeer, 3 W. & S. 470. Comp. Collingwood v. Carson, 2 W. « kittle r. Smyser, 10 Pa. St. 381. A. & S. 220 ; Custer v. Detterer, 3 W. & fi.fa. had issued on one of the inter- S. 28. mediate judgments and a certaia ' Fursht !'. Overdeer, 3 W. & S. 470. sum made thereon. * Little V. .Srayser, 10 Pa. St. 381. 'Zerns v. Watson, 11 Pa. St. 260. 5 Fursht V. Overdeer, 3 W. & S. 470. 272 LAW OF LIENS. ten years therefrom/ but for five years from its own rendi- tion.- The first section of the act of 26th March, 1827, [9 Sm. L. 303,] prescribes that all judgments "shall continue a lien on the real estate of the defendant for the term of five years from the day of entry or revival thereof," adding that no judgment shall continue a lien for a longer period than five years from the day on which it "may be entered or revived, unless revived within that period" by agreement of the parties, or by sci. fa. Hence, when a judgment was recovered 2d June, 1828, and, on a sci. fa. thereupon, an award of arbitrators was filed 11th March, 1833, which was never appealed from, no subsequent revival of the lien being obtained, it had ceased to bind the defendant's lands on the- 2d Aj)ril, 1838, though ten years had not elapsed since the entry of the original judgment.^ So, continuing no longer than five years from the entry of a judgment of revival, the lien will not determine before the expiration of that period. It does not cease, e. g., in five years from the issue,* or from the return day' of the writ on which the judgment of revival is obtained. Hence, a sci. fa. upon a judgment of revival, with notice to terre-tenants, issued near the end of the period of five years from this judgment, was sufficient, because within that period, to keep the Hqu alive, although two intermediate judgments of revival had been entered, to which the terre- tenants were not parties.* Judgment and its Effects. § 223. The judgment on a sci. fa. is quod recuperet, and not merely an award of execution.' It embraces the principal- 'Bringing suit on a decedent's 'Duff i;. Wynkoop. 74 Pa. St. 300; •debt within live years of his death Meason's Estate, 5 W. 464; Shaeffer prolongs the lien for five years from v. Child, 7 W. 84 ; Fursht v. Over- the expiration of the first five. Penn deer, 3 W. & S. 470 ; Little v. Smyser, V. Hamilton, 2 W. 60. 10 Pa. St. 381 ; Stewart v. Peterson, ■" Cathcart v. Potterfield, 5 W. 163. 63 Pa. St. 230 ; Cash v. Tozer, 1 W. & 'Jack !>. Jones, 5 Wh. 321. S. 519 ; Hays v. Shannon, 5 W. 548 ; * Meason's Estate, 4 W. 341. Feger v. Kroh, 6 W. 294 ; Smith's ^ Cathcart v. Potterfield, 5 W. 163. Appeal, 2 Pa. St. 331. * Litae V. Smyser, 10 Pa. St. 381. LIEN OF JUDGMENTS. 273 :-um of the original judgment, and the interest that has iieci lied thereon to the time of the judgment sur. sci. fa.^ and the entire sum for which it is rendered will bear interest.^ It carries costs, and if a terre-tenant is a party, judgment as to him will be de terris with respect to the debt and interest, -and such costs as have accrued independently of his defence, but against him personally with respect to the costs which his defence has occasioned. This liability of the party summoned as terre-tenant, for costs, arises when he takes W. 404 ; Mee- ^Eamsey v. Linn, 2 E. 228. han v. Williams, 48 Pa. St. 238; Mc- "TluSv. Wynkoop, 74 Pa. St, 300. Cray v. Clark, 82 Pa. St. 457. Yet, *Buehlert).Buflangton,43Pa.St.279. in Irwin v. Xixon's Heirs, 11 Pa. St. = Dorrance v. Scott, 3 Wli. 309; 419, it is said that execution should Quinn's Appeal, 86 Pa, St. 447 ; Gra- issue on the origi'tial judgment. 276 LAW OF LIENS. another sci. fa. quare executionem non cannot be founded on it; it must issue on the last judgment/ unless parties thereto necessary to preserve the lien, have been omitted from the preceding writ. In that case, the judgment on the defective sci. fa. may be pretermitted, and a sci. fa. may issue on the latest judgment which is a lien on the land. Thus when, after judgment against A., he conveyed his land to B., and subsequently a sci. fa. issued against A. alone, on which judg- ment was recovered, it was competent for the plaintiff to issue another sci. fa. upon the original judgment, within five years after its rendition, making B., as terre-tenant, a party, and to recover a judgment of revival thereon.^ After judgment had been entered in 1842, on an amicable sci. fa. against A., he sold his land to B., and in 1843 a sci. fa. issued against A. alone, on which judgment was obtained. In 1844 another sci. fa. issued against A. alone, and another judgment was recovered. In 1847, but before five years had elapsed since the date of the judgment of 1842, a sci. fa. issued on the judgment of 1842, with notice to the terre-tenant. It was sufficient to support the lien, though an execution had issued on the judgment of 1844, and a part of the debt had been made thereunder.^ A reversal of a judgment upon a sci. fa. does not affect the original judgment, but a reversal of the latter is a reversal of the revived one which was based upon it,* and in the trial of an issue under an opened judg- ment, a judgment intermediately recovered on a sci. fa. thereon, is no evidence whatever." If the original judgment ' Collingwood v. Carson, 2 W. & S. though five years had not elapsed 220 ; Custeri;. Detterer, 3 W. & S. 2S. when the sci. fa. issued, since the - Fursht V. Overdeer, 3 W. & S. 470. rendition of the original judgment. 'Little V. Smyser, 10 Pa. St. 381. Zerns v. ^Yatson, 11 Pa. St. 260. When,afteralienation,ascJ./a.issues *Eanck v. Becker, 12 Serg. & E. against the defendant alone, on which 426; Lamb's Appeal, 89 Pa. St. 410 ; a judgment is recovered, to a sd. fa. Eldred v. Hazlett, 38 Pa. St. 32. founded on this judgment the ierre- ^Eldred v. Hazlett, 38 Pa. St. 16. tenant cannot properly be made a The original judgment being opened, party, nor can a valid judgment the judgment of revival was also against him be rendered thereon, opened. LIEN OF JUDGMENTS. 277 is opened, and then a sci. fa. issues upon it, to which the defendant conftsses that the judgment be revived for purposes of lien, but also pleads that the original judgment is open, and after^Yard arbitrators are appointed who report in favor of the plaintiff for a definite sura, and the defendant then appealing, judgment is subsequently entered against him for want of a plea, which judgment is liquidated on a writ of inquiry of damages at about one-fourth of the award of arbitrators, and the plaintiff thereupon issues execution, the proceedings on the original opened judgment are concluded.^ A judgment of revival on two nihib, is not conclusive as to the amount of the plaintiff's costs."^ Pleas and Defences on the Scire Facias. § 226. The defendants to a sci. fa. on a judgment, may plead nul tiel record^ or payment,'' or payment with leave, etc.,^ or set-off," or (when the judgment on which the_sci. /a. issues, is to indemnify and save harmless,) non damnificatus, but not when the judgment is to protect from a liability not yet determined, though no loss has yet in faijt accrued.^ A discharge in bankruptcy may be specially pleaded,' and spe- cial pleas of various kinds may be made, e. g., that the plain- tiff had agreed, when the terre-tenant bought the land from A., that the judgment which he had binding A.'s land should not continue a lien on it;^ or, that the judgment having 1 Eby's Case, 9 W. & S. 145. Filbert v. Hawk, 8 W. 443 ; Seymour ^ Koons r. Hoyt, 3 Luz. L. Regs 233. v. Hubert, 92 Pa. St. 499; Lysle v. 'Peterson v. Lothrop, 34 Pa. St. Williams, 1-5 Serg. &R. 135; Hartley 223; McCarty v. Springer, 3 P. & W. v. Kirlin, 45 Pa. St. 49. 157; Richterr. Ciimmings, 60 Pa. St. "Richter v. Cummings, 60 Pa. St. 441 ; Altman v. Klingensmith, 6 W. 441 ; Fursht v. Overdeer, 3 W. & S. 445; Walker v. Pennel, 15 Serg. & 470; Sankey t). Reed, 12 Pa. St. 95; R. 68 ; Share v. Becker, 8 Serg. & R. McCarty v. Springer, 3 P. & W. 157. 239 ; Green v. Leymer, 3 W. 381. As ^ Filbert v. Hawk, 8 W. 443 ; Hugg to adding this plea late in the trial, v. Brown, 6 Wh. 468. see Fox v. Foster, 4 Pa. St. 119. 'Neville v. Williams, 7 W. 421. * Fursht V. Overdeer, 3 W. & S. 470 ; ^ Peterson v. Lothrop, 34 Pa. St. 223. Peterson v. Lothrop, 34 Pa. St. 223 ; ' Altman v. Klingensmith, 6 W. Share v. Becker, 8 Serg. & R. 239 ; 445. 278 LAAV OF LIEXS. been confessed to B., to indemnify certain persons from lia- bility on notes, the use-plaintiff was not one of these persons;^ or, that the liability to indemnify, against which the judg- ment was confessed, has been discharged in a particular mode.' Coverture and infancy, if pleaded and replied to, will support an issue, verdict and judgment thereon.^ A dis- charge of the lands of the principal of two defendants should be specially pleaded by the other, a surety, to the sci. fa. to revive ; the plea of payment, alone, is not a proper plea.* A plea by the terre-tenant that the judgment is not, and never has been, a lien on the lands of him, the terre-tenant, will not be stricken off.* Defences to Scire Facias. § 227. The only defence on a sci. fa. is a denial of the existence of the judgment, or proof of a subsequent satis- faction or discharge thereof." Hence, usury paid before the recovery of the judgment on which the sci. fa. issues, whether it be the original judgment'^ or a judgment of revival,* can- not be deducted from the amount of this judgment with its lawful interest; but usurious interest paid since the judg- ment, can be treated as payment pro tanto.^ The remedy of the debtor who has paid usurious interest before the judg- ment was. recovered, is to apply to the court to open it.^" On the sci. fa. it cannot be shown that the original judgment was entered on a bond with warrant of attorney obtained 1 Peterson v. Lothrop, 34 Pa. St. R. 135; Wood's Appeal, 11 W. N. C. 223. 30. 'Neville u. Williams, 7 W. 421. « Rutherford v. Boyer, 84 Pa. St. '' Seymour v. Hubert, 92 Pa. St. 499. 347. *Holt V. Bodey, 18 Pa. St. 207; ' Hopkins t). West, 83 Pa. St. 109. Hartley v. Kirlin, 45 Pa. St. 49. "Walter v. Breisch, 86 Pa. St. 457. ^Colwell D. Easley, 83 Pa. St. 31. After a judgment is entered on a ''Dowling V. McGregor, 91 Pa. St. judgment-note, it cannot be shown 410 ; Pittsburg, etc., R. R. Co. v. Mar- that the note was paid before the shall, 85 Pa. St. 187. judgment was entered, except to 'Hopkins t'. West, 83 Pa. St. 109; support a proceeding to open the Federal Ins. Co. v. Robinson, 82 Pa. judgment. Braddee v. Brownfield, St. 357 ; Lisle v. Williams, 15 Serg. & 4 ^^' . 474. LIEX OF JUDGMENTS. 279 from the. defendant while he was in a state of extreme drunk- -enness, and without one dollar of consideration ;^ or that it had been altered before the judgment was entered;' nor that, before the original judgment, the plaintiff had agreed to discharge the defendant in consideration of certain notes, a share in an assignment of property, etc.^ On a sci.fa. founded on a judg- ment of revival confessed by an executor, evidence is incom- petent that the will had never been probated in the county in which the letters of administration issued.* Payments made," or a discharge in bankruptcy'' taking place before the recovery of the judgment, cannot be shown; or that an erasure in the note, on which the original judgment was entered, had been made by the plaintiff;^ or that, prior to the original judgment, the defendant had delivered collaterals to the plaintifi", on his promise not to enter judgment until defendant had had an opportunity to make conveyance of a certain lot of ground, which promise had not been kept;^ or, that the original judg- ment had been obtained on a pretended book account, whereas, the real claim was for salary, not a proper subject of book entries." The resolution of 21st January, 1843, avoids any mortgage as to debts previously contracted by the railroad company, mortgagor, towards laborers, workmen, etc., en- gaged in the construction of its road. After judgment against the original company, and a judgment of revival, to which the purchaser under a mortgage is a party as terre-ten- cnt, the latter cannot show, in a aci.fa. on the judgment of re- vival, that the mortgage had in fact been executed before the plaintiff's debt accrued.^** § 228. Insanity or want of consideration for a judgment," 1 Bowling V. McGregor, 91 Pa. St. « Stewart tj. Colwell, 24 Pa. St. 67. 410. Alden v. Bogart, 2 Grant 400. 2 Withers v. Haines, 2 Pa. St. 4.3-5. * Kurtz v. Kelly, 1 W. X. C. 104. ' Cardeisa v. Humes, 6 Serg. <& E. 6-5. " Trasel v. Oil Co., 1 W. ^T. C. 155. 'Davidson v. Thornton, 7 Pa. St. "Pittsb., etc., R. B. Co. r. Marshall, \oii, S5 Pa. St. 187. ■' Alden t).Bo-Mrt, 2 Grant 400; Mc- "Wernet's Appeal, 91 Pa. St. 319. Yeagh V. Little, 7 Pa. St. 279. 280 LAW OF LIENS. mistake, fraud, or even forgery,^ or usury,'' can be taken advantage of only by an application to the court to open the judgment. But if matters of defence, existing when the judgment was entered, e. g., the coverture or infancy of the defendant, be pleaded specially, and the plaintiff replies dis- coverture, of age, etc., and upon the pleas and replications,^ issue is joined, it is error to exclude evidence in support of the pleas.* A judgment of revival is as conclusive of the amount due as the original judgment.* A plea of mil tiel record must be determined by the court on an inspection of" the record; evidence cannot be given concerning the regu- larity of the appointment of arbitrators whose award, unap- pealed from, is the basis of the sci. fo? When land, subject to a mortgage and two judgments, (the earlier of which is an indemnity to the purchaser of another part of the mortgaged premises, against the mortgage,) is sold by the sheriff, and only a part of the proceeds of sale is paid into court, and an auditor appointed to make distribution includes therein the money not paid into court, therefrom appropriating a cer- tain amount to the second judgment creditor, but only on the double condition that this creditor should to the same extent reduce the mortgage, and that the whole purchase money should be subsequently paid into court, this conditional ap- propriation is not a defence pro tanio to a sci. fa. on the sec- ond judgment, the conditions not having been complied with.* § 229. A partial payment of the judgment may be shown in defence to the sci. fa.;'' or entire payment by sheriff's sale of defendant's land,' or a release by the plaintiff of lands,* or personalty^" of the principal defendant from the lien of the > Withers l. Haines, 2 Pa. St. 4,35; =Ma.«er r. Dewart. 46 Pa. St. 534. Bowling v. -AIcGregor, 91 Pa. St. 410. ' Little v. Smyser, 10 Pa. St. 3>1. - Walter v. Breisch, S6 Pa. St. 457 ; * Moore c. Smith, >1 Pa. St 1^-. Wood's Appeal. 11 W. X. C. 30. ' Holt r. Bodey, IS Pa. St. 207. The 'Seymour v. Hubert, 92 Pa. St. 499. judgment of revival was opened on * Lamb's Appeal, 89 Pa. St. 407. this ground iu Simkius v. Jordan, & * Share v. Becker, 8 Serg. & E. 239. W. N. C. m. See Sloan v. McKinstry, 18 Pa. St. 120. '" Hartley v. Kirlin, 45 Pa. St. 49. LIEN OF JUDGMENTS. 281 judgment or execution, may be shown by the other defendant, who is a surety. The terre-tenant may show a discharge of the lien which once bound his land, by payment, release, or efflux of time,^ as well as that the lien had ceased before he became the purchaser,^ and also that the judgment of revival on which the sd. fa. issued, was confessed by the defendant on the condition that its lien should be restricted to land other than that owned by the terre-tenant? He may show that land of the defendant sufficient to discharge the debt has been released by the plaintiff, after notice of the terre- tenant's purchase, and of the injury he would undergo by the release.* The terre-tenant may make a defence peculiar to himself,'' and the defendants may also sever in their defences.^ To a sci. fa. on a judgment for purchase money, confessed by the vendor's direction to his creditor, the defence pro tanto may be made that, after its entry, the land was sold by the sheriff" under a lien against the vendor, and that the vendee had been compelled to buy it in to save his title,'' or that a part of the purchase money for which a judgment was confessed, was to be applied to a previous mortgage, payment of which should be regarded as payment of the judgment, and that since the judgment was entered, the defendant therein had discharged the mortgage.' On a sci. fa. on a judgment, it may be shown as a defence that a subsequent judgment of revival has been recovered, which the plaintiff has passed by,' except when the pretermitted judgment was not an effective revival of the lien.^" The defendant to a sci. fa. may set oif against the use-plaintiffs a judgment recovered by himself against the legal plaintiff" prior to the assignment 'Dengler v. Kiehner, 13Pa. St. 38. «Holt v. Bodey, 18 Pa. St. 207; ^Colwell V. Easley, 83 Pa. St. 31. Hartley v. Kirlin, 45 Pa. St. 49. ^Sankey v. Eeed, 12 Pa. St. 95. 'McCarty r. Springer, 3 P. &W. 157. *Quakertown Building and Loan ^Hartzell v. Reiss, 1 Binn. 289. Ass., I'. Sorver, 33 Leg. Int. 359. 'Collingwood c. Carson, 2 W. & S. Comp. Taylor i'. Maris. 5 R. 51. 220 ; Custer v. Detterer, 3 W. & S, 28. ^Sankey c. Reed, 12 Pa. St. 95; '"Fursht u Overdeer,3 W. & S. 470; Colwell i: Easley, 83 Pa. St. 31. Little v. Smyser, 10 Pa. .St. 381. 282 LAW OF LIF.XS. of the judgment in suit by the latter;^ and he may set off, likewise, his liability on acceptances of drafts made for the accommodation of the use-plaintiff before the original judg- ment was rendered, but not then matured.^ On a sci.fa. on a judgment to indemnify A. for notes and endorsements made or to be made by him for the defendants, A., B. and C, a firm, it may be shown by C. that the notes executed for this firm have been in fact paid, and that outstanding notes are not renewals thereof, but separate liabilities of the firm of A. and B., assumed after C.'s withdrawal.' Judgment may be entered on a sci. fa. to revive, for want of a sufficient affidavit of defence.* The Judgment Docket. § 230. The 3d section of the act of 29th March, 1827, [9 Sm. L. 319,] requires prothonotaries of the several courts to keep judgment dockets into which shall be copied the entry of all judgments, immediately after the same shall have been entered, and in the order in which they are entered ; the docket must set forth the names of the parties, the term and number of the case, and the date, and, when the judgment is for a sum certain, the amount thereof. The issue of a sci. fa. to revive, or a revival of the judgment otherwise, and the issue of an execution, must be noted in the docket in connection with the entry of the judgment. The object of the docket is to furnish to later encumbrancers and purchasers a means of read}' and certain information in regard to judgments against the defendant.' Prior judg- ment creditors, giving no credit upon the faith of the judg- 1 Filbert i: Hawk, ^ \\. 443. Bear v. Patterson, .3 W. & S. 233 ; Ful- ^Hiug V. Brown, 6 Wh. 46>. See ton's Estate, 51 Pa. St. 204. Tlie ^yindle c. Moore, 10 \V. X. C. 387, for prothonotary's failure to index a refusal of court to permit set-off of judgment against the maker of a one judgment against another. note, so that the lien on his real ' Hartley v. Kirlin, 4-3 Pa. St. 49. estate was lost, he selling it, did not * Moore i'. Smith, SI Pa. St. 182; discharge the guarantor of the note Schoonover v. Pierce, 7 W. X. C. 93. from his liability to the plaintiff. 'Coyne v. Souther, 01 Pa. St. 4.56; Bryan r. Eaton, 4 W. X. C. 493. LIEN OF JUDGMEXT.S. 283 ment docket, as to liens entered subsequently to their judgments, cannot take advantage of the omission to docket a judgment of revival of such later judgments.^ And, when later encumbrancers or purchasers have actual notice of any or all the facts which should appear on the docket, in respect to prior judgments, but which are either omitted therefrom or are erroneously registered there, this defective or erro- neous registration in the docket, will not, as to them, impair the lien of the prior judgments.^ It is said that this actual knowledge on the j)art of a subsequent encumbrancer must exist jDrior to the taking of this judgment,* or before his rights as a lien creditor attach,* but, in a later case, the equivalence of actual notice to the jDroper registration is justified as to judgment creditors by the suggestion that " the encumbrancer, having such notice, has a right to refuse to give credit to the debtor."' The actual notice must be to the creditor himself; it is not enough that his counsel has it.* It must be definite. Xotice of a judgment note, but not of the entry of the judgment on it, is insufficient.'' Xotice to a purchaser that a judgment entered in the docket as against John Grover, is in fact a judgment against John !M. Grover, comes too late, when, though he has not paid the purchase money for land bought by him from John M. Grover, he has bound himself to pay certain debts of his, on account of the purchase money due.* So, notice to a mortgagee, whose mortgage immediately followed a judgment which was marked satisfied, that the satisfaction was a mistake, is too late, if given after a sheriff's sale on a judg- ment later than the mortgage, in the proceeds of which he 1 Fulton's Estate, 51 Pa. St. 215. ' York Bank's Appeal, 36 Pa. St. 'York Bank's Appeal, 36 Pa. St. 461. 461 ; Smith's Appeal, 47 Pa. St. 188; *Smith's Appeal, 47 Pa. St. 138. Stephens' Exr.'s Appeal, 38 Pa. St. ^ Coyne v. Souther, 61 Pa. St. 455. 14 ; Wood V. Kevnolds, 7 W. & S. 406 ; ^ Smith's Appeal, 47 Pa. St. 138. Fulton's Estate, 51 Pa. St. 204; Mel- ''Ibid. Ion's Appeal, 37 Leg. Int. 224. * Woods v. Pveynolds, 7 W. & S. 406. 284 LAW OF LIENS. is to share, if the judgment was not in fact paid ; but, otherwise, not. Nor, indeed, would notice in parol, even before the sale, be enough, since the mortgagee cannot be compelled to take the risk of deciding whether the judgment is paid or not.^ Of course, the parties to a judgment cannot take advantage of a want of a proper registration of it in the docket,^ and a creditor whose judgment is not entered in this docket is entitled to the proceeds of an execution, in excess of what is necessary to pay the earlier liens, in preference to the defendant.' Actual knowledge by a later lien creditor that a judgment docketed against Nevin, is against John A. Nevin,* or, that one docketed against John Gruver is against John M. Gruver,' would preserve the lien of the misregistered judgment. Defective Registration of Name. § 231. The christian name of the defendant must appear in the judgment docket; hence, the docketing of a judgment against John A. Nevin as against Nevin,^ or of one against P. Winters McFall as against McFall,'' or of one against Robert B. Green as against Green,* is fatally defective as to later liens. The omission of or a mistake in the initial of the middle name, is equally so, e. g., when the defendant's name, which in fact is John M. Gruver, is docketed as John Gruver,** or a judgment against D. T. Lewis is entered and indexed as against D. S. Lewis,^° or one against W. A. Black is mistak- ^ Coyne v. Souther, 61 Pa. St. 455. 'York Bank's Appeal, 36 Pa. St. ^Ridgway's Appeal, 15 Pa. St. 177. 461. » Worrell i). Vandusen Oil Co., 1 'Smith's Appeal, 47 Pa. St. 128. Leg. Gaz. 53. An assignee for the ^Ridgway's Appeal, 15 Pa. St. 177. benefit of creditors cannot complain ^ Wood v. Reynolds, 7 W. & S. 406. of the want of registration. Fulton's In this case, there were other persons Estate, 51 Pa. St. 204. named John Gruver in the county, *York Bank's Appeal, 36 Pa. St. who were defendants in judgments. 461. The lien docket is not a roll of i" Peck's Appeal, 11 W. K C. 31. the court; the appearance docket is A correction made in the docket will the authentic evidence of judgments not affect the rights of creditoi-s as such. whose judgments have already at- * Woods V. Reynolds, 7 W. & S. 406. tached. LIEX OF JUDGMENTS. 285 enly entered against W. G. Black/ or one against Jacob Briggan as against John Briggan.^ But when the defend- ant uses indifferently the names of John Henry Hackman and Henry Hackman, indexing a judgment under either ■will be valid ;^ and when he is equally well known by the names A. Jones and Abel Jones, a judgment against him is properly indexed as against A. Jones.* Slight departures in the spelling of the registered name from the mode in which the name is spelled by the defendant himself, or by persons in the county, will not vitiate the registration, if the spelling adopted represents a sound almost exactly agreeing with the accepted pronunciation of the name. The name Bobb being sounded in Lancaster as Bubb would be there, (viz., as if written Bupp,) a judgment against John Bobb, will bind land conveyed from him after the registry of the judgment, by a deed in which he calls himself John Bubb.*^ A judgment against Hackman, but docketed as against Heck- man," or one against Yoest, but docketed as against Yeust, or Yosst,'' is validly registered. When the name of a defendant, spelled in his vernacular Joest, is pronounced as Yoest would be in English, a judgment against him must be docketed as against Yoest; if docketed as against Joest, it is invalid as to later lien creditors.' After land was conveyed to one as Patrick McHugh, a judgment was recov- ^Hutchinson's Appeal,92Pa.St.l86. onl}- the amount of the judgment as ^ Zimmerman v. Briggan, 5 W. 186. actually liquidated. Here the judgment itself was errone- 'Bergman's Appeal, 88 Pa. St. 120. ously entered, and not the mere * Jones' Estate, 27 Pa. St. 336. docketing in the judgment index. Compare Mahler's Appeal, 38 Pa. St. In Crutcher v. Commonwealth, 6 220, where it is said, that if defend- Wh. 340, when the prothonotary ant signs himself sometimes as Jacob liquidated damages in assumpsit, on Sigler, and sometimes as Jacob F. a judgment by default for want of Sigler, a judgment against him as affidavit of defence, at Sl,331.50, in- Jacob Sigler is entitled, being first, stead of at $i,669.29, though a paper to the proceeds of a sheriff's sale. filed contained the proper amount, " Myer v. Fegaly, 39 Pa. St. 429. the bail for the surrender of the de- " Bergman's Appeal, 88 Pa. St. 120. fendant (the action being begun by ^ Heil's Appeal, 40 Pa. St. 453. capias) was liable on his bond for 'Ibid. 286 LA^Y OF LIENS. ered against him as Patrick McCue, (the manner in which he himself spelled his name,) and he subsequently executed a mortgage of the land, styling himself therein Patrick McHugh. The premises being sold under the judgment, the proceeds were applicable to it, the mortgage being made a prior lieu by the failure of the docket to show a judgment against McHugh, and so remaining undivested by the sale/ Registration Other-wise Defective. _ § 232. The omission to enter on the lien docket the fact of a revival of a judgment, so that, at the distribution of the pro- ceeds of a sheriff's sale, it appears to have lost its lien, will postpone it to judgments entered during the life of the origi- nal judgment, and regularly revived and indexed;^ but will not impair the lien as to an assignee for the benefit of credit- ors, and general creditors claiming through the assignment.^ A judgment may be properly indexed, though the amount of the costs is not set out.* But when an award of arbitrators, which is a judgment 7iisi, is docketed, this does not dispense with the necessity of docketing it after it shall have become absolute.^ The act of 29th March, 1827, requires that when a judgment is revived by the issue of a sci. fa., or by an ami- cable sci. fa., the sci. fa. must be noted in the docket at the place where the other entries in the case have been made. Omitting this is fatal, in the absence of express knowledge on the part of purchasers and lien creditors, unless a judgment has been obtained on the sci. fa., and this judgment is entered in the judgment docket on the same day. In that case, the constructive notice of the docket will preserve the lien.^ Though the lien of a judgment relates back to the date of a ^McCue V. McCue, 4 Phila. 295. the apparent order of lien. Comp. For mistaken entry of judgment Stephens' Exrs.' Appeal, 38 Pa. St. 14. against McTill, instead of McTier, ' Fulton's Estate, 51 Pa. St. 204. see Prowattain v. Mc'Tier, 1 Phila. * Park i'. Webb, S Phila. 32. 105. * Stephens' E.xrs.' Appeal, 38 Pa. ' Mann's Appeal, 1 Pa. St. 24. The St. 9. sheriff must distribute according to "Mellon's Appeal, 37 Leg. Int. 224. LIEN OF JUDGMENTS. 287 mortgage or statutory lien, the index need not make refer- ence to such mortgage or other lien ; it is the creditor's duty to search the records. Hence, if there is an improper satis- faction of the mortgage, after an assignment of the accom- panying judgment, noted on the record of the judgment, a second mortgagee is bound by the knowledge that could have been obtained from the record, that the entry of satisfaction was improperly made by the assignor of the judgment.^ When, on an amicable sci. fa. referring to the judgment to be revived, and containing an agreement that a judgment to revive it be entered, but specifying no amount, the judgment of revival is entered, a minute of this revival in the judg- ment index, pointing to the original judgment, from which, by a simple calculation, the amount of the judgment of revival may be computed, but not setting out any sum, is sufficient.' The entry of a judgment in the lien docket for less than it really is, will confine the plaintiff therein to the amount so entered as against later creditors. A judgment for .f 1,472.86 entered 22d January, 1838, was registered as for $1,000, without interest, and as of 22d January, 1837. The latter sum, with the interest since the apparent day of the rendi- tion of the judgment, was all that could be allowed to it, in a distribution of the proceeds of a sheriff's sale of defendant's lands.^ A judgment dated 27th November, 1830, for $700, with interest from 1st April, 1831, was revived 7th Decem- ber, 1835, for $700, with interest from 27th November, 1832, and again on 5th December, 1840, for $700, with interest from 27th November, 1832, but the lien docket exhibited it as revived for $700, 5th December, 1840, making no refer- ence to past interest. It was valid as against later liens only to the extent of $700, plus the interest from 5th December, 1840.* Should the amount of the judgment as set forth in 1 De Witt's Appeal, 76 Pa. St. 283. ^ Bear v. Patterson, 3 W. & S. 233. ^Appeal of Fogelsville Loan Ass., *Mehaffey's Appeal, 7 W. et S. 89 Pa. St. 293 ; Dreifus v. Denmark, 200. 11 Phila. 612. 288 LAW OF LIEXS. the docket exceed the amount for which the judgment was in fact rendered, no more can be claimed under it than this latter amount. The judgment docket showed a judgment for $6,000 penalty and $3,000 real debt. This judgment was revived after other judgments had been recovered against the defendant, but the amount thereof was liquidated by the prothonotary at $405.73 and costs, and so entered on the appearance docket. Before the sheriff's sale of defendant's real estate, another .ici.fa. issued on the judgment for the pen- alty, and the real debt was liquidated at §2,086.25. S405.73 was the limit of the plaintiff's right to take from the proceeds.'^ § 233. Errors or omissions in the judgment index may be corrected under the direction of the court, provided that the rights of purchasers and creditors, already attached, shall not be affected or disturbed;- but if a prothonotary makes, or permits to be made, a correction of the index, without the authority of the court, he is guilty of a grave misdemeanor.^ However, if the prothonotary make such unauthorized correction, and the court refuse to strike it off, the auditor who is appointed to make distribution of the proceeds of a sheriff's sale which took place after the alteration, must be guided by the index, as it was at the date of the sale. He cannot receive evidence to show the previous improper alteration.* A. obtained an award of arbitrators ia May, 1871, which was not, however, indexed until 15th 3Iarch, 1875, when the then prothonotary called in the pro- thonotary of the year 1871, and by the latter the award was interlined at its proper place in the index. In distributing the proceeds of a sale of the defendant's land, made 27th March, 1875, the award, an appeal from which had been abandoned, received the money in preference to a judgment recovered ' Hances Appeal, 1 Pa. St. 408. ' Kendig's Appeal, 82 Pa. St. eS. 'Kendig's Appeal, 82 Pa. St. 68; * Kendig's Appeal, 82 Pa. St. 6S. Peck's Appeal, 11 W. X . C. 31 ; Bear 'So appeal lies from the refusal of V. Patteison, .3 W. & S. 233. Comp. the court to strike oflf the alteration. Prowattain r. McTier, 1 Phila. 105. An LIEN OF JUDGMENTS. 289 1st June, 1871, and regularly indexed, though the plaintiflf in the later judgment unsuccessfully petitioned the court, after the sale and before the distribution, to strike ofi" the inter- lineation/ Xoting in the index the date of the entry of the judgment thereon, though it should be done, is discretionary ^yith the prothonotary, and omission of this date will not viti- ate the lien." When, at eleven o'clock p. m. of 1st December, 1856, judgment notes were brought to the prothonotary at his residence, and he was requested to enter them as of that day, and he consented to do so, immediately marking them filed, and the next morning he entered them as of the day before in the judgment docket, the record thus made imported abso- lute verity, in a distribution of the proceeds of the defend- ant's real estate. A creditor whose judgment was entered on 2d December, could not, by parol evidence, establish a right to share pro rata? Assignment of Juagments. § 234. An assignment of a judgment to a stranger, made by the attorney of the plaintiff without express authority of the latter, is binding on the latter only if he actually receives the money;* but, as to all other parties, it is as valid as if made by the plaintiff" himself.^ The payment of a judg- ment, by one who is a surety,^ or a stranger,^ is prima facie a purchase of it. And an oral agreement that a stranger, on paying parts of a judgment, from time to time, shall be repaid out of the judgment, is an equitable assignment th-ereof pro tanto, valid against later liens.* So is an agreement by which the attorney of the plaintiff", on receiving from a stranger the ^Kendig's Appeal, 82 Pa. St. 68. subsequent arrears of ground-rent ^ Hance's Appeal, 1 Pa. St. 408. from being first paid. Fassett v. ^ Polhemus' Appeal, .32 Pa. St. 328. Middletoi), 47 Pa. St. 214. * Campbell's Appeal, 29 Pa. St. 401. ^Fisher w. Knox, 13 Pa. St. 622; An attorney cannot assign a judg- Campbell's Appeal, 29 Pa. St. 401 ; ment for arrears of grc'ind-rent to a Fox v. Ketterlinus, 10 W. N. C. 506. bail for stay of execution, so as to ^Lithcap v. Wilt, 4 Phila. 64. prevent those who are entitled to 'Brice's Appeal, 9 W. N. C. 227. 'Ibid. 290 LA\Y OF LIENS. amount of the judgment, gives him the control of it, but declines to mark it to his use, lest it might interfere with the collection of subsequent arrears of ground-rent/ As against a subsequent assignment for value, a prior one is not valid,. unless it is marked of record or the subsequent assignee has actual notice of it;^ but when the second assignment is merely as collateral security for a pre-existing debt,^ even though the assignee was tendered the option of the assignment or of a judgment to be confessed to him by his debtor, the plaintifiF in the assigned judgment, and chose the assignment,* the former assignment will prevail. When a pending suit was first assigned by the plaintiff to A., and then to B., and B. imme- diately filed his assignment of record, and, so soon as judg- ment was recovered, A. filed his assignment of record, the first assignment prevailed over the second, both having been made as collateral security for pre-existing debts.^ The mere non-production of the note or bond on which the judgment was entered, at the time of the second assignment, would not be notice to the assignee of a prior assignment.® § 235. When A. sold land to C, expressly subject to a prior mortgage to B., the mortgage became a part of the purchase money as against a judgment taken by A. for the remainder thereof. A judgment confessed by C. to B. on the day of the conveyance, in lieu of the mortgage, Avill have the priority which the mortgage would have had, as against A., or an assignee of A.'s judgment. A.'s assignee is affected with notice of the relation between the two judg- ments, from the fact that the deed to C. lecites the conveyance to be subject to the mortgage, and that the judgment to B. is entered on the day on which the mortgage is marked satisfied, ^ Fox V. Ketterlinvis, 10 W. X. C. loan made at the time of the assign- 506. ment makes it a purehiise for value. ^ Campbell's Appeal, 29 Pa. St. 401 ; Fraley's Appeal, 76 Pa. St. 42. Fisher v. Kno.x, 13 Pa. St. 022; Fra- 'Pratt's Appeal, 77 Pa. St. 37S. ley's Appeal, 76 Pa. St. 42. ^Coon v. Reed, 79 Pa. St. 240. 'Pratt's Appeal, 77 Pa. St. 378; '^Pratt's Appeal, 77 Pa. St. 378; Ashton's Appeal, 73 Pa. St. 162. A Fraley's Appeal, 76 Pa. St. 42. LIEX OF JUDGMENTS. 291 and is for the same amount, notwithstanding that B.'s judg- ment is lower down on the docket than A.'s.^ A surety in a judgment, having no notice of a previous assignment of it, and finding an unauthorized entry of satisfaction on the record by the original plaintiff, will be discharged if he was misled and beguiled by the state of the record into the loss of means to indemnify himself against the principal, espe- cially when a long period, e. g., eleven years, elapses before he is made aware of the impropriety of the entry of satisfac- tion.- And, if A. gives credit and takes a judgment in reli- ance on an entry of satisfaction of a prior judgment, it cannot be shown that the prior judgment had been in fact assigned.^ A purchaser of a judgment which, without his knowledge, has been previously released by the plaintiff, may enforce it notwithstanding, unless the release is noted on the record of the judgment.* If A., relying on the statement of the owner of a previous judgment, that only so much is due upon it, purchases later judgments, no more can be claimed on the pre- vious judgment, than its owner stated to be due as against A." § 236. If a judgment is confessed by a firm to A., to protect him against eventual loss for endorsing notes for their accommodation, and this judgment is sold to B., who has no knowledge of the right of the firm's creditor to sub- rogation to the judgment, B. will be entitled to the proceeds of the firm's lands, as against the creditor, though he made no inquiries from certain members of the firm as to any equi- ties of third persons.^ The same principle applies to the principal defendant in the judgment. If, without notice of an assignment, he pays the plaintiff, or some prior assignee, or for a valuable consideration obtains a release from the plaintiff, or prior assignee, the judgment will be extinguished. 1 Cohen's Appeal, 10 W. X. C. 544. ' Harner's Appeal, 9 W. X. C. 101. 2 Buffington v. Bernard, 90 Pa. St. * Mellon's Appeal, 37 Leg. Int. 224. 63. The remedy of the assignee ' Gray's Appeal, 38 Leg. Int. 404. will be against the assignor for en- '^ Appeal of Mifflin County Xational tering the satisfaction. Mitchell v. Bank, 38 Leg. Int. 349. Buffington, 10 W. N. C. 361. 292 LAW OF LIENS. A. having obtained a judgment against D. for $918.11, as- signed it to B., with the knowledge of D. B. then assigned it to C, and, subsequently, D., having no knowledge of C.'s interest, paid $150 to B. and obtained a release. The judg- ment could not be revived to the use of C.^ When distinct portions of a judgment are successively assigned, the assign- ees will share pro rata in the money allotted to it in a distri- bution of the proceeds of an execution.^ After certain por- tions of the judgment had been assigned, the plaintiff as- signed "the balance of this judgment unassigned to A., being the amount due and unpaid after the foregoing assignments." This did not import that the last assignee should not share ratably with the preceding.^ A. sells land to B., taking a judgment for the purchase money. B. then sells it to C, who executes a mortgage for a part, of the consideration and assumes to pay the judgment in discharge of the residue. Subsequently, C. pays the judgment, but causes it to be as- signed to D., as a dry trustee. E., to whom D. then assigned it, with no knowledge of D.'s relation to C, could assert the; judgment against the mortgage in the hands of B. or of a bona jide assignee thereof.'' When an assignee for the benefit of creditors, through his son as his agent, pays a judgment which is a lien upon the land of the assignor, and, subse- quently, after an auditor is appointed to make distribution of the funds in his hands, delivers the judgment note to the son, in order that the latter may present it to the auditor, and the son, after so presenting it, re-assigns it to the original plain- tiff without the authority of the father, the father is entitled to receive the money payable on the judgment, the original plaintiff having failed, before taking the re-assignment, to make inquiry both of the defendant and of the assignee.^ ^Gaullagher v. Caldwell, 22 Pa. St. 400; Perry's Appeal, 22 Pa. St. 43; SOO. Hancock's Appeal, 34 Pa. St. 155. 2 Moore's Appeal, 92 Pa. St. 309. 'Moore's Appeal, 92 Pa. St. 309. The same principle is applicable to * Wethrill's Appeal, 8 Grant 281. assignments of parts of a mortgage ^Leonard's Appeal, 37 Leg. Int. debt. Donley v. Hays, 17 Serg. & K. 824. LIEN OF JUDGMENTS. 29S Usury as to Other Creditors. § 237. When a judgment is a lien for a specific sum, the fact that it contains usurious iiiterest cannot be taken advantage of, in distributing the proceeds of an execution,, by later lien creditors, unless the usury was included by collusion between the plaintiff and defendant for the purpose of defrauding them;^ nor can a purchaser of land subject to the judgment, reduce its amount on the ground that it is usurious.^ But when a judgment for $8,000 is conditioned for the payment of" all money borrowed or to be borrowed on promissory notes, subsequent lien creditors may insist that, in ascertaining the amount due, deductions be made for usury paid on notes or their renewals, as collateral security for which the judgment is a lien." A. being indebted to B. on two promissory notes for distinct debts, made at different times, executed to him a judgment bond for |5,000, condi- tioned for the payment of them specifically, and of any renewals, on which judgment was entered. The notes were subsequently renewed, until finally one of them was paid by and surrendered to the maker. More than six months after this payment, the land of the defendant was sold. In dis- tributing its proceeds, later lien creditors were permitted to deduct the usurious payments made on the unpaid note since the judgment was entered, but not those which had been made before on it, or those which had been made ou the canceled note, whether before or since the judgment.* The mere refusal of the defendant to, contest the claim against him as to usury, is not evidence of a fraudulent intent as to other creditors, when, at the time the contract for the usury was made, he was perfectly solvent, and a judgment of 1 Price's Appeal, 84 Pa. St. 141; 89 Pa. St. 398. Bachdell's Appeal, Appeal of Bank of Titusville, 85 Pa. 56 Pa. St. 386, is contrary. St. 529; Wheelock v. Wood, 93 Pa. ^yg^ngr v. Carson, 66 Pa. St, 440; St. 298; Miners' Trust Co. Bank v. Miners' Trust Company Bank •;;. Eoseberry, 81 Pa. St. 309; Good v. Roseberry, 81 Pa. St, 309. Grant, 76 Pa, St, 52; Lennig's Ap- 'Price's Appeal, 84 Pa, St. 141. peal, 93 Pa. St. 801; Lamb's Appeal, *Maher's Appeal, 91 Pa. St. 516. 294 LAW OF LIENS. revival including usury will not be reduced at the instance of creditors, merely because at the time it was confessed the defendant had become insolvent, the plaintiff having no knowledge of that fact.^ Contests of Lien Creditors Inter Se and With Terre- Tenants. § 238. Under this title, a few special topics may be pre- sented. Judgments were confessed by D. on the same day to A., to B. and to C, but B.'s was to indemnify him for guaranteeing A.'s ; D.'s land being sold, after payments had been made to A. and C, the proceeds were divided ratably between the balances due on. A.'s and C.'s judgments, and the costs of B.'s judgment. To the debt represented by B.'s judgment, nothing was appropriated, since payments on the A. judgment were payments of it pro tanto? An earlier judgment is not postponed, in proceedings in distribution, because the plaintiff, after levying on personal property, has stayed the writ and released the levy,^ or because, after such levy, the plaintiff in a later judgment buys the judgment and execution, stays the latter, issues another on the later judgment, and appropriates the proceeds of the same per- sonalty to it. The iirst judgment will take the proceeds of a subsequent sale of the land, in preference to a judgment immediately following it.* When A.'s judgment against D. was a lien on two tracts, one of which was subsequently mortgaged to B. and the other to C, he was not compelled, in a distribution of the proceeds of the land on which C.'s mort- gage was a lien, to claim them for his judgment; and on C.'s purchasing the judgment, he had the same liberty, and might assert the judgment against the other tract, in the absence of 1 Wheelock v. Wood, 93 Pa. St. 298. IMorrison v. Hoftman, 1 Pa. St. 13 ; ^^ Wall's Appeal, 84 Pa. St. 101. Cathcart's Appeal, 13 Pa. St. 416; For the same principle, differently McLaughlin v. McLaughlin, 85 Pa. applied, see Smith's Appeal, 74 Pa. St. 317; Taylor's Appeal, 1 Pa. St. St. 191. 390 ; Cum mins' Appeal, 9 W. & S. 73. 'Burk's Appeal, 89 Pa. St. 398; ■'Burk's Appeal, 89 Pa. St. 398. Campbell's Appeal, 32 Pa. St. 88; LIEX OF JUDGMENTS. 295 notice from B. of any equities which would oblige him to pursue a different course.^ Against A., who had lands in Bucks and Montgomery counties, B. obtained judgment in one, and then transferred it to the other county. C. after- wards obtained a judgment against A. in Bucks county, and, 'finally, D. recovered one in one county and transferred it to the other. B. agreed with D. that D.'s judgment should be preferred as a lien in Montgomery county to the extent of .$800. B. could enforce his judgment to the amount of the $800 which was not paid from the proceeds of the lands in Montgomery, out of the fund arising from a sheriff's sale of the land in Bucks, C not having notified him before his agreement with D., of the existence of C.'s judgment, nor warned him not to do anything which might impair its ■value.^ • § 239. After A. had obtained judgment against D., D. executed a mortgage on a part of the land encumbered by it to B., under which the premises were sold, but A. neglected to claim any of the proceeds ; D. then sold a part of the remaining land to C, who executed a mortgage for the pur- chase money. A. was entitled to payment of his judgment from the proceeds of a sale under this mortgage, as against D.'s assignee of some of the bonds.' A. had land in Phila- delphia and Chester counties, on which B. had a first lien ; C. had the next lien on land in the former, and D. a subsequent one, in origin, on land in the latter county. E. then obtained a, lien on lands in both, on which lien the Philadelphia prop- erty was sold, but the proceeds were undistributed, when the Chester property was sold judicially. B. was entitled to payment from the Chester fund.* A. obtains judgment against D. as principal, and E. as surety ; B. and C. then in 'Uniontown Building Associa- ^Homing's Exr.'s Appeal, 90 Pa. tion's Appeal, 92 Pa. St. 200. St. 388. ^Qiiakertown Building, etc., Ass. *McDevitts' Appeal,70 Pa. St. 373. V. Sorver, 11 Phila. 532. Coinp. Delaware, etc., Canal Co.'s Appeal, 38 Pa. St. 512. 296 LAW OF LIENS. succession obtain judgments against E., on one of which E.'s land is sold. A. declining to take the proceeds,^which are applied in part payment of B.'s judgment, assigns, for a consideration, his judgment to B. and C. ; B. and C. could enforce this judgment against D.'^ A. has a judgment against B., a lien on tract m.; B. then buys tract n., and executes a mortgage on m. ; A.'s judgment is then revived. B. then buys tract o., and subsequently C obtains a judg- ment, which becomes the last lien on tracts m. and n., and the first on tract o. These tracts being sold in execution, C's lien took the proceeds of o.; A.'s judgment took all the proceeds of n., and the balance from m. The rest of the proceeds of m. were applied to the mortgage.''' After A. sells a part of his land bound by a judgment, to B., who pays the full consideration, another judgment is obtained against A.; B., having taken an assignment of the first judgment to save his land from sale, was entitled to take the proceeds of a sale of A.'s remaining lands, under the second judgment.^ § 240. If only a part of the land bound by the judgment is subsequently mortgaged, the judgment creditor does not, by releasing a, part of the land not bound by the mortgage, impair his right to be paid out of the remainder, including the part mortgaged, unless, the mortgagee has distinctly notified him not to do any act by which the value of the mortgage security may be diminished.^ The same principle applies when a part of the land on which the judgment is a lien, has been sold. The plaintiif is not obliged to resort to- the proceeds of the remaining land, when converted by a sheriff's sale, unless the purchaser notify him of the pur- chase, and of the equity arising therefrom.' And if, after a judgment has become a lien on land, the land descends to 'Bank of Penna. !•. Winger, 1 R. * Taylor v. JNtaris, 5 R. 51. 295. '" Schoonover v. Pierce, 7 W. K. C. ' Hastings' Case, 10 W. 303. 93 ; Konigmaker v. Brown, 14 Pa. St. ■''Zeigler I'. Long, 2 W. 205. 269. LlEiY OF JUDGMENTS. 297 lieirs of the defendant, as tenants in common, and the interest of one of these heirs is judicially sold, the plaintiff's neglect to take the proceeds will not prevent his enforcing full satisfaction of his lien from the shares of the others.^ In distribution of the proceeds of a debtor's lands, the court may set ofi" against a judgment claiming a part of the fund, a judgment owned by the defendant against the claimant,^ but not a demand not yet reduced to judgment.^ If, after a judgment is entered on a note payable two years thereafter without interest, the parties, in the presence of the prothon- otary, and without fraudulent design, alter the note on file, so as to make it read "with interest," and then the defendant confesses a judgment of revival, the lien of the original judg- ment for its own proper amount, with interest from two years after its date, is not impaired as to later liens, obtained before the alteration and judgment of revival.* EflFect of Superiority to Intermediate Lien. § 241. If, of three or more judgments or other liens, the earliest in time is inferior in right to a later, but superior to an intermediate, it will be entitled to the proceeds of the land on which it is charged, as if it were superior in right to all later liens. Thus, on A.'s land were a judgment in favor of B., a mortgage and another judgment in favor of the United States. A. made an assignment for the benefit of creditors, the result of which was, under the existing law of the United States, that the claim of the latter was to be paid in preference to the judgments, but not to mortgages which had been executed before the assignment. But, though the first judgment was posterior in right to that of ^ Wells V. Baird, 3 Pa. St. 351; the judicial officer who effects the Addams v. Hefferman, 9 W. 529. sale, e. g., an administrator. Banner When the proceeds of the first sale v. Pliillips, 9 W. & S. 13; Pry's Ap- can be lawfully applied only to the peal, 8 W. 253. judgment, the judgment will be dip- -Coates' Appeal, 7 W. & S. 99. charged jyro tanto, though the pro- ' Cornwell's Appeal, 7 W. & S. 305. ceeds are wasted or embezzled by ^Kiramel's Appeal, 8 W. N. C. 123. 298 LAW OF LIEXS. the United States, it had precedence of the mortgage. The liens were payable, therefore, in the order of their creation.^ So, when, in two separate feigned issues, between the first and second, and the first and third judgment creditors, the first judgment is found to be valid as to the second, and collusive and fraudulent as to the third, the judgments are payable in the order of their recovery." An undocketed judgment or unrecorded mortgage, if known to a creditor before giving his credit, will prevail against his lien ; hence, though the third lien creditor had no knowledge of the first lien, the superiority of the first to the second, and of the second to the third, will preserve the precedence of the first to the third." Payment and Satisfaction of the Judgment. § 242. If a judgment is paid by the defendant, it is extin- guished as to later judgments, and it cannot be restored to its original place as a lien by the plaintiff's repurchase from the defendant of the bond on which it was entered.* A payment to the plaintiff's attorney,' though long after judgment, and without execution, is valid." Paj-ment to the prothonotary, •AVilcox i'.Waln,10Serg.&E. .3-SO. only, not as to the later. Shultze's When A. sold goods to B., transfer- Appeal, 1 Pa. St. 251. See Brown v. ring possession, but reserving a lien Parkinson, 56 Pa. St. 336; Schick's bj' contract, and executions were Ajipeal, 49 Pa. St. 380. subsequently issued against B., the ' Manufacturers', etc., Bank v. proceeds of the sale of the goods Bank of Penna., 7 W. & S. 335. This were applied to the executions, be- principle is applied to a claim of ex- cause the contract lien was invalid emption, waived as to a later, but as to them, and the claim for wages, not as to an earlier, judgment. Such under the act of 1&7'2, passed after claim js a nullity in proceedings in the contract was made, was ilivalid distribution. Thomas' Appeal, 69 as to A. s contract -lien. Modes' Es- Pa. St. 120; McCreary's Appeal, 74 tate, 76 Pa. St. .502. See Loucheim's Pa. St. 194. The waiver implied in Appeal, 67 Pa. St. 49. making a mortgage does not inure 'Tombs' Appeal, 9 Pa. St. 61. , If to the benefit of earlier liens. Bow- the first judgment is found fraudu- er's Appeal, 6S Pa. St. 126. lent as to the second, but there is no *Stahl v. Jarrett, 2 R. 449. issue tried as to the later judgments, ' Wood r. Vanarsdale, 3 K. 4< il. the first is postponed to the second ' Reinholdt v. Alberti, 1 Binn. 469. LIEX OF JUDGMENTS. 299 of a judgment entered by him on a warrant of attorney, will no't discharge the judgment, the plaintiff never receiving the money.^ Payments made to a sheriff before the return day of a fi. fa., extinguish the judgment pro tanto," though made by an assignee for the benefit of creditors, under a deed executed by the defendant since the issue of ihBJi.fa.f but payments made to him after the return day of the writ and the expiration of his term of office, are valid only if he pays them over.* Payment by a stranger is prima facie not an extinguishment,* nor is the fact that property of the defend- ant has been judicially sold, from the proceeds of which the l^laintiflf might have demanded payment, but did not." A judgment confessed by A. to indemnify B., his surety on a note, is not paid by a surrender of this note, and the execu- tion of another in renewal, as against later judgment cred- itors, unless it is the intention of the parties that the original debt shall be regarded as extinguished.^ But if the judgment is to indemnify the surety against certain specified notes, and one renewal thereof, a second renewal will be treated as pay- ment of the judgment as against one who received a mortgage of the premises before or on the day the second renewal notes were delivered.* A judgment marked satisfied, cannot be rehabilitated, as against a later one given in part for a pre- existing debt, and in part for money simultaneously loaned, in reliance on the entry of satisfaction, provided the satisfac- tion was made by one having presumptive authority, e. g., one who was president and stockholder of the banking firm, ^Baer r. Kistler, 4 R. 364. creditor out of the trust funds. ^'«lusher v. Washington County, 27 Keller v. Leib, 1 P. & W. 220. Pa. St. 205. * Slusher v. Washington County, 27 3 Wood V. Vanarsdale, 3 R. 401. A Pa. St. 205. payment by the assignee, who has ° Campbell's Appeal, 29 Pa. St. 401. funds, will extinguish the judgment, "Strorble v. Cleaver, 1 Am. L. J. 74. the sheriff endorsing payment on 'Appeal of Shrewsbury Savings the execution. Kuhn r. North, 10 Inst., 37 Leg. Int. 413. Serg. & R. 399. Such is the effect ^jyjQQ^ehead v. Duncan, 82 Pa. St. of a payment bv the as.>ic;nee to the 488. Comp. Ayres v. Watson, 57 Pa. St. 300. 300 LAW OF LIEXS. plaintiif, but which, without the knowledge of the later judgment creditor, had transferred all its assets to a corpora- tion which continued the banking business in the same place.^ An entry of satisfaction of a judgment by the plain- tiflF, after he has assigned the accompanying mortgage, will discharge the surety in the judgment who was unaware for nine years of the want of authority to enter the satisfaction.' A married woman may by statute enter satisfaction of a judg- ment owned by her,^ and, independently of statute, she could do so of a judgment obtained by her while sole: especially if the entry was made in her name before marriage, would it be valid as to later lien creditors.* If the attorney of record for the plain tiflF in a judgment for $500, enters satisfaction thereof on receipt of but $200, it will be stricken off on rule upon the defendant,* and generally it will be stricken otf if entered by mistake, fraud, or false personation of the plain- tiflf,' but without prejudice to third parties.^ When a judg- ment was marked satisfied on receiving a part of it in cash, and the balance in an order for lumber which was subse- quently not accepted, the satisfaction was not stricken pff without an issue.* § 243. After an award of arbitrators in favor of the plain- tiff, he appealed, and, subsequently, the defendant paying him a sura in cash, and procuring for him the bond and mortgage of a third person for an additional sum, he caused to be entered on the docket of the case, "22d April, 1812, ended, and debt and costs paid." This entry, so long as it remained, was a bar to the issue of a scire facias on the 1 Earner's Appeal, 9 W. N. C. 101. ' Schnitzler i>. Hammill, 1 W. X. C. ^Buffingtonv. Bernard,90Pa. St.63. 471. When, in a contest between ' Act 25th JSIay, 1878, f P. L. 152.] creditors, a rule is entered on one to *Eckert v. Lewis, 4 Phila. 224. show cause wliy his judgment should ^ McKinney v. Fritz, 2 W. X. C. 173. not be postponed, an entry of settle- ° Murphy v. Flood, 2 Grant 411. ment by compromise will bind only ' Crouthamel v Silberman, 1 W. X. those who are parties to the com- C. 131 ; Welsh v. Brown, 1 L. Bar. promise. Stahl v. Jarrett, 2 R. 449. 10th :March, 1870. LIEX OF JUDGMENTS. 301 award of arbitrators, though the bond and mortgage had been pronounced void in an action on them before the issue of the sci. fa. The court should have first been asked for leave to expunge the entry .^ The entry on the trial-list furnished the judge, that a case is settled, is not evidence that it was made with the assent of the plaintifi", and, if not made on the record, is not the equivalent of satisfaction or discontinuance.^ If a Ji. fa. calling for payment in gold and silver money of the United States, is on that account set aside, the plaintiff, by issuing an alias y^rit, calling for payment in lawful money of Pennsylvania, and by accepting the money made thereunder, in United States treasury notes, precludes himself from recov- ering more from the sheriflF or the defendant. He should have appealed from the judgment of the court in setting aside the first writ.^ § 244. Entry of satisfaction by the plaintiff, when his judgment has been paid, is made obligatory by the four- teenth section of the act of 13th April, 1791, [3 Sm. L. 32,] but the penalties prescribed can be enforced only when the alleged payment was made after the judgment was entered.* Payment to the sheriff, pending a vend, ex., and return thereof "stayed by order of court," the order being condi- tioned on such payment, is not a substitute for a specific entry of satisfaction on the record of the judgment, and if the judgment stands for use, the use-plaintiff is liable to the pen- alty for non-compliance with the statute.' Though the dam- ages recovered under this act cannot exceed one-half of the judgment, it is not necessary to show special injury to recover more than nominal damages. The obstinacy of the 1 Phillips V. Israel, 10 Serg. & R. 'De Crano'v. Musselman,7 W. 208. 391. Entry on the docket of a pend- *Braddee v. Brownfleld, 4, W. 474. ing suit that it is settled, makes an Payment of judgment note before end of it, whether the defendant entry of the judgment thereon, is consented or not. Turnpike Co. v. not within the act, the judgment be- Hendel, 11 Serg. & E. 123. ing conclusive until opened. ^ Moore v. Kline, 1 P. & W. 129. ^ Allen v. Conrad, 51 Pa. St. 487. 302 LAW OF LIEXS. plaintiff in refusing to enter satisfaction, his manner of refusal, the hardship thereof — everything showing the degree of c'ensurableness of the plaintiff's conduct — may be consid- ered by the jury in fixing the amount of their verdict; nor is it necessary that the party aggrieved should be the owner of land.^ A justice of the peace has no jurisdiction to enforce the penalty,^ and where there is an express agreement to sat- isfy the judgment, the statutory penalty is not the measure of damages for non-compliance, either in an action therefor against the plaintiff, or by way of set-off to another claim of his.^ Satisfaction by Officer of the Court. § 245. When the legal holder of any judgment bond or note has endorsed thereon, in the presence of two witnesses, that it has been satisfied and discharged, and it shall be produced to the prothonotary, together with a certificate from the president judge of the proper county court, allowing the same, the prothonotary shall enter satisfaction on the record of the judgment for a fee of twenty-five cents.* When the record shows satisfaction of a judgment by execu- tion, the court must order the prothonotary, on payment of the same fee, to enter satisfaction upon the judgment index or judgment docket, and the record thereof.* The act of 14th March, 1876, [P. L. 7,] requires the court having jurisdiction of a judgment, on the application of the defendant therein, or of his legal representative, or other person in interest, setting forth under oath payment of the same, with all legal costs, to grant a rule to show cause why the judgment should not be marked satisfied of record at the costs of the plaintiff. If satisfied, on the hearing, of the truth • Allen !■. Conrad, 51 Pa. St. 487 ; * Section 1, act of 11th April, 1S.56, Henry v. Sim-^. 1 Wh. ISO. The pen- [P. L. 304.] alty lies for refusing to satisfy a judg- 'Section 1, act of 27th March, 186.5, ment on a sci.fa. sur mortgage. [P. L. 52 ;] De Crano c. Musaelxnan, ' Zeigler v. Gram, 1-3 Ser^- & E. 102. 7 Phila. 208. 'Caiamberlamr. Sloan,3W. X.C.518. LIEX OF JUDGMENTS. 303 of the defendant's application, the court must direct the pro- thonotary to mark the judgment satisfied, and must enter a decree requiring the plaintiff to pay the costs incurred in the premises. If there is a substantial dispute about the fact of payment/ or the evidence thereof is not clear and satis- factory," an issue will be neces.-ary. The summary jurisdic- tion conferred by this act exists only where there has been actual payment in full. Set-off, even of another judgment recovered by the defendant against the plaintiif, is not such payment," nor is failure of the consideration for the judg- ment.* The applicant for the rule must be one whose relation to the judgment is like that of the defendant; one who is liable for it either in person or estate, e. g., a terre-tenant, or a bail for stay of execution. Subsequent judgment creditors of the defendant cannot obtain such a rule." The 2d section of the act of 14th April, 1851, [P. L. 612,] provides, that when any judgment in the courts of Philadelphia has been fully settled, by payment or transfer of property received as the equivalent of payment, or otherwise, and more than ten years have elapsed since the entry of the judgment, and the proper court shall be satisfied of these facts, on petition and examinati*n, it shall direct the prothonotary, on the pay- ment of the costs due him on the judgment, to enter satis- faction, thereof on the record, to have the same effect as if made by the person entitled to the benefit of the judgment.* 1 Horton V. Hopf, 4 W. N. C. 381. * Heidelbaugti v. Thomas, 10 W. X. - Hawk V. Spade, 24 Pittsb. L. J. C. 141. 200. "The act provides the method of ' Felt r. Cook, 9 W. N. C. 246. procedure, and authorizes the ap- * Martin v. Pulte, 2 W. N. C. 184. pointment of auditors to take testi- mony or the award of an issue 304 LAW OF UENS. CHAPTER IV. ILEX OF VEEDICTS. § 246. The act of 23d March, 1877, [P. L. 34,] directs that a verdict rendered for a specific sum of money, shall be a lien upon the real estate, situate in the proper county, of the per- son or pereons against whom it shall be rendered. This lien shall remain, unless the court grant a new trial or arrest the judgment. The prothonotary must enter such verdict in the lien docket where judgments are entered, marking the same "verdict,"' and specifying the amount thereof and the date of its rendition. The act also provides that if any motion for a new trial or in arrest of judgment, pending at the time of its passage, should be overruled by the court, the lien of the verdict should date from the time of its rendition, provided that no innocent purchaser without notice should be preju- diced thereby. Under this act, the verdict can be entered in the lien docket and become a lien only in the county in which it is rendered. The act of 16th April, 1840, [P. L 410,] confers no authority to transfer it by exemplification to the court of any other county. Hence, when, pending a motion for a new trial in Philadelphia, an exemplification of the record was filed in the common pleas of Lycoming county, and an entry of the record was made by the prothonotary of this county in his lien docket, the court made absolute a rule on the plaintifi^ in the verdict to show cause why the exem- plification should not be stricken from the record, and the entry of the verdict on the lien docket should not be annulled and vacated.^ 'BaUey v. Eder, 90 Pa. St. 446. LIEX OF DECREES I^'^ EQUITY, 305 CHAPTEK V. LIE^^ OF DECREES IX EQUITY. § 247. The act of 29th March, 1859, [P. L. 289,] provides that decrees in equity^ for the payment of money, shall be and constitute a lien on the real estate of the defendants or debtors named in the decree, in the manner, for the like period, and with the same force and effect, as the lien of judgments in common law courts. They must, in like man- ner as judgments, be entered in the judgment or lien docket of the proper county. Like judgments, they must be revived by sci. fa.^ or otherwise, and the proceedings under such writs of sci. fa., or other process, and the entry of a decree of revival, may be regulated, so far as is necessary, by rules ordained by the proper court. Questions of fact, arising in the proceeding for revival, must be decided by an issue, •directed in the manner now practiced in courts of equity. There is no mode of transferring the lien of a decree from the county in which it was rendered ; the act of 16th April, 1840, [P. L. 410,] applies only to judgments. Hence, an exemplification of such a decree, rendered at Nisi Priiis in Philadelphia, was properly stricken from the record of the court of common pleas of Lawrence county.^ ^ These are decrees in the proper itient of alimony. Grove's Appeal, technical sense, not every order for 68 Pa. St. 143. the payment of money, e. g., on an ^For specimen oisci.fa. on such a attorney to pay over money to his decree, see Woods v. Pittsb., etc., client, or an interlocutory order in Kailway Co., 11 W. N. C. 130. proceedings in divorce for the pay- ' Brooke v. Phillips, 83 Pa. St. 183. 306 LAW OF LIEXS. CHAPTEE VL LIEX OF DEPOSIT XOTES OF iySrEA>XE. Source of Lien. § 248. The Bradford County Mutual Insurance Company/ the Lycoming Mutual Insurance Company/ and some other mutual companies, have, by law, "a lien in the nature of a judgment, waiving the right of inquisition, upon all the said property of the insured, to the amount of the deposit note, or so much thereof as may be unpaid, which shall continue till the amount of such note, with interest and costs of exe- cution, if any, shall have been paid or satisfied;" but the company is required to " file in the office of the prothonotary of the county wherein such real estate shall lie, a memoran- dum of the name of the individual insured, a description of the property, the amount of the deposit note unpaid, and the term for which the insurance shall continue." The prothono- tary is required forthwith to enter the same at large upon his judgment docket. When so entered, it shall be taken to be in all respects as a judgment entered upon confession by vir- tue of a warrant of attorney. Execution may at any time be had for so much as is due. The lien thereof shall com- mence with the filing of such memorandum in the office of the prothonotary.^ The Lien. § 249. Under this provision, the memorandum of the deposit note entered in the judgment docket is a lien, not on ' Act of 1.3th April, 1838, section 6, ' One who enters into such a com- [P. L. 363.] pany waives his constitutional right » Act of 26th July, 1842, [P. L. 426 ;] to a trial by jurj-, so far as the judg- Lycoming Fire Ins. Co. v. Buck, 4 ment entered on the memorandum Leg. Gaz. 182, 1 Luz. L. Eeg. 351; is concerned. Krugh v. Lycoming Krugh V. Lycoming Mut. Ins. Ck)., 77 Mut. Ins. Co., 77 Pa. St. 15. Pa. St. 15. lylEX OF DEPOSIT XOTES OF IXST;KA>X'E. 307 the personal estate of the insured, or even on the real estate generally, belonging to him, but only upon the particular real property insured,^ and no execution can be levied, under such a memorandum, on any other than the insured prop- erty.' A single deposit note may be given for insurance on botli real and personal property ; in that case, the memoran- dum will be valid as a lien on the realty insured for so much of the note as represents the price of the insurance of the realty.^ The memorandum becomes a lien only from the date of its filing. If the maker of the deposit note aliene the real estate insured before it is filed, its subsequent filing will not cause it to attach as a lien thereto.* The memoran- dum of the premium note is a lien for assessments made for losses that occurred while the maker thereof was a member of the comjjany, not for losses that occurred before, or for moneys borrowed during his membership for the payment of losses that happened before his membership." The right to collect the premium note does not necessarily terminate on the expiration of the policy. The defendant still remains liable for .losses sustained during the life of the policy." Hence, the memorandum may be filed after the expiration of the policy, for assessments made for losses which occurred prior thereto." The assessment may be made by a resolution of the board of directors that a certain percentage should be assessed on all premium notes in force at a certain date ; it need not set forth each note, the name of its maker and the ^ Halfpenny v. People's Fire Ins. of the deposit note was for the insur- Co., 85 Pa. Si. 4S; People's Fire Ins. ance of personal property. Co. V. Coppell, 8 Leg. Gaz. 118; Peo- * Halfpenny v. People's Fire Ins. pie's Fire Ins. Co. v. Hartshorne, 84 Co., 85 Pa. St. 48. Pa. St. 453, 90 Pa. St. 465. * People's Fire Ins. Co. v. Harts- ^ Halfpenny v. People's Fire Ins. home, 90 Pa. St. 465; Hays v. Ly- Co., 85 Pa. St. 48. commg Fire Ins. Co., 10 W. X. C. 81. = People's Fire Ins. Co. v. Harts- « Acker v. Hite, 9 W. N. C. 99. home, 84 Pa. St. 453. It would be ' People's Fire Ins. Co. v. Harts- error in the common pleas to strike home, 84 Pa. St. 453. off the' memorandum because a part 308 LAW OF LIENS. exact sum the percentage indicated will make it his duty to pay/ A married woman may insure her property, and a lien filed will be valid against it.^ ' Lycoming Fire Ins. Co. v. Bought, - Lycoming Fire Ins. Co. v. Mor- 10 W. N. C. 376. Assessments are rell, opinion of Williams, P. J., of not invalid because twice as large as Tioga county, 38 Leg. Int. 452. As the losses, if the excess is caused by to preliminaries to the issue of an the insolvency of many of the mem- execution on such lien, see Lycom- bers. Buckley v. Columbia Ins. Co., ing Fire Ins. Co. v. Bixby, 38 Leg. 8 W. N. C. 334. Int. 452. LIEN OF justices' TKAjSTSCEIPTS. 309 CHAPTEE VII. LIEN OF TEAKSCKIPTS OF JUSTICES' JUDGMENTS. § 250. Judgments rendered by justices of the peace, do not bind lands of the person against whom they are rendered. The act of March 20th, 1810, [5 Sm. L. 166,] provides that the prothonotaries of the several counties shall enter on their dockets, transcripts of judgments obtained before justices of the peace of their respective counties, and it is made the duty of justices to deliver such transcripts to any person who may apply for the same. Justices' judgments thus trans- cripted, become a lien upon the land of the defendant in the county, from the time of such entry in the prothonotary's docket.^ Who May Make the Transcript. § 251. The justice of the peace who has rendered judg- ment, is, so long as he remains in office, the proper person to deliver a transcript of his docket for the purpose of filing in the prothonotary's office. The acts of 21st June, 1839, [P. L. 376,] and of 21st April, 1846, [P. L. 432,] direct a justice, whose term of office has expired, to deliver his dockets to his successor in the same ward, borough or township. He there- fore loses all authority to make transcripts therefrom, with the expiration of his term, and all transcripts made by him there- after are yoid.^ But a transcript is valid which is made by a j ustice from the docket of a deceased j ustice of the same borough, though this docket had been delivered by the administrator of the latter, to a justice in an adjoining county, had been 'Bratton's Appeal, 8 Pa. St. 164. justice two years after his term of ^ Elder v. Thompson, 1 Pearson office had expired, was stricken off 194. The transcript, made by the on motion. 310 LAW OF LIEXS. kept by him till his own death, and had then been delivered by his administrator to the justice who made the transcript.^ What may be Transeripted. § 252. All judgments in suits instituted for the payment of money, including those rendered in an amicable action by confession, for a sum exceeding the limit of the jurisdiction of the justice in adverse proceedings,^ may be transeripted. The one hundred and sixth section of the act of June 16th, 1836, [P. L. 780,] which provides that, when the defendant in a judgment, or one who has derived title from him subsequently to the judgment, shall refuse to surrender possession of land sold by the sherifi" thereunder, the sheriff's vendee may petition any two justices of the peace or aldermen, of the city, town or county where such real estate may be, to award him possession thereof, and directs that, in case of a finding for the petitioner, the jury shall assess damages for the unjust detention of the premises, and that the justices shall enter judgment for the damages assessed, together with reasonable costs. Such judgment cannot be transeripted into the docket of the prothonotary under the act of 1810, so as to become a lien upon the defendant's land.^ If a judgment of a justice of the peace is transeripted to the justice of another county in pursuance of the seventeenth section of the act of 1810, [5 Sm. L. 169,] for the purpose of levying in execution upon personal property of the defend- ant found therein, a transcript from the docket of the latter justice, to the docket of the prothonotary of his own county, is void.* When a judgment has been once transeripted to the docket of the prothonotary of the proper county, the magistrate's record has in this respect, spent its force. '■ Kanfelt & McBarron v. Fisher, 1 Comp. Mover c. Kirby, 1-1 Serg. & R. Pearson 79. 162. ' Bratton's Appeal, 8 Pa. St. 164. * Carroll v. Bradley, 8 W. N. C. 197. 'Gault V. McKinney, 2 Phila. 7; The judgment so transeripted will, Bodkin v. McDonald, 11 Phila. 342. on rule, be stricken from the pro- thonotary's docket. LIEN OF justices' teaxsceipts. 311 Another transcript of the same record cannot be subsequently made and filed. If it could, every day of the year might bring a new entry of judgment, and costs might be uselessly accumulated.^ After an appeal is taken to the common pleas, from a justice's judgment, within twenty days of its rendition, this judgment cannot be transcripted into the prothonotary's oflEice so as to bind the defendant's real estate.^ The judg- ment of a justice of another county than that in which the j)rothonotary's office is, cannot be transcripted into such prothonotary's office. In order to make it a lien on lands of another county than that in which it was originally rendered, it must be first transcripted into the prothonotary's office of the county where it was rendered, and thence an exemplifica- tion of the record must be transferred to and filed in the pro- thonotary's office of the other county in which a lien is sought.^ Duration of Ijien. § 253. A transcript of a justice's judgment, entered in the docket of the jDrothonotary within twenty days of its rendi- tion, but before an appeal is taken to the common pleas, ceases to be a lien, when, within that period, such appeal is a,fterwards taken,* and will then be stricken off.'' When an appeal is not taken, the lien of the transcript continues for the period of five years from its entry into the prothonotary's docket.® In order that it may last beyond that limit, it is necessary that it be revived as judgments originally rendered in the common pleas are revived, according to the acts of April 4th, 1798, [3 Sm. L. 331,] and March 26th, 1827, [9 Sm. L. 303.]'' The writ to revive may be a sci. fa. post annum el diem to revive the judgment,* or simply a sei. fa. 1 Bannan v. Eathbone, 3 Grant 259. 259 ; Walker v. Lyon, 3 P. & W. 98 ; 2 Berry v. Baker, 1 Bro. 223. Green v. Leymer, 3 W. 381 ; Hitch- 'This w-as done in Swanger v. cook f . Long, 2 W. & S. 169 ; King i'. Snyder, 50 Pa. St. 218. King, 1 P. & W. 15. * Hastings v. Lolough, 7 W. 540. ''Ibid. » Myers v. Bott, 10 \V. N. C. 259. « Walker v. Lyon, 3 P. & W. 98; « Brannan v. Kelly, 8 Serg. & E. Brannan v. Kelly, 8 Serg. & E. 479. 479; Bannan v. Eathbone, 3 Grant 312 LAW OF LIENS. qaare executionem non^ and it must issue, not from the justice who rendered the judgment, but from the court of common pleas into the docket of whose prothonotary it has been transcripted, and of which it has thus become a judgment,, for the purpose of lien and execution against the defendant's realty.^ The sci. fa. may describe it as a judgment of the common pleas.^ The judgment recovered on the sci. fa. is in all respects a judgment of the court of common pleas,* and will be rendered for a sum equal to the original judgment, increased by the interest down to the date of entry, and, like any other judgment, will bear interest until satisfied.* Though it may be doubtful whether an execution, issued from the common pleas on a transcript, can be levied on personal property of the defendant,^ no such doubt exists respecting the execution of the judgment recovered upon the sci. fa.; both real and personal property of the defendant can be levied on under it.^ A levy of personal property upon an execution issued by a justice of the peace, does not 1 Green v. Leymer, 3 W. 381. When Hamilton v. Dawson, 2 CI. 357 ; Tech- the sci. fa. is simply to revive the ner v. Karpeles, 7 W. N. C. 258. An right to issue execution, it may issue attachment execution issued on the from the justice, and in the trial transcript was levied on a debt due thereon before the justice, or on ap- the defendant; Hitchcock r. Long, peal to the common pleas, it cannot 2 W. & S. 169; Eeiehenbauch v. Ar- be shown that the original judgment n6ld, 2 CI. 527 ; as was one issued on was erroneous for want of jurisdic- an exemplification of the record of tion. Huflfsmith v. Levering, 3 Wh. the transcript into another county; 108. Swanger v. Snyder, 50 Pa. St. 218. 'Brannan v. Kelly, 8 Serg. & E. On the other hand, that a levy on 479. personalty could not be made under ' Walker v. Lyon, 3 P. & W. 98. nfi.fa. upon a transcript, was decided ' Green r. Leymer, 3 W. 3S1; Reich- in Lyster v. Dunkel, 2 Pearson 283; enbauch v. Arnold, 2 CI. .527 ; Hitch- Wheeler, etc., Co. r. Moore, 6 W. X. cook V. Long, 2 W. & S. 169. C. 270 ; Conrad v. Brandt, 8 W. N. C. ^Ibid. 439; Bradley r. Ward, 6 W. X. C. 366; "On a ^. /a. on a transcript, a sur- Boyd u. Miller, 52 Pa. St. 431. A plus of money made on a previous capias ad satisfaciendum cannot issue execution in the sheriff's hands was on such transcript. Wheeler, etc., levied on ; Herron's Appeal, 29 Pa. Co. v. Moore, 6 W. N. C. 270. St. 240 ; or other personal property ; ' Lyster v. Dunkel, 2 Pearson 283. LIEN OF justices' transckipts. 313 take away the lien upon real estate, created by a transcript of the judgment on which it issued, filed in the common pleas, if the goods levied were not removed or sold by the constable.^ 1 Cummins' Appeal, 9 W. & S. 73. 314 I/AW OP LIEXS. CHAPTEE VIII. LIEX OF EXECTTIOXS. Basis of Execution. § 254. The lien of an execution rests upon the legally- ascertained right of the plaintiff to realize a sum of money from the defendant, and upon the further right to produce the money from the particular lands or goods in regard to ■which the lien is in question. The ascertainment of the right to receive the money is by a judgment. A judgment, interlocutory in character, i. e., one which, while determin- ing that something is due to the plaintiff, does not limit the amount due, will not support an execution.^ But, a gen- eral judgment by default, in an action of debt, the records of which furnish the material for an accurate computation of the sum due the plaintiff, is a final judgment, on which an execution may issue.^ The plaintiff's attorney may endorse the amount due on the writ, and, if it be too great, the court will give relief on motion.* A judgment may, however, assume the form of a final one, by confession of the defend- ant, though it be for a mere security against obligations assumed by the plaintiff but not mature, or even for advances for the defendant which have not yet been made. Unless inconsistent with the terms of the confession, an execution can be issued on such a judgment. A judgment for $400 was entered under a warrant on a bond, conditioned that the plaintiff should not be compelled to pay anything on a bond into which he had entered, as surety for the defendant, to the sheriff; an execution properly issued, without leave of ' Lewis V. Smith, 2 Serg. & R. 142. ' Gray v. Coulter, 4 Pa. St 188. ^Ibid.; Gray v. Coulter, 4 Pa. St. 188. LIEJf OF ESECrTIOXS. 315 court, suggestion, affidavit or sci. fa., and before the plain- tiif had been compelled to pay anything as defendant's surety.^ So, when A. gives a bond of indemnity to B. on account of B.'s accommodation endorsement of notes for A., on which bond, under a warrant of attorney, a judgment is confessed, executions may issue before B. has paid any of the- notes as endorser.^ And when a judgment has been con- fessed by A. to a bank for several notes endorsed by sundry parties for A.'s accommodation, an execution may issue at the instance of these endorsers before the maturity of the uotes.^ Immature Judgment. § 255. If the judgment, though final, ascertains that the money is payable in whole or in part, at a future time, an execution cannot properly issue for any part thereof until the time at which it is thus determined to be payable. Thus, when, on a bond with warrant of attorney, a judgment is confessed, stipulating that execution shall not issue before default in the payment of certain notes, unless a partnership, of which the defendant is a member, has been dissolved, and an execution is issued before the maturity of the notes, and before the dissolution of the partnership .has been judicially ascertained in a sci. fa., such execution will be set aside.* On a bond with warrant of attorney, executed to a sheriff to indemnify him for taking goods from the defendant in replevin, an execution for the penalty cannot properly issue on the suggestion of the sheriff's assignee of the bond that, on the trial of the rejslevin, the plaintifi" had suffered a non- suit, though the execution is directed to be released on pay- ment of the value of the property replevied, with interest and costs. On the application of the sureties in the bond, the execution will be set aside." If, after the judgment, pres- 1 McCann v. Farley, 26 Pa. St. 173. * ilontelins v. Montelius, Bright. 2 Miller v. Howry, 3 P. & W. 374. 79. ^ Stewart v. Stocker, 1 W. 135. ° Magill v. Higgins, 2 Pittsb. 107. 316 LAW OF LIENS. ently payable, successive extensions of time are obtained by tbe payment of interest in advance/ or otherwise, an execution, issued before the arrival of the period to which the interest has been paid, will be set aside. But another fi. fa. may issue when this period has elapsed, the pre- vious writ being returned, although the rule for the set- ting aside of the preceding writ is not determined for some months thereafter.^ When, after a fi. fa. issues, the plain- tiff accepts a note drawn by another than the defendant, not as payment, but as collateral security, agreeing to stay the writ, an alias fi. fa. issued before the maturity of the note is valid as against ^fi. fa. subsequently issued by another cred- itor, especially when the plaintiff, before accepting the note, refused to agree that he would not issue an execution until it had become payable.^ Inconclusive Judgments. § 256. An opened judgment ceases to be final, and an execution cannot be issued on it, unless it" was opened on condition that an execution might issue for the purpose of increasing the security of the plaintiff.* The award of arbi- trators in an amicable arbitration, is not a judgment. Its approval by the court first becomes such. In an action of assumpsit between A. and B., there was a submission of all matters in dispute to C, as referee, his award in writing to be final and conclusive. This was possible only under the act of 16th June, 1836, which supersedes that of 21st March, 1806. The award, therefore, was not a judgment; formal entry of judgment upon it was necessary.^ Under the act of 16th June, 1836, a rule of court permitted a judgment nisi to be entered on the award, and a final one in four days afterwards, unless, meanwhile, exceptions were filed to the award. The final judgment only has the properties of a ^ Bole «. Bogardis, 86 Pa. St. 37. * Steele v. Lineberger, 59 Pa. St. 'Ibid. 308. A set. fa. to revive the award ' Geissel's Appeal, 11 W. N. C. 196. was not sustained. * Savage v. Kelly, 11 Phila. 525. riEX OF EXECirTIO>"S. 317 judgment.^ An amicable action in case, coujjled with an agreement to refer to three arbitrators, was entered. The report of the arbitrators, until submitted to and approved by the court, was not a judgment, and a sale in execution thereon conferred no title on the sheriff's vendee.^ Under the com- pulsory arbitration act, however, the award has the effect of a judgment, unless appealed from in twenty days, but a con- fession of an award in such an arbitration, with right to appeal in thirty days, on which no judgment is entered by the court, will not support an execution.^ An award of viewers, under the eleventh section of the railroad act of 19th February, 1849, [P. L. 84,] is, when confirmed by the court, a judgment on which an execution can issue,* and so is the report of county auditors finding a balance against the accounting officers.^ An execution on an award of arbitrators before the lapse of the twenty days allowed for appeal," or, an appeal being taken, before its determination, is, though irregular, valid as against other execution creditors/ Special Judgments. § 257. On a judgment in favor of the wife, and in her name, against her husband, an execution may issue with his consent.® A judgment against a married woman, for pur- chase money of land conveyed to her during her coverture, with the husband's consent, will support an execution, as against the land so conveyed.' On a judgment against the husband and wife, for her debt contracted before coverture, execution can be levied only on her separate property.^" A 'Stephens' Exrs.' Appeal, 38 Pa. « Wilkinson's Appeal, 65 Pa. St. St. 9, (as to lien and execution.) 189. ' Book V. Edgar, 3 W. 29. (The sher- ' Stewart v. Stocker, 1 W. 135. iff's sale of defendant's land was ^jj^ogg ^ Latshaw, 90 Pa. St. 238. held void in an ejectment.) Contrary is In re Giles Marvin, 10 - Corder v. Mays, 3 Grant 135. Phila. 524. * Davis V. North Penna. K. E. Co., 'Kamborger v. Ingraham, 38 Pa. 2 Phila. 146. St. 146 ;. Patterson v. Robinson, 25 ^ Blackmore v. County of Alle- Pa. St. 81. gheny, 51 Pa. St. 160; Act of 15th "Whiteside v. Boardman, 11 W. April, 1834, sections 55-58, [P. L. 547.] N. C. 136. 318 LAAV OF LIENS. personal judgment against a married woman, except in con- formity with the jjrovisions of the married woman's act of 1848, is void, and no title will be conveyed to the sheriff's vendee under a sale in execution thereof/ On a transcript of a justice's judgment filed in the common pleas, in con- formity with the tenth section of the act of 1810, execution may be supported, as against the real estate,^ as also against personal property. Thus, a surplus of money in the hands of the sheriff, the proceeds of a sale in execution against the defendant, was levied on in execution, on a transcript,^ as was also other personal property.* An attachment in execu- tion was issued on such transcript," and on an exemplification . of the record of the common pleas of another county, which record was itself a transcript from the docket of a justice of the peace." Such executions, even when with a view to levy upon real estate, must not be issued by the prothonotary, until a certificate is produced to him from the justice before whom the judgment was obtained, of an issue of an execution by the justice, and a return by the constable of nulla bona^ unless the transcript of the justice's docket shows these facts. In that case, filing a certificate is unnecessary.^ A second transcript from a justice's docket, to the common pleas, is a nullity, and no execution can issue upon it.^ From the docket of a justice of the peace who is still in commission in the same county, a transcript cannot be taken to another justice of the peace in the same county, and an execution isgued thereupon. Such execution would be a nullitj, and a ^Bufiingtonr. Henry, 1 Pearson 90. personalty under a justice's tran- - Boyd V. Miller, 52 Pa. St. 431 ; script, was decided in Boyd !•. Millei-, Lyter v. Dunkel, 2 Pearson 283. 52 Pa. St. 431 ; Conrad v. Brandt, 8 ' Herron's Appeal, 29 Pa. St. 240. W. X. C. 439 ; Bradley ti. Ward, 6 W. < Hamilton v. Dawson, 2 CI. 357; N. C. 366; Lyter u. Dunkel, 2 Pearson Techner v. Karpeles, 7 W. N. C. 2.58. 283 ; Wheeler, etc., Man. Co. v. Moore, * Hitchcock V. Long, 2 W. & S. 169 ; 6 W. JST. C. 270. Keichenbauch v. Arnold, 2 CI. 627. ' Frankem v. Trimble, 5 Pa. St. 520. « Swanger v. Snyder, 50 Pa. St. 218. « Drexel v. Man, 6 W. & S. 343. That no execution can be levied on ' Bannan v. Rathbone, 3 Grant 259. LIEN OF EXECUTIONS. 319 sale thereunder would confer no title.-^ A rule of court is valid -which provides that if an affidavit of defence goes only to a part of the claim, judgment may be entered for the amount not covered by it, and an execution may issue on such judgment, before judgment is entered for the residue.^ The Writ Itself. § 258. The ^zeH/acJas must designate the judgment whose execution it purports to command. When a summons issues, and is returned "nihil habet," and to the next term an alias summons issues, which is returned "served," and a judgment is subsequently recovered by the plaintiff, the fi. fa. properly bears reference to the number and term of the summons.* It is no objection to a fi. fa., founded on a transcript from a justice of the peace's docket to the common pleas, that it recites the judgment, not as a justice's judgment, but as a judgment of the common pleas.* § 259. The fi. fa. must name all the defendants in the judgment. On a judgment against A. and B., a_y?. fa. against A., with notice to B.,'is irregular, but it can be corrected by the prceeipe if the latter be in proper forrn.^ On a judgment against " Theodore Eimers & Co.," confessed by Theodore Elmers, one of the members of the firm, alone, an execution cannot be sustained, as against the individual property of other members of the firm.*^ When, however, a judgment against A. and B., on a promissory note, in which B. is a mere surety, is paid by B., an execution may issue for B. against A. alone. It will not be set aside.'' So, if one of several defendants is exempt from liability to execution by reason of being in the army of the United States, an execu- 1 Hallowell v. Williams, 4 Pa. St. " Kneib v. Graves, 72 Pa. St. 104. 339. This is true, though, in an action ^ RusselH'. Archer, 76 Pa. St. 473. against the other partners for the 'Shaw i: Kenath, 10 Phila. 444. same debt, they pleaded the judg- * Hamilton v. Dauson, 2 CI. 357. ment confessed as a former recovery. 5 Shaffer v. Watkins, 7 W. & S. 219. ' Duffield v. Cooper, 87 Pa. St. 443. 320 LAW OF LIENS. tion will properly issue against the other defendants alone.^ But, the mere fact that A. alone has property in the county into which a testatum.fi. fa. against him alone issues, upon a judgment against A. and B., will not save it from being set aside on motion.^ If, owing to payments made on account of the judgment, an execution which calls for the judgment in full is excessive, it is not void, but will be rectified on motion,^ and an execution mistakenly calling for 766 pounds was corrected by the judgment to one for 869 pounds.* Several Executions. § 260. A fi. fa. issued before the return of one already issued is, though irregular, not void.® \ia,fi.fa. issues and is levied on land, and then its judgment is revived, a fi. fa. cannot issue on the revived judgment until the previous fi. fa. is put out of the way by an order to quash.® When a testatum fi. fa. has issued against one alone of several defend- ants, though irregularly, a subsequent fi. fa. against all the defendants, issued before the return of the testatum, will be set aside on motion.'' If, after a levy under &fi.fa., an alias fi. fa. issues, without disposing of the previous levy, the alias is irregular, but none but the defendant can object to it on that account.^ The pendency of a rule to show cause why a fi. fa. issued prematurely should not be set aside, will not preclude the issue of another fi. fa. after the right of exe- cution has fully matured, if the previous _^. /a. has in fact been returned. A.fi. fa. issued January 10th, though, by receiv- ing a prepayment of interest down to February 3d, the plain- tiff" had lost the right to issue it until that time. On a rule to show cause why it should not be set aside, the court ordered it to be returned, and it was returned on April 10th, but the 1 Sheetz f. Wynkoop, 74 Pa. St. 198. ''Gist v. Wilson, 2 W. 30. The ^ Gibbs V. Atkinson,! C1.476. The de- original^. /a. may be proceeded with, fendant may waive the irregularity. notwithstanding the subsequent re- ' Coleman v. Mansfield, 1 M. 56. vival of the judgment. * Black V. Wistar, 4 Dall. 267. ' Gibbs v. Atkinson, 1 CI. 139. ' Coleman v. Mansfield, 1 M. 56. « Potts' Appeal, 20 Pa. St. 253. LIEN OF EXECtTTIOlsrS. 321 Tule was not made absolute until December 18th. An alias Ji. fa. issued October 11th, was not irregular.^ § 261. If a, Ji. fa. is levied on laud, which is condemned, and then, the defendant disclaiming the ownership of the land, the plaintiflf abandons all further proceedings on thej?. fa. and issues a second fi. fa., the latter will not be set aside on the application of the defendant." The issue of an alias Ji. fa. imports an abandonment of the previous_/i./a.,^ unless it be immediately withdrawn before anything is done on it.* AVhen a fi. fa. is issued subsequently to others, it should not only indicate that there has been a previous writ by the phrase " as we have before commanded you," or, " as we have often commanded you," but the former writs should be specifically designated. The omission of this will not, how- ever, vitiate the fi. fa.^ It seems that a fi. fa. in the ordinary form, making no reference to any previous writs, though there has been one such, is not void.^ If, under a capias ad satisfaciendum, the defendant has been arrested, the ca. sa. cannot be withdrawn, and fi. fa. issued, without leave of the court." A.fi. fa. can be issued pending an execution attach- ment served on the garnishee, who makes answer that no property of the defendant is in his hands. When, however, property is attached, the court will compel the plaintiff, who has simultaneously issued a fi. fa., to elect Avhich he will prosecute.^ If an attachment execution is discontinued, it is no objection to &fi. fa. which is subsequently issued, that the costs of the attachment were not paid till the fi. fa. had issued.' ^Bole V. Bogardis, 86 Pa. St. 37. ^She.^ v. Kenah, 2 W. X. C. 127, ^ Coleman v. ilansfield, 1 M. 56. called Shaw v. Kenath in 10 Phila. 'Missimer v. Eber.sole, 87 Pa. St. 444. In Myers t'. Riot, cited 1 Bright, 109; Potts' Appeal, 20 Pa. St. 253. Troubat & Haly Pr., p. .5.59, n. 1, a * Ingham v. Snyder, 1 Wh. 116. fi. fa. was set aside because, at its ^ Coleman v. Mansfield, 1 ^I. 56. issue, an attachment in execution * Duncan v. Harris, 17 Serg.& R. 436. had been served on the garnishee. ' Young V. Taylor, 2 Binn. 218. 'Hamilton v. Dawson, 2 CI. 357. 322 LAW OF LIENS. When Returnable. § 262. An alias fi. fa. for the residue of a judgment issued to the same term to which a Ji. fa. has been issued, on which ft. fa. a part of the debt was realized by levy and sale of certain of defendant's property, will be set aside. It should issue to the next term,^ or to the second succeeding term. Thus, when a writ to February Term, issued on the 8th of December, at 7 o'clock a. m., the December court convening that day, but at a later hour, the question whether the term begins with the beginning of the first day, or only at the hour at which the court actually first convenes, was evaded as immaterial, since the intervening of a term between the teste of an execution, and its return day is not even an irregu- larity.^ A fi. fa. issued two days before the August Term was regular, though made returnable to the Xovember Term.^ Territorial Scope of Lien of Execution. § 263. The lien of an execution extends, as to personalty of the defendant, over the county from whose court it issues, and within whose limits the authority of the sheriff to whom it is directed operates. " There is no doubt," says Coulter, J., "that &fi.fa. binds all the defendant's personal property in the bailiwick, from the time it is put into the sheriff's hands."* Of & fi.fa. in Schuylkill county. Strong, J., said, when " it came to the oflBcer's hands, it became a lien upon all the personal property of A., the debtor, within the county of Schuylkill."^ § 264. Though, when the writs reach the sheriff's hands, certain chattels are beyond the county, yet, if they subse- ' Shaffer v. Watkins, 7 Serg. & R. ^ Ingham v. Sn3-der, 1 Wh. 115 219. But when a vend. ex. for sale * Miner d. Walter, 8 Phila. 571. of land was returned not sold, he- * Earl's Appeal, 13 Pa. St. 483. cause the inquest was set aside, an- "Schuylkill County's Appeal, 30 other vend, ex., tested the same day Pa. St. 358. See, also, Shafner v. as the first and returnable to the next Gilmore, 3 W. & S. 438; Childs & term, was issued. The sheriff's ven- Co. r. Dilworth, 44 Pa. St. 123. dee obtained a good title. LIEJf OF EXECUTIONS. 323 quently arrive within the county, and become the property of the defendant before the return day of the execution, and while therefore a levy may be made upon them, they are bound by the lien of the execution. Though levied on under a later execution before they are seized under the first, their proceeds must be applied to the first.^ If property is acquired by the defendant within the county after the fi. fa. comes to the sheriff's hand, and after a levy on other prop- erty of the defendant, but before the return day, precisely the same result takes place upon the newly-acquired property in the county ; the first execution is the prior lien.^ § 265. Since the lien of an execution begins as to realty only with the levy, it follows that only the land levied on is the subject of its lien. The lien of an execution issued by a justice of the jjeace also begins with the levy upon personalty, and only so many of the defendant's chattels as are thus levied on, are bound by the execution. Permitting goods levied on to pass beyond the constable's bailiwick, will, however, extinguish the lien.^ Iiien of Executions on Personalty. § 266. When a writ has issued, looking to the subjection of the personal property of the defendant to sale, for the real- ization of the debt of the plaintiff, such writ becomes a lien on such property by the principle of the common law.* The writ o{ fieri facias, at common law, bound the personalty of the defendant from its teste. At whatever time it issued, its lien related to the beginning of the term next preceding its issue.^ 1 Shafner v. Gilmore, 3 W. & S. 438. Hoskins v. Houston, 2 CI. 489 ; Leeper ^Wilson, Seiger & Co.'s Appeal, 13 v. Lewis, 15 Seig. & R. 108. In this Pa. St. 420. C'ise the execution issued a few days ' Wood V. Keller, 2 M. 81. after the death of the defendant, but 'Stauffer v. Commissioners, 1 W. the previous term had begun before 800' Shaeffer v. Childs, 7 W. SG ; his death. The execution was denied Parker's Appeal, 6 Pa. St, 277; Hinds prioritj' because, the estate being in- V. Scott. 11 Pa. St. 2-5. solvent, the order for the payment of ^Wilson's Appeal, 90 Pa. St. 370; debts prescribed by the act of 1794 Duncan v. McCumber, 10 W. 212; would be disturbed. 324 LAW OF LIENS. Beginning of the Lien. § 267. The act of June 16th, 1836, section thirty-nine, [P. L. 768,] authorized an important change. It was thereby enacted that "no writ of 7?. fa., or other writ of execution, shall bind the property or the goods of the person against whom such writ of execution issued forth, but from the time such writ shall be delivered to the sheriff, under-sheriff or coroner to be executed." The act also required the oflScer, upon receiving any writ of _^. fa., or other writ of execution, to endorse thereon without fee, the month, the year and the hour of the day whereon he shall receive the same. Even before the act of 1836, the lien of the execution began with the hour at which the writ was delivered to the sheriff, whose practice it was to make an endorsement on it of the exact time of his receiving it;^ and executions coming to the sher- iff's hands at different hours of the same day were liens in that order.^ The act of 1836 simply adopts the law as pre- viously settled. A ft. fa. received by the sheriff at 2:45 p. m. must be satisfied from the proceeds of the sale in preference to one against the. same defendant received at 3 p. m. of the same day.^ One received at 12:30 p. m. has precedence over another received at 4 p. m., though the latter was first issued;* one received at 3:20 p. m. to another at 5:45 p. m.,^ and one received at 9 a. m. to another at 10 A. m. of the same day.* It follows, that when executions reach the sheriff's hands at the same time, they share pro rata in the fund, if it be insuf- cient to satisfy them in full.' So was it with two executions,* with four,' and with nine, 10 'Metzler v. Kilgore, 3 P. & W. «Post v. Naglee, 1 Pa. St. 168; 245. Beatty's Appeal, 3 Grant 213. ''Mifflin V. Will, 2 Y. 177; Ulrich 'Brown's Appeal, 26 Pa. St. 490. V. Dreyer, 2 W. 303; Hale's Appeal, * Miller v. Miller, 3 Pittsb. 540. 44 Pa. St. 438; Long's Appeal, 23 'Mode's Estate, 76 Pa. St. 502; Pa. St. 297. Linton v. Commonwealth, 46 Pa. St. = Hale's Appeal, 44 Pa. St. 438. 294. * Person's Appeal, 78 Pa. St. 145. '"Kent, Santee & Co.'s Appeal, 87 'Brown's Appeal, 26 Pa. St. 490. Pa. St. 165. LIEN OF EXECUTIONS. 325 § 268. The mere fact that, after two executions have reached the sheriff's hands, personal property of the defend- ant has entered the county, to which the liens of these exe- cutions attach simultaneously, does not make them of equal rank or entitle the one later issued to share pro rata with the earlier in the proceeds of the sale of such property.^ An agreement between successive execution creditors and other creditors for the giving of time to the defendant, and stipu- lating that while the execution creditors should not be deprived of priority over the general creditors in case future executions should issue, they should, as regards themselves, be of equal rank, will be binding, and such executions will share pro rata in the proceeds of a sale.'^ Such an agree- ment, however, is not implied when, a bank having discounted several notes for A., on which, severally, distinct parties are accommodation endorsers, the officers of the bank, the makers and the endorsers meet together, and several judg- ments are confessed for the amounts due on each of the notes. On any one of these judgments an execution may issue, and the proceeds will be applicable to this execution alone.' Evidence of Time of Delivery. § 269. The proper evidence of the time when a writ reaches the sheriff, is the endorsement thereof which he is directed to make by the act of 16th June, 1836. Such endorsement, when made, is conclusive of the time of delivery of the writ to the sheriff.* If he omits to make the endorse- ment, the time of the delivery of the writ to him may be shown by parol.* So, a statement in writing of the time the writ reached him, may be appended to one of two writs, by the sheriff, the other being properly endorsed, and these ' Shafner v. Gilmore, 3 W. & S. 438. ■'Person's Appeal, 78 Pa. St. 145. ='Loucheim Brother's Appeal, 67 ^jy^jflin ^ "Will, 2 Y. 177; Person's Pa. St. 49. Appeal, 78 Pa. St. 145 ; Ulrich v. ' Marshall v. Franklin Bank of Dreyer, 2 W. 303 ; Metzler v. Kilgore, Washington, 25 Pa. St. 384. 3 P. & W. 245. 326 LAW OF LIEXS. writs will have priority according to the time of their delivery to the sheriff thus ascertained.^ What Constitutes Delivery. § 270. A writ is delivered to the sheriff when it is left at his office or at the house where he usually transacts his business.' When the sheriff takes from his box in the prothonotary's office a writ, and then returns it to the box, intending to presently take it again, this constitutes his receiving it, though he neglects to call for the writ again until other writs are brought to him.^ A sheriff has a pigeon-hole in the prothonotary's office, to which he has free access, and in which all writs are placed by the prothonotary for him.' Though he is in this office when the prothonotary deposits a fi. fa. in the pigeon-hole, and though he sees the writ thus placed therein, if he does not take it into his hands until his return from dinner, but the'n takes it from the pigeon-hole, the writ is then first received by him.* Continuance of Lien of the Fieri Facias. § 271. The fi. fa. itself binds the goods of the defendant, from the time that it reaches the sheriff's hands, and hence a levy is not a condition precedent to the rise of its lien. The fi. fa. continues a lien, even if no further proceeding are had under it, down to its return day. Hence, when, under &fi. fa. issued to the marshal of a United States court, a levy was made but was never returned, and the household goods levied on were suffered to remain in possession of the defendant for eight years, until his death, when the marshal took immediate custody of them and proceeded to sell, Sifi. fa. coming to the sheriff's hands between the death of the defend- ant and the marshal's sale, but never levied, was entitled to the proceeds in preference to the marshal's fi. fa., the sale taking place before the return day of the sheriff's fi. fa.^ ' Hale's Appeal, 44 Pa. St. 438. * Person's Appeal, 78 Pa. St. 14.5. ^ Miflin 1'. Will, 2 Y. 177. * Lp^^ig j,_ gmith, 2 Serg. & E. 141. 'Hale's Appeal, 44 Pa. St. 438. LIEN OF EXECUTIONS. 327 So, when goods were sold by a constable under a levy made by him after an execution had reached the sheriflF's hands, ■which was however never levied, the sale taking place before the return day of the sheriff's writ, the proceeds of the sale were first applicable to it.^ If, after a^. fa. is in the sheriff's possession, the defendant therein makes an assignment of his personal property, for the benefit of creditors, before the return day of the Avrit, the assignment is subject to the lien ■of the fi. fa. until the return day. Until that time the sherifi" may lawfully seize the property so assigned and take it into his custody.'^ First Levy on Later Writ. § 272. The levy before the return day being unnecessary to continue the lien of the fi. fa. down to the return day, it follows that when two or more executions come to the hands of the sheriff, at different times, the lien of the earliest is not postponed by the fact that a levy is first made under a later one, and then under the earlier.^ This principle applies to property coming into the sheriflf's bailiwick, after his levy under the first execution, on other property. That a levy is first made on this newly-arrived property, under the later execution, does not postpone the lien of the earlier, as to its proceeds.* So, if, after levy and sale of certain personal property under an execution, other property claimed by a stranger is levied on under a later writ, and then under the former, and this property is then sold before the return day of the writs, the proceeds thereof must be first applied to the earlier execution.' When the levy thus made under the later writ, was on property claimed by a stranger, ^Duncan v. McCumber, 10 W. 212. A fortiori, is the first execution not ^ Burchard v. Rees, 1 Wh. 377. reduced to equal rank with the later, ^Childs & Co. V. Dilworth, 44 Pa. for the reason that the levies under St. 12:3 ; Schuylkill County's Appeal, both; on such property, were made SOPa. St. 358; Wilson, Seiger & Co. 's simultaneously. Appeal, 13 Pa. St. 429; Watmough ^Schuylkill County's Appeal, 30 t). Francis, 7 Pa. St. 206. Pa. St. 358. *Shafner v. Gilmore, 3 W. & S. 438. 328 LAW OF LIEjS'S. and the sheriff declined to make it until a bond of indem- nity was given by the plaintiff therein, in which the plaintiff in the earlier execution did not join, the first execution,, when subsequently levied on the property before the return day, was nevertheless entitled to the proceeds;^ nor is it the duty of the sheriff, in such case, to make the levy and sale of the property whose title is disputed, exclusively under the execution, the j^laintiff wherein tenders the indemnity,^ though he may do so. If he does so, the proceeds would be applicable to the indemnifying execution plaintiff's writ.* So, if, after a sale of certain of defendant's property, other property of his is discovered by the plaintiff in a later execution, and, a stranger claiming it, the plaintiff and the claimant are ordered to interplead, and it is finally decided that the property is the defendant's, the proceeds are appli- cable to the first execution creditor, although he was not a party to the interpleader.* Sheriff's Inversion of Priority jJefore Return Day. § 273. While the levy under an execution is not necessary to protract its lien to the return day, such execution may be postponed to a later execution, by the sheriff's making both a levy and a sale of goods of the defendant, under the later writ exclusively. In such case, the proceeds of the sale must be applied to the execution on which the sale takes place.* A sale, however, on the later execution alone will not prefer it to an earlier, under which the goods sold had ^Watmough v. Francis, 7 Pa. St. ° McClelland i'. Slingluff, 7 W. & S. 206. That the proceeds are applied 134. The return to the later writ to the first execution exclusively is showed levy and sale thereunder no defence to an action on the bond alone; that to the earlier, simply an given by the plaintiff in the later appropriation of the moneys to it. execution to indemnify him for sell- The later execution creditor had an ing the goods levied on. action against the sheriff for misap- ^ Watmoughr.IVancis,7PaSt.206. propriation of the proceeds of sale. ' Girard Bank r. Phila. and Xorris- See Wilson. Sieger & Co.'s Appeal, town E. R. Co., 2 M. 447. 13 Pa. St. 426. Comp. Watmough i\ *Childs & Co. I'. Dilworth, 44 Pa. Francis, 7 Pa. St. 206. St. 123. LIEN OF EXECL'TIOXS. 329 been in fact levied on by the sheriff. A levy was made on certain property, and a part thereof was sold. Three days after this sale, another levy under a later execution was made on the property remaining unsold, and it was sold, and so returned by the sheriff, under this second writ exclusively. The auditor finding that the property was in fact levied under the first execution, it was permitted to take the proceeds.^ A levy made on specified articles, and all other of defendant's personal property, will embrace chattels acquired by him subsequently, but before the return day of the writ ; and when, under an execution issued after this property has come to the possession of the defendant, it is specifically levied on, and it is then sold under both the writs, the proceeds must first be applied to the earlier.- § 274. The lien of ih.efi.fa. may be discharged from cer- tain property of the defendant by a levy on other property in circumstances which indicate that it is the sheriff's pur- pose to realize the debt out of the property levied on exclu- sively. Thus, if six horses are in the same stable, and the sheriff, in view of them all, levy upon only four of them, and a later execution is subsequently levied on the entire six, the second execution would be the first lien upon the two horses that were pretermitted in the first levy." So, if the sheriff levies on a definite chattel, naming it, e. g., a horse, he will not be permitted to sell a cow or other article of prop- erty.* When the defendant has a store in the lower part of a building, and resides in the upper part thereof, a levy on all the goods in the store will not include goods in his resi- dence.^ Under an execution against the firm of A. & B., for a firm debt, the sheriff levies on the "contents and fixtures of a dry goods store," the property of the firm, and, in his 1 Miller 1'. Miller, 3 Pittsb. 540. 'Schuylkill County's Appeal, 30 ^ Wilson, Sieger & Co.'s Appeal, 13 Pa. St. 358. Pa. St. 426 ; Earl's Appeal, 13 Pa. St. ■* Wilson, Sieger & Co.'s Appeal, 13 483. Pa. St. 426. ^Burchard v. Rees, 1 Wh. 377. 330 LAW OF LIEXS. return, enumerates the classes of articles therein, and sells the most of them. A few days after, and before the return day of this writ, another execution comes to him, against A. alone, on which a levy is made on A.'s individual property. The proceeds of this property were applied to the execution on which it was levied.-' When a levy has been made on personal property, the sale of a part of it by the sheriff is not an exemption of the residue from the lien of the writ. If, therefore, this residue should be levied on under a later fi. fa., and sold, its proceeds would be applicable to the first Ji. fa? When the Levy may be Made. § 275. As we have seen, the coming of the fi. fa. to the hands of the sheriff, creates a lien which, without any act of the sheriff, continues until the return day of the writ. The ji. fa. holds the goods until the sheriff can sell them.^ Since he cannot sell them, however, until he has them in his power and control, a levy must be made upon them at some time before or at the time of the sale.* And when the authority to levy expires, no sale can be accomplished under the writ, and it becomes ineffectual and void. The levy may be made at any time before the return day,* or even on the return day." Different levies may be made at intervals, under the same writ, upon different portions of the defendant's prop- erty, until the return day,^ or a valid levy may be made on property on which there has already been an invalid one.* > Miller v. Miller, 3 Pittsb. 540. = Duncan v. McCumber, 10 W. 212 ; Ihid. Commonwealth v. Contner, 18 Pa. ^ Cowden v. Brady, 8 Serg. & R. 510. St. 439 ; Dorrance's Adm. v. Common- *The title of a purchaser at sher- wealth, 13 Pa. St. 160; Lewis u. Smith, ifF's sale will be good against execu- 2 Serg. & E.. 142 ; Burchard v. Kees, tions issued against the defendant 1 Wh. 377. subsequently to the sale, though the "Sturges' Appeal, 86 Pa. St. 413. sheriff made no levy before the time 'Schuylkill County's Appeal, 30 of the sale, having advertised them Pa. St. 358; Shafner v. Gilmore, 3 on a description furnished him by W. & S. 438. the plaintifi". AUentown Bank v. 'Duncan's Appeal, 37 Pa. St. 500; Beck, 49 Pa. St. 394. Duncan v. McCumber, 10 W. 212. LIEJf OF EXEC^TIO^-.S. 331 When Levy cannot be Made. § 276. After the return day of a writ, no levy may be made upon it. "Among principles not gainsaid," said Trjunkey, J., is this, that a "levy may be made by virtue of a writ of fi. fa. at any time before or on its return day, but not afterwards."^ And, in an early case, it was said, that if a certain _^./«. had not been levied until after its return day, "of course there was no power to sell" under it.^ After a Ji. fa. was in the sheriff's hands, the defendant made an assignment of his personal property for the benefit of his creditors. Subsequently to this assignment and to the return day of the writ, the sheriff sold these goods and delivered them to the vendee. He would have been a trespasser had he not made a levy thereon prior to the return day.^ So, when a levy was made before the return day upon certain enumerated articles "and all the rest of the defendant's goods and chattels," such a levy, though binding goods of the defendant acquired by him before the return day,* would not attach to such as came to his possession after that date.^ § 277. So inflexible is the rule that no levy can be made after the return day of the writ, that, even .if the levy is prevented by a stay of proceedings by the court, the lien of the writ expires with the return day. Afi. fa. was sued out May 12th. Before a levy, the court, on May 15th, granted a rule returnable in September, to show cause why the ft. fa. should not be stayed, proceedings on the writ meantime to stay and the sheriff to be secured in his levy if made. The sheriff, who had made no levy, returned the writ "stayed by iSturges' Appeal, 86 Pa. St. 413. ■' Filler v. Patton, 8 W. & S. 455. 2 Lewis V. Smith, 2 Serg. & K. 148. But the levy before the return day See, also, Commonwealth- v. Contner, was presumed, in the absence of evi- 18 Pa. St. 439; Dorrance's Adm. v. dence that no such levy had in fact Commonwealth, 13 Pa. St. 160; been made. See, also, Sturges' Ap- Lynch v. Waters, 6 Luz. L. Reg. 39 ; peal, 86 Pa. St. 413. Eeligious Society v. Hitchcock, 2 * Wilson, Sieger & Co.'s Appeal, IS Bro. 333 ; Duncan v. McCumber, 10 Pa. St. 426. \V. 212. ' Earl's Appeal, 13 Pa. St. 483. 332 LAW OF LIENS. order of the court." The rule was discharged in September. Meantime another execution had issued, under which the defendant's goods were levied and sold. Their proceeds were not applicable to the earlier fi. fa. which had been stayed.^ A fi. fa. came to the sheriff's hands April 9th, 1844, and, not having been yet levied, was on May 4th, stayed by a judge at chambers. On the following 28th of November, it was returned "stayed by order of court." An execution issued August 7th, 1844, was permitted to take the proceeds of a sale which took place under in on October 4th .^ Nature of the Levy. § 278. Originally, at common law, a levy implied the actual seizure of the goods, and their absolute withdrawal by the sheriff from the custody of the defendant, until their sale.'' "From the time of a seizure," said Rogers, J., "the oflScer should, either by himself or by some other person, keep possession of the goods, or otherwise they may be liable on a second execution."* This rule was first relaxed in this state with regard to household goods, necessary implements of trade or husbandry, and the necessary horses and cattle on a farm, on motives of humanity, they being permitted by the sheriff to remain with the defendant, in the full confi- dence that they would be forthcoming to answer the exigency of the writ.*^ This departure from the strictness of the com- mon law, with regard to the making of levies, seems also to be due largely to considerations of convenience. "It would ' Sturges' Appeal, 86 Pa. St. 413. full remedy against the sheriff, and ^Commonwealth v. Magee, 8 Pa. on his ofldcial bond." St. 240. Yet, in Bain •;;. Lyle, 68 Pa. ' Commonwealth Ins. Co. v. Berger, St. 60, it is said, with reference to 42Pa. St. 292; McGinnisti.Prieson, 85 stay of executions, " actus legis nemini Pa. St. Ill ; Welsh v. Bell, 32 Pa. St. 12. fadt injuriam. The execution cred- * Trovillo v. Tilford, 6 W. 468. itor cannot lose his lien or priority ^Ibid.; Cox v. McDougall, 2 Y. without some neglect or default on 434; Howell v. Alkyn, 2R. 281; Levy his part, without at least having a v. Wallis, 4 Ball. 167 ; Chancellor v. Phillips, 4 Ball. 213. LIEN OF EXECUTIONS. 333 be impossible," says Huston, J., "for a sheriff to find a place of keeping all the property levied on in any county during a year. Horses, cows, sheep and swine, would eat up a great part of their value ; grain growing or in the stack, or hay, could not find a place of storage."^ "Whether from humanity or from regard to convenience, all kinds of goods are habit- ually left by the sheriff, after he makes a so-called levy, in the custody of the defendant, to await the final seizure inci- dent to sale.^ Many instances of household goods thus left with the defendant,^ of horses,* cattle, hogs and other animals,* of grain, either harvested or in the ground,^ per- sonal property in a cotton-spinning establishment,'' may be found. § 279. Goods kept for sale by a merchant enjoy the same immunity from the necessity of seizure by the sheriff or other officer, when a levy is made upon them. A constable levied on a stock of goods in a drug store, embracing liquors, medicines, and other articles. The defendant's possession was not disturbed, and he continued to sell as before the levy, until, five days afterwards, another execution was levied on the same goods by the sheriff. The constable's execution was permitted to take the proceeds.* Two executions, issued at different hours on the same day, were levied on a drug- store. The plaintiff in the first told the sheriff not to close the store, but to permit the defendant's clerk to make private 1 Sedgwick's Appeal, 7 W. & S. 260. kill County's Appeal, 30 Pa. St. 358 ; ^ The defendant becomes the bailee Weidensaul v. Eeynolds, 49 Pa. St. 73. of the sheriff. Weidensaul v. Key- *Levy ■«. Wallis, 4 Dall. 167; Wei- nolds, 49 Pa. St. 73 ; Wood v. Van- densaul v. Reynolds, 49 Pa. St. 73. arsdale, 3 E. 401; Dorrance v. Com- ^Eberlei; Mayer, 1 R. 366; Howell monwealth, 13 Pa. St. 106; Trovillo v. Alkyn, 2 E. 281; Weidensaul v. V. Tilford, 6 W. 468. Eeynolds, 49 Pa. St. 73. = Trovillo V. Tilford, 6 W. 468; « Eberle v. Mayer, 1 E. 366 ; Schuyl- Howell.'w. Alkyn, 2 E. 281 ; Cox v. kill County's Appeal, 30 Pa. St. 858. McDougal, 2 Y. 434; McGinnis v. 'Corlies & Co. v. Stanbridge, 5 E. Prieson, 85 Pa. St. Ill; Lewis v. 286. Smith, 2 Serg. & E. 142; Common- * McGinnis i;. Prieson, 85 Pa. St. Ill; wealth V. Stemback, 3 R. 340 ; Schuyl- Wood v. Vanarsdale, 3 Eawle 401. 334 LAW OF LIENS. sales as usual, and this was done until two weeks of the next term elapsed. The plaintiff in the second endorsed his writ, " levy at the risk of the plaintiff," thereby authorizing the sheriff to let the goods remain in the custody of the defend- ant. The sale was not made by the sheriff until some time after the return day, and meantime another execution, issued to the term succeeding, was in the sheriff's hands at the time of the sale. The proceeds were applied first to the second execution, then to the third, and the residue to the first. A levy, therefore, which did not consist in closing the store, and taking absolute possession of it by the sheriff, was suf- ficient to prolong the lien of the second execution into the term succeeding its return day.^ § 280. As an evidence of the sheriff's custom of permit- ting the goods levied on to remain with the defendant, may be cited the usage of giving to him bonds or other security for the forthcoming of the goods at a specified time, or at any time when he may make demand for them. Leaving the goods with the defendant on such a bond, does not impair the lien of the fi. fa. under which they are levied, when the delay in making the sale is not exorbitant.^ On May 30th, 1844, on making a levy under an execution, the sheriff accepted a bond from A. and B., conditioned for the delivery of the goods for sale at a designated day. The next day A. and B. severally issued foreign attachments against the defendant, and attached the property which had been levied on. On July 29th they delivered this property to the sher- iff, in accordance with the condition of the bond, and it was sold on thej'i. /a., which was permitted to take the proceeds.* 'Keyser's Appeal, 13 Pa. St. 409. Hastings r. Quigley, 2 CI. 431 ; Lantz In Earl's Appeal, 13 Pa. St. 483, the ii. Worthington, 4 Pa. St. 153. fi. fa. issued June 2d, received the ^ Hastings v. Quigley, 2 CI. 431. proceeds of a sale of goods, though This case might apparently have the defendant had kept his shop been decided on the principle of es- open until the 12th, selling goods. toppel of A. and B., the attaching ^ Sedgwick's Appeal, 7 W. & S. 260 ; creditoi-s. LIEN OF EXECUTIONS. 335 § 281. It cannot be said with precision for how long a time the delay to execute the fi. fa. by a sale of the goods, on account of the making of a forthcoming bond, may take place without vitiating the execution; perhaps not longer than the return day of the writ, when a reasonable time intervenes between the levy and that day. The lien of an execution on a horse, which the sheriff" allowed the defend- ant to retain on a forthcoming bond for eleven months, was lost as to one who, at the end of that time, bought the horse bona fide, without knowledge of the execution.^ The defend- ant in an execution issued June 16th, 1842, tendered a bond to the sheriff", in conformity with the act of 16th July, 1842, under a mistaken belief that it applied to executions that were outstanding at the time of its passage, and the sheriff", under the same misapprehension, accepted it. This act directed that an appraisement of the defendant's goods should be made, and if, at a sheriff"'s sale, they should not bring at least two-thirds of their appraised value, the sale should be adjourned for one year. Since, the act not apply- ing to this case, the delay was voluntary on the sheriff's part, the lien of the fi. fa. was lost as to another fi. fa. issued May 25th, 1843. The proceeds of the sale were applicable to the later fi. fa? In an early case, household goods, levied by a marshal of the United States court, were allowed to remain with the defendant, on a forthcoming bond, for eight years. After that time, and when the marshal had resumed possession, which he followed by an early sale, afi.fa. against the same defendant came to the sheriff''s hands, and was levied on these goods. This second execution was preferred to the first, not, however, because 'Snyder T. Beam, 1 Bro. 365. the sureties in the bond are dis- 2 Potts' Appeal, 20 Pa. St. 253. If, charged. Blaine v. Hubbard, 4 Pa. after the time stipulated in the bond St. 183. In an action against a surety for the forthcoming of the goods, it in such a bond, he cannot set up that is agreed between the plaintiff and the goods were his own. Nagle v. the defendant that there shall be a Stroh, 4 W. 124. stay of execution for three months. 336 LAW OF LIENS. there had been delay alone, but because the marshal's levy, if made before the return day of his fi. fa., had not been returned.^ § 282. Though, as we have seen, actual dispossession of the defendant of his goods, is not necessary to make a valid levy, yet the sheriff must be where the goods are, must have them in his view and under his power, and must, when so related to them, presently intend to assert his right to take them, at some future time, for the purpose of sale ; and must manifest this intent by some appropriate act.^ A levy, says Strong, J., " cannot be made in Pennsylvania without having the goods levied upon in actual manucapture or control.'" A mere paper levy is a nullity.* Hence, when the sheriff returns a levy upon personal property consisting of wood', coal, ore, etc., at a furnace, and adds, " the above levy was taken from a schedule given me by defendant's clerks ; I did not see the property at the time nor since," the levy is void.^ So, when the sheriff, sixteen miles from the mill on whose contents he intends to levy, receives a memorandum of the articles, and then endorses on the writ that he levies on such planing mill, and its fixtures, stating that the levy is given in by the counsel for the plaintiff, he makes thereby no levy valid against subsequent executions.^ A levy on property in a coal mine, when the sheriff did not descend into the mine, though he was at the colliery above ground, is void.'' Even when the intangible interest of a partner in a drug store is to be levied, it is said that the sheriff must go to the store in making the levy.' The defendant carried on book publish- ^ Lewis ■[.. Smith, 2 Serg. & E. 144. ^ Lowry v. Coulter, 9 Pa. St. 349. ^ Wood V. Vanarsdale, 3 R. 401 Lowry v. Coulter, 9 Pa. St. 349 Duncan's Appeal, 37 Pa. St. 500 Linton v. Commonwealth, 46 Pa. St, 294 ; Weidensaul v. Reynolds, 49 Pa, « Duncan's Appeal, 37 Pa. St. 500; Linton v. Commonwealth, 46 Pa. St. 294. 'Carey v. Bright, 58 Pa. St. 70, even as against a purchaser subse- St. 73. quently to the sheriff's sale, and ''Welsh V. Bell, 32 Pa. St. 12. with full notice of it. * Carey v. Bright, 58 Pa. St. 70. * Conniff v. Doyle, 8 Phila. 630. LIEX OF EXECUTIONS. 337 ing and book selling, in the lower part of a building, and Lad his residence in its upper part. A levy made by the sheriff within the store, would not be valid as to the property in the residence.^ The defendant may make an otherwise imperfect levy valid, as to him, by an agreement to dispense with a visit of the officer to the place where the goods are, or with any other of the ordinary requisites of a levy.^ Actual Seizure as to Purchasers. § 283. The rule in regard to the necessity of actual seizure, to constitute a good levy, though, as we have seen, relaxed in respect to subsequent executions, seems to have been regarded as still operative, so far as purchasers from the defendant of the goods levied on, but in ignorance of the levy, are concerned. A levy was made June 2d, 1798, on a kiln of bricks, and sale was advertised for 14th April, 1799. These bricks were, on December 1st, 1798, sold by the defendant to another, who had no notice of the prior levy. His title was held free from the lien of the execution.^ A purchaser of a horse bona fide, without knowledge of a levy that been made on it eleven months before, the horse mean- while having been in the possession of the defendant, held it discharged from the levy.* On June 21st, a levy was made on twenty cows, but no inventory was taken, and the cows were not removed from the defendant's possession. On July 3d, on a landlord's warrant, the cows were distrained for arrears of rent, and sold on July 16th. The bailiff had no knowlege of the previous levy in execution. The lien of the execution could not be asserted against the bailiflf's 'Burchard v. Eees, 1 Wh. 377. the sheriff at a distance from the Earl's Appeal, 13 Pa. St. 483, is seem- place where the goods were, under ingly contrary. See the levy on the an arrangement that they should second execution, to which the pro- continue in possession of thedefend- ceeds of sale were applied. ant until the return of defendant's =^Trovilloi;.Tilford,6W.468. Here son. the levy was made by a schedule of ^ Chancellor v. Phillips, 4 Dall. 213. the goods, given by the defendant to 'Snyder v. Beam, 1 Bro. 365. W 338 LAW OF LIEXS. vendee/ Yet, as against an assignee for the benefit of creditors, under a deed executed subsequently to a levy under a fi. fa. upon bats and caps in a store, which did not disturb the defendant's possession, such fi. fa. authorized a sale of them by the sheriff, subsequently to the return day of the writ.^ When, however, a fi. fa. to September Term was levied on goods in a store, June 10th, but the defendant,, who continued in possession of the store, bought and sold goods as usual, and then made an assignment for the benefit of creditors, $4,000 of whose claims arose by credits since the levy, and subsequently, on July 31st, the sheriff's sale took place, before the return day of the fi. fa., the lien of the fi. fa. was gone as to the assignees for the benefit of creditors.^ Sheriff's Return. § 284. For obvious reasons, the sheriff should describe in the body of his return, or by reference to a schedule accom- panying it, the property seized under the execution. Since the execution creates a lien, it should be known to others who take posterior executions, or who may deal with the debtor, what property is affected by the lien, and what is not.* The sheriff should make a schedule of the goods levied on, and thus evince that he had them in his view and power, and give notice to subsequent execution creditors. There are cases, however, where every article could not be specified, on account of their variety and minuteness, such as a levy on goods in a store. In such case, the levy might be in the bulk, and the return describing them as the articles in a store at a certain date, would be suflicient." If the schedule enumerates certain articles only, adding that the levy was upon these * McHugh V. Maloney, 4 Phila. 59. ' Earl's Appeal, 13 Pa. St. 4S3. Yet, ^Fitter t'. Patton, 8 W. & S. 455. in this case, the proceeds of the sale 'Knox r. Summers, 4 Y. 477. were given to a second execution, * M'Clelland v. Slingluff, 7 W. & S. on whose levy no inventory was 134; Commonwealth r. Contner, 18 taken. Pa. St. 439. LIEX OF EXECUTIONS. 339 "in the name of the whole" of the goods in the house, the levy covers all the household goods.^ So, if a levy is returned upon "the defendant's personal property subject to levy, to wit, six gray horses, gears and wagons, etc., and all the defendant's personal property not exempted by law," the property not specifically described will be effectively levied, as against a later execution to which the return individuates the property thus lumped under a general plirase in the return to the earlier levy.- Even personalty acquired after the levy, and before the return day, will be embraced in it.^ But, if the levy is on certain enumerated articles, and "all other personal property in, about, and connected with said colliery," and the sheriff at no time, not even when he sells, has the articles thus described in his view and power, the sale itself is void, as to one who subsequently purchases from the defendant, with full knowledge of the prior sheriflf's sale.* It has been said that it is not requisite that the sheriff should specify in his return the particular goods taken, and the sum for which each article has been sold. It is sufficient to make the return in general terms, as, for example, that he has levied a certain sum of money, naming it, out of the goods of the defendant.* A return by the sheriff to an execution against a member of a firm, that he had levied on all the right, title and interest of the defendant, as a partner, in the drug store on the public square, adjoin- ing the new First Xational Bank building, was sufficiently definite, both as to the subject of the levy and its location.^ That the making of an inventory at the time of the levy, is essential to its validity, cannot be maintained,'' and in view 'Trovillo V. Tilford, 6 W. 468; * Carey i'. Bright, 58 Pa. St. 70. Lewis V. Smith, 2 Serg. & R. 142. ' Filler v. Patton, 8 W. & S. 455. ^ Wilson, Sieger & Co.'s Appeal, 13 « Connifif v. Doyle, 8 Phila. 630. Pa. St. 426; Schuylkill County's Ap- 'Wood r. Vanarsdale, 3 E. 401; peal, 30 Pa. St. 358. McGinnis v. Prieson, 85 Pa. St. Ill ; ^ Wilson, Sieger & Co.'.s Appeal, IS Weidensaul v. Reynolds, 49 Pa. St. 73. Pa. St. 426. 340 * LAW OF LIENS. of the decisions already referred to, it is questionable whether it is necessary that one should be made at any subsequent time, in order to preserve the levy, unless in those cases in which it would be impossible to determine the identity of ^goods levied under different writs, without the aid of such an inventory/ A levy on the contents of a drug store, by a constable, though he never took a list of the articles in the store, was held good against a later execution.^ Paper Levy Valid. § 285. There are two cases in which a so-called pap'er levy is valid, as respects personal property. The first is when a levy has been already made by the oflBcer under another writ. Having already had the goods within his view and power, and asserted his purpose to hold them in order to sell them for the payment of the executions in his hands, it would be useless for the same oflBcer, on receipt of another execution, to revisit them and go a second time through the ceremonies by which he acquired legal control over them. It is sufficient, therefore, for the sheriflf, after having made one levy in fact, to endorse on the other writs that he makes a levy thereunder subject to the prior execution, and such is his practice.^ If the sheriff, or constable, having several executions in his hands against the same defendant, makes a levy and endorses it, with a schedule of the goods levied on, on one of the writs, and there is no endorsement upon the other writs, the levy will relate to all the writs.* § 286. The other case is that of a levy on chattels real. A leasehold interest in land during the term is as fixed as ^TKere was an inventory at the 206; McCormick v. Miller, 3 P. & time of levy in Parys & Co.'s Appeal, W. 234. This practice is, of course, 41 Pa. St. 273 ; and a schedule deliv- not invariable. The sheriff visited ered to the sheriff the following day the property of the defendant under in Howell i;. Alkyn, 2 R. 281. each execution, in Earl's Appeal, 13 ^ McGinnis v. Prieson, 85 Pa. St. Pa. St. 483. 111. * McCormick v. Miller, 3 P. & W. ^Watmough v. Francis, 7 Pa. St. 234. LIEX OF EXECUTIOXS. 341 the land itself; it is an estate in land. It cannot be seized and held as personal goods. The sheriff can have no manual caption of it. His levy, therefore, can be only by descrip- tion of the realty out of which the leasehold issues. For this reason, a levy made on a leasehold, at a distance of a mile and a half therefrom, by simply announcing his purpose to levy on it to the defendant, and by endorsing on the writ that he had levied on it, describing it, is valid, and. preserves the lien of the_/?. /a. to the next term, and maintains its pri- ority as against afi.fa. issued to the next term, and levied on the leasehold by the sheriff, while standing on the premises.^ The sheriff described the leasehold levied on as situate on the "D. Shoup farm;" it was, in fact, on a con- tiguous farm belonging to "Dittman's heirs." The levy on the second execution described its location accurately. On the sheriff's oral testimony that he had intended to levy on the same lease in both executions, but misdescribed it in his return to the first, the proceeds of the sale were applied to the first execution.'^ Effect of the Levy. § 287. When the levy is made under a fi. fa. before its return day, its lien is continued until such time as may be reasonably necessary to accomplish a sale.' The sale may be made under the authority of the fi. fa.,^ though it has been returned,® even without a vend, ex!' The vend, ex., however, is usually issued after a return to the fi. fa. of a levy, but no 'Titusville Novelty Iron Works' *It was so in Keyser's Appeal, 13 Appeal, 77 Pa. St. 103. Pa. St. 409 ; Fitler v. Patton, 8 W. & 'Ibid. S. 455; Beale v. Commonwealth, 7 ^Duncani;. McCumber, low. 212; W. 183 ; Miner r. Walter, 8 Phila. Corlies & Co. v. Stanbridge, 5 K. 571. 286; Miller J". Commonwealth, 5 Pa. ° Beale r. Commonwealth, 7 W. St. 294; Beale v. Commonwealth, 7 183 ; Miller v. Commonwealth, 5 Pa. W. 183 ; Irons ■;;. McQuewan, 27 Pa. St. 294. St. 196; Dorrance 1). Commonwealth, ^ Spang v. Commonwealth, 12 Pa. 13 Pa. St. 161 ; Fitler v. Patton, 8 W. St. 358 ; Corlies & Co. v. Stanbridge, & S. 455; Burchard v. Rees, 1 Wh. 5 R. 286. 377. 342 LAW OF LIEXS. sale, for the purpose of commanding the sheriff to sell the goods remaining unsold.^ The vend. ex. simply enforces the lien of the_^. fa., but cannot impart to it any new incidents.^ Hence, if, after the return to two or more writs of^. fa., vend, exponas writs issue, but in an order the inverse of that of the f. fas., this does not affect the rank of the executions inter se as liens. Under a second execution a vend. ex. issued, and sales of several parcels of the defendant's personal property took place on the 6th, the 9th, and the loth. The vend. ex. on the first execution was issued on the 9th. Yet the proceeds of the three sales were applicable to the first execution.^ If, for any lawful reason, such as a stay of the fi. fa. by law,* or by the order of the court,^ the plaintiff and the sheriff are precluded from taking further steps to execute it, a vend. ex. may issue at the cessation of this obstacle, the expiration of the stay, though even one and one-half years" or two years have elapsed since the issue of \hefl. fa? Should anything prevent the sale under the first vend. e:i:.,\t is, of course, com- petent for the plaintiff to cause an alias or a pluries vend. ex. to issue, and the lien of the fi. fa. will be carried on to the day of sale, unless there be improper conduct on the part of the sheriff or of the plaintiff.* What Impairs the Lien of an Execution. § 288. The execution has been invented by the law for the 'Lewis V. Smith, 2 Serg. & R. 141 ; 'SeW v. Colwell, 66 Pa. St. 216; Ingham v. Snyder, 1 Wh. 115 ; Miller Springer t'. Brown, 9 Pa. St. 305. r. Commonwealth, 5 Pa. St. 294; 'Brown's Appeal, 26 Pa. St. 490. Gihbs f. Xeely, 7 W. 305 ; Titiisville *Bain v. Lyle, 68 Pa. St. 60; Sedg- >'ovelty Iron Works' Appeal, 77 Pa. wicks Appeal, 8 W. & S. 260 ; Bat- St. 103 ; Reamer's Appeal, IS Pa. St. tersby r. Haubert, S W. X. C. 94. olo ; Brown's Appeal, 26 Pa. St. 490 ; ^ Batdorff i;. Focht, 44 Pa. St. 195 ; Missimer v. Ebersole, 87 Pa. St. 109 ; Missimer r. Ebersole, 87 Pa. St. 109 ; Bain v. Lyle, 68 Pa. St. 60; Sedg- Spang v. Commonwealth, 12 Pa. St. wick's Appeal, 7 W. & S, 260 ; Spang 358. V. Commonwealth, 12 Pa. St. 358; 'Spang v. Commonwealth, 12 Pa. Hickman r. Caldwell, 4 R. 376; St. 358. Bush, Bunn & Co.'s Appeal, 65 Pa. 'Bain v. Lyle, 68 Pa. St. 60. St. 363; Post v. Xaglee, 1 Pa. St. 168. * Reamer's" Appeal, 18 Pa. St. 510. LIEX OF EXECUTIONS. 343 purpose of selling the goods of the defendant, and thus realizing satisfaction of the plaintiff's demand as ascertained by the judgment. Its lien is incidental to the sale, and the origin of this lien has been determined by the law itself to be at the date of its reaching the sheriff's hands. It is impossible, therefore, that prudent men should not be eager to obtain the advantage which comes from superior prompt- ness in causing the execution to be issued to the officer. If, therefore, the plaintiff issues his writ with a view to its regu- lar execution by sale, its lien cannot be impaired because he was induced to issue it at the time at which he did by the desire to obtain priority over other creditors of the defend- ant.^ If there are executions outstanding, and another is then issued by A., with a view to sharing in the pi'oceeds of the sale, should one take place under the earlier writs, but also with the intention, in case these earlier writs should be paid off without sale, to obtain a lien merely until later exe- cutions might be issued, and if later executions issue, and a sale takes place on all, A.'s execution is not postponed. The condition on which he intended it to be used as a mere lien was not realized.- But if, after other executions, A. causes one to issue, and they are all levied on furnace, property, ore, etc., and A. causes the sheriff to permit the operations at the furnace to continue, with a view to a compromise with the earlier execution creditors, and not until later executions issue manifests a desire that the sheriff shall proceed to sale, A.'s execution will be deferred to the later ones in the dis- tribution of the proceeds.^ Writ Issued Merely for its Lien. § 289. When the primary design of the plaintiff, in issuing an execution, is to obtain a lien upon the defendant's prop- erty, and he contemplates a sale only on the contingency that other executions should be subsequently issued, the ^ Brown's Appeal, 26 Pa. St. 490. ' Weir v. Hale, 3 W. & S. 285. ^Lancaster Savings Institution v. Wiegand, 2 CI. 2.38. 344 LAW OF LIENS. existence of such intention will vitiate the lien of the fi. fa.,^ apart from any communication of it to the sheriff, if the sheriff shall not in fact regularly execute the writ. The plaintiff may have his purpose, though fraudulent in law, answered without conveying it to the sheriff.^ A fl. fa.^ issued to April Term, came to the sheriff's hands on the 28th of February, 1849. A week after, a levy was made on articles in a stove and tin shop, but the defendant continued, after the levy, to carry on his business as usual, buying material, making it into articles fit for sale, and selling them, until June 12th, 1849. The plaintiff, having knowl- edge of the conduct of the defendant, expressed no dissent. On the issue of another execution on June 12th, the shop was immediately closed. The first execution was postponed in the distribution of the proceeds of sale.^ A levy was made on a furnace, under A.'s execution. A., stating to the sheriff that he expected a compromise with the creditors, and that it would be a hardship to stop the furnace, agreed to furnish ore to the defendant's manager, to allow for the defendant's coal which might be consumed, and to see the hands paid. He did not tell the sheriff not to proceed with his writ. The furnace was worked for a few days longer, until other writs came to the sheriff's hands, when it was closed, and a sale ensued in three weeks from the levy of A.'s execution. This execution was postponed.* This Intention Communicated to Sheriff! § 290. It follows a fortiori, that if, when the writ is 'Dorrance's Adm. v. Common- plain thiit the execution is issued wealth, 13 Pa. St. 160; Brown's Ap- merely to obtain a lien, nor his as- peal, 26 Pa. St. 4'.t0 ; Hickman v. signee for the benefit of creditors,. Caldwell, 4 E. 376 ; Flick v. Troxell, nor the creditors for whose benefit 7 W. & S. 65 ; Stern's Appeal, 64 Pn. the assignment is made, ji.s such. St. 447 ; Corlies & Co. !'. Stanbridge, Kent, Santee & Co.'s Appeal, 87 Pa. 5 R. 286 ; Mentz v. Hamman, o Wh. St 165. 149 ; Freeburger's Appeal, 40 Pa. St. ^ ^^^^ ^ jj^^jg^ g ^ ^ g 035 244; Lancaster Savings Institution 'Earl's Appeal, 13 Pa. St. 483. V. Wiegand, 2 CI. 238. The defend- « Weir v. Hale, 3 W. & S. \lSi. ant himself, however, cannot com- LIEN OF EXECUTION'S. 345 brought to the sheriff, he is told to do nothing till further orders,^ not to proceed until further orders,^ to hold on to the writ, it not being the plaintiff's purpose to sell the defendant out, but only to make himself safe,^ to proceed no further in the case,* not to sell the defendant out, but to permit him to retain his stage coaches, horses, etc., in order that he may go on with his business as before," or anything equivalent to a stay of proceedings, the writ will lose its lien as against other executions coming to the officer's hands prior to a revocation of these orders. For the giving of these orders, the defendant himself may be the agent of the plaintiff. A., expecting an execution to be issued against him by B., and preferring to discharge a debt due to C, confesses a judgment to C, in his absence and without his knowledge, and forthwith directs an execution to be issued upon it. The plaiutiff then gives a forthcoming bond to the sheriff, for the purpose of securing a delay of the sale and the con- tinued enjoyment of the chattels levied on, by the defend- ant, and at the same time of baffling other creditors. Such execution is void as to another issued subsequently." A debtor confessed a judgment to A., and issued an execution upon it, without A.'s knowledge, but directed the sheriff not to proceed further, his design being to impede other creditors. The execution was postponed to other later ones, although A. was not cognizant of the improper directions of the defendant.'^ Subsequent Deviation from Proper Purpose. § 291. As an execution which is issued with an intent to obtain a lien, but not to sell the goods of the defendant, except in case other executions should be subsequently issued, is thereby avoided as to such subsequent executions, so, if a ^. fa. is issued with a proper purpose, but it is subsequently 'Mentz r. Hamman, 5 Wh. 149 ; *Lowry t'. Coulter, 9 Pa. St. 349. Stern '.s Appeal, 64 Pa. St. 447. = Flick v. Troxell, 7 W. & S. 65. ^ Freeburger's Appeal, 40 Pa. St. ''Snyder c. Kunklemaii, 3 P. & W 244. 487. 2 Hickman v. Caldwell, 4 E. 376. ' Lowry v. Coulter, 9 Pa. St. 349. 346 LAW OF LIENS. handled by the plaintiff for the purpose of a lien only, it is vitiated so soon as and so long as such purpose is conceived and manifested. If, after the writ is in the sheriff's posses- sion, he is told to stay proceedings till further orders, and nothing further is done on the writ for one year, when an assignment of the goods levied on is made for the benefit of creditors, the lien of the execution is lost, as to the assign- ment.^ A fi. fa. to March Term, 1853, came to the sheriff January 21st, and a levy was made January 26th, 1853. The following day, at the instance of the plaintiff, the sheriff took a bond conditioned for the payment of one-half the debt on April 26th, and the remainder on June 26th, defendant not to remove the goods without the sheriff's con- sent. The lien was lost as to an execution levied by a con- stable on the same goods. May 3d, 1853.^ A fi. fa. issued June 9th, 1819, was levied July 17th, on cows, hogs, wheat, etc. On October 25th, the plaintiff gave direction in writing to the sheriff to stay all proceedings at his risk. On Novem- ber 3d, 1819, another execution issued, as to which the first fi. fa. lost its lien.^ A. bought a judgment on which was an execution outstanding and a levy. The defendant, Avith a surety, executed a promissory note to A. for the payment of the debt on the return day of the writ, when A. informed the sheriff that he had fixed matters with the defendant and considered himself safe, and that the sheriff should do nothing. This postponed the writ to later ones issued before its return day.* In February, 1835, several writs oi fi. fa. issued, and, on the 6th of March following, the defendant conveyed to his sons his personal property and stock at his iron works, on which the sheriff had made a levy. The plaintiffs agreed that tlie s' "i-iff should not proceed further for the present, but that the levies should remain, and only 'Commonwealth v. Stremback, 3 "Eberle v. Mayer, 1 E. 366. E. 341. *Spangler v. Sheflfer, 69 Pa. St. 2 Truitt Bro. v. Ludwig, 25 Pa.St. 145. 255. LIEK OF EXECUTIONS. 347 in case of clanger of jeopardizing their debts should he be ordered to proceed. In the beginning of 1837, the property was sold under these and other executions which had recently come to the sheriff's hands against the sons. The executions of February, 1 835, were postponed.^ The postponement of an execution by the purpose of the plaintiff to use it as a lien merely, does not depend upon any considerable delay to which such purpose might lead. A^. fa. reaching the sheriff October 19th, was avoided as to one issued a few days after, though the sale took place November 11th.' So was one issued May 7th, 1829, as to another whose issue caused the sheriff to sell July 3d;^ so, one which reached the sheriff July 15th, as to later executions, on all of which a sale took place August 18th;* and one received by the sheriff January 21st, as to another issued to the next term and levied May 3d;' and one in the sheriff's hands October 6th, and levied three weeks after, as to another issued November 22d;* and one issued May 30th, as to a testatum fi. fa. coming to the sheriff's hands June 15th ;'' and a pluries fi. fa. issued November 9th, as to a fi. fa. issued December 6th.* A fi. fa. received by the sheriff October 1st, levied October 3d, its return day being October 8th, and the sale taking place October 10th, was postponed as to l&ter fi. fa. ;^ and a fi. fa. issued June 9th, levied July 17th, as to another issoed November 3d, under which the sale proceeded regularly.^" Delay Occasioned by PlaintiflT. § 291. When, by the agency of the plaintiff, any consider- ' McClure v. Ege, 7 W. 74. ' Mentz v. Ham man, 5 Wh. 149. 2 Weir V-. Hale, 3 W. & S. 285. ' Stern's Appeal, 64 Pa. St. 447. i 3 Snyder -u. Kunkleman, 3 P. & W. ''Work's Appeal, 92 Pa. St. 258. 487. Cases of longer delay may be found, * Freeburger's Appeal, 40 Pa. St. as from February, 1835, to the end 244. of 1836 ; McClure v. Ege, 7 W. 74 ; °Truitt Bro. v. Ludwig, 25 Pa. St. from April 1st to May 13th of the ]^45_ following year. Commonwealth v. "Dorrance's Adm. v. Common- Stremback, 3 R. 341. wealth, 13 Pa. St. 160. ^"Eberle v. Mayer, 1 R. 366. 348 LAW OF LIEXS. able delay is occasioned in the sale under his Ji. fa., it will be prima facie imputed to a design to use the writ for the pur- pose of a lien only. Thus, when a three weeks' delay in the sale was caused by a negotiation between the plaintiff and defendant for the purchase by the former of the goods levied on, the fl. fa. was postponed.^ The prima fades may, however, be rebutted. When a sale is adjourned by direction of the plaintiff, from the day on which it was advertised to take place, to another, ten days later, but before the return day of the writ, because such delay is indispens- able to enable the sheriff to sell for a better price, the fi. fa. is not postponed.^ If, on the day of sale, an unexpected claim to the property about to be sold, is announced by a stranger, and time is needed to investigate his title, so as to prevent a sacrifice of the property, the plaintiff may direct the sheriff either to postpone the sale, or to return the writ stayed. If, in the latter case, it is followed promptly by a vend, ex., its lien will be preserved, as against other execu- tions, or interests in the goods bound by the writ acquired subsequently to its reaching the sheriff.'' Private Sales. § 293. Besides the use of an execution for the purpose of a lien, departures from the mode of sale prescribed by the law will have the effect of vitiating the execution, as to later writs. A levy was made on merchandise in a store, and the plaintiff, believing that a better price could be obtained for it by the continuance of sales in the ordinary mode, told the sheriff not to close the store, and at his request the clerk of the defendant continued to sell goods as usual, the plaintiff promising that he should be paid out of their proceeds. The store continued open from April 3d, the day the execution 'Dorrance's Adm. v. Common- 'Bush, Bunn & Co.'s Appeal, 65 wealth, 13 Pa. St. 160. Pa. St. 363. In this case, the inter- ^Lantz V. Worthington, 4 Pa. St. est was acquired by an assignment 153. in bankruptcy. LIEN OF EXECUTIONS. 349 issued, to April 21st, the proceeds of the sales being paid directly to the plaintiflf. His writ was postponed to another, issued April 10th, and returnable to the August Term, under which the store was shut up by the sheriff/ Under a fi. fa. ■which reached the sherifi" January 16th, a levy was made on a store, from which the goods were not removed. At the plaintiff's instance, -the sheriff appointed a clerk who had been in the store, to continue to sell the goods at retail. The clerk, keeping no account of the goods sold, reported, from time to time, to the sheriff, the amount of money he had taken in. The defendant and wife remained in the store, selling and buying as formerly. Another writ came to the sheriff January 23d, and the contents of the store were sold on January 24th, in the regular way. This last writ was preferred.^ A levy was made February 28th, on goods in a store. The plaintiflf requesting, the sheriff appointed a deputy, who, with the defendant, continued to make private sales of store goods as in the ordinary course of business, until February 28th, , when other executions came to the sheriflf's hands. The sheriflT immediately levied on the store goods urtder these executions and closed the store. In distributing the proceeds of the sale made March 4th, before the return day of the writs, the first was postponed.^ How- ever necessary such a mode of sale may be to prevent a sacrifice of the goods, ihefi.fa. under which it is tolerated will lose its priority over other executions.* In any event, the execution under which the defendant is permitted to keep open his store and sell goods, will be satisfied, as to later executions, to the extent of the value of the goods sold.^ ^Keyser's Appeal, 13 Pa. St. 409. ^Truitt Bro. v. Ludwig, 25 Pa. St. ^ Parys & Co.'s Appeal, 41 Pa. St. 145. In Deacon v. Govett, 4 Phila. 273. 7, it is said, however, that a sale by ^ Bingham v. Young, 10 Pa. St. 395. the defendant of goods, and his re- * Reamer's Appeal, 18 Pa. St. 510. ceipt of their proceeds, after an ex- Unless the creditors therein are par- ecution issues, is no payment, and a ties to it. second execution creditor, who had 350 LAW OF LIENS. A defendant had already advertised a sale of His goods, when an execution issued, October 1st, against him, which was levied October 3d. It was agreed between the plaintiff and him, that this sale should go on, and that the proceeds should be paid to the plaintiff, and the sheriff was notified not to take any steps looking to a sale by himsel£ The lien of the execution was lost as to a later 'one, though the private sale took place October 10th, two days after the return day of the writ, and nine days after its issue.^ The execu- tion creditor who has not consented to private sales of the defendant's goods, will be entitled to their proceeds when in the sheriff's hands.^ § 294. A sale by an assignee for the benefit of creditors, with the permission of the sheriff, will not vitiate the execu- tions under which it takes place, so far as the creditors claim- ing under the assignment are concerned. Against A., several executions issued Xovember 5th. On the following morning the sheriff levied on store goods, taking them into his pos- session, but was informed that A. would make an assignment of them for the benefit of his creditors. This was done subsequently on the same day. An arrangement was made between the assignee, the sheriff and the attorney for the execution creditors, by which the assignee was to take possession of the goods levied on, sell them, and deliver the proceeds to the sheriff, to be distributed pro rata upon the executions. The arrangement was carried out, but the creditors claiming under the assignment objected to the credit claimed in his account by the assignee for the proceeds of the sale of the goods paid over to the sheriff. It was held that the assignee should be allowed the credit.' no lien when such sales were taking ^Work's Appeal, ft2 Pa. St. 258. place, has no right to object, if the 'Reamer's Appeal, 18 Pa. St. 510. first execution creditor has directed ' Kent, Santee & Co.'s Appeal, 87 the sheriff to proceed before the Pa. St. 165 second execution issued. LiEx OF i;xEcrTioNs. 351 Revocation of Improper Orders. § 295. Though a fi. fa. is invalid as a lien so long as the object which the plaintiff seeks to obtain by it is a mere priority over any other creditors who may issue executions after it, yet, when he abandons this improper purpose, and communicates to the sheriff his desire that the writ shall be proceeded in to sale, its validity is restored, as respects all executions issued after this rectification of the motive with which the writ is wielded. Having ordered a stay, if he wakes up and directs the sheriff to cause a sale before other executions are issued, he is in the condition in which he would be if he had first issued the writ at the moment when his new instruction is given to the oflBcer.^ When it is clearly established that the writ was issued merely to obtain a secu- rity, and that no sale was expected to take place on it, unless it should become necessary on account of later executions, it is incumbent on the jjlaintiff to prove affirmatively that his alleged orders to the sheriff to duly proceed with the writ to sale were given before the sheriff's receipt of the second fi. fa. Evidence that these orders were given "about the time" he received the second writ, "it may have been on the very day he received" it, leaves it uncertain whether the orders were given before or after the second writ came to the sher- iff's hands, and the first writ will be postponed.^ The order to proceed, after a previous order to delay, must be such as the sheriff can lawfully heed. If given on Sunday, it is a nullity. Hence, when, after a j)revious delay, the sheriff was, by the plaintiff, requested on a Sunday to make a levy, which ' Deacon v. Govett, 4 Phila. 7 ; the later execution issued, to which Stern's Appeal, 64 Pa. St. 447 ; thej- were postponed. The opinion Christy v. Reynolds, 4 Phila. 8 ; of the supreme court shows that that Jlentz V. Hamman, 5 Wh. 149. In court understood it to continue to Reamer's Appeal, 18 Pa. St. 510, an the time of the issue of the later improper arrangement for private execution. sales of the goods of the defendant •' Freeburger's Appeal, 40 Pa. St. in a store, had ceased, according 244. to the report of the facts, before 352 LAW OF LIENS. he declined to do until the next day, and, early in the morn- ing of the next day, he received a second _^. fa., and, proceed- ing to the place where the defendant's goods were, he made a levy under both writs, the second writ was preferred.^ In an early case, household furniture was permitted by the marshal of the United States court, to whom afi.fa. was directed, to remain with the defendant for eight years, when, the defend- ant dying, the marshal took actual possession of it, and shortly afterward sold it. Another fi. fa. came to the sher- iff's hands between this seizure of the goods by the marshal and the sale, and it was decided that the sheriff was entitled to the proceeds, seemingly, however, because the marshal had either not made a levy under his writ before its return day, or had failed to return a levy under his writ in due time." Later Execution Creditors Consenting. § 296. A plaintiff's delay of proceedings on his writ, or procurement of a sale in an improper mode, will postpone his execution to other executions, but only when the plain- tiffs who issue these are not also guilty of the same miscon- duct.^ . Thus, if the later execution creditor negotiate with the earlier for the purchase of the first writ, it being agreed that this writ shall be stayed, the second execution will not be preferred, on account of the delay thus occasioned, when the negotiation subsequently fails.* Consent of the later execution creditors that the defendant's store shall continue open, and private sales of goods go on, precludes their gain- ing priority over the earlier execution creditor who has been active in obtaining this arrangement.* So, consent that the defendant's business of cotton-spinning shall not be closed by a speedy sale under an earlier execution, would prevent 'Stern's Appeal, 64 Pa. St. 447. ceeds of any execution when such ^ Lewis V. Smitli, 2 Serg. & R. 143. should be subsequently issued. 'In Loucheim Brothers' Appeal, *Post v. Naglee, 1 Pa. St. 168. 67 Pa. St. 49, an agreement was en- ^Keyser's Appeal, 13 Pa. St. 409 ; forced, by which successive execu- Reamer's Appeal, IS Pa. St. 510; tion creditors agreed for a stay, and Fletcher's Appeal, 17 Leg. Int. 300. for a share in equal rank of the pro- LIEN OF EXECUTIOIfS. 353 the consenting creditors from getting precedence over sucli execution.^ The mere fact, however, that of the moneys made by the defendant during the delay of proceedings, some was paid to the creditor who subsequently issues an execu- tion, would not be proof of consent to the delay in executing the prior writ.' If, under previous executions, the sheriff has been selling the store goods levied on by private sale, as in the ordinary course of business, and this is known to a creditor who issues an execution while these sales are thus proceeding, accompanied by a notice to the sheriff to levy on the personal property yet unsold, and he expresses no dissent from the method of sale adopted by the sheriff, he does not consent to the irregularity, and will be entitled to be paid from the proceeds of sales thus irregularly conducted, in preference to earlier but consenting creditors.^ Abandonment of Execution. § 297. An execution may be abandoned by the plaintiff. In such case, the lien which attends it, and indeed all right to share in the proceeds of a judicial sale of personalty, would be lost. The intent to abandon may be variously shown. After a levy was made on an execution, and after another later writ was in the sheriff's hands, the plaintiff in the first writ told the sheriff " not to put any more costs " on it ; that he expected to get his money in another way. The property was advertised on the second writ alone, but the sheriff sold on both, and so returned the writs. It was •decided that the first execution creditor had expressly relin- Muished his writ, and he was postponed to the second execution.* If, having made a levy on a fi. fa., the sheriff, under instruction from the plaintiff, returns that its levy is discharged, its lien is gone as against another writ which was outstanding when the order was given for its return." When iCorlies&Co.i'.Stanbridge,5R.286. *Kauffelt's Appeal, 9 W. 334. ^ Ibid. "Burke, Thomas & Co.'s Appeal, 2 Reamer's Appeal, 18 Pa. St. 510. 89 Pa. St. 398. X 354 LAW OF LIENS. afi.fa. on which a levy has beea made is returned, the writ proper next to issue is a vend. ex. Kfi.fa. is not in order.^ If, therefore, after afi. fa. has been returned stayed by order of the court, under a rule to open the judgment, (which rule is subsequently discharged,) an alias fi. fa. is iasued, the lien of the f. fa. will be abandoned, and an assignee for the benefit of creditors of the defendant, under a deed executed during the stay of the first writ, will hold the personalty free from its encumbrance.^ So, when a levy had been returned on a pluries fi. fa., and a second pluries fi. fa. was then issued, the latter would have been a supersedure and abandonment of the former had it not been immediately withdrawn before anything had been done on it, and a vend. ex. issued instead.* Impairment of Lien by Act of the Sheriflf^ ^ 298. A sherifi''s procrastination, even with the sufferance of the creditor, it has been said, will not postpone an execu- tion to later ones which are executed more expeditiously.* Hence, in an action by an execution creditor against the sheriff for improper execution of the writ, whereby the pro- ceeds of the sale were distributed by the court to a later fl^ fa., it was held that such distribution by the court was con- clusive that the cause of the preference of the second execu- tion was not the delay of the sheriff.' Yet, on the contrary, if the sheriff permits a defendant to carry on his business as before the levy, until two months after the return day of the writ, it is said that the lien of the Jr. fa. would be deferred to that of later writs.® A delay of eight years by 'Hickman r. Caldwell, 4 K. o7i5. 'Ingham r. Snyder. 1 Wh. 116. 'Missimer i;. Ebersole, >i7 Pa. ^t. Here the. -iecondjo/Mms was intended 109. See Corlies & Co. v. Stanbrid^t . to .-eize on property not before levied 5 R. 286. In Pott.,' Appeal, 20 Pa. on. St. 253, an alias fi. fa., is.sued more *McGinnis i. Prison, So Pi. St than a }-ear after the fi. fa., was 111; Lanca.ster SaviiiLra Institution treated as an independent execu- r. Wiegand, -2 O. 24'; : Hickman v. tion, whose lien began with tlie Caldwell, 4 R. .376. coming of the alias into the sherifl'.-i ' McCoy r. Reed, 5 W. -SiXi. hands. 'Earl's Appeal, 13 Pa. >t. 43-3. LIEX OF EXECUTIONS. 355 ;i United States marshal to sell on a fi. fa., postponed it to one issued at the end of that period, and after the marshal had taken the goods into his possession for the 2:)urpose of imme- diate sale.^ An execution which the sheriff delayed to exe- cute for nearly a year, because he mistakenly believed the act of 16th July, 1842, (granting a stay of sale if, on an attempt to sell, the goods would not bring at least two-thirds of their appraised value,) to apply, was declared to be postponed to another, issued at the exj^iration of that time." So the lien of a levy on a horse was lost, which, unsold by the sherij0f for eleven months, was at the end of that time sold by the defendant to a bona fide purchaser.^ § 299. The sheriif, as we have seen, need not, in order to make an effective levy, take actual possession of the chattels levied on. They may be left with the defendant until such reasonable time as may be selected for their sale. If, how- ever, the sheriflf in fact take them into his possession, and subsequently abandon them voluntarily to the defendant, on whatever pretext, he thereby declares his purpose not to enforce the execution against them. As to them, subsequent executions gain precedence of lien.* This was the case when, the court ordering the sheriff to surrender the goods to a claimant, on his giving bond and filing a declaration within a limited time, in an interpleader issue, the sheriff yielded up the goods to the defendant, without waiting for any bond or declaration; and a rule on the claimant to show cause why the sheriff should not proceed and sell the goods, was two months afterwards made absolute. To a later execution the proceeds of their sale, made one month before the making absolute of this rule, were awarded.' On March 22d, a levy was made on goods in a house, a schedule thereof taken, and a watchman left in charge of them. On the 29th the watch- ^Lewisz). Smith,2Sero:. &R. 144. * Schuylkill County's Appeal, 30 '^ Potts' Appeal, 20 Pa. St. 253. Pa. St. 358. ' Snyder v. Beam, 1 Bro. 365. ^ Commonwealth v. Contner, 18 Pa. St. 439. 356 LAW OF LIENS. man was withdrawn, and the goods returned to the custody of the defendant. This was a relinquishment of the execu- tion.^ When, after a shop is closed up by the sheriff, he permits the defendant to have the key, to open the shop and to resume his business therein as before the levy, the lien of the execution is lost, as to later ones.^ A sale is the end of the fi. fa., and the sheriff cannot more distinctly manifest bis purpose to discharge the goods levied on from further responsibility to the writ, than by actually selling them there- under. Should the sale be void, the property still continues that of the defendant, and is liable to other executions against him. But the execution on which it was sold cannot reseize it, or share in the products of its second sale, as against later executions. On afi. fa. a levy was made January 30th, 1835, but the return to the writ stated, no sale for want of time. On a vend, ex., issued April 2d, a sale took place at 12 o'clock on April 7th, but, by agreement of the defendant, on only five days' notice. A constable levied another execution on the same goods April 1st, and sold them at 1 o'clock p. m., April 7th. The proceeds of the constable's sale were of course applied to his execution, and the title of his vendee was valid as against that of the sheriff's vendee at the earlier sale.* § 300. If the sheriff has several writs in his hands, he may give precedence to the later, in the distribution of the proceeds of a sale, by levying and selling under the later one exclusively. In such case, it would be his duty to appropriate the proceeds to the later execution, and he would be liable to the plaintiff therein, if he should apply the proceeds of his sale to the earlier fi. fa.*" If, after levy by ' Guardians of the Poor v. Law- in pursuance of an arrangement be- rence, 4 Y. 194. In this case, how- tween plaintiff and defendant, ever, the sheriff's conduct was die- ' Gibbs v. Neely, 7 W. 305. The tated by the plaintiff in the execu- sale on five days' notice was void as tion. to the constable's execution. ^ Freeburger's Appeal, 40 Pa. St. * McClelland ti. Shngluff, 7 W. & S. 244. The opening of the shop was 134; Watmough v. Francis, 7 Pa. St. 206. The sheriff who thus preferred LIEN OF EXECUTIOXS. 357 a constable, the sheriff makes a levy on the same property, and sells it, on his own writ alone, he does not prevent the constable's claiming the amount of his execution first, from the proceeds.^ A levy and sale under an earlier^. /a. inures to the benefit of a later, which will be entitled to the residue of the proceeds after satisfying the earlier fi. fa., though no new levy was made under it.^ When levies have been made on successive executions, in the order of their issuing, but the sale takes place on the first alone, the second would be entitled to be first paid, if, for any cause, the first had lost its priority.* Delay of Sale Caused by the Lavsr. § 301. If the stay of an execution is occasioned by the law itself, its lien is not disturbed. The act of 16th July, 1842, [P. L. 407,] provided that goods levied on should be appraised by three respectable citizens, and in case they could not be sold for two-thirds of the amount of the valu- ation, at a public vendue of the same, that the sale of such goods should be stayed for the term of twelve months, the defendant delivering to the sheriff a bond with one or more sureties, conditioned for the forthcoming of the goods at the expiration of the said stay. Under this act s. ft. fa. was issued, the bond was given, and the stay for one year obtained. Three days before the expiration of the stay, another /z. /a. was issued by another creditor, and, after the year had elapsed, a vend, ex. issued on the first ^. /a. The proceeds were appro^Driated to the first fi. fa.^ § 802. In a sheriff's interpleader, the claimant may give bond for the forthcoming of the goods in case they are ulti- mately adjudged to be the defendant's, and the sheriff then a later execution, would be liable to * Sedgwick's Appeal, 8 W. & S. 260. the plaintiff in the earlier for an im- Comp. Potts' Appeal, 20 Pa. St. 253, proper eiecution of his wiit. where a similar bond was accepted 'McGinnis r. Prieson,85Pa.St. 111. b}' the sheriff under the mistaken ^Watmough v. Francis, 7 Pa. St. belief that the execution was within 206. the operation of the act of 16th July, ^Eberlei). Mayer, 1 R. 366; Flick 1842, and the later execution took V. Troxell, 7 W. & S. 65. precedence. 358 LAW OF LIENS. relinquishes to him the possession of them. However much time may elapse before the determination of the interpleader, the lien of the fi. fa. is preserved. Kfi.fa. issued in May, 1866, against A. ; B. claimed the goods levied on, giving the forthcoming bond, and they were surrendered to his custody. On February 9th, 1868, the issue was decided in favor of A.'s ownership of the goods. The sheriff properly retook the goods on a vend. ex. and applied their proceeds to the execu- tion.-' When, however, the order of the court was that the sheriff should withdraw from the possession of the goods, after the claimant filed a declaration in the interpleader, and gave bond for their forthcoming, and the sheriff, without such declaration being ever filed and bond given, yielded the possession thereof to the defendant, the lien of the execution was lost, as against a later execution, issued apparently to the succeeding term.^ § 303. A stay by order of the court out of which a fi. fa. issues, at the petition of the defendant, will prevent the loss of its lien by the lapse of time thus occasioned. A testatum fi. fa. issued June 22d, 1861, and returnable the first Mon- day of July, was levied on June 24th. On July 5th, a rule was issued on the plaintiff to show cause why it should not be stayed under the act of 21st May, 1861, (respecting stay of executions against soldiers of the civil war,) the proceed- ings meantime to stay. On July 6th, the court made an order to stay the writ until the rule was disposed of, which was finally, on October 26th, discharged. On the 2d of Sep- ' Bain v. Lyle, 68 Pa. St. 60. The Struthers v. Minor, cited, Bright, goods had, during the pendency of Trou. & H. Pr., § 1143, note 7. the interpleader, been sold on ex- -Commonwealth v. Cuntner, 18 ecution, as B.'s, to C, who brought Pa. St. 439. The claimant's answer trespass against the sheriff for taking to the rule to maintain or relinquish them from his possession, to answer his claim was made absolute on July the execution against A. See. also, 7th, 1849, and, under a later execu- tion, the property was sold on the lISlli July, 1S49, only three weeks after. Yet the proceeds were award- ed to the second execution. Battersby v. Haubert, 8 W. X. C. 94 Fletcher v. Freeman, 7 W. N. C. 96 Ward !'. Whitnev, 7 W. X. C. 95 v,d LIEN OF EXECXJTIOlSrS. 359 tember, 1861, other executions issued and were levied on the same property. The proceeds of its sale were applied to the tedaiuiii writ whose lien was preserved during the stay, though no order had been made to that effect by the court.^ An execution issued April 3d, 1877, and was levied April ■oth. A rule was then granted for the opening of the judg- ment and stay of the execution meantime, the lien of the writ, however, to be preserved. The rule was discharged September 25th, when the sheriff returned the writ "stayed by court." The lien continued, and a sale was effected by a vend, ex} As we have seen, however, had there been no levy under the writs when they were stayed by the court, their lien would have expired with their return day.' Executions against Partnerships. § 304. Executions based on a partnership debt are liens on the partnership assets in the order in which they reach the sheriff's hands.* A judgment against the firm may be confessed by one partner alone, and an execution upon it will be a lien on the firm's assets,' and, after dissolution, the liqui- dating partner may make a confession of such judgment, which will be valid as respects the partnership property." The partnership property can be sold on execution on a judg- ment against one of several partners, the writ of summons, though issued against all, having been served only on one, the others being beyond the limits of the state.'' On a judg- ' Batdorfr v. Focht, 44 Pa. St. 195. partner. Vanhorn v. Hood, 1 W. N. Olissimer v. Ebersole, 87 Pa. St. C. 101 ; Gaskill v. Ashmead, 1 W. N. 109. C. 391. "Commonwealth v. Magee, 8 Pa. "Taylor v. Henderson, 17 Serg. & St. 240 ; Sturges' Appeal, 86 Pa. St. R. 453 ; Corson v. Beans, 3 Phila. 413. 433; White & Schnebly's Case, 10 *Coover's Appeal, 29 Pa. St. 9. W. 217. Hence, foreign attachment ° Ross !'. Howell, 4 W. X. C. 25. is unnecessary, so far as the partner- * Thomas v. Ashbrooke, 1 W. ^''. C. ship property is concerned, in such S. A judgment after dissolution, a case. Comp. Crow v. Common- confe>.=ed by one partner, despite wealth, 16 Pittsb. L. J. 250; Kounts' the dis.sent of the other, will be Appeal, 18 Pittsb. L.J. 51 ; Williams' stricken off as to the dissenting Estate, 23 Pittsb. L. J. 118. 360 liAW OF LIENS. ment against "Elmers & Co.," entered on a note with war- rant to confess, signed " Eimers & Co.," by Eimers alone, an execution can be levied on the firm effects, though not on the separate effects of the partner who did not sign the note; and when the plaintiff, doubting the value of this judgment against the other member of the firm, brings assumpsit against him, and he pleads former recovery, this is not such an estoppel as prevents his insisting that execution shall fol- low the judgment and not proceed against him individually.'^ If, of a firm of five. A., B., C, D. and E., the last three are dormant partners, the business being conducted in the name of A. & B., a judgment recovered against A. and B. for a firm debt in an action against them alone, will be valid as against the partnership property, and an execution thereon becomes a lien upon all the firm's personalty in the county. A sale thereof under such an execution divests the entire interest of all the members of the firm.^ A judgment confessed by one partner against the firm for money lent to him and used by the firm, but without the firm's intending to make itself chargeable therewith, will not sustain an execution against firm property.^ § 305. An execution founded on a judgment against A. and B., is a lieu on the partnership property of A. and B.,. though the debt for which the judgment was recovered is not a partnership debt. Under it the corpus of the partner- ship assets may be seized and sold. Such an execution, how- ever, if issued after an execution against one member of the firm for a private debt, will not be preferred to it, in the dis- tribution of the proceeds of the defendant's share of the partnership effects, though, under the individual execution, 'Kneib v. Graves, 72 Pa. St. 104. -Carey v. Bright, 58 Pa St. 70. An execution against the partner The non-joinder of the dormant who did not sign the note was set partners to the action would not be aside. See, also. Harper v. Pox, 7 pleadable in abatement even. ■\V. & S. 142, and Grier v. Hood, 25 MVhiteside v. Boardman, 11 W. X. Pa. St. 430. C. 136. LIEX OF EXECUTIONS. 361 these effects could not be levied on and sold.^ A judgment against A. and B. may be shown by parol to have been against them for a partnership debt, and, in such case, it will rank' as a partnership judgment in distribution of the proceeds of sale of partnership effects.^ Individual Property of Partners. § 306. An execution upon a judgment against partners for a partnership debt is, like one on any other joint judg- ment, or on a judgment against them severally for their sev- eral debts, a lien on the individual property of each of the defendants in the order of its reaching the hands of the sheriff. If, therefore, after an execution on a judgment against the firm of A. and B., another issues on a judgment against A. for his several debt, and the pa'opertv of A. is levied on and sold, the partnership execution is first entitled to the proceeds.^ For the same reason, an execution against a firm composed of A., B., C. and D., is a lien upon the prop- erty of a firm composed of A., B. and C. alone, from the time it comes to the hands of the sheriff; A., B. and C. are liable to pay the debt of A., B., C. and D.* Executions Against Partners for Private Debt. § 307. An execution against one member of a firm for an individual debt, cannot be levied upon the effects of the firm, and is, therefore, not a lien uj)on them. Partners are joint tenants of all the effects employed in their business as such. 'Snodgrass' Appeal, 13 Pa. St. -171. daj's, it was held that creditors of ^Corson I'. Beans, 3 Phila. 433. certain members of the firm could ' Merkel's Appeal, 3 W. X. C. 110; attach moneys arising from the sale Miller v. Miller, 3 Pittsb. 540. Yet, of portions of the assigned property, in Knox v. Summers, 4 Y. 477, it in the hands of the assignees, and seems to be assumed that, on a debt that the moneys so attached must of A., the effects of the firm of A. be paid over by the assignee^ to the afid B. could be specifically levied attaching creditors, upon; and in Wharton v. Grant, 5 'Stewart t). McHenry, 3 Phila. 340. Pa. St. 39, where a firm had assigned It was here held that an attachment for the benefit of certain firm credit- of a debt due to the firm of A., B., ors, but the assignment was void, C. and D., includes a debt due to the because not recorded within thirty firm of A., B. and C. 862 LAW OF LIENS. No partner has a separate interest in any part of the prop- erty belonging to the partnership, though each has an entire as well as a joint interest in the whole of the joint property. A levy or an execution against the individual partner cannot, therefore, attach to a specific proportion of the goods, nor to the whole, because others have property in every part, as well as the whole, coupled with a right resting in contract, to use them for the purposes of the partnership. The only levy that can be made, consistently with the relation the partners sustain to the goods, is of the debtor's interest in the whole, and this is to be measured by a final account,'^ which shall include the debts of the firm, as well as the several debts of the partners to the firm.^ It follows that, if an execution issues on a judgment for a private debt, against one member of a firm, and, subsequently, another issues on a judgment against the firm, and the effects of the firm are levied on under the later execution and sold, the proceeds are first applicable to the later execution.* An execution against A., B. & C, trading as such, is not a lien •on the effects of the firm of A., B., C. & D.* It must, how- 'Beatty's Appeal, 3 Grant 213; debt, is a trespasser; Bogue ti. Steel, Vandike r. Kosskani, 67 Pa. St. 330. 1 Phila. 90. Yet, in 3Iiller v. Miller, 3 Pittsb. -540, 'Bogue's Appeal, 83 Pa. St. 101 ; the partnership effects were levied Cooper'.s Appeal, 26 Pa. St. 262 ; on and sold by the sheriff, in execu- Coover's Appeal, 20 Pa. St. 9 ; King'3 tion against a member of the firm Appeal, 9 Pa. St. 12-t; Snodgrafcs' for a private debt. The proceeds Appeal, 13 Pa. St. 471 ; Brown's Ap- were, however, applied to partner- peal, 17 Pa. St. 481 ; Vandike's Ap- ship judgments and executions. peal, 17 Pa. St. 271. In Bogues Ap- ^Bogues Appeal, &3 Pa. St. 101; peal, it is decided that if the sheriff Durborrows Appeal, 4 \V. J^. C. 560 ; returns the execution against A., Hare i'. Commonwealth, 02 Pa. St. levied on his interest in the firm of 141 ; Keinheimer v. Hemingwaj-, 35 A. k Sons, and the execution against Pa. St. 432; Smith v. Emerson, 43 A. & Sons, levied on their personal Pa. St. 4-56 ; Deale v. Bogue, 20 Pa. property, these returns are conclu- St. 228; Coover's Appeal, 29 Pa. St. sive, and A.'s creditor cannot show 9; Ward's Appeal, 81J Pa. St. 270. that there is no partnership of A. & A sheriff who seizes the effects of a Sons, but that the property levied partnership, on an execution against on is A.'s alone, one of the partners for his private * Stewart v. Henry, 3 Phila. 340. LIEN OF EXECUTIOKS. 363 ever, appear affirmatively that the later execution against all the members of the firm is for a firm debt. Otherwise it will be postponed to an execution against one of the members of the firm, coming previously to the sheriflF's hands. Thus, when the first execution was against A. and B., and a levy thereunder was made on A.'s interest in the property of the firm of A. & C, and a second execution issued against A. oper':< Appeal. i'6 Pa. St 262. Cooper'3 Appeal, 26 Pa. St. 2ij2 ; Doner i: Stauffer. 1 P. & W. 198, King's Appeal, 9 Pa. St. 124; Backus seems to h(.l(l ihe loiitrarv with & Co. V. Murphy, 39 Pa. .-^t. 397; re.-'pect to tlip t.ikiiiir of an account .Siegel V. Chidsey, 2S Pa. St. 270. ' Doner i:_ SiuhUci-. 1 P. it \V. I'.iS. ^Backu.s&Co. i. Murphy, 3'. i Pa. St. "'K(;liy'-^ Appcil. Hi I'.i. St 50. The ."07; Doner c. Stauffer, 1 P. iW. 108. judgment again.st 13. and C, having LIEN OF EXECUTIONS. 365 Absence of Joint Interest. § 310. If the partnership equity never attaches to certain chattels, they can he seized in execution by a creditor of the partner whose they are. Thus, if between A. and B., part- ners, there is an agreement that all the property used in the business shall continue to be the property of A., who furnishes it, until B. shall have paid in a certain sura, and, before B. has paid in this sum, an execution issuer against A. for his private debt, the execution will be entitled to the proceeds of the sale of this property, in preference to a subsequent execution founded on a partnership debt.^ The same result happens if, the partnership being dissolved, certain of the partnership effects are distributed among the partners. Such distribution extinguishes all equities of the partners, and, ii^so facto, all equities of the creditors of the firm, as to the appro- priation of their effects to firm debts. An execution for a private debt of the partner will have precedence over one subsequently reaching the sheriff, founded on a firm debt, in the distribution of the proceeds of the sale of such effects.^ The result is the same if the firm assets are left with certain partners, who undertake, in consideration thereof, to discharge all firm liabilities. This makes a personal charge on the liquidating partners, but does not confer on partner- ship debts a lien upon such assets.^ The equities of the partners may be lost as to a particular creditor of one of the partners, by their undertaking to pay this debt. Hence, when A. lent money to B., in order that he might use it for the firm of B. and C, of which he was a member, and C. afterwards united with B. in a promise to repay A., an been set aside as to C, between the executions. In Dofier v. Stauffer, 1 sale and the distribution, it was de- P. & W. 198, an account was not en- cided that C.'s share in the proceeds tered into in making distribution. should be paid to him. The settle- ^ Appeal of the York County Bank, ment of the accounts by the auditor 32 Pa. St. 446. showed, however, that nothing was ^Cope's Appeal, 39 Pa. St. 284. coming to him. The proceeds were, ' Baker's Appeal, 21 Pa. St. 76. therefore, divided between the two 366 LAW OF LIEXS. execution on this debt was not postponed to a later execution on a debt of the firm, in the distribution of the proceeds of the partnership goods.^ Special Writ as against Partnership Effects. § 311. The act of April 8th, 1873, [P. L. 65,'] enacts that when a judgment against one or more members of a part- nership upon their individual indebtedness has been obtained in the county where the chief oflBce or place of business of the said partnership is or was last located, a fieri facias may issue, which shall command the sheriff or other officer to levy the sum of said judgment, with interest and costs of suit, upon the interest of the defendants in any personal, mixed or real property, rights, claims and credits of such partnership, and, thereupon, proceed and sell the same. When the judgment is obtained in a county other than that wherein the chief office or place of business of the partner- ship is located, a testatum writ ot fieri facias may issue, com- manding the sheriff or other officer to proceed as in other cases where such writ may issue, and to levy the sum of said judgment, with interest and costs, in the same way, with the same force and effect as in case of sale on a fieri facias. § 312. If, on a judgment against A., B., C. and D., a fieri ■ facias issues, containing no command to levy on the interest of A. in a partnership of which he is a member, and, sub- sequently, another fieri facias issues on another debt of A., B., C. and D., with direction to levy on the interest of A. in the same firm of which he is a member, situate in the county, the sheriff having no notice of the existence of this interest until he receives this second fieri facias, it is not his duty to levy on this interest under the first fieri facias, and, if he does, it will be postponed to the later writ, in the distribution of the proceeds of that interest.^ But if, under an ordinary fieri facias, the sheriff actually levies on and sells the interest 'Snodgrass'Appeal, 13Pa. St. 471. ^Hare v. Commonwealth, 92 Pa. St. 141. LIEX OF EXECUTIOjSTS. 367 of the defendant in a partnership, the proceeds must be applied to this fieri facias. An earlier y?. /a. in his hands at the time of sale, but upon which the sale is not made, is not entitled to any of the proceeds, since it has no lien. A fi. fa, in the ordinary form, levied on an interest of the defendant in the partnership, was returned on the 2d of September, "levied." On the following 28th September, a vend. ex. issued. Meantime, a fi. fa. in the ordinary form issued on September 2d, on which the same partnership interest was levied and sold on the 30th of September. The proceeds were applied to the latter execution, because on it alone the sale took place.^ Lien of Executions on Land. § 313. The fi. fa. becomes, as we have seen, a lien on the personal property of the defendant in the bailiwick of the sheriff, from the time it reaches his hands. Upon lands, how- ever, such execution becomes a lien only with the levy made thereunder. This was implied in many cases which have been before the supreme court of this state,^ but seems never to have been expressly decided until the year 1879, after resting in the implicit understanding of the profession for more than a century. A. inherited land by the death of his father at 11 A. M. of the 29th September, 1877. B. had obtained judg- ment against him February 21st, 1874, and execution thereon came to the sheriff's hands September 29th, 1877, at 11 p. m., but was not levied for several days. C. entered judgment against A. between 8 and 10 p. m. of the same 29th Septem- ber. Though apparently conceded that fractions of a day are not considered in determining the relative priority of ^Kaine's Appeal, 92 Pa. St. 273. levied." In Stauffer d. Gommission- 'Boal's Appeal, 2 R. 37; Betz's ers, 1 W. 300, it is said that, the Appeal, 1 P. & W. 278. In Packer's judgment having lost its lien, an Appeal, 6 Pa. St. 277, it is said that " execution levied " would create a an execution issued on a judgment nevi' lien. Yet, in Cowden v. Brady, rendered before certain lands were 8 Serg. & E. 506, it is said that a tes- acquired by the defendant, became tatumfi.fa. is a lien from the time it a lien thereon the moment it "was is delivered to the sheriff. 368 LAW OF LIENS. judgments and executions, it was decided that since the exe- cution was not levied for several days after September 29th, it was not entitled to share pro rata with the judgment, in the proceeds of the sheriff's sale of the land.^ The Mode of Levy on Land. § 314. The levy made on realty differs from that which the sheriff must make on personal property. He need not be in view of the premises ; he does not take possession of them.^ He simply manifests his purpose to take them, with a view to realizing the debt therefrom, by endorsing on the writ a description of the property intended to be sold.^ Of this purpose, notice to the defendant is unnecessary, in order to make a good levy.* When Execution is Not a Lien. § 315. If the execution issues on a judgment that is a lieu on real estate, such execution does not, by being levied thereon, become itself a lien upon such real estate. Its function is simply to give effect to the lien of the judgment. It neither protracts the lien of the judgment, nor gives origin to a distinct lien dating from its own levy. Thus, when, on a judgment in full life as a lien, an execution was levied on land, March 25th, 1837, and afterwards other judg- ments were recovered, and a sale took place August 9th, 1843, under this execution, the judgment not having been revived, the later judgments, not five years old at the date of the sale, were permitted to take the proceeds.^ § 316. When the judgment is not a lien, the execution issued thereon, and levied on real estate, becomes a lien on •Wilson's Appeal, 90 Pa. St. 370. 15; Lea v. Hopkins, 7 Pa. St. 492; ^Cowden v. Brady, 8 Serg. & R. Davis v. Ehrman, 20 Pa. St. 256. 609. Here the judgment was a lien on a 'Titusville Novelty Iron Works' ground-rent. A.te^tatumfi.fa.,TSSVLQ& Appeal, 77 Pa. St. 103. during its life, did not prolong its * Heydrick v. Eaton, 2 Binn. 217 ; lien after five years from revival. Thompson v. Phillips, Baldw. 270. The ground-rent had been assigned = Jameson's Appeal, 6 Pa. St. 280; shortly after the judgment was orig- Stephens' Exrs.' Appeal, 38 Pa. St. inally recovered. LIEX OF EXECUTIONS. 369 such estate from the day of such levy. A judgment is not a lien on lands acquired by the defendant after its recovery. An execution on such judgment, levied on these lands, becomes a lien upon thera.^ After a judgment against A. was recovered, he acquired lands by descent from his father, about January 11th, 1846. On the 12th January, an exe- cution, issued on this judgment, was levied on these lands, which were sold August 8th, 1846, under a vend. ex. This exe- cution was a superior lien to judgments recovered against A., January 23d, 1846." A judgment which has not been prop- erly revived in five years, ceases to be a lieu upon lands of the far, at court, and the deed is acknowledged, least, that a sale under it discharges conveys no title. The act of 16th all prior liens. Kelhoffer v. Her- April, 1845, [P. L. 53S.] permit* man, 6 Phila. 308. sales to be mnde on a _^. /a. within ^Cash V. Tozer, 1 \V. k. S. .519; six days after the return day of the Dale V. Medcalf, 9 Pa. St, lOS. The writ. St. Bartholomew's Cliurch v. sale in such case, if made on the fi. Wood, 61 Pa. St. 96. /a., must be made before the return LIEX OF EXECUTIONS. 371 was returned, unsold. Nothing further was done until an alias vend. ex. was issued to November Term, 1813, which was returned, unsold. The next process was a pluries vend, ex. to January Term, 1816, which was not taken out of the office. A second pluries vend. ex. was issued to April Term, 1816, under which the land was sold, and a deed therefor was given by the sheriff June 14th, 1816. It was decided that the lien of the execution was lost, owing to the long intervals between the successive steps.^ Yet, in another case, a fi. fa. issued April 26th, 1828, under which an inquisition was held on the 17th May, 1828, and land was condemned. On the 14th April, 1838, a venditioni issued, and, on the 10th August following, the land was sold by the sheriff. There had been no scire facias issued to bring in the widow and heirs of the decedent against whose executors the judgment was recovered. The act of 24th February, 1884, [P. L. 80,] which went into operation on the 1st of October, 1834, required such scire facias. It was decided that the act did not apply to this case, or to any cases where a lien existed upon decedent's lands at the time the act went into operation. The fi. fa. was therefore a lien from April 26th, 1828, to October 1st, 1834, and for four years longer.^ § 319. The ninth section of the act of 20th April, 1853, [P. L. 610,] already cited, directs that executions issued in Philadelphia shall be liens on lands acquired subsequently to the judgments on which they are issued, only if docketed •Cowden c. Brady, 8 Serg. & E. -Shearer r. Brinley, 76 Pa. St. 300. 505. A judgment was recovered in In Hinds v. Scott, 11 Pa. St. 19, a fi. the county in which the lands were, fa. issued, and was levied on land to in 1811, and under this judgment November Term, 1829, and the land they were sold, March, 1814. This was condemned by the inquisition, would have divested the lien of the A vend. ex. issued December 8th, testatum execution, even though such 1834, and a sheriflf's sale took place lien subsisted. Comp. Ulshafer v. January 8th, 1835. The sale was Stewart, 71 Pa. St. 170, where a testa- valid as to the defendant. turn, execution was pending from January, 1799, to May 14th, 1814. 372 LAW OF LIENS. in the judgment index, and declares that, thenceforth, they shall bind such real estate for five years, like any judg- ment. The third section of the act of 22d April, 1856, [P. L. 532,] while it requires the docketing of executions levied on land, in order to preserve their lien, says nothing about any limitation of the term of such liens. § 320. The return of &fi.fa. "levied," but without inqui- sition, does not determine its lien. An inquisition can be subsequently held without further process.^ If, after levy on & fi.fa., the writ is returned "stayed, by order of plain- titf 's attorney," a certified copy of the writ may, on a prcecipe from the plaintiflf's attorney, be delivered to the sheriff, and, under it, he may hold an inquisition and the property may be condemned. The lien of the judgment on which the execution issued will not be thereby impaired, and the title acquired by the sheriff's vendee will be unassailable.^ Testatum Writs. § 321. The act of 16th June, 1836, [P. L. 775,] directs that when the defendant in any judgment has no real or personal estate in the county where such judgment has been obtained, a testatum writ o^ fi.fa. may issue, at the suggestion by the plaintiff of that fact, which writ shall be directed to the sheriff or coroner of any other county where the defendant may have real or personal estate. The writ must be returned to the court whence it issues. If there has been a return of nulla bona to a, fi. fa. on the judgment, the suggestion of no goods is unnecessary to ground a testatum fi. fa? § 322. The seventy-ninth section of the act makes it the duty of the prothonotary of the county into which the writ of testatum fi. fa. issues, on its being delivered to him by the sheriff, to enter it of record on a docket to be provided for that purpose, as of the preceding term, stating the 1 Weaver v. Lawrence, 1 Dall. 379. ' Boyer v. Kimber, 2 Miles 393 ; 'McLaughlin v. McLaughlin, 85 Bowman i;. Tagg, 6 W. N. C. 219. Pa. St. 317. LIEN^ OF EXECrTIOXS. 373 amount of the debt or damages and costs endorsed on such writ, and the eightieth section declares that every such docketed testatum fi. fa. shall be a lien upon the real estate of the defendants named therein, within the county where it shall be so entered of record, during jfive years from the date of such entry, unless the debt or damages and costs be sooner paid. § 823. The lien of the testatum fi. fa. begins not with the judgment on which it issues, but with its docketing, and it continues for five years after such docketing, although the judgment may, for want of revival, have lost its lien. A judgment was entered in Jefferson county, April 16th, 1860. On the 8th May, 1863, a testatum fi. fa. was issued to Indiana county, and entered of record there on the 11th June, 1863. The sherifi" levied on lands of the defendant, and they were condemned. A testatum vend. ex. was issued May 13th, 1865, to the same county, and was filed of record there June 5th, 1865. The writ was enjoined until Septem- ber 16th. On September 23d, an alias testatum vend. e.v. was issued, under which the defendant's lands were sold on December 8th, 1865. During all these proceedings the execution was a lien on the defendant's lands in Indiana county.^ The lien of the testatum fi. fa., however, expires at the end of five years from its docketing, and it is incapable of a further extension, notwithstanding the delays which may be produced by the conduct of the defendant." If the judgment itself is a lien on the land, the lapse of five years from the docketing of the testatum fi-. fa. will not determine it. Thus, when Perry county was set off" from Cumberland, by an act of assembly which made no provision for the preservation of the liens of judgments, judgments previously entered against a defendant whose lands were in that part of the county which became Perry, either continued liens 'Neil V. Col well, 66 Pa. St. 216. 92, per Sharswood, P. J. of District ^ Wood's Exr. V. Colwell, 34 Pa. St. Court of Phila. 374 LAW OF LIES^S. indefinitely, or were revived by sci. fas. which were issued in Cumberland, where the judgments were. If a testatum fi. fa. was issued on these judgments to Perry county, and more than five years were suffered to elapse from the docketing thereof, this did not impair the lien of the judgments/ Executions Against Corporations. § 324. The act of April 7th, 1870, [P. L. 58,] provides that, in lieu of sequestration, a plaintiff in any judgment against a corporation not, excepted by the act of 16th June, A. D. 1836, relating to executions, may have fieri facias issued on said judgment, which shall command the sheriff or other officer to levy the sum of said judgment, with interest and costs of suit, of any personal, mixed or real property, franchises and rights of such corporation, and thereupon proceed to sell the same, excepting lands held in fee, which latter shall be proceeded against and sold in the manner provided in cases of sale of real estate. The lien of a mortgage is then exempted from divestiture of such sale. The levy in virtue of any execution is then declared to extend to the property, franchises and rights of said corporation in any and every county of this commonwealth, wherein the same may be; such levy must be endorsed on the writ, and the levy and sale of said property, franchises and rights is declared to be as effectual as though these were located, used, levied upon and sold in the county wherein the execution was issued.- By a sale under a fieri facias, the choses in action due the corporation are not sold.^ A levy under a fieri facias issued in pursuance of this act, does not create a lien. The proceeds of the sale thereunder, are to be distributed ratably among all the creditors of the ' West's Appeal, 5 W. 87. sale in e.xecution, is a creditor of the -This act supersedes the writ of corporation for money loaned, but sequestration. Phila. and Bait. Cen- is indebted to a larger amount on tral R. E. Co.'s Appeal, 70 Pa. St. 355. stock subscription, is not entitled to ;'s Appeal, SS Pa. St. 195. tluire in the proceeds of the execu- Hence, one who, at the time of the tion. LiEx OF executio:n's. 375 corporation. The sole purpose of the execution, is to speedily ^vind up its aflfairs for the benefit of all the creditors, instead of subjecting them to the vexation and delay incident to proceeding by sequestration. Hence, distribution must be made of the proceeds of the sale, as in cases of insolvency.^ Execution of Justices' Judgments. § 325. The eighteenth section of the act of March 20th, 1810, [5 Sm. L. 161,] directs that the constable shall endorse the goods and chattels levied on, on a schedule, and declares that the "levy shall be a lien" for tAventy days. The fourth section of the act of March 2Stb, 1820, [7 Sm. L. 309,] requires that whenever a constable shall levy on goods and ■chattels of a defendant, "he shall endorse the time of such levy on the execution." It then declares that " no execution issued by a justice of the peace shall be a lieu on the prop- erty of the defendant before levy made thereon." Under these acts, the lien of the execution begins with the levy.^ Hence, when executions issued by a justice, were levied March 9th, on goods of the defendant, and a writ of domestic attachment issued March 9th and was executed the next day, the lien of the execution was superior to the title of the trustees in the domestic attachment, which relates only to the •execution of the attachment.'' § 326. A constable's levy must be made as a sheriff's levy is. He goes where the goods are, and, having them in his view and power, he declares his purpose to take them for the ends of the execution. He makes a memorandum of the ' Bayard's Appeal, 72 Pa. St. 4-53 ; does issue by the justice to whona Hopkins i Johnson's Appeal, 90 Pa. the transcript is thus delivered, and St. 69; Hogg's Appeal, 83 Pa. St. a judgment being recovered, an 195. execution issues, the constable who ^A justice whose terra e.^rpires, executes it is not a trespasser when should deliver his docket to liis sue- he seizes and sells the defendant's i slip of goods levied on after the return day paper, to the effect that he had without criminal liability. LIEX OF EXECUTIONS. 377 DOt necessary, under this proviso, that the lien of the pre- vious levy should have expired, before the second execution, designed to protract it, shall issue. Thus, when an execution issued by a justice of the peace July 26th, 1876, was levied by the constable August 7th, and the writ was returned August loth, for want of time, a reason which was satisfac- tory to the magistrate, and, on the same day, another execu- tion issued, on which the constable immediately endorsed : "See old execution, August 7th, '76. I have this day levied on the following personal property," etc., the articles named being exactly those which had been levied on August 7th, the lien of the levy of August 7th was continued to August 28th, on which day the sheriff sold the same goods, under an execution which had come to his hands on August 12th. The constable's execution was entitled to the proceeds until satisfied.' Effect of Appeal, § 328. An appeal from a justice's judgment, lawfully taken after the issue of an execution, destroys the lien of a levy thereunder and precludes a legal sale. A constable who sells a horse on which he has levied, after such an appeal has been taken, is a trespasser, although the defendant has refused to pay him his costs and the expense of keeping the animal.^ The return of an execution after a levy has been made on it, on account of an appeal, extinguishes the lien of the levy, although the appeal is not entered on the first day of the ensuing terra. Such omission could not give vitality to returned executions, so as to authorize their being preferred to executions coming to the hands of the sheriff subsequently to the levy upon them.^ Leaving Goods Levied on -with the Defendant. § 329. The lien of an execution is not lost by the consta- ble's leaving the goods in the possession of the defendant. 'McGinnis i'. Prieson, 85 Pa. St. 2 0'Donnelli;.Mullin,27 Pa.St.l99. 111. 3 Cope's Appeal, 39 Pa. St. 284. 378 LAW OF LIENS. The eighteenth section of the act of 20th March, 1810, [5 Sm. L. 167,] expressly authorizes the constable to take from the defendant and a surety a bail bond, conditioned for the production of the goods and chattels levied on, at a certain time and place, or for the payment of the amount of the execution and costs. If, however, property thus left with the defendant is taken beyond the constable's bailiwick, the lien of the execution ceases as against that of another writ comins: to the sheriff's hands. Thus, a constable levied on a schooner in the Delaware, within the limits of the district of South- •wark. The owner of the cargo in the schooner, desiring to land it within the city of Philadelphia, gave a bond to the constable for the return of the schooner by a certain time, and the vessel was permitted to proceed to Spruce street wharf, beyond the limits of Southwark. An execution then reached the sheriff's hands against its owner, and it was levied on and sold. From its proceeds the constable's exe- cution was not entitled to be first paid.^ 1 Wood v. Keller, 2 M. 31. landlord's liex. 379 CHAPTEE IX. landlord's LIEX OS GOODS TAKEN IN EXECUTION. § 330. At common law, the landlord's right of distress, with respect to chattels found on the demised premises,- did not constitute a lien upon such chattels. Such lien arose only when, in exercise of this right, a distress was actually levied.^ Statutes. § 381. The fourth section of the act of March 21st, 1772, [1 Sm. L. 370,] enacted " that the goods and chattels lying or being in or .upon any messuage, lands or tenements, which are or shall be leased for life or lives, term of years or other- wise, taken by virtue of any execution, shall be liable to the payment of all such sum or sums of money, as are or shall be due for rent for the premises at the time of taking such goods or chattels by virtue of such execution. And the said sheriff shall, after sale of the said goods and chattels, pay to the landlord or other person empowered to receive the same, such rent so due, if so much shall be in his hands, and if not, so much as shall be in his hands, and apply the overplus thereof, if any, towards satisfying the debt and costs in such execution mentioned ; provided, always, that the said rent so to be paid to the landlord, shall not exceed one year's rent." § 332. The provisions of this act were substantially re-enacted by the act of 16th June, 1836, section 83, [P. L. 777,] which directs that " the goods and chattels being in or upon any messuage, lands or tenements, which are or shall be demised for life or years, or otherwise, taken by virtue of an execution and liable to the distress of the landlord, shall 1 Ege V. Ege, 5 W. 139. 380 LAW OF LIENS. be liable for the payment of any sums of money due for rent, at the time of taking such goods in execution ; jjrovided, that such rent shall not exceed one year's rent." It is then pro- vided, " that if the proceeds of the sale shall not be suJ0Bcient to pay the landlord and the costs of the execution, the land- lord shall be entitled to receive the proceeds after deducting so much of the costs as he would be liable to pay in case of a sale under distress." It is then declared that " whenever any goods or chattels liable to the payment of rent as afore- said, shall be seized in execution, the proceeding upon such execution shall not be stayed by the plaintiff therein, without the consent of the person entitled to such rent, in writing, first had and obtained." These acts speak of a levy in execution. An attachment under the twenty-seventh and twenty-eighth sections of the act of July 12th, 1842, entitled "an act to abolish imprisonment for debt, and to punish fraudulent debtors," is such an execution, and if the constable who attaches and sells the goods, refuse to apply the proceeds to the rent due, on demand of the landlord, he is liable to the latter.^ A foreign attachment is also an execution in the sense of the act of June 16th, 1836.^ With one exception, hereafter to be noticed, the right of the landlord to payment from the proceeds of an execution, in preference to the execution creditor, is co-extensive with, and limited by, his right to distrain the goods taken in execution.^ Relation of Landlord and Tenant. § 333. The right conferred by the acts above cited, grows out of such a relation. It attaches to the proceeds of a sale in execution, of chattels being in or upon any lands " which are or shall be demised for life or years, or otherwise." A grant in fee of land, subject to a perpetual ground-rent, is ' Morgan v. Moody, 6 W. & S. 333. & W. 487 ; Hampton, Smith & Co. v. ' Pierce v. Scott, 4 W. & S. 344. Henderson, 4 CI. 438 ; Hoskins v. 'Moss' Appeal, 35 Pa. St. 162; Houston, 2 CI. 489; Ege v. Ege,5 W. Lewis' Appeal, 66 Pa. St. 312 ; Lich- 134 ; McCombs & Howden's Appeal, tenberger v. Thompson, 13 Serg. & 43 Pa. St. 435; Rowland v. Gold- E. 157 ; Snyder v. Kunkleman, 3 P. smith, 2 Grant 378. landlord's liex. 381 not such a demise. Goods and chattels of A., being on land held by him in fee, subject to two such ground-rents, one of $185 per annum, payable half-yearly to B., and another of $259 per annum, payable half-yearly to C, B. and C. having by deed the right of distress and re-entry for arrears, were levied on in execution by A.'s creditors and sold. B. and C. were not permitted to share in the proceeds for arrears due at the time of the levy and sale.^ § 334. But a demise for any number of years, however great, is within these acts, e. g., one of mining land, for a term of ninety-nine years, reserving to the lessor the right to avoid the lease for suspension of the operations of mining by the lessee.^ When a widow's dower is charged on land, she has the right of distress incident to the relation of land- lord and tenant.^ § 335. Mere occupation of land belonging to another, does not make the occupant a tenant in such sense that the owner can claim, as landlord, the proceeds of an execution levied on chattels of the occujaant, found on his land. Hence, if, after such occupation has continued for some time, a lease were made, and antedated to the time of the commencement of the occupancy, and a rent were therein reserved for such entire time, this would not entitle the lessor to such part of the rent as accrued in consideration of the occupancy which preceded the making of the lease. It is otherwise if the occupancy began under a parol lease, the terms of which were merely subsequently reduced to writing.* A cropper is one hired to work land, for a share of its produce. He is only a hireling. The legal possession of the land remains in the owner of the land, and hence the remedy of distress is not applicable to such a relation.* An agreement between •Pattison v. M'Gregor, 9 W. & S. * Greenwood's Appeal, 79 Pa. St. 180. 294; Commonwealth v. Centner, 21 2 Moss' Appeal, 35 Pa. St. 162. Pa. St. 266. 3 Murphy r. Borland, 92 Pa. St. 86 ; ^ Steel v. Prick, 56 Pa. St. 172 ; Fry Borland v. Murphy, 4 W. N. C. 472. v. Jones, 2 B. 11. 382 LAW OF LIEXS. the land owner and another that the latter shall plant twenty-five acres iu wheat and have two-thirds of the crop, but shall have no right of possession, constitutes him a cropper.-^ When possession of land, however, is given to A. for a certain time, and he agrees to deliver to the owner, iu consideration of its use, a certain ratio of the product, he is a tenant, and all the incidents of tenancy attach to the con- tract.^ An agreement that for the term of one year, beginning with the first of April, 1865, B., in consideration of one-half the product, shall farm A.'s land, each party finding one- half of the stock, including cattle, poultry, hogs, and one- half of the seeds for the crops, and B. submitting, at the end of every three months, a statement of all receipts and making a settlement for the same, is a lease, not a mere partnership for the farmi'ng of the land, and a sheriffs sale of the interest of B. in the stock, etc., held by him and A. jointly, conveyed to the vendee, not merely the right to an account, as when the interest of a partner in partnership property is sold on execution for his individual debt, but an undivided one-half of the chattels levied on.'' § 336. If A., by a written lease, demises land in his own name to B., signing and sealing it as " A., agent," C, the real owner, (for whom in fact A. acts, but whose name is not mentioned in the lease,) cannot distrain for rent due from B. B. does not become the tenant of C. by accepting a lease purporting to be made by A., without knowledge of C.'s own- ership.* This is true a fortiori when A. is a co-owner with C, for whom also he is agent in renting the house. A. can evict for breach of the covenants of the lease, although C. desires that B. shall continue in possession, and has estopped himself from alleging such breach.* Each of several tenants 'Adams !'. McKesson's Adm., 53 'Brown v Jacquette, 8 W. N. 0. Pa. St. 81. 475. ^ Steel V. Frick, 56 Pa. St. 172; ^ Seyfert !>. Bean, 83 Pa. St. 450. Einehart r. Olwine, 5 W. & S. 157; *Holt v. Martin, 51 Pa. St. 499. Fry V. Jones, 2 R. 11. landlord's liex. 383 in common may have a separate distress for his share of rent in arrear.^ Sub-Lease. § 337. If a lessee assign over to another his whole term, reserving a rent, without a special clause of distress, he can- not distrain for the rent so reserved, nor claim from the pro- ceeds of an execution levied on his assignee's chattels.^ A sub-lease by A., the lessee of the premises, "for the remainder of" the lease,^ is treated as an assignment for the whole term by C. J. Lowrie,* though the lease ran from January 1st, 1837, to December 31st, 1840, and the sub-lessee stipulated to surrender the premises to A., the lessee, on the 30th of December, 1840. § 338. If the lessee, when he sub-lets, reserves a reversion to himself, his right of distress is incident to the reservation of reiit. Hence, when A. leased iron works to B. for five years from November 1st, 1831, and B., on August 27th, 1831, rented them to C. for one year, and this sub-lease was renewed from year to year, and on the 23d of March, 1835, during the fourth year of the sub-lease, C.'s personal prop- erty on the premises was sold in execution, B. was entitled to a landlord's priority in the distribution of the proceeds." Rene"wred Lease. § 339. The relation of landlord and tenant begins not with the mere execution of the lease, but only when the time for the commencement of the occupancy of the land under the lease actually arrives. Hence, if, during a current term, a new lease is made between the lessor and lessee, to go into effect on the expiration of the present term, rent stipulated therein to be paid in advance, cannot be claimed out of the proceeds of an execution, the levy under which was made before the second term began. A. leased a house, 'De Coursey v. Guarantee Trust 'Bromleyr. Hopewell, 14Pa. St. 400. and Safe Deposit Co., 81 Pa. St. 217. *McCombs & Howden's Appeal, ^Ege r. Ege, 5 W. 134 ; McConibs 43 Pa. St. 435. & Howden's Appeal, 43 Pa. St. 435. » Ege v. Ege, 5 W. 134. 384 LAW OF LIESS. October 3d, 1840, till the following 1st day of April, for $50 On Marcli 10th, 1841, he made another lease for the term of one year from April 1st, 1841, at a rent of $150, payable half-yearly, in advance. A levy was made under an execu- tion on the chattels of the lessee, March 22d, and they were sold on March 31st. The rent payable April 1st, in advance, could not be claimed from the proceeds.^ Written and Parol Lease. § 340. If, under the statute of frauds, a parol lease is valid, and, after the occupancy has begun under it, its terms are reduced to writing, the instrument being antedated to the commencement of the occupancy under the parol lease, rent for the time of the occupancy before the execution of the written lease, may be claimed in virtue of the parol lease then subsisting. A verbal lease for one year was made about April 1st, 1874, and the lessee took possession of the premises. A written lease which had been made at the beginning of the term was not executed by the lessee till February 18th, 1S75. A levy was made on lessee's goods on the premises, on Feb- ruary 19th, 1875, and they were sold on February 26th. The landlord was allowed from their proceeds the rent from the commencement of the occupancy under the parol lease.^ Even if the written lease bears date 27th June, 1848, and demises land for five years from April 1st, 1848, it may be shown by parol that the lease had been made by parol on April 1st, 1848, and that possession was taken at that time.^ Change of Landlord. § 341. If, during the term, the reversion passes from the lessor to another, the latter succeeds to all his rights, as respects so much of the rent as becomes payable or accrues under such lease, subsequently. The lessor dying in Sep- tember, his widow, to whom the demised land was devised, could distrain for rent becoming due after his decease, •Martin's Appeal, 5 W. & S. 220, ^ Greenwood's Appeal, 79 Pa.St. 294 (cited, Moss' Appeal, 35 Pa. St. 162.) 'Commonwealth v. Centner, 21 Pa. St. 266, landlord's liex. 385 including the rent for the quarter terminating on September ■oOth.^ A. having leased his land for two years from AjDril 1st, 1844, at an annual rent, payable at the end of each year, conveys it to B., by deed dated January 2d, 1845, reserving to himself the rent becoming due on the following March 31st. B. had the landlord's precedence for the rent •of the year ending March 31st, 1846.^ A lease was made April Int, 1860, for one year, with privilege to the lessee of renewal for two years longer, and, on May 26th, 1860, the lessor sold the premises to A. The lessee, under his option, continued in possession after April 1st, 1861, down to which time the rent was paid. A levy in execution was made on his chattels, in the middle of the year 1861. From their proceeds, A. was entitled to be paid, in preference to the execution creditor, the rent due at the time of the levy.* When a sheriff's sale of the land demised, takes place on January 1st, 1831, the half-year's rent due February 1st, following, can be distrained for by the sheriff's vendee.* § 342. If, by the terms of the lease, rent is payable in advance, and the lessee has paid it according to these terms, and a sheriff's sale takes place during the period for which the rent has thus been paid, the sheriff's vendee cannot, on a subsequent execution levied on the goods of the lessee, demand from their proceeds any part of the rent thus prepaid.^ § 343. After alienation of his reversion, whether volun- tarily or by judicial sale in execution, the right of the lessor 1 Lewis' Appeal, 66 Pa. St. 312. Trust and Safe Deposit Co., 81 Pa. ^Greider's Appeal, 5 Pa. St. 422, St. 217. (implied.) The landlord may aliene ^McCombs & Howden's Appeal, portions of the demised premises, in 43 Pa. St. 435. which case the alienee will succeed *Hoskin8 v. Houston, 2 CI. 489; to his rights as to a proportional Bank of Penna. v. Wise, 3 W. 394; part of the rent falling due subse- Boyd v. McCombs, 4 Pa. St. 146. quently. De Coursey v. Guarantee ^Farmers' and Mechanics' Bank V. Ege, 9 W. 436. 386 LAW OF LIEXS. to distrain for rent already due at the time of the alienation, ceases. Thus, when, on December 9th, 1843, the demised .premises were sold by the sheriff, neither the lessor nor his assignee of the rent, could distrain on the following 4th of January for rent that had become due the preceding 1st of July and 1st of October.^ So, six months' rent due and payable on a lease, when the title of the lessor was sold by the sheriff on 2s"ovember 16th, 1849, could not be claimed out of the proceeds of the personal property of the lessee taken in execution after that date.^ This rule is so absolute that, when the act of 21st March, 1772, [1 8ra. L. 370,] sec- tion fourteenth, extended to the landlord the remedy of dis- tress after the expiration of the lease, for arrears of rent that grew due on such lease before the determination thereof, it was expressly provided "that such distress be made during the continuance of such lessor's title or interest." § 344. An assignment of the rent, however, is not an alienation of the reversion, and while the assignee of such rent acquires no right of distress, since that is inseparable from the reversion,^ the landlord may perhaps distrain for the benefit of the assignee, so long as he continues landlord.'*' § 345. When a minor owns real estate and his guardian leases it, the latter is not the reversioner. If, therefore, after he has been succeeded in the guardianship by another, who renews the lease to the same tenant, an execution is levied on the tenant's goods and chattels, he is entitled to the rent ia arrear on his lease, after the rent due on the current lease is 'Hoskins v. Houston, 2 CI. 4S'J. Combs, 4 P:i. St. 146. But if, after , '■'Hampton, Smith & Co. v. Hen- leasing to C, A. alienes tlie land ta derson, 4 CI. 43S. A previous as- B., A. still may evict C. under the signment of the rent fulling due at terms of the lease, until C. shall the end of the year, is invalid, as have attorned to B. De Coursey !•. against a sheriff's vendee cif the Guarantee Trust aiid Safe Deposit premises, who buys before the end Cij., 81 Pa. St. 217. of the year under a judgment recov- ^Hoskins v. Houston, 2 CI. 489; ered against the lessor before the Tayl. Land. &T. ^ 568. execution of the lease. Boyd ii. Mc- ■" Hoskins ti. Houston 2 CI. 4S9. laxdloed's liex. 387 taken from the proceeds, provided that the rent of not more than one whole year be thus paid from the proceeds of the execution.^ Duration of Landlord's Lien. § 346. Prior to the act of March 21st, 1772, [1 Sm. L. 370,] the right of the landlord to distrain for rent ceased ■with the expiration of the lease under which such rent accrued, although the tenant continued in possession of the premises under a new lease from the iai)dlord,^ but, by the fourteenth section of that act, it was enacted "that, from and after the publication of this act, it shall and may be lawful for any person or persons having any rent in arrear or due upon any lease for life or lives, or for one or more years, or at will, ended or determined, to distrain for such arrears after the determination of the said respective leases, in the same manner as they might have done if such lease or leases had not been ended or determined ; provided, that such dis- tress be made during the continuance of such lessor's title or interest." ^ Weltner's Appeal, 63 Pa. St. 302. of the proceeds was, therefore, ap- Here there were three successive plied to the execution. Lichtentha- guardians, under all of whom A. was ler v. Thompson, 13 Serg. & E. 157, tenant of the ward's land. The seems contrary. A., as guardian for first guardian obtained a judgment B., leased land to C. for the term of against the tenant for the rent due one year, beginning with April. 1818. him, and five years after, during the On DecemLei" 31st, ISIS, B., the third guardian's trust, issued an ex- ward, leased the same land to C. for ecution thereon, which was levied one year, beginning with April 1st, on the tenant's goods. It was de- 1819. In March, 1820, execution cided that the rent due on the cur- was levied on C.'s goods on the rent lease, for a part of a year, must premises. Held, the rent due on first be paid ; that the remainder of the first lease could not be taken a year's rent might, so far as equity out of the proceeds, because A. had was concerned, be indifferently ap- ceased to be the landlord at the time plied to the lease made b_v the first of the levy. or by the second guardian, but that ^Lewis' Appeal, 66 Pa. St. 312. A the legal right of the first guardian, lease for one year, beginning April whose judgment 'was for rent in l.?t, expires at midnight of the fol- arrear, was superior to that of the lowing 31st of March. Parsons & second guardian. The remainder Finney v. Roumfort, 2 Pearson SI. 38S LAW OF LIENS. § 347. Under this act, the landlord's right of distress after the termination of the term, and his precedence in the dis- tribution of the proceeds of an execution levied on the chattels found on the demised premises, are without limita- tion as to time.^ The rent for the last three quarters, under a lease running from April 1st, 1868, to April 1st, 1869, was payable out of the proceeds of a sale in execution of lessee's goods, made December 17th, 1869, though he was then in possession of the premises, under a new lease running from April 1st, 1869, for one year.^ The proceeds of a sale had to Xovember Term, 1869, were indifferently applicable to the arrears of rent due from the defendant under successive annual leases of the premises, between the years 1863 and the date of the sale." When a levy under afi. fa. took place in January, 1858, the rent of six months which became payable on May 8th, 1854, was paid out of the proceeds of the sale, though the lease had determined, and the lessee had Murendered possession of the premises in April, 1855, leav- ing, however, upon them, the personal property on which the levy was made.* The term expiring March 31st, goods of the lessee remaining over on April 1st, were distrained on the evening of that day.' Goods of a tenant found on the demised premises one year after the expiration of the lease, and during the occupancy of a succeeding tenant, may be distrained for arrears of rent due by their owner.' § 348. But if, before the time limited in the lease for its expiration, the term ceases, by a surrender thereof made by the lessee and accepted by the lessor, all rent that becomes payable after such surrender is extinguished, and the right to distrain for it lapses. The landlord, accepting such surrender after an execution issues against the 'Lewis' Appeal, 66 Pa. St. 312; ' Weltner's Appeal, 63 Pa. St. 307, Snyder v. Kunkleman, 3 P. & W. * Moss' Appeal, 35 Pa. St. 162. 487; Whiting v. Lake, 91 Pa. St. * Whiting t). Lake, 91 Pa. St. 349. :;49. « Clifford v. Beems, 3 W. 246, (im- ' Lewis' Appeal, 66 Pa. St. 312. plied.) la>"dloed'h liex. 389 tenant, and wliether before or after a levy thereunder on the tenant's chattels, cannot claim from the proceeds of their sale. A. leased land to B. for the term of two years, beginning April 1st, 1844, the rent being payable at the end of each year. On January 3d, 1846, an execution issued against B., and was levied January 9th. On January 13th a written surrender of the term, antedated January 8th, was made by B., and accepted by A. The annual rent pay- able the following March 31st, was thus extinguished, and no claim therefor could be paid from the proceeds of the execution sale.^ If the landlord takes possession of the premises during the term, he is not entitled to rent payable semi-annually in advance, but not in fact paid for the half year within which he thus takes possession.^ So, if the lessor purchase the lease after levy and before the sale, he loses his right to demand from the proceeds the rent due at the levy, but not then payable.' On -what Chattels the Lien Exists. § 349. By the acts of 21st March, 1772, [1 Sm. L. 370,] and of 16th June, 1836, [P. L. 777,] the "goods and chattels being in or upon any messuage, lands or tenements," demised for years, for life, or otherwise, and taken in execu- tion, are made liable for the payment of one year's arrears of rent. The goods and chattels must therefore be on the demised premises at the time of the levy upon them in execution. A., by separate leases, rented two adjoining houses to B., who, for his own convenience, tore down the dividing wall between them, so as to make one large j)Ool room. A pool table belonging to B., and standing in that 23art of the pool room which was within one of the houses, was seized in execution and sold. The rent due on this house, but not that due on the adjoining premises, could ^Greider's Appeal, 5 Pa. St. 422; ^Commonwealth-y. Contner, 21 Pa. Shaw V. Oakley, 7 Phila. 89. St. 266. *Shaw V. Oakley, 7 Phila. 89. 390 LAW OF LIEN'S. be taken from the proceeds by A.^ Hence, if, under an exe- cution, a .constable takes chattels from the demised premises to another jjlace, and there sells a part sufficient to satisfy his execution, leaving the residue at the place of sale, this resi- due, if levied on under another execution, is not subject to the landlord's demand for arrears of rent." When the wife of a lessee of a store, while he was absent in the army of the United States, during the late civil war, made an inventory of the goods in the store, packed them in boxes, and removed them to a room about sixty feet away not belonging to the lessor, and upon these goods, after their removal, an execu- tion was levied, the landlord could not take from the proceeds of their sale his arrears of rent.^ The law is seemingly the same, even though the goods are fraudulently removed before the levy with a view to defeat the landlord's claim. The landlord must, in such case, resort to distress, under the fifth section of the act of 1772, which j^ermits a distress to be made on goods fraudulently removed from the demised premises, at any time within thirty days after their removal.* If the goods of a defendant in execution, levied on in his own store, are removed by the sheriff to another store, which the defendant has rented from A., and are there kept until they are sold, A. cannot take from their proceeds rent even for the time they have been in the demised store. They were not in the demised premises when taken in execution.* § 350. When the chattels are levied on, on the demised premises, it is not necessary that they should be kept there ^Baum V. Brown, 11 W. X. C. 202. to share in the proceeds of the sale ^ Allen I'. Lewis, 1 Ash. 184. under the execution. He ought, ^ Grant & McLane's Appeal, 44 Pa. while in possession of them under St. 477. That, under a clause in the his distress, to have returned them lease which permitted him to dis- to the premises; then they would train on goods that had been re- have been subject to his lien, when moved, the landlord had distrained the levy was made upon them there, on a portion of these goods after * Grant & McLane's Appeal, 44 Pa. their removal, and before the execu- St. 477. lion issued, did not give him a right » Megarge v. Tanner, 1 01. 381. landlord's LIEIf. 391 until sold. " In Pennsylvania," said Rogers, J., "under our statute the sheriff is not estopped from removing the g 0(!^. and he is protected, provided he pays over to the landlord one year's rent, or the landlord neglects to give notice of his •claim in proper time."^ And in a later case, the same judge remarked, that the officer's removal "has never been sup- posed to affect the right of the landlord to the rent."^ Goods taken by the sheriff from a demised store in Allegheny, to Pittsburgh, and there sold, were subject to the lien for rent of the lessor of the Allegheny store.' When, after a levy of goods in execution, a stranger (claiming to own them) and the plaintiff in the execution were, at the request of the sheriff, ordered to interjslead, and the claimant gave a forth- coming bond and removed the goods from the demised jjremises, it was said that such goods were no longer liable to the claim of the landlord for rent. For this reason, a landlord's distress on these goods, before their removal, but after the levy, was justified.* OvT^nership of Goods Taken in Execution. § 351. Since all the goods and chattels which may be found on the premises, whether they belong to the tenant or to any other person, are liable to distress,' so are they subject, when taken in execution, to the lien of the landlord for rent, not exceeding one year's.^ When the owner of a house lets it to a married woman, but the covenants of the lease (among which is one that all property in the premises shall be liable to distress) are entered into by both the husband 1 Ege V. Ege, 5 W. 134. Koseberry, 13 Serg. & E. 178 ; O'Don- 2 Ml irgan v. Moody, 6 \V. & S. 333. nel i'. Sey'bert, 13 Serg. & R. 5-t ; Whit- ^McCombs & Howden's Appeal, ing v. Lake, 91 Pa. St. 349; Price r. 43 Pa. St. 4.So. In Allen r. Lewis, McCallister, 3 .Grant 248 ; Karns v. 1 Ash. 184, the goods were taken McKinney, 74 Pa. St. 387; Gilliam, by the constable from the demised t'. Tobias, 11 Phila. 313; Blanche v. premi.-ies to a neighboring tavern Bradford, 38 Pa. St. 344 ; Murphy v. and sold. Borland, 92 Pa. St. 86 ; Jimison v. ■•Gilliam v. Tobias, 11 Phila. 313. Eeifsnyder, 10 W. K C. 381. ^Tayl. Land. & T. § 583 ; Ke.s.sler v. "Trimble, Britton & Co.'s Appeal, M'Conachy, 1 Rawle 431 ; Weidel v. 5 W. N. C. 396. 392 LAW OF LIENS. and the wife, all the property on the premises, whether the- husband's or the wife's, is liable to distress, and, on execution against the wife, on which her goods are seized, the landlord is entitled to one year's rent from the proceeds.^ A billiard table rented for the month by the tenant, and used in a saloon, is liable to distress for rent by the landlord of the saloon.^ Household goods, presented to a wife, may be dis- trained for rent due on a lease to the husband.' § 352. When, by proceedings in bankruptcy, begun between the issue of an execution against the bankrupt and the levy thereunder on the chattels of the tenant on the demised premises, the title thereto passes to the assignee in bankruptcy, the lien of the execution can nevertheless be asserted against the assignee ; and, since the right of the landlord to the proceeds of the execution is superior to that of the execution creditor, it will also prevail ag^-inst the assignee.* So, when, at the commencement of proceedings in bankruptcy, six months' rent of a store is due and payable by the bankrupt tenant, and the goods of the tenant on the premises at that time are sufficient in value to satisfy the rent, the assignee in bankruptcy must pay it.° § 353. A sub-lessee is a stranger to the principal lease between the owner of the land and his lessee. The sub- lessee's goods on the demised premises are subject to the lessor's lien for rent due, though the sub-lessee has paid the rent due to his immediate lessor. A. leased a store to B. for one year from April 1st, 1860, with the privilege of reuewiug^ it for two years longer. B. sub-let a store-room to C, A. refusing to recognize C. as his tenant, and looking to B. and his sureties for the rent. On execution against C, his goods in the store-room were levied on and sold. A. was allowed one year's rent from the proceeds, although, at the time of 'Trimble, Britton & Co.'s Appeal, 'Blanche v. Bradford, 38 Pa. St. oi-l. 6 W. N. 0. 396. * Barnes' Appeal, 76 Pa. St. 50. -Price t). McCallister, 3 Grant 248. ^Longstreth c. Pennock, 9 Phila. 394. landlord's liex. 398 the levy and sale, C. had fully paid the rent he had stipu- lated to pay to B.^ The lessee, contrary to stipulations in the lease, assigned the lease to A., who sub-let a portion of the premises to B. The goods of both A. and B. were liable to distress for the rent due from the original lessee.^ The owner of land in fee, subject to a widow's dnwer, holds to her the relation of tenant to landlord. If he demises the premises, or any part of them, the goods of his lessee are liable to distress for arrears of dower, however much these arrears may exceed the rent due to him by his lessee.^ An assignee of a terra, when the lease is between A., the land- lord, and B. or his assigns, becomes the immediate lessee, and his goods are liable as such.* When Stranger's Goods Are Not Lialjle. § 354. Certain exceptions to the rule that a stranger's goods on the demised premises are liable for rent, have been introduced by the common law and by statute. If these goods have been brought upon the premises by the stranger in the course of the business which the lessee conducts, they are exempt from, liability for arrears of rent.^ So was it when the lessee was a commission merchant, and hogsheads of tobacco were sent to him for sale. They could not be distrained.^' Nor could ninety casks of madder left with the lessee as a warehouseman ;'^ nor sewing machines left with 'McCombs . In the proceeds of an =Karns v. MoKinney, 74 Pa. St. execution levied on goods of D. in 387. this store, B. was denied the right to * Brown v. Sims, 17 Serg. & B. 138. participate, on the ground that only 'Briggs v. Large, 30 Pa. St. 287. 394 LAW OF LIEXS. the lessee of a store to be sold on commission, his compensa- tion being a percentage of the price obtained on each sale;^ nor goods shipped to the lessee, a merchant, as samples;^ nor cattle received by the lessee of a farm, for agistment;* nor goods left on the premises to be sold by the lessee, as an auctioneer.* § 355. A. rented to B. twelve acres of land, on which were a saw mill, boat yard, blacksmith shop, etc. B. conducted the business of sawing lumber, using only a part of the premises demised. Some of his employes bought some lumber, sawed it, piled it on a part of the premises separated from the mill by a creek, and not used by B. C. sent men with iron, oakum, spikes, etc., and constructed barges from this lumber, but without authority from B. It was held that the barges so constructed, the iron, oakum, etc., were liable to distress for rent due A. from B.° § 356. When the lessee keeps a boarding house, goods of a boarder in the rooms occupied by him cannot be distrained for the lessee's arrears of rent." But the goods so exempt must be in the possession of the boarder as such at the time of the distress.' A., possessed of a few kitchen articles only, was lessee of a house. B. boarded with him and furnished the .entire house. Only so much of this furniture as was used by B. himself, as a boarder, was exempt from distress for rent due by A." A. took a room in a boarding house at Si 4 per month, agreeing to j)ay twenty-five cents for each meal taken in the house, but reserving the right to take as few as he pleased. For a long time he had taken no meals in the house, when a distress was levied on his furniture for the 'Hone Sewing Machine Co. r. °Kams ;;. McKinney, 74 Pa. St. Sloan, 6 W. X. C. 265. 387. ^Biejrenwald v. Winpenny, 9 W. "Riddle r. Weldeii. 5\Vh. 9; Lane jV. C. .542. V. Steinmetz, 9 W. N. C. 574. ' Cadwalader v. Tindall, 20 Pa. St. " Erb v. Sadler, 8 W. X. C. IS. 422. * Jones r. Goklbeck, & W. ^\ C. * In re J. D. Bailey, 37 Leg. Int. 416. 533. laxdloed's liex. 395 boarding-house keeper's arrears of rent. It was decided that A. was, at the time of the distress, not a boarder, but a mere sub- lessee ; his goods were liable to distress for the lessee's rent.^ § 357. The act of 13th May, 1876, [P. L. 171,] provides that pianos, melodeons and organs leased shall be exemjjt from distress for the rent of the lessee of the premises on which they are, provided that the owner thereof, his agent or the lessee of the piano shall give notice to the landlord or nis agent, that the instrument is leased or hired. A j^iano rented to a wife was, prior to the passage of this act, liable to distress for rent due by the husband.^ Under this act, the notice to the landlord must be given when the instru- ment is put in the premises, or, at latest, before the landlord's right to distrain has accrued by the falling due of any por- tion of the rent.^ § 358. When the term during which rent accrues, expires, and another lessee enters into possession under a new lease, property of this second lessee, or of strangers, found on the premises during the second term, is not liable for the rent of the first term. This is true, though the property of the second lessee had been that of the first lessee, and had, by him, been sold to his successor in the occupancy of the prem- ises.* If, after the expiration of the lease to A., another is made to A. and B., who become jointly liable for the rent, the goods of A. which continue on the premises under the second lease, are not liable for distress, during this second term, for arrears of rent due under the former lease. B. cannot ' be thus deprived of the security which the goods of his co-tenant furnish, that the latter will pay his share of the accruing rent.° 'Lane v. Steinmetz, 9 W. X. C. But a lease made by an agent who 574. has no authoritj' to make it, will not ^ Kleber v. Ward, 88 Pa. St. 93. protect the goods of the lessee under ^McGeary v. Mellor, 87 Pa. St. this void lease from distress for the 4gl_ rent of a previous lessee. *Clifrord V. Beems, 3 W. 246; =Beltzhoover r. "VValtman, 1 W. & Whiting V. Lake, 91 Pa. St. 349. S. 416. 396 XAW OF LIENS. §■ 359. The act of 16th June, 1836, [P. L. 777,] subjects to a lien for rent only such goods as "are liable to the dis- tress of the landlord." Such goods as are by law exempt from such distress, would be also free from this lien. Hence, when, under an execution founded on a judgment recovered before the act of April 9th, 1849, goods of a lessee, previ- ously set apart to him under another execution, on his claim for the exemption, were levied on, the landlord, whose lease was made subsequently to this act, could not claim from the proceeds the rent in arrear.^ When the right of exemption as to an execution, is lost by a waiver, and no claim for ex- emption is made against the landlord, the proceeds of the execution are payable to the landlord in satisfaction of one year's arrears of rent.^ But, if a distress is made for rent, and, the tenant claiming the exemption, the constable appraises the goods taken at less than $300, and proceeds no farther, the landlord cannot share in the proceeds of an exe- cution levied by the sheriff on the same goods while in the possession of the constable.'^ An assignee of the term, or a sub-tenant who has not been recognized by the landlord, can- not claim the exemption, and his goods found on the demised premises are liable to distress, unless the tenant make claim of the exemption for him.* Amount of Rent Demandable. § 360. The act of 21st March, 1772, [1 Sm. L. 370,] and that of 16th June, 1836, section 83, [P. L. 777,] after directing that the landlord shall be entitled to receive from the proceeds of an execution levied on chattels on the demised premises, rent due him, add the proviso, " that such rent shall not exceed one year's rent." This proviso, as appears elsewhere, limits only the amount of rent which is payable from the proceeds of an execution, not the 1 Eowland iJ.Goldsmith, 2Granfe378. ' Frick v. McCIain, 9 W. N. C. 32. See Richie v. McCauley, 4 Pa. St. 471. * Rosenberger v. Hallowell, 35 Pa. ' Appeal of Collins, Rockafellow & St. 369. Co., 35 Pa. St. 83. landlord's liex. 397 particular time during which the rent must accrue which shall be so paid. To a full year's rent the landlord is entitled ; not merely to so much of the rent as may be due for the year in which the levy is made.^ The act of 30th March, 1859, [P. L. 318,] enacts that the amount of rent due to landlords of any collieries within the counties of Schuylkill, Northumberland, Somerset, Carbon, Washington and Dauphin, which they shall be entitled to receive out of the proceeds of a sale of personalty thereon under any execution, except an execution on a judgment obtained for such rent, shall be restricted to one month's rent due, together with any fraction of a month's rent accruing immediately j^rior to the time of taking such, property in execution or levy. Rent of What Year. § 361. Wheu there are successive leases of the same land by the same landlord, to the same tenant, the landlord's right of distress is not limited to the rent for the period of twelve months next preceding the levy, or, if the levy is made after the expiration of the lease, for the period of twelve months next j^receding such expiration. The land- lord has the option to distrain for the rent of any period not exceeding one year. He may take a part of the rent due under one term, and a part due under another. Of A., a minor, the owner of land, there were three successive guard- ians ; — B., from 1863 to March, 1865 ; C, from June 6th, 1865 to June 16th, 1868, and then D., from that time. These guardians leased this land from year to year to E., who was, on September 1st, 1868, in arrears for rent for the years 1863, 1864, 1867, 1868. On that day, a levy in execution was made on his property on the demised premises. The rent for the current term, beginning with April 18th, 1868, was also due. It was said that A. had the same right to distrain for the rent that accrued during B.'s guardianship 'Ege V. Ege, 5 W. 134; Kichie v. McCauley, 4 Pa. St. 471. 398 LAW OF LIEXS. as during C.'s, and since the judgment on which the execution had issued was in favor of B., for rent become due under a lease made by him to E., it was held that the proceeds of the execution, after taking thereout the rent due for so much of the current year as had run (less than' one-half), were applica- ble to the judgment, rather than to the rent due under C.'s lease, B. and C. being equally solvent and equally liable per- sonally to account to A. for the rent due under their respect- ive leases.^ A term beginning November 1st, 1831, for one year, was renewed from year to year, till November 1st, 1835. TJnder an execution, chattels of the lessee on the premises were levied March 23d, 1835. It was held that the landlord could take out of the proceeds one year's rent, if so much was due, not merely the rent due on the term within which the levy was made.^ The entire rent for the year ending July 1st, may be taken from the proceeds of an execution levied the following December, ou lessee's goods.* When A. succeeds to the reversion by devise in the midst of the term, and, at its expiration, relets the same premises to the same tenant, he may apply the money made by execution levied during the second term, to the rent due on the first term, though, in so doing, the proceeds of the execution are exhausted.* That the rents reserved on successive leases are different, does not deprive the landlord of the right to apply the moneys made by execution to the rent due under either. A. let land to B., for the year beginning January 1st, 1845, ' Weltner's Appeal, 63 Pa. St. 302; preference to the first year, and, Lichtenthaler v. Thompson, 13 Serg. since B. had permitted A. to take & R. 157, is contrary. A., as guar- the proceeds and apply them to the dian of B., leases B.'s land to C for arrears under his lease, B. could not one year. B. himself leased it to C. sustain an action against one who for the ensuing year. Just before was surety to C. on the lease made this second term expired, goods of by B. to C. C. on the premises were levied in ''Ege v. Ege, 5 W. 134. execution against him. It was de- 'Richie c. McCauley, 4 Pa. St. 471. cided that the rent for the last year * Lewis' Appeal, 66 Pa. St. 312. was payable from the proceeds in landlord's lien. 399 for an annual rent payable in money, aud relet it for the succeeding year for a rent payable in iron. In August, 1846, the personal property of tlie lessee was sold in execu- tion. The first quarter's rent under the second lease had been paid. The landlord was permitted to decline to take the apportioned rent of the second quarter, and to receive the entire rent accrued under the first lease.^ Apportionment of Rent. § 362. A landlord cannot distrain for rent until it be both due and payable, according to the terms of the lease.^ But, when a levy in execution is made upon chattels on the demised premises, rent, though not yet payable, may be apportioned down to the day of levy. The act of 21st March, 1772, enacts that from the proceeds of an execution shall be paid "such suni or sums of money as are or shall be due for rent for the premises, at the time of taking &uch goods or chattels by virtue of any execution;" and that of June 16th, 1836, employs a similar expression. So much of the rent as has been earned at the levy, though solvendum in fviuro, is debilum in prcesenti, and may be demanded from the proceeds of sale.^ Under a term of one year, which began April 1st, 1819, the rent of eleven -twelfths of the year was payable out of the money made on an execution levied on chattels on the demised premises, the beginning of March, 1820.* A brewery was leased for five years from September 1st, 1811, at au annual rent of $1,200, payable quarterly. A levy being made July 25th, 1812, the rent for the quarter beginning with June 1st, was apportioned to the day of levy." A store was, on lOth October, 1842, rented for $800 per annum, payable quarterly. On December 6th, following, the goods in the store were levied on in an attach- 1 Parker & Keller's Appeal, 5 Pa. Ash. 184. Farmers' and Mechanics' St. 390. Bank v. Ege, 9 W. 436, implies it. ^Burchardt). Lees, IWh. 377. ■'Lichtenthaler ,1). Thompson, 13 nVest V. Sink, 2 Y. 274; Gray v. Serg. & R. 157. Wilson, 4 W. 39; Allen v. Lewis, 1 ^Bmns v. Hudson, 5 Binn. 505. 400 LAW OF LIEJfS. merit under the act of 12th July, 1842. The landlord was allowed §123.69 from the proceeds of the sale.^ Eent, under a term beginning January 1st, was payable quarterly. The first quarter's rent having been paid, it was said that the second quarter's rent could be apportioned to the day of the levy, made in the midst of the second quarter.- So much of the rent for a year, ending November 1st, 1835, and then payable, as had accrued on March 23d, 1835, when a levy was made, was payable from the proceeds.^ Rent for the period between April 18th, the commencement of the lease, and September 1st, the day of the levy, was, though not then payable by the terms of the lease, paid from the proceeds of the sale.* The term beginning April 1st, 1867, the rent for which was payable quarterly, the landlord received from the proceeds of an execution levied May 27th, the rent appor- tioned to that day.* Under a lease beginning April 1st, 1874, the rent, payable monthly in advance, was ajoportioned to February l9th, 1875, the date of the levy in execution." § 363. The Bedford Mineral Springs were leased for five years, beginning with April 1st, 1840, at an annual rent of .§1,250, payable on September 1st of each year. Execution was levied on chattels of the lessee on the premises, August 1st, 1844. It was held, since the entire rent was payable September 1st, for one year, and, since the season at a water- ing-place lasts but a few weeks, that the lease was, in substance, only for the five seasons, and the rent should be apportioned on the basis of the interval between April 1st and Septem- ber 1st, and, since four of these five months had elapsed at the time of the levy, four-fifths of the annual rent was pay- able from the money made by the execution sale.' 'Morgan r. Jloody, 6 W. & S. 333. ^Wickey v. Eyster, oS Pa. St. 501. ^ Parker & Keller's Appeal, 5 Pa. * Greenwood's Appeal, 79 Pa. St. St. 390. 294. »Ege V. Ege, 5 W. 134. ' Anderson's Appeal, 3 Pa. St. 218. *Weltner'8 Appeal, 63 Pa. St. 302. landloed's lien. 401 Apportionment by Aliening part of the Premises. § 364. Not only is the rent apportioned by a levy made before it becomes payable, but also by the landlord's con- veyance of the reversion in a part of the demised premises. When he conveys a portion of the leased property to iinother, a proportional part of the rent reserved becomes jiayable to his grantee, who may distrain therefor, though the tenant may not have attorned to hira.^ Hence, should the tenant's chattels on the part of the demised premises so aliened be sold in execution by a creditor of the tenant, the landlord's grantee would be entitled to receive from the pro- ceeds thereof his proportional part of the rent reserved in. the lease, not exceeding one year's. Rent Accruing After the Levy Not a Lien.^ § 365. Thus, when the term on which the rent was pay- able quarterly, began November 16th, 1848, and execution was levied February 9th, 1849, but the sale did not take place until February 21st, the rent could be apjjortioned only to February 9th.^ Rent accrued between April 18th, 1868, and September 1st, the date of the levy, was allowed to a guardian whose claim was for so much as he was entitled to of the proceeds of the execution.* The rent accruing between April 1st, 1867, the beginning of the term, and May 27th, 1867, the date of the levy, was allowed." Tavo or More Levies. § 366. When there are several executions levied on the ' De Courser v. Guarantee Trust nor taxes paid by the landlord after and Safe Depo-it Co., 81 Pa. St. 217. the levy, and which the tenant had - Gilliam v. Tobias, 11 Phila. 313 ; agreed to pay, could be used to re- Wager i'. Duke, 1 CI. 316; Binns v. duce the tenant's set-off of a book Hudson, 5 Binn. 505 ; Horan r. Bar- account, or payments made on ac- rett. 3 Luz. L. Obs. 96. Here delay count of the rent by him. -of the sale was caused by sherifi's ^Weltner's Appeal, 63 Pa. St. 302. interpleader. nvickey v. Eyster, 58 Pa. St. 501. ^Case V. Davis, 15 Pa. St. 80. In In Commonwealth r. Contner, 18 Pa. distribution of proceeds of the sale, St. 439, the rent was computed to the neither rent accruing after the levy, day of the levy, June 14th, 1849. 2a 402 LAW OF LIENS. same goods at dliferent times, on all of which the sale takes place, rent down to the day of the last levy, to whose execution any of the proceeds are payable, must be allowed from the proceeds. Thus, A. rented premises to B., at a rent payable monthly on the 10th of every month. Execu- tions were levied on B.'s goods on the 20th, 22d, 23d, 24th and 25th of November, and on the 14th of December, and the sale took place on the 15th of December. Rent was due from October 10th. The execution levied November 23d, was the last which the proceeds of the sale were suffi- cient to reach. The rent apportioned down to that date was paid.^ Executions were levied January 27th, another February 11th, and, later, another, which the proceeds of sale were not enough to reach. Since the rent apportioned to January 27th, and the executions of that date, did not exhaust the fund, the rent was apportioned to February 11th. The rent accruing between the dates of the first two levies was thus paid out of what remained of the fund, after satisfying the first executions and the rent due down to their levy.^ If there are two successive executions, and, for any cause, the earlier is postponed in the distribution to the later, the rent will be apportioned down to the date of the second levy. A. leased a store and shop to B., for a certain rent payable annually on December 31st. A. fi. fa. was levied about March 7th, but the defendant was permitted to continue his business, buying and selling, as before, until June 2d, when another execution was levied. Successive sales under these ■writs took place in the latter part of June and the middle of July. The rent down to June 2d was first paid, and the balance to the execution levied on that day.^ Rent for Use and Occupation beginning After the Levy. § 867. Rent for use and occupation beginning after the levy on the goods, and terminating with their sale, cannot 'Learning's Appeal, 5 W. N. C. 221 ; ^ Worley v. Meekly, 1 Phila. 398. Todd V. Ashton, 4 W. N. C. 347. ' Earl's Appeal, 13 Pa. St. 433. landlord's liew. 403 be paid out of the proceeds. On September 9tb, an execu- tion was levied on A.'s goods in his store. Some of them were subsequently sold, and the remainder were, on October 31st, removed by the sheriff to another store occupied by A., but rented from B. The goods were sold December 28th. B. was not entitled to any of the proceeds for rent between October 31st and December 28th. Rent Payable in Advance. § 368. If, by the terms of the lease, rent is payable in advance, whether for the entire term or for specified subdi- visions of it, the rent for such term or any such subdivision is payable at the beginning of it. When, therefore, a levy in execution is made in the midst of such term or subdivision thereof, and the rent therefor has not been paid according to the agreement, the entire rent thus in arrear may be taken from the'proceeds of the execution, if it does not exceed one year's.'' A. demised a tavern to B., April 1st, 1858, for one year, the rent to be paid semi-annually in advance. Towards the end of May, 1858, a levy in execution was made. The half-year's rent which should have been paid April 1st, was 2Dayable from the proceeds.^ Bent, payable in advance for the quarter beginning July 1st, was still unpaid when a levy was made, September 15th. It was paid in full from the proceeds of the sale.* A lease for five years beginning April 1st, 1848, required the rent to be paid semi-annually in advance. Only one half-year's installment had been paid ' Megarge v. Tanner, 1 01. 33L $6,000, payable in advance each ^In Beyer v. Fenstermacher, 2 year. The rent of the ensuing year Wh. 95, it is decided that when rent being paid April 1st, 1838, on August was payable quarterly in advance, 24th, 1838, a sheriff's deed was made the term beginning April 1st, and for the premises to one who had running one year, a distress might purchased at sheriff's sale, in execu- be made between October 1st and tion against the lessor, a few days January 1st, for the rent payable on before. The sheriff's vendee had October 1st. In Farmers' and Me- no claim for the rent of that year, chanics' Bank !'. Ege, 9 W. 436, iron ^Appeal of Collins, Rockafellow works were leased for five years from & Co., 35 Pa. St. 83. April 1st, 1837, at an annual rent of * Morris v. Billings, 1 Phila. 464. 404 LAW OF LIENS. when a levy in execution was made, June 14th, 1849. The landlord was entitled to the two semi-annual installments payable in advance October 1st, 1848, and April 1st, 1849.^ § 369. Rent payable in advance, is payable on the first day of the period to which it is applicable. A lease begin- ning April 8tb, 1851, rent payable in advance semi-annually, the seventh installment was due April 8th, 1854.^ If a lease is made to begin April 1st, 1841, and a levy is made on the lessee's goods on the premises before that date, he being in under a prior lease, the rent payable in advance under the second lease cannot be taken from the proceeds.^ § 370. When rent for a determinate period has been pre- paid, and a levy is made during that period, the rent for any succeeding period cannot be taken from the proceeds of sale. A lease was made, commencing April 1st, 1853, the rent payable quarterly in advance. The first quarter's rent was so paid. From the product of a sale under a levy made June 9th, nothing could be taken by the landlord.* If rent, payable quarterly in advance, remains unpaid for the quarter ibeginning July 1st, until September 15th, when a levy is made, the rent thus in arrear may be taken from the pro- ceeds, but not that which will become due October 1st, or any part thereof.^ So, when, under a lease for five years from April 1st, 1848, the rent was payable semi-annually June 27th and December 27th of each year, and a levy in execution was made June 14th, 1849, at which time the rent payable the previous December 27th was still unpaid, this installment was entitled to payment from the proceeds, but no portion of the installment due on the following June 27th.^ 'Commonwealth v. Centner, 21 * Commonwealth v. Contner, 18 Pa. St. 266. Pa. St. 439. In an action against ^ Moss' Appeal, 35 Pa. St. 162. the sheriff by the execution creditor " Martin's Appeal, 5 W. & S. 220. for causing the loss of the lien of the See Diller ■W.Roberts, 13 Serg.&E. 60. execution, the sheriff could dimin- *Purdy's Appeal, 23 Pa. St. 97. ish the damages by showing that if * Morris J). Billings, 1 Phila. 464. the execution had been duly pro- landlord's liex. 405 Sundry Matters Pertaining to Rent. § 371. A lease for ninety-nine years of coal land, stipu- lated that if the lessee suspended raining operations for twelve consecutive months, the lease should become void and of no- effect. Such a lease did not become void until the expira- tion of the twelve months of inaction, and, therefore, rent for that period was payable.^ Though a tenant, in addition to the rent, covenants to pay the taxes, these do not become part of the rent, and the landlord, having paid them, cannot claim them from the proceeds of an execution.- When |1,30(> annual rent, in quarterly installments, was reserved, the lessee also undertaking to pay all the taxes, and the lessee set off against the landlord's claim for rent a book account against him, the latter could not, in order to reduce the set- off, show that, since the levy, he had paid the taxes.^ Rent must be certain in amount.* But, if |>7,000 rent for iron works is reserved, reducible to $6,000 if, at the expiration of the lease, it is found that the lessee has not cleared beyond all expenses $12,000, the rent is certain for $6,000.^ When realty and personalty are let together at a gross rent, and it is impossible to distinguish the part of it which is for the realty, the lessor has neither right of distress nor of claim against the proceeds of an execution ; otherwise, if the dis- tinction can be made from the terms of the lease. Thus was it when a lease of a furnace, and of a store, teams, etc., was made, at an aggregate rent of $3,500 per year, but there was a provision iu it that, when the tenant buys and pays for the personalty, the rent shall be reduced to $2,500. The $2,500 could be claimed from the proceeds of an execution.* ceeded with, the proceeds applicable tenant may be set off against the to the fi. fa. would have been less- former's claim for rent from the pro- ened by the landlord's demand for ceeds of an execution. Gray ■!;. Wil- rent due December 27th, before the son, 4 W. 39. levy. *Diller v. Koberts, 13 Serg. & E. 'Moss' Appeal, 35 Pa. St. 162. 60; Wells v. Hornish, 3 P. & W. 30_ ' Binns v. Hudson, 5 Binn. 505. ' Ege v. Ege, 5 W. 134. 'Case V. Davis, 15 Pa. St. 80. A "Commonwealth v. Contner, IS note payable by the landlord to the Pa. St. 439. 406 rAW OF LIEXS. Kent Need Not be Payable in Money. § 372. It may be payable in iron,^ and distrained for a.s iron.^ When a grist mill was demised, and "one-tbird of tbe toll wbicb tbe mill grinds" was reserved for rent, tbe land- lord could distrain for tbe rent, bis warrant stating tbe value in money of bis sbare of tbe toU.^ Wben tbe tenant is to pay, as rent to tbe landlord, one-balf or otber proportion of all tbe grain raised on tbe farm, in kind, tbe landlord may distrain.* Tbe lessor was entitled to claim bis rent in arrear from tbe proceeds of an execution, wben it was made up of four cents per ton for all limestone quarried, and one cent per busbel for eacb busbel of lime burned." If tbe lease stipulates tbat tbe lessee sball pay tbe installments of rent to creditors of tbe lessee, and, if necessary, sball even pre- pay tbem or assume debts before tbe installments grow due, tbe lessor bas no rigbt to distrain, or to claim from tbe pro- ceeds of an execution.' Landlord's Notice to the Officer. § 373. Tbougb tbe statute does not require it, notice of the landlord's claim for rent in arrears must be given to tbe of&cer charged with tbe execution of tbe writ. Without it, tbe sheriff will be required to pay tbe proceeds of the sale in execution, to the plaintiff therein.^ But no particular time has been limited by tbe decisions within which this notice must be given, save tbat it must not be later than the distribution by tbe sheriff of tbe money in bis hands, made on tbe writ. It need not be before, or even on tbe return day, for the sheriff may sell subsequently to tbe return day. So long as the money remains in bis hands, it may be bound ' Parker & Keller'cj Appeal, 5 Pa. v. Jacquette, 8 W. X. C. -ilo ; Warren St. 390. V. Forney, 13 Serg. & R. 52. 'Jones f. Oundrim, 3 W. & S. ^Kendig r. Kendig, 3 Pittsb. 287. 631. «Ege V. Ege, 5 W. 134. ' Fry V. Jones, 2 E. 11. ' Brown v. Jacquette, 8 W. X. C. • Rinehart v. 01 wine, 5 W. & 3. 157 ; 475. Steel I'. Frick, 56 Pa. St. 172 ; Brown laxdloed's liex. 407 by a notice from the landlord.^ Indeed, since the sheriflf, if he sells before the return day of the writ, may keep the money until the return day, he will make himself liable to the landlord for the arrears of rent, if, selling more than ten days before the return day of his writ, he pays the money over to the plaintiff in the execution the next daj^ after the sale, and the landlord notifies him of his claim three days after the goods are sold.^ After notice of the landlord's claim, given to the sheriff after the sale, has been accepted and acted upon by him, no objection to its suflBciency can be made in the distribution of the proceeds.'' § 374. A levy on a lessee's goods under an execution was made May 27th, 1819, and the sheriff subsequently relin- quished it, on the lessee and his sureties entering into a forthcoming bond. On November 1st, 1819, the obligors paid to the sheriff $100 on account, and delivered to him certain goods from whose sale $93 were realized. It was improper for the court to order $70 of this sum to be paid to the landlord, who had given no notice to the sheriff of his claim until February 7th, 1820, long after the return of the execution, whose return day was the first Monday of the Au- gust Term of 1819.* On October 1st, 1877, ay?. /a. issued against a lessee, returnable October 8tb, and the levy was made thereunder on his goods on October 3d. It was then agreed between the plaintiff and the defendant that a public sale, which the latter had already advertised when the writ issued, should proceed, and on October 10th this sale took place, the defendant paying the proceeds to the plaintiff. A notice from the landlord of his claim for rent, given to the sheriff •on October 13th, was too late. Had it been given before the sale, it might have been the duty of the sheriff to resume ^Ege I'. Ege, 5 ^X. 134; Allen v. 'Fisher r. Allen, 2 Phila. 115. Lewis, 1 Ash. 184; Brown v. Jac- ^ Greenwood's Appeal,79 Pa. St. 294. quette, 8 W. N. C. 475 ; Rowland r. * Mitchell's Adm. v. Stewart, 13 Goldsmith, 2 Grant 378. Serg. & K. 292. 408 LAW OF LIEXS. possession of the goods and sell them, since the landlord had not in writing agreed to a stay of execution according to the provisions of the eighty-fifth section of the act of 16th June^. 1836.1 Other Matters Affecting the Lien. § 375. That the landlord takes a note payable at a future day, as collateral security for the rent and for other debts, does not impair his lien on the proceeds of an execution.'^ If the lessee gives to the landlord a note of a third person for a sum which is less than the rent due, and the landlord gives the lessee a receipt "to be a credit when paid," and distrains for the rest of the rent, and an execution is then issued by a creditor against the lessee, the landlord, on discovering that the maker of the note is insolvent, may demand his rent from the proceeds of the execution.' That a landlord obtains judgment for rent due, and issues an execution on it, will not preclude his claiming from the proceeds of the sheriff's sale as a landlord, and thus obtaining priority over an execution whose lien was earlier than his own.* Though a judgment for less than twenty dollars has been obtained for rent before a justice of the peace, and special bail has been entered for stay of execution, the landlord may legally distrain for the rent.^ Xor does he lose his lien on the goods taken in exe- cution, because, before it issued, he had made a distress, and, at the request of the tenant, had postponed the sale a few 'Work's Appeal, 02 Pa. .-'t. 25S. distrain for it. Warren v. Forney^ ^Snyder v. Kunkleman, .3 P. & W. 13 Serg. & R. 52. 4S7 ; Kendig c. Kendig, 2 Pearson * Kreiller v. Hammer, 1 Pearson 89, 3 Pittsb. 2S7. It will, of course, 5-59. be necessary for the landlord to show *. Snyder v. Kunkleman, 3 P. & W. how much of the nfite represents rent 487. Conversely, notwithstanding a due. If. after rent j^ayable in grain distress for rent, there may be an is in arrear, the landlord and tenant action on the covenant, for the same make a .^ettlement, the former ac- rent, while a replevin of the dis- cepting from the latter a promissory trained goods is at issue. Watson v. note for a sum of money in lieu of Maroney, 6 W. X. C. .345. grain, the rent, qua rent, is extin- " Shetsline v. Keemle, 1 .\sh. 29. guished, together with the right to landlord's lien. 409 days; nor, because, property being appraised under the exe- cution, on the lessee's demand for the $300 exemption, the landlord took this property at the appraised value, which was apparently reasonable, does he lose his right to payment of the balance of rent due him, from the proceeds of the goods sold by the sheriff.^ If a landlord distrains, and the goods are replevied by the lessee, and security given, the bond is substituted for his lien. He is remitted to it. If an execution afterwards issue, he can demand from its proceeds only such rent as has accrued subsequently to that for which he distrained.^ § 376. The act of 24th February, 1834, [P. L. 77,] pro- vides an order for the payment of debts of a decedent. Hence, when a lessee di&s at a time when no rent is payable on the lease, the rent due, but not paj^able, cannot be appor- tioned to the day of a levy, subsequent to his death, on an execution which had been received by the sheriff before his death. Though the execution is a valid lien, the rent is not.* Costs. § 377. The act of June 16th, 1836, [P. L. 777,] provides that if the proceeds of a sale in execution are insuflBcient to pay the landlord, together with the costs of the execution, only so much of the costs shall be paid as the landlord would be liable to pay in case of a sale under a distress. When the landlord claims from its proceeds, he adopts the execution as the equivalent of his distress, and, hence, the sheriff is enti- tled to his costs in full. The costs referred to in the act are the costs mentioned in the execution, and the sheriff's costs are never so mentioned.* 'Kline v. Lukens, 4 Phila. 20G. of Loucheim Bros ' Appeal, 67 Pa. 2 Gray c. Wilson, 4 W. 39; Gilliam St. 49. Wilcocks v. Wain, 10 Serg. V. Tobias, 11 Phila. 313. & E. 380; Manuf. and Mech. Bank 'Hoskin-i v. Houston, 2 CI. 489. r. Bank of Penna., 7 W. & S. 335. Comp. McKim's Estate, 2 CI. 224. * Hennis r. Streeper, 1 M. 269. This seems to overlook the principle 410 LAW OF LIEXS. CHAPTEK X. THE LIES OF ATTACHMENTS I]S^ EXECUTION. § 378. When a judgment has been recovered in the com- mon pleas, or a decree has been rendered in the orphans' oourt,^ an attachment may issue as a means of procuring exe- cution thereof in the following cases: when a debt is due by another to the defendant; when another holds a deposit of money made by the defendant, or of goods or chattels pawned, pledged or demised to him by the defendant;^ when the defendant owns stock in a corporation, whether in his own name (though it be claimed by another),^ or in the name of another;* when legacies are bequeathed or lands devised to the defendant," from the time that the interest on such legacies or devises accrues, by reason of the death of the testator;"^ and when, by the death of an ancestor, the defend- ant obtains an interest, as heir, in his personal or real estate.'' The Judgment on •which it is Founded. § 379. The attachment is a means of executing a judg- ment.* Since the judgment must be such as will properly support an execution when the writ issues, it cannot issue 'Act of 27th March, 1873, [P. L. ^Section 10, act 13th April, 1S43, 49.] This act assimilates the pro- [P. L. 235.] ceedings on such a decree to those * Section 11, act 10th April, 1840, in the common pleas. The attach- [P. L. 620.] nient must be allowed by the court 'Section 10, act 13th April, 18-13; or a judge thereof, and may be Section 11, act 10th April, 1849. «erved out of the county in which it -Wray v. Tammany, 13 Pa. St. issues. 394; Fianklin i' Rush, 1 Phila. ,571; ^Section 85, act 16th June, 1836, Slrouse's E.xr. v. Becker, 38 Pa. St. [P. L. 767.] 190, 44 Pa. St. 206 ; Bair r. Steinman, ^ Section 34, act 16th June, 1836. 52 Pa. St. 423 ; Zimmerman v. Briner, * Sections 32, 33, act 16th June, 60 Pa. St. 535 ; Lewis v. Lewis, 47 Pa. 1836. St. 127 ; Kase r. Kase, 34 Pa. St. 128. LIEN OF ATTACHMEXTS IX EXECUTION. 411 within twenty days of the filing of an award of arbitrators.^ It may issue on a justice's judgment, transcripted into the common pleas, as a judgment of that court,^ or into the mayor's court of the city of Carbondale,^ notwithstanding that the justice himself might, under the act of 12tli July, 1S42, issue a similar attachment.* It may issue on a decree for the payment of ;$800 as alimony to the date of a decree of divorce a mensa et thoro, and for the payment of $15 per month for the future;' or, on an award of arbitrators twenty- five days after it is filed ;^ or, on decrees of the orphans' court.^ A scire facias post annum et diem is unnecessary to sustain the attachment, though the judgment be more than five years old,- and though the defendant is not actually served, but the sheriff returns "nihil" as to him.' The attachment lies on a judgment against a corporation other than municipal, as against stock, deposits and debts due the defendant,'" though the corporation, a canal company, be insolvent." It lies on a judgment transferred from another county by exemplifica- tion,'- and should issue from the court of the county in which the transferree of the stock to be attached'^ or other gar- nishee" resides; not of that in which the corporation has its place of business.'^ It also lay on judgments entered before the act of 1836 was passed,'* or on a judgment of revival MVray I'. Tammany, ]3 Pa. St. 394. As to municipal corporations, see -Hitchcock V Long, 2 W. & S. Iij9: O'Connor v. Pittsburg, 3 Pittsb. L. J. Hood V. Brown, 4 Leg. Gaz. 83 ; 92 ; Parke v. Pittsburg, 1 Pittsb. 218. .Swanger v. .Snyder, 50 Pa. St. 218. " Reed v. Penro^^e's Exr., 36 Pa. St. 'Poor V. Colburn, 57 Pa. St. 415. 214; Farmers', etc., Bank v. Ryan, ^Reichenbauch v. Arnold, 2 CI. 64 Pa. St. 236 ; Fox f. Reed, 3 Grant 527 ; Brecheniin v. McDowell, 1 81. Phila. 368. " Reed v. Penrose's E.xr., 36 Pa. St. ^Bouslough V. Bouslough, 68 Pa. 214; Fulweiler v. Hughes, 17 Pa. St. St. 495. 440. "Weaver r. Huntingdon, etc., R. " Cowden ■!). West Branch Bank, 7 E. Co., 50 Pa. St. 314. W. & S. 432. ■Act 27 th March, 1873, [P. L. 49.] "Fulweiler v. Hughes, 17 Pa. St. «OgiUby V. Lee, 7 W. & S. 444. 440. "Gemmill v. Butler, 4 Pa. St 232. "^ Bank of Chester v. Ralston, 7 Pa. ^» Act 20th March, 184-5, [P. L. 189.] St. 482. 412 LAW OF LIENS. obtained after that act was adopted but on a judgment ren- dered before.' It is valid when issued on a judgnaent against Richard Johnson, though the defendant spells his name Richard H. Johnsen.^ Matters Collateral to the Judgment. § 380. The attachment cannot properly issue while a rule to open the judgment is pending,' but may issue after a fi. fa. and a ca. sa. haye issued, the latter having, however, been countermanded, and the return to the former, made after the issue of the attachment, being nulla bona} The attachment may issue, after a levy on an alias fi. fa., unless it affirmatively appears that the debt can be made from the goods levied on;° in that case an election will be compelled by the court.'' After a fi. fa. has been levied on land, which has been condemned thereunder, an attachment simultane- ously pending will be quashed;'' but if, owing to a sale of the premises by a fraudulent grantee, to a bona fide pur- chaser, the fi. fa. cannot be executed, an attachment may issue, though the fi. fa. is still pending.* An attachment, though issued on a transcript of a justice's judgment, without a previous certificate of " no goods," is valid against the defendant with notice thereof, who permits judgment to go against the garnishee without interposing,' and, also, against the garnishee himself, who denies his indebtedness, but against whom, on the merits, verdict is rendered;^" but, on rule taken by the defendant immediately after the writ issued, without such certificate, it will be quashed," unless an execution had in fact issued on the justice's judgment and 1 Hall !■, Geyer, 2 M. 321. ' Hollowell v. McClay, 3 Phila. 261 ; ^Paul V. Johnson, 9 Phila. 32. Farr i'. Carlton, 17 Leg. Int. 109. 'Levy V. Kline, 2 W. N. C. 630. * Heath v. Page, 63 Pa. St. 108. *Davies u. Scott, 2 M. 52. Comp. "Sw.anger v. Snyder, 50 Pa. St. 218. Dobbin V. Allegheny County, 7 Pittsb. '"Dunn !'. Fries, 3 CI. 113. L. J. 282 ; Pontius v. Nesbit, 40 Pa. " Moore v. Risden, 3 CI. 408 ; Cle- St. 309. Yenstine v. Law, 3 CI. 417 ; Hughes 5 Tarns V. Wardle, 5 W. & S. 222. u. Steltz, 2 Luz. L. Reg. 240 ; Poor v. "Shaw V. Kenah, 2 W. N. C. 127. Colburn, 57 Pa. St. 415. LIEIT OF ATTACHMENTS IX EXECUTION. 413 had been returned " no goods;" in that case, the plaintiff was allowed on rule, taken before the return of the attachment, to file the certificate nunc pro tunc} While one attachment is pending, another may issue against a different^ or the same^ garnishee, though the former be not abandoned or discon- tinued, and if it be discontinued on the day on which the court enters judgment on the motion to quash the second attachment, the quashing of the writ will be erroneous.' When an attachment is served in defendant's life-time, his death does not make it necessary to call in the administrator by sci. fa.*" The attachment of property sufficient to pay the debt, in another state, is no bar to one in this state.' Subjects of the Attachment — Land. § 381. Unlike foreign attachment, the attachment in exe- cution cannot be levied of land, (which can be reached only by the fi. fa. and vend, ex.,'^) except lands devised by or descended from any decedent.' These, except such as have vested in married women,' can be attached at any time after the interest therein has accrued by reason of the death of any decedent, though a sale of such interest cannot be made under the attachment until a year shall have elapsed from the time the interest vested in the defendant, unless the executor or administrator shall have sooner filed an account." The ancestor dying intestate, an attachment execution against an heir was effectively issued and served in five days,^° or within apparently four or five weeks' afterwards ; ^^ and where the testator devised a farm for life to his widow, the remainder, either converted or unconverted, to children, an attachment ^Guerin v. Guest, 3 01. Ill; Poor « Evans v. Hamrick, 61 Pa. St. 19. V. Colburn, 57 Pa. St. 415. 'Act 13th April, 1843, § 10, [P. L. 2 Pontius V. Nesbit, 40 Pa. St. 309. 235.] 3 Bank v. Nelson, Dist. Ct. of Phila., « Roth 's Appeal, 9 W. N. C. 398. 4th October, 1851, cited in 1 Bright., "Act 10th April, 1849, § 11, [P. L. Troub. & H. Pr. 683. • 620.] *Etting V. Moses, 1 Phila. 399. '"Straley's Appeal, 43 Pa. St. 89. s Parsons v. Columbia Ins. Oo., 2 "Eoth's Appeal, 9 W. N. 0. 398. Phila. 21. 414 LAW OF LIEXS. against one of the latter was issued so late as eight years aftfer the decedent's death, and during the life-time of the widow.^ The writ must distinctly command, and the sheriff's return show, an attachment of the defendant's interest in land. When, in obedience to a writ commanding the sheriff to attach the "moneys, property, legacies or right, title and interest of the defendant in the hands of" the administrator of an intestate, the sheriff returns "attached as within com- manded, all the goods and chattels, debts, credits, effects, legacies and distributive share of the defendant, in the hands, possession or custody of" decedent's administrator, an interest in land is not attached.^ But a return by the sheriff that he had attached "all the interest" of the defendant in the estate of his deceased father, was sufficient to show an attach- ment of his interest in the realty.^ The attachment is levied on the interest of the defendant in the decedent's real estate, precisely as a foreign attachment is levied on debts due by the garnishee to the defendant. Tlie sheriff must go to the person in whose hands or possession the defendant's goods or effects are (and in this designation debts due are included), and then and there declare, in the presence of one or more credible witnesses of the neighborhood, that he attaches the said goods and effects.* The service of the attachment binds the real estate from its date, and its lien continues indefinitely, as does that of foreign attachment.* An attachment executed on land about August 25th, 1856, continued to be a lien on September 30th, 1864, when the land was sold in the orphans' court, and in the beginning of 1866, when the trial ^Xeely v. Grantham, 58 Pa. St. 'Xeely v. Grantham, os Pa. St. 433. 433. 2 Roth's Appeal, 9 W. X. 0. 398. *Xeely v. Grantham, 5s Pa. St. In Straley's Appeal, 43 Pa. St. 89, 433 ; Straley's Appeal, 43 Pa. St. 89. the writ commanded the attachment In Roth's Appeal, 9 \V. X. C. 398, the inter alia of the lands of defendant, supreme court declines to decide and the sheriff returned he had at- hoTv the writ must be executed on tached defendant's interest in two realty, tracts of land. ' Xeely v. Grantham, 58 Pa. St. 433. LIEX OF ATTACHMEXTS IX EXECUTIOX. 415 in tlie attachment proceedings took place.^ The j^rovision of the foreign attachment law, \yhich requires the sheriiF to file in the office of the prothonotary of the court, a descrip- tion of the property witliin five days after he shall have levied the attachment, and to enter the same in his own docket,^ and prescribes that the names of the parties, with the date of the execution of the writ and the amount of bail required, shall be entered in the judgment docket,^ does not apply to the execution attachment process. Even if it did,, notice of the attachment would make the lien effectual as against a subsequent purchaser or judgment creditor/ Debts. § 382. The thirty-second section of the act of 16th June, 1836, makes debts due to the defendant attachable. Judg- ments payable to him,* though recovered in another state,* or in an action of tort," may be attached. If the judgment is in favor of A. B., agent, his wife may show, in an attach- ment of it on a judgment against him, that the consideration of the judgment attached moved from her, and that she is the real owner of it.^ A judgment in favor of A., against B., recovered on a note given by B. to A. for a debt due to the estate of which A. was administrator, can be attached for A.'s debt, he being the residuary devisee of a large estate, sufficient to pay all debts and legacies, and more than six years having elapsed since the testator's death.* A judgment 'Xeely r. Grantham, 58 Pa. St. 433. covered against the garnishee, the 'Ibid. attaching creditor may be subro- ■^Straley's Appeal, 43 Pa. St. 89. gated to the judgment of defendant 'Bohner v. Cummings, 91 Pa. St. against the garnishee, but not so as .55 ; Crabb v. Jones, 2 M. 130 ; Knabb to prevent the parties to it from V. Drake, 23 Pa. St. 489; Fitzsim- agreeing to open it in good faith. mens' Appeal, 4 Pa. St. 248 ; Irwin Corson v. McAfee, 44 Pa. St. 288. V. Pittsburg and Connellsville K. R. * Jones v. New York, etc., R. R. Co., 43 Pa. St. 488 ; Good v. Grant, Co., 1 Grant 457, 31 Pa. St. 114. 76 Pa. St. 52; Woodward v. Carson, "Patten v. Wilson, 34 Pa. St. 299; S6 Pa. St. 176 ; Fithian i'. New York, Knabb v. Drake, 23 Pa. St. 489. etc., R. R. Co., 31 Pa. St. 114. After ' Bohner r. Cummings, 91 Pa. St. 55. judgment in the attachment is re- *Ross v. Cowden, 7 W. & S. 376. 416 LAW OF LIENS. may be attached on the day on which, under an execution issued thereon, the garnishee's personal property is to be sold by the sheriff, and the proceeds of the sale will be brought into court and appropriated to the attaching creditor's judg- ment.^ That a writ of error is pending to the judgment, in respect of which the garnishee is attached, is no obstacle to the attachment, or to a recovery of judgment against the garnishee thereon, subject to a stay of execution in the inter- val, and with leave, in case of reversal, to move to open and set aside the judgment, the attachment and lien to remain, and the plaintiff remitted to his right to proceed to trial by jury.- A debt in suit may be attached.^ If, pending an action by B. against C, A. attaches B.'s claim, and recovers judgment against C, and then, in the trial of B.'s action against C, C, without pleading the judgment in the attach- ment, confesses a judgment for about one-third of B.'s claim, it will be understood to be additional to the judgment recov- ered by A. against C. as garnishee.* A single bill,' a debt secured by a mortgage,* a check,^ money due on a policy of fire insurance after an award of appraisers chosen by the parties, ascertaining the amount of the loss,' (though, besides the attaching creditor, there is another on whose judgment the defendant's land is under an extent, at the time of the \/ fire,') a debt due the contractor for constructing a culvert in front of one's premises in the city of Philadelphia,^" a debt due to a sub-contractor on a railroad by a contractor," a debt ' Winternitz's Appeal, 40 Pa.St. 490. 'Boyle v. Frankliu Fire Ins. Co.. 7 'Woodward r. Carson, Sti Pa. St. W. & S. 76. Comp. Girard Fire In=. 176. Co. V. Field, 45 Pa. St. 129; West v. ■'■ Sweeny v. Allen, 1 Pa. St. .360. Franklin Fire Ins. Co., 2 CI. 7U. for •Hunter's Appeal, 72 Pa. St. 34.3. foreign attachments. ^Rhoads v. Megonigal, 2 Pa. St. 39. 'Oaks v. Gallagher, 1 Luz. L. Keg. « Bredin S8 ; 'Paxson r. Snnderson, 3 Phila.303; Ege V. Koontz, 3 Pa. St. 109. Jackson v. Bank of the U. S., 10 Pa. ■maxwell V. Belzhoover, 9 Pa. St. St. 61. 139; Wetmore v. Price, Dist. Ct. of ^Bank of 2sorthern Liberties -u. Phila., Sth April, 1848, 1 Bright., Jones, 42 Pa. St. 536 ; Jones d. Bank Troub. k H. | 1183, n. 14. of Northern Liberties, 44 Pa. St. 253. ^Stoner c. Comraonwejilth, 16 Pa. ^Allegheny Savings Bank i). Meyer, St. 3S7. 59 Pa. St. 361. ° Peterson r. .Sinclair, 83 Pa. St. '"Hays c. Lycoming Fire Ins. Co., «50. 11 \V. N. C. 127. "Eeed v. Penrose, 36 Pa. St. 214; "Reed v. Penrose, 36 Pa. St. 214; Bank of Northern Liberties !'. Man- Fox v. Eeed, 3 Grant 81. ford, 3 Grant 232 ; Paxson v. Sander- '- Collum v. Mason, 1 W. N. C. 298. son, 3 Phila. 303 ; Bank of Northern '' Gill v. Snyder, 2 W. N. C. 155. 2b 418 LAW OF LIEXS. contractor with a railroad company, is to be paid in bonds; of the city of Erie, and sub-contracts with B., who agrees to accept these bonds in payment, on a judgment against B. A.'s debt to him may be attached, to be paid in these bonds at their actual market value.^ Rent not yet due and paya- ble, when the attachment is served, will be bound when it becomes due,^ unless the reversion shall meantime have been transferred to another ; this transferree may be an assignee in bankruptcy.^ The $300 reserved by an assignor in his deed of assignment for the benefit of creditors, may be attached in the hands of the assignee, on a judgment recov- ered for a debt as to which the exemption has been waived.* When the personal property set apart to a defendant, under his claim for $300 exemption, is appraised at only $7, and, the real estate not being capable of division, the sheriff pays the $293 from the proceeds of a sale thereof to the attorney of the defendant, this money cannot be attached in his hands by another creditor of the defendant.' But a judgment recovered against an officer for selling goods that were exempt from execution may be attached by a creditor of the plaintiff in the judgment; especially is this true of so much -of the judgment as represents exemplary damages." When the sheriff has retained excessive fees from proceeds of a sale in execution, the execution creditor to whom this excess should have been paid may assign his right to it to the defendant, and, after payment of it to the counsel of the latter, it may be attached.' When the owner of a lot erects a building on it, with a party wall partly on the adjoining lot, the owner of which subsequently erects a building thereon, using the party wall, he is by the act of 24th February, 1 721, 'KingiJ. Hyatt, 41 Pa. St. 229. ^Knabb v. Drake, 23 Pa. St. 489- 'Derham v. Berry, 5 Phila. 475. So, a verdict for injuries to a horse, ' Evans 1). Hamrick, 61 Pa. St. 19. inflicted \>y a railroad company, ■"Numbers v. Slielly, 1 W. N. C. througli negligence, can be attached. 699. Landey v. Hefley, 11 W. N. C. 238. 5 Gary v. Ehrgood, 31 Pa. St. 329. ' Lorenz v. Orlady, 87 Pa. St. 226. LIEN OF ATTACH JIEXTS IX EXECUTION. 419 obliged to re-imburse the person who erected it. This claim may be attached in his hands, on a judgment against the builder of the party wall.^ A. sells land to B., taking a mortgage for the purchase money, and for moneys he is bound to advance to B. towards the erection of a building, in proportion as the building progresses. The $600 become due under this agreement, from A. to B., were attachable, on a judgment against B.- § 384. An unliquidated balance due a partner from the firm, cannot be attached, but it may be sold on afi.fa.f so an individual creditor of A. and of B. cannot attach the interest of each in a debt due from C to them as partners.* If there has been a settlement of partnership accounts, and a balance struck or admitted by the partners, this balance may be attached on a judgment against the partner thereto entitled." A debt^ or a legacy^ due to one of several joint defendants, may be attached on a joint judgment against them, but a debt due to several defendants, jointly, cannot be attached by a creditor of one of them.^ Hence, a debt due to a firm of A. and B. is not attachable on a judgment against the firm of A. and C When A. conveys land to B. as security for a debt, and B. sells it to C, who confesses a judgment ^for the purchase money, this judgment can be attached by A.'s creditor only for so much thereof as may be in excess of the debt as security for which the conveyance to B. was made, together with interest at the rate agreed upon, even though usurious.^" A mortgage to a married woman for money loaned by her, may be attached for her husband's debt, if 1 Davids v. Harris, 9 Pa. St. 501. Stewart v. Coder, 11 Pa. St. 90; Kelly ■ ^ Kelly V. Snyder, 5 W. N. C. 39. v. Snyder, 5 W. X. C. 39. 3 Knerr v. Hoffman, 65 Pa. St. 126 ; ' Lorenz'.^ Adm. v. King, 38 Pa. St. Alter V. Brooke, 9 Phila. ^58 ; Lewis 93. i;. Paine, 1 Leg. Gaz. Kep. 508. « Lucas r. Laws, 27 Pa. St. 211; * Alter V. Brooke, 9 Phila. 258, Greer v. Eowley, 1 Pittsb. 1. =^ Knerr v. Hoffman, 65 Pa. St. 126. » Lucas v. Laws, 27 Pa. St. 211. « Hewer v. Kichardson, 3 W. N. C. "Good v. Grant, 76 Pa. St. 52. 274; King v. Hyatt, 41 Pa. St. 229; 420 LAW OF LIENS. in fact the money loaned by her had been given to her by the husband, in fraud of his creditors.^ A judgment recov- ered by husband and wife in right of the wife, for rent of a house conveyed by the former to the latter, in fraud of his creditors, may be attached by a creditor of the husband.^ When, after articles of agreement for the sale of land, judg- ments are recovered against the vendor, moneys due from the vendee to the vendor cannot be attached on a later of these judgments so as to divert them from the earlier, which, as a lien on the legal title, is entitled to receive them. A sale on one of the earlier judgments transfers to the pur- chaser the vendor's right to the unpaid purchase money, and the proceeds of the sale will be applicable to the judgments in the order of their recovery.' § 385. The proceeds of goods assigned in fraud of cred- itors, may be attached in the hands of the assignee.* When an assignment in trust for the benefit of creditors becomes void because not recorded in thirty days, the proceeds of the sale of the property assigned, and of the debts collected by the assignee, are attachable in his hands,' but not after they have been paid over to the creditors under the assignment." An executor's commissions cannot be attached,^ nor the fees of an officer appointed to gauge and inspect oil, in the hands of the owners of the oil, whose duty it is, by statute, to pay them.* When, in proceedings in partition, an heir accepts land at the appraisement, the value of the interest of the husband of another heir, in her estate during her life, may be attached in the hands of the accepting heir, on a judgment recovered against the husband between the death of the 1 Black V. Nease, 37 Pa. St. 433. 1.52 ; Stewart v. :McMinn, 5 W. & S. ^Wilson I'. Mayhew, 6 Phila. 273. 100; Ashton v. Mann, 3 Phila. 215. ^ Stewart v. Coder, 11 Pa. St. 90. ' Stewart v. McMinn, 5 W. & S. 100. 'French v. Breidelman, 2 Grant 'Adams' Appeal, 47 Pa. St. 94; 319. Taylor's Estate, 5 Phila. 218. ^Drie.sbach v. Becker, 34 Pa. St. 'Hutchinson t'.Gormley, 48 Pa. St. 270. LIEX OF ATTACHMEXTS IN EXFX'UTIOX. 421 ancestor of his wife and the completion of the partition.^ If B., indebted to A., assigns his effects and business to C, on A.'s agreeing to accept C, in lieu of B., as his debtor, there remains no debt due from B. to A. which may be attached by A.'s creditors ; but it is otherwise if A. has not agreed to accept C. as his debtor.^ A debt is attachable when it has not yet become payable;'' e. 70. St. 261 ; Morgan v. Xeville, 74 Pa. St. 52. 424 LAW OF LIENS. except married women, and any interest which any person except married women may have in the personal estate of any decedent by will or otherwise,^ shall be liable to be attaehe'd in satisfaction of any judgment, which attachment may issue according to the eleventh section of the act of 10th April, 1849, [P. L. 620,] at any time after the interest of the defendant in the personal estate of the decedent shall have accrued by reason of his deatti. "When the testator directed $10,000 to be invested, the interest to be paid ta his sister during her life, and the principal, at her death, to be divided equally between her children, the share of one of the children was attached in the hands of the executors,, after their mother's death.^ The will directing that at the ■widow's death, the mansion" farm should be sold and its- proceeds divided among the children, at her death the farm "was sold by the administrator d. b. n. The share of one of the children in the proceeds could be attached in the hands- of the vendee,^ or in the hands of two executors, one of whom was the legatee himself,* or in the hands of an agent appointed by the executor to sell the land, though he was instructed to pay the share of the legatee which was attached,, not to the legatee, but to the executor.^ A. and B., executors, sell land of the testator, under an order of the orphans'^ ' The interest which a creditor of of an assignee of the legacy, is con- the decedent has in his estate, is not elusive on an attaching creditor, meant to be included. Eeisky v. who has omitted to appeal from it,. Clayton, 2 Phila. 101 ; Williamson v. though he refused to make himself Beck, 28 Leg. Int. 196. Comp. Mc- a party to the contest in the or- Coombe v. Dunch, 2 Dall. 73 ; Prin- phans' court. If the legacy is as- gle r. Black, 2 Dall. 97. signed in fraud of creditors, it may ^Otterson v. Gallagher, 88 Pa. St. be attached, notwithstanding n de- 355. A dispute between the attach- cree of the orphans' court that it ing creditor and the assignee of a shall be paid to the assignee. Mid- share in a legacy, is conclusively dleton r. Norcross, 11 \V. X. C. 321 • settled by a decree of the orphans' Chambers r. Baugh, 26 Pa. St. 105. court thereupon unappealed from, '^ BaMy ii. Brady, 15 Pa. St. 103. and will be binding in the trial of the * Zimmerman v. Briner, 50 Pa. St. attachment in the common pleas. 535. In Lex's Appeal, 97 Pa. St. 289, a '^Gochenaur's Exr. !'. Hostetter, 18 decree of the orphans' court in favor Pa. St. 414. LIEN OF ATTACHMENTS IX EXECUTION. 425 court, for the payment of debts. The balance of the pro- ceeds after paying the debts, belonging to B., who was also a legatee, it could be attached on judgment against him, in the hands of A. and B., though it had been paid into court, on their failure to give security.^ The interest of $5,000 annually payable to A. by trustees appoioted by will, is attachable in their hands by A.'s creditor,^ but not the principal^ nor the interest even, if the trustee has a dis- cretion as to the amount of it which shall be applied to the legatee's maintenance.* When a testator devised a farm to his son, giving one-third of its income annually to his widow, this was attachable on a judgment against her,° and the annual interest payable to his son on a sum directed by a testator to be invested for the son's benefit, may be attached by his creditor." § 388. Prior to the act of 10th April, 1849, it was decided that when A. bequeathed money to B.'s children, C. being- executor, and the children dying indebted, B., then the next of kin and sole distributee of A.'s estate, became their administrator, B.'s interest in A.'s estate could not be attached by his creditor, in C's hands, before the settle- ment of B.'s account as administrator of his children.^ But, when an administrator, twenty-five years after the decedent's death, settled an account which, though not in fact final, did not purport to be partial and interlocutory, and which showed a balance in bis hands more than sufiicient to pay record debts, the interest of one to whom the proceeds of land directed to be sold by the testator, and in fact sold thirty years after his death, were made payable by the will, was subject to an attachment.^ Under the act of 10th April, ' Harper v. Valentine, 4 W. N. C. "Mahon v. Kunkle, 50 Pa. St. 216. 38; Valentine's Appeal, 3 W.N. C. 471. "Sheetz v. Hobensack, 20 Pa. St. ' Park V. Matthews, 36 Pa. St. 28. 412. 'Girard Life Ins. Co. v. Chambers, ' Bank of Chester v. Kalston, 7 Pa. 46 Pa. St. 485. St. 482. ^Keyser I'. Mitchell, 67 Pa. St. 473; «Baldy v. Brady, 15 Pa. St. 103? Harrison v. McCana, 11 W. N. C. 239. Brady t). Grant, 11 Pa. St. 361. When 426 LAW OF LIENS. 1849, tlie attachment may take place at any time after the accruing of the interest of the defendant in the decedent's estate, even before an account is filed/ An attachment properly issued eight years after the decedent's death, though no account of the executors had been filed.^ After an account had been filed by the executor, and the auditing judge had awarded $1,107.25 to the defendant in a judgment, there were exceptions, and, they pending, an attachment issued; but the executor answered to the interrogatories, that, whether they were dismissed or sustained, the above amount, less costs and expenses, would be payable to the defendant ; judgment was given for the debt of the attaching creditor, viz., $475 and costs, against the executor, the plaintiff to issue no execution till the exceptions in the orphans' court had beeu disposed of.^ When the attachment is tried before settlement of the estate, the judgment will be that so much of the plaintiff's debt be paid as the money belonging to the defendant, of the estate of the decedent in the hands of the executor, shall suffice to meet ; it is error to add the alternative that if the executor refuse or neglect so to do, the same shall be levied of his proper goods.* The executor cannot set-off a debt due to himself (though in judgment) by the legatee, as against a creditor who has attached the legacy.* Before receiving the distributive share of the defendant, the attaching creditor must give to the executor an executor, who was also residunry bers r. Baugh, 26 Pa. St. 105; Mid- legatee, took a judgment for a debt dleton v. JCorcros.s, 11 W. X. C. 321. due the estate, in his own name, a ^ Bouslough v. Bouslough, 68 Pa. creditor of this legatee was permitted St. 495. to attach this judgment, the estate ^ Adams c. Harland,7 W. N. C. 129. being very large, and the residual *Lorenz's Adm. ^'. King, 38 Pa. St. portion of it, after paying debts and 93. SeeMawsoni'. Goldstone,9Phila. pecuniary legacies, very considera- 30. The jury is not bound to ascer- ble, and more than seven years after tain the amount of money coming the decedent's death having elapsed. to the legatee or distributee, in the Koss V. Cowden, 7 W. & S. 376. hands of the executor. Bouslough 1 Lex's Appeal, 97 Pa. St. 289. The v. Bouslough, 68 Pa. St. 4'J5. Attachment may be laid before the 'Lorenz's Adm. v. King, 38 Pa. St. account has been audited. Cham- 93. LIEX OF ATTACHMENTS IX EXECUTION. 427 or administrator a refunding bond/ and a sale of the defend- ant's interest cannot be compelled by execution until a year shall have elapsed from the vesting thereof, unless the executor or administrator shall have sooner filed his account.^ Goods and Chattels. § 889. Only such goods and chattels as are pawned, pledged, or demised,'' are subject to the attachment. When the goods can be taken under a Ji. fa. they are not attachable. Hence, casks of black lead stored with the garnishee, at so much per month,* though liable to a charge for storage,^ or a horse at livery in a stable on which the livery stable keeper has a lien for its keep,'' or sets of harness and car- riages at a livery stable belonging to the defendant,^ are not subject to attachment. When A. rents a safe in a safe deposit company, which, by the rule of the company, when locked by the renter, cannot be opened except in the presence of the renter and of an officer of the company, the contents of such safe are not subject to attachment in the hands of the company as garnishee ;** they are neither a debt nor a deposit of money, nor goods pawned, pledged or demised.' A seat in the Philadelphia Stock Exchange, (one of whose rules forbids the transfer thereof to any who shall not be elected a member, and unless the transferrer has settled all accounts with, and paid all claims of, every other member,) cannot be attached until it is clear to the court that this rule has been complied with." Goods in the hands of an assignee for the 1 Section 10, act 13th April, 1843, ' Hall v. Fitler Manuf. Co., 2 W. N. [P. L. 235.] C. 154. ''Section 11, act 10th April, ISl'.i, "Klett v. Craig, 1 W. N. C. 28. [P. L. 620.] "Gregg v. Hilson, 8 Phila. 91. -Act 16th June, 1836, | 35; Len- '" Pancoast v. Houston, 5 W. N. C. nig's Appeal, 9 W. X. C. 503. 36; Pancoast v. Gowen, 93 Pa. St. *Lennig's Appeal, 9 W. X. C. 503. 66. Perhaps a balance of the pro- ^Good V. ObertaufFer, Bright., ceeds of a sale of the seat in the Troub. & H. I 1182, n. hands of the treasurer of the board, « Hall V. Fitler Manuf. Co., 2 W. IS". after paying all debts owing to mem- C. 154; Bucknerr. Croissant, 3 Phila. bers, might be attached. Compare 2]^9_ Thompson v. Adams, 93 Pa. St. 55. 428 LAW OF LIEXS. benefit of creditors under a void assignment,^ or of an assignee under an assignment designed to defraud creditors,^ may be attached. "When A., insolvent, but without fraudu- lent purpose, transfers goods, etc., to B., to secure debts due and liabilities hereafter to be assumed for him, the surplus of the goods, after paying the debts and liabilities already assumed, may be attached if still in B.'s hands.^ If music plates belonging to the defendant, are attached in the hands of the printer with whom they have been left to be printed from, the attachment will not be quashed after plea of nulla hona.^ Stock. § 390. Stock, if held in another name than that of the defendant, can be attached, under the thirty-second section of the act 16th June, 1836, only when the plaintiff files in the office of the prothonotary an affidavit stating that he verily believes such stock to be the property of the defend- ant, and enters into a recognizance, with two sufficient sure- ties, conditioned for the payment of damages to the party to whom the stock shall be found to really belong, if it be not the property of the defendant. When stock is assigned to the corporation af whose capital it is a share, as collateral security for debts due thereto, it has ceased to be the prop- erty of the assignor, and the bond and recognizance must be entered into.^ An attachment issued without them is void,* and will be quashed, even at the instance of a third person who claims property in them, but who has not himself filed an affidavit and entered into a recognizance, in conformity with the requirement of the thirty-fourth section of the act of 16th June, 1836.'' When the stock is owned by the defend- ant and held in his own name, the affidavit and recognizance 'Nefft). Love, 2M. 128. ^Eby v. Guest. 8 W. N. C. 467; '^ French ?;.Breidelman,2Grant319. Early's Appeal, 89 Pa. St. 411 ; Mul- ' Coles V. Sellers, 1 Phila. 533. ford v. Weisgerber, 3 Luz. L. Reg. 9. * Backer i'. Saurman, 9 W. N. C. « Eby v. Guest, 8 W. 2^. C. 467. 403. '^Ihid. LIEX OF ATTACHMENTS IX EXECUTION. 429 are unneceesaiy/ and wlien certificates of stock have been issued to A., (as trustee, however, for B.,) which he assigns in blank and hands to B., the aflSdavit and recognizance are unnecessary before attaching them for B.'s debt, though the company has received no notice of the transfer, the shares standing on its books in the name of A., but A. asserting no title to them.^ If the stock is in the name of the defendant, and owned by him, when the attachment is served, its assign- ment three days afterwards does not vitiate it, because no affidavit was made or recognizance entered into." § 391. The third section of the act of 29th March, 1819, [7 Sm. L. 248,] provides that a plaintiff who has instituted, or is about to institute, suit against his debtor, may, on filing an affi- davit before the prothonotary of the court, the alderman or magistrate in which or before whom the suit has been or is to be begun, stating that he believes stock in a corporation, held in the name of another than the debtor, to be really the prop- erty of the debtor, and on entering into a recognizance, with two sufficient sureties, cause an attachment to be issued by the said prothonotary, alderman, or magistrate, and the person in whose name the stock stands to be summoned as garnishee.* The second section of this act provides that stock owned and held by any one in his own name shall be liable to be taken in execution and sold as goods and chattels are on a,fi.fa., but subject to any debt due to the corporation." When the 'Section 34, act 16th June, 1836. 16th June, 1836, in Lex v. Potters, 16 Baldwin's Appeal, 86 Pa. St. 483, is Pa. St. 295. See Eby v. Guest, 8 W. apparently such a case. N. C. 467. It applies only when ^ Betts V. Towanda Gas and Water stock is in the name of another than Co., 97 Pa. St. 367. the real owner as- a bare trustee ; not "Weaver v. Huntingdon, etc., R. when it has been transferred to the E. Co., 50 Pa. St. 314. The remedy garnishee as collateral security for a of sale on fi. fa. (Lex v. Potters, 16 debt. McKee v. Moore, 1 W. N. C. Pa. St. 295 ; Bonaffen v. Wyoming 112. Canal Co., 4 Phila. 29,) is concurrent ' This section has not been super- with that of attachment. seded. Lex v. Potters, 16 Pa. St. 295 ; *It is intimated that this section West Branch Bank v. Armstrong, 40 of the act is repealed by the act of Pa. St. 278. Stock in the name of 430 LAW OF LIENS. stock has been assigned to the corporation, as security for debts to it, it has ceased to be owned by the debtor, and cannot, therefore, be sold on ^fi.fa. against him.^ But the statutory lien for a debt due the corporation is not the equivalent of an assignment as collateral security ; the cor- poration may sell the stock on a ji. fa., and the title thus acquired will be superior to that of a purchaser at a prior sale under a^./a. issued by a creditor of the owner of the stock, after the corporation's lien had arisen.^ Assignment of Debts, Legacies, Chattels, etc. § 392. A bona fide assignment of a debt precludes its sub- sequent attachment by a creditor of the assignor; ^ so, of part of a debt : the rest only can then be attached.* An assign- ment of a judgment by the plaintiff therein to his attorney, as security for his fees, will be valid only to the extent of the fees, as against a subsequent attachment ; for the excess, the garnishee, if he pays it over to the attorney, will be personally liable to the attaching creditor.' An agreement between attorney and client that the former shall have $100 for his services, out of the verdict in an action of tort, is an equitable assignment, valid against a subsequent attachment.' When the liquidating partner of a dissolved firm directs a debtor of the firm on a negotiable note, to pay the money to a par- ticular creditor of the firm, a subsequent attachment by a firm creditor is invalid.' Securities transferred as collateral B., who is a trustee for A., cannot be N. C. 76 ; Gilmore v. Carnahan, 81J sold on fl. Ja. against B. Common- Pa. St. 217 ; Wilcock V. Neel, 1 Phila. wealth V. Watmough, 6 Wh. 116. 129; Beards v. Hathaway, 5 Luz. L. 1 Early's Appeal, 89 Pa. St. 411. Eeg. 259; McCormac v. Hancock, 2 * West Branch Banku. Armstrong, Pa.St.310; Allen ii. Erie City Bank, 57 40 Pa. St. 278. The corporation, Pa.St.l29. Iftheassignmentisfraud- having a, lien on stock, may refuse ulent, the debt may still be attached. to transfer it to a sheriff's vendee Chambers v. Baugh, 26 Pa. St. 105. under a fi. fa. against the debtor, *Knabb v. Drake, 23 Pa. St. 489; until its lien is discharged. Sewall Muller v. Ins. Co., 5,Phila. 12. V. Lancaster Bank, 17 Serg. & R. 285. ^Fithian v. New York, etc., R. R. " Barington v. Alcock, Dist. Ct. of Co., 31 Pa. St. 114. Phila., 1848, 1 Bright., Troub. & H. « Patten v. Wilson, 34 Pa, St. 299. g 1183, n. 8 ; Gilmore v. Adams, 1 W. ' Riddle v. Etting, 32 Pa. St. 412. LIEN OF ATTACHMENTS IX EXECUTION. 431 indemnity for liabilities assumed for the transferrer, can be attached only as to what remains after discharging these lia- bilities.^ A legacy assigned is exempted from attachment by the creditor of the legatee^ eight days subsequently,^ unless it has been assigned for the purpose of defrauding a cred- itor;* and a wife who has instituted an action for divorce, is such a creditor, as respects the alimony decreed to be paid to her by her husband, the legatee, and she can avoid an assign- ment of the legacy, made just after the filing of her libel, for the purpose of eluding the decree that might be rendered against him.' If a negotiable post-dated check is endorsed as a gift, and the donee then endorses it to a bona fide pur- chaser for value before it is payable, the title of the latter is valid against an attachment served subsequently, but before the maturity of the check, though the donor of the check was insolvent when he transferred it.' § 393. Stock in a building association, assigned thereto as collateral security for the borrower's debt, cannot, after it has been applied by him as partial payment of his debt, be subse- quently attached.'' An assignment for the benefit of creditors, made by the defendant before an attachment of any goods or securities embraced therein, prevails against the attach- ment, and, if the assignment and attachment are made on the same day, the exact hour at which each is executed must be investigated, to ascertain which is earlier.* When the interest of A. in a firm is sold to the other partners, who agree to make notes for the purchase money, to be deposited with a trustee, and to be by him applied to the payment of notes drawn by A., in the name of the firm, but for his private debt, these purchase-money notes are not assigned in 'Coles V. Sellers, 1 Phila. 533. ^Bouslough v. Bouslough, 68 Pa. ^Lancaster Co. Bank v. Gross, 50 St. 495. Pa. St. 224. See Lex's Appeal, 97 "Fulweiler v. Hughes,17 Pa.St.440. Pa. St. 289. 'Early's Appeal, 89 Pa. St. 411. 'Otter8onti.GaIlagher,88Fa.St.355. *Smethurst v. Oppenheimer, 7 W. ' Middleton v. Norcross, 11 W. N. C. N. C. 146. 321. 432 LAW OF LIENS. trust for the holders of the notes drawn by A. ; the trustee having no property in them, cannot be garnisheed by the holder of one of the notes which A, had drawn.^ An assignment for the benefit of creditors, does not attach to property subsequently acquired by the dssignor. Hence, when several executions issued against A. before he made such an assignment, and the sheriff retained $131.50 in excess of his lawful fees, which should have been paid to the plaintiff in the executions, this amount, when assigned by the plaintiff to A., after A.'s assignment for the benefit of creditors, can be attached by a creditor of A.^ If the assignment for the benefit of creditors is void, it is no bar to an attachment of the goods assigned,^ but, if the proceeds of a sale of part of them have been paid over, they cannot then be attached.* If, however, a second assignment, in all respects valid, is made to the same assignee, including these proceeds of property sold under the previous void assignment, these proceeds cannot be subsequently attached.* When the inter- est of A. in chattels previously held by him jointly with B., and by him jointly with B. assigned to C. in trust for creditors, is levied on under two executions by a creditor of A., and afterwards the levy is released on the making of a b*nd by the assignee, conditioned to pay one of these executions, if the assignment should be adjudged void, and, the assign- ment being adjudged void, the bond is paid, a second exe- cution on the other debt cannot be subsequently levied on the property assigned." A. being indebted to B., and B. to C, if B. draws on A. in favor of C, and A. promises C. to pay the draft, the draft is an assignment to C. pro tanto of A.'s debt to B., against which a subsequent attachment by a creditor of the drawer will not avail.' An attachment ■Gilmore v. Carnahan, 81 J Pa. St. *Stewart v. M'Minn, 5 W. & S, 100. 217, 1 W. N. C. 76. "Taylor v. Hulme, 4 W. & S. 407.' 2 Lorenz v. Orlady, 87 Pa. St. 226. « Ibid. "Driesbach v. Becker, 34 Pa. St. 'Hyatt v. Prentzell, 20 Leg. Int. 152 ; Stewart v. M'M'inii, 5 W. & S. 133. 100. LIEN OF ATTACHMENTS IN EXECUTION. 433 ■of a debt will not be quashed on the allegation that it had been previously assigned ; that is a question for the jury/ The Garnishee. § 894. The act of 16th June, 1836, requires that when stock held in the name of another than the defendant is attached, the party in whose name it is held shall be made garnishee. When any person claims to own the stock stand- ing in the name of the defendant, the court shall admit him to become a party on the record, and to take defence, as if he had been made a garnishee in the writ.^ When the stock stands in the name of the defendant, and no one else claims it, the act requires no one to be named as garnishee, but the ■corporation, of whose capital the stock attached is a part, may be made garnishee,^ especially when it is desired to know, before sale on execution, whether and for how much the corporation has a lien upon the stock.* It may be joined as garnishee with one in whose name the stock stands, -as trustee for the defendant.' A corporation may, as a debtor, be garnishee,'^ though created by the law of New York, and ■extending its railroad into a county of this state, under a grant from the Pennsylvania legislature, on condition that it shall keep at least one manager, toll-gatherer or other officer in such county, on whom legal process may be served against it.'' A municipal corporation cannot be garnisheed.* The ^Landey v. Hefley, 11 W. N. C. Co., 1 Grant 457; Fithian v. New 23S. York, etc., R. E. Co., 31 Pa. St. 114 ; ^Section 34, act 16tli June, 1836. Darlington v. Eogers, 36 Leg. Int. Ehy V. Guest, 8 W. N. C. 467, is an 115. in.siance. *Erie v. Knapp, 29 Pa. St. 173; ''Lex V. Potters, 16 Pa. St. 295. Grier v. Rowley, 1 Pittsb. 1 ; Keeley * Weaver v. Huntingdon, etc., R. v. Murray, Dist. Ct. Phila., 22d No- R. Co., 50 Pa. St. 314. vember, 1851, cited 1 Bright., Troub. ^Betts V. Towanda Gas and Water & H. Pr. | 1187, n. 9. Yet, money ■Co., 97 Pa. St. 367. due by a borough for paving streets "Girard Life Ins. and Trust Co. v. was attached in the hands of its bur- Ohambers, 46 Pa. St. 485. gesses and council, in Heebner v. 'Jones V. New York, etc., R. R. Chave, 5 Pa. St. 115. 2c 434 LAW OF LIENS. state or federal government, or an officer representing it, cannot be attached/ and state stock, representing a debt of the state, can neither be attached in the hands of the state herself, or of her agents, e. g., a bank selected for its transfer.^ The treasurer of a board of school directors, in respect of moneys held by him for the payment of teachers,* the supervisors of the Philadelphia and Columbia Railroad Company, (an officer appointed by the board of canal com- missioners of the state, in pursuance of law,) in respect of moneys for the payment of persons employed by the super- visors,* an officer of the federal government, in respect of moneys by which its creditor is to be paid,^ cannot be gar- nisheed; e. g., on a judgment against an inspector of customs, his salary cannot be attached in the hands of the collector of customs who appointed him ; the government of the United States, not the collector, is the debtor.* A state treasurer cajinot be garnisheed in respect of salary due the defendant in the judgment, a public officer.^ Nor can an ordinary ticket agent of a railroad company, in respect of moneys in his hands from the sale of tickets, be garnisheed on a judgment against the company ; * nor can moneys due by a corporation to the defendant be attached in the hands of an agent, who has the mere custody of moneys of the corporation.' § 395. The sheriff cannot be garnisheed, as to moneys made by a sale of the defendant's property,^" and the purchase money due him, for property sold in execution, cannot be attached in the hands of his vendee, on the judgment against the defendant on which the execution issued which effected 'King V. Hyatt, 41 Pa. St. 229. phin Co , cited 1 Bright., Troub. & 2 Morrel v. Bank of Penna., 2 Phila. H. Pr. i 1186, n. 8. 61. » Fowler v. Pittsb., etc., E. R. Co., 'Bulkley v. Eckert, 3 Pa. St. 368. 35 Pa. St. 22. See Taylor v. Knipe, 2 Pearson 151. ' State Fire, etc., Co. v. The Oglesby, *Pierson v. McCorniick, 1 01. 260. 1 Pearson 152; Muhlenberg v. Eiler, 'Raubri. Seaman, 2 Luz.L.Obs. 221. 1 Leg. Chr. 248. "Bundle v. Schutz, 2 M. 330. "Fretz v. Heller, 2 W. & S. 397. ' Mervine v. Wood, C. P. of Dau- LIEN OF ATTACHMENTS IN EXECUTION. 435 the sale.^ A surplus in the hands of a constable under a distress for rent cannot be attached.- But, when A., having recovered judgment against B., attached a judgment recov- ered by B. against C, a fi. fa. on which had been levied on personal property, the sheriflf was notified not to pay the money over to B., and the court awarded it to A.' A surplus in the constable's hands, after satisfying the execution, cannot be attached on another judgment against the defendant.* That the moneys in the sheriff's hands have been made on a judgment confessed in fraud of creditors, will not entitle the defrauded creditors, on judgments recovered since the sheriff's sale, to attach them.® Moneys in the sheriff's hands, payable to the plaintiff in an execution, cannot be attached by a creditor of this plaintiff.'' A juror's fees cannot be attached,'^ nor moneys in the hands of the protlionotary.* Moneys in the hands of an attorney-at-law, received from the sheriff out of the proceeds of the property of a debtor of the client, may be attached by a creditor of the client.' A trustee appointed by a will to invest $5,000 and pay the interest to A. annually for life, may be garnisheed on a judgment against A. j^" but not if he has a discretion as to the amount payable to A. annually, and the mode of payment." § 396. On a judgment against one who has deposits with a bankrupt banker, and has proven his claim, which has 1 Fretz V. Heller, 2 W. & S. 397. rell v. Vandusen Oil Co., 1 Leg. Gaz. ^Comfort V. Taylor, Com. Pleas, 53. Phila., March, 1848, cited Bright., 'Simons v. Whartenaby, 2 CI. 438. Troub. & H. Pr. § 1185, n. 4. In * Worrell v. Yandessur, 1 Leg. Gaz. Herron's Appeal, 29 Pa. St. 240, a 52. surplus of an execution in the sher- ^ Riley v. Hirst, 2 Pa. St. 346. iff's hands was held to be liable to "Park v. Matthews, 36 Pa. St. 28 ; levy under another^. /a. Girard Life Ins., etc., Co. v. Cham- ' Winternitz's Appeal, 40 Pa. St. bers,46 Pa. St.485; Kinney c. Henip- 490. hill, 2 W. N. C. 323 ; Sheetz v. Ho- * Crossen v. McAllister, 1 CI. 257. bensack, 20 Pa. St. 412 ; Harrison v. "Bentley v. Glegg, 1 CI. 411. McCana, 11 W. N. C. 239. « Herron's Appeal, 29 Pa. St. 240; " Keyser v. Mitchell, 67 Pa. St. 473. Fretz V. Heller, 2 W. & S. 397 ; Wor- 436 LAW OF LIENS. been allowed by the assignee in bankruptcy, tbe sum thus allowed is not attachable in the hands of the assignee.^ The alienee of a devisee whose land is charged with an annual payment to the widow, may be garnisheed.^ If the defendant in attachment has, in fraud of creditors, assigned a judgment to a trustee with intent that it shall be extinguished by set- ting off against it a judgment held by the defendant therein against the estate of the deceased husband of the assignor, and this intent has been carried out, the trustee may be gar- nisheed by the plaintiff in the judgment against the assignor.* The executor may be garnisheed in respect of a legacy pay- able to the defendant.* The executor who, after sale of land under an order of the orphans' court for the payment of debts, fails to give security, so that the purchase money is j)aid to the clerk of the court, may be made garnishee in attachment on a judgment against the legatee, who will receive a part of this money after the payment of debts.^ The agent of an executor appointed by the latter to sell real estate under a direction in the will,° or the vendee under such a power,' may be garnisheed in respect of so much of the pur- chase money as is due to the legatee. When two executors are also legatees, the legacy of one of them may be attached in the hands of both,* and one who is the defendant in a judgment may be garnisheed as an executor, with respect to a legacy payable to himself.' § 397. A mere custodian of choses in action due the defend- ant, is not properly a garnishee, but the party who is to pay them should be made such. Hence, a trustee of notes due the defendant, whose business it is to apply their proceeds to notes '■ Lloyd V. Brisben, 1 W. N. C. 230. « Gochenaur v. Hostetter, 18 i'a. St. 2 Mahon v. Kunkle, 50 Pa. St. 216. 414. = Robinett I). Donnelly, 5 Phila. 361. 'Baldy v. Brady, ,15 Pa. St. 103; ^Strong's Exr. v. Bass, 35 Pa. St. Brady v. Grant, 11 Pa. St. 361. 333 ; Lorenz's Adm. v. King, 38 Pa. ' Zimmerman v. Briner, 50 Pa. St. St. 93 ; Lex's Appeal, 97 Pa. St. 289. 535 ; Adams' Appeal, 47 Pa. St. 94. * Harper t). Valentine, 4 W. N. C. 38. ^ Schober v. Mather, 49 Pa. St. 21. LIEN OF ATTACHMEIVTS I]N^ EXECUTION, 437 drawn by the defendant, and which he has endorsed without authority, in the name of a firm of which he was a member, for his own accommodation, cannot be garnisheed even by the creditor on one of these notes.^ If an assignment for the benefit of creditors is void, the assignee may be gar- nisheed as to the goods assigned,^ but as to book accounts of the assignor, for which the assignee in a void assignment has not made himself personally liable, he is not a proper gar- nishee;^ otherwise as to debts due the assignor for which the assignee has made himself generally responsible to the cred- itors,* or as to moneys, the proceeds of the assigned chattels and choses in action.^ An assignee for the benefit of credit- ors, the deed to whom reserves $300 to the assignor, may, after that sum has been awarded to the assignor, but before it has been paid over, be garnisheed as to that amount' on a judgment respecting which the right of exemption is waived.^ As to moneys paid over by the assignee in conformity with the deed of trust, he cannot be garnisheed, though the assign- ment is subsequently declared void.' A vendee to whom goods have been fraudulently, assigned, may be made garnishee as to the goods not yet sold by him, and as to the proceeds of the sale of the residue.* A creditor to whom goods are assigned as collateral security for his debt, cannot be garnisheed.' The act 13th June, 1874, [P. L. 285,] makes the transferree of any warehouse receipt, bill of lading, or other receipt, a garnishee, in an attachment on goods or merchandise in the possession or custody of any warehouseman, wharfinger, or other person who shall have issued for the same any such receipt, bill of ^ Gihriore r. Carnahan, 81J Pa. St. ^Driesbach v. Keller, 34 Pa. St. 217 ; Gilmore v. Adams, 1 W. N. C. 152. 76. * Numbers v. Shelly, 1 W. 'N. C. ■' Nefr V. Love, 2 M. 128 ; Ashton v. 599. Mann, 3 Phila. 215. ' Stewart v. McMiun, 5 W. & S. 100. 'Raguel V. McConnell, 25 Pa. St. ^ French -«. Breidelman, 2 Grant 362. 319. * Stewart v. McMinn, 5 W. & S. 'Fithian v. New York, etc., R. K. 100. Co., 31 Pa. St. 114. 438 XAW OF LIENS. lading, etc., though such transferree be not in possession of the said goods or merchandise. There may be several gar- nishees summoned in respect to distinct debts, or chattels, by the same sci. fa.^ and the verdict may be against some and in favor of the other garnishees,^ and the attachment must issue in the county in which it can be served on the gar- nishee, though the judgment has to be transcripted from another county.^ On a judgment against A. and B., a firm, A. B. and C, another firm, may be garnished, but stay of execution will be awarded, in favor of the garnishees, until a settlement, in equity or otherwise, of the partnership accounts.* Money Recoverable from the Garnishee. § 398. The attaching creditor can claim only what the defendant could claim against the garnishee, save when an assignment has been made to the latter, for the purpose of defrauding creditors.^ The right of set-off against the defendant, avails against the attaching creditor.^ An executor garnisheed, may set off a debt due by the legatee to the estate,' and a debtor may show, when garnisheed, that his creditor has, as his collection agent, collected moneys on drafts which he has not paid over.® When the claim of the defendant against the garnishee has, in an earlier suit by the latter against him, been set off, and so diminished the recovery of the garnishee, a creditor of the defendant in an attachment two years afterwards, cannot annul this set-off.' If a debt to a corporation is paid by a note to the order of its president, who endorses it, and obtains for the corporation the money, a creditor of the corporation cannot garnishee 'Peterson v. Sinclair, 83 Pa. St. ^ Patten v. Wilson, 34 Pa. St. 299. 260 ; Cornelius v. Simpson. 3 Phila. 35. ^ M3'ers v. Baltzell, 37 Pa. St. 491. ^ Poor V. Colburn, 57 Pa. St. 415 ; ' Strong's Exr. v. Bass, 35 Pa. St. Foyle V. Foyle, 1 Phila. 182. 333. /Pulweiler v. Hughes, 17 Pa. St. » Allen v. Erie City Bank, 57 Pa. 440. St. 129. 'Allen V. Erie City Bank, 57 Pa. 'Myers v. Baltzell, 37 Pa. St. 491. St. 129. LIEN OF ATTACHMENTS IN EXECUTION. 439 the debtor, alleging that the note was not a payment of the •debt.^ Three garnishees, jointly and severally liable to the defendant, may avail themselves of a set-off possessed by one of them, a mere surety to the other two.^ When a mortgage debt due from C. to B. is attached by A., a creditor of B., C. may set off a debt of his own to D., which, in contracting to convey property to B., B. had assumed to pay, although subsequently C. had conveyed this property by B.'s direc- tion to E., and E. had agreed to pay C.'s debt to D., C, however, doing nothing to release B.-from this duty.^ That E. was obliged to pay a judgment recovered against B., did not authorize a reduction of C.'s set-off against B., to the amount thereof, since it was B.'s debt and not C.'s.* A garnishee cannot set off against the claim of his creditor, a. wife, a debt due to him by the husband, unless the latter has reduced the debt due his wife into possession.' A banker, with whom a canal company keeps its moneys on deposit subject to call, cannot set off a debt due him by the ■company, there being an implied contract that he shall not." In an attachment of a legacy in the hands of the executor, he cannot set off a judgment in his own right against the legatee.'' The set-off must be expressly shown to haye been in the possession of the garnishee, when the attachment was served.* If the garnishee is a member of a firm, which has a judgment against the defendant in the attachment, the ■consent of the firm to the use thereof as a set-off, must be obtained before the service of the attachment.^ Though a ■corporation has a lien on stock for debts of the stockholder, this lien is valid against an attaching creditor, only for so much of the debt as existed when the attachment was served. 'Dougherty v. Hunter, 54 Pa. St. ''Keed v. Penrose's Exr., 86 Pa. St. S80. 214 ; Fox v. Eeed, 3 Grant 81. ' Carr v. Beck, 51 Pa. St. 269. ' Lorenz's Adm. v. King, 38 Pa. St. Ubid 93. i Ibid. * Pennell v. Grubb, 13 Pa. St. 552. ^Stoner v. Commonwealth, 16 Pa. ^Ibid. &t. 387. 440 LAW OF LIENS. Credits given thereafter, cannot be enforced against the stock, as against the attachment.^ The attachment simply transfers to the plaintiff" therein, so much of the debt of the debtor of his defendant as will satisfy the judgment against the defendant; and a judgment of the principal debtor against the garnishee is equitably transferred to the attaching creditor, along with the debt. Hence, in distribution of the proceeds of the real estate of the garnishee, the attached judgment is payable in its order, to the attaching creditor.^ But the right of the defendant in the attachment, and his defendant, to open bona fide the judgment between them,, after it has been attached, is not impaired.* After judgment against the mortgagor, as garnishee, the attaching creditor may sue out the mortgage, in tl'r. ti ime of the defendant, to his use.^ Interest and Costs. § 399. The debt due by the garnishee ceases to bear inter- est from the service on him of the attachment, in the absence of fraud or improper delay, and 2ifi. fa. issued by the defend- ant in the attachment, plaintiff" in the judgment attached, will be set aside as to all interest accruing pending the attach- ment.' The suspension of interest continues from the service of the attachment until the judgment against the garnishee,''' or the discontinuance of the attachment.'' If the attachment issues before an interest-bearing debt is payable, the interest is not interrupted by the attachment until the maturity of the debt ; then only does the attachment begin to suspend the running of the interest.* The interest is suspended on only so much of the debt as is necessary to satisfy the claim of the attaching creditor, with interest and costs.' When 1 Ge)-er v. Ins. Co., 3 Pittsb. 41, 10 » Irwin v. P. & C. R. R. Co. 43 Pa. Phila. 370. St. 488. 'Fitzsinimon's Appeal, 4 Pa. St. "Allegheny Savings Bank r. Meyer,. 248; Reed v. Penrose's Exr., 36 Pa. 53 Pa. St. 361. St. 214. 'Jackson's Exr. v. Lloyd, 44 Pa. ' Corson v. McAfee, 44 Pa. St. 288. St. 82. *Rushton V. Rowe, 64 Pa. St. 63. ^ Ihid. ^Ihid. LIEX OF ATTACH5IEXTS IX EXECUTION. 441 the garnishee, who is defendant in a judgment, pleads nulla bona, and the verdict goes against him, he will be liable for interest on the whole of the judgment attached, in which he is defendant, notwithstanding that the defendant in the attachment is a use-plaintiff in the judgment, whose title thereto is contested both by the legal plaintiff and by another, who claims it as assignee of the defendant in the attach- ment. The garnishee should pay the money into court.-^ When the garnishee does not contest his indebtedness to the defendant, he is not liable for costs ; this is true when his answer admits that he has a certain amount belonging to the defendant, in his hands, though he also claims a part of it as counsel fees, and the claim is disallowed, and though he subsequently, under rule from plaintiff, pleads nulla bona? If the plaintiff fail in his contest with the garnishee as to the truth of the answers and pleas of the latter, he will be liable for costs; not the defendant, nor the garnishee." When the plaintiff discontinues, the garnishee can recover hj fi. fa. his costs for witness fees, an attorney's fee of $8, and the costs of thefi.fa* When the garnishee fails to sustain his plea of nulla bona, he will be liable for the costs of his ^Singerly j). Woodward, 8 W. X. C. Wilbraham v. Horrocks, 8 W. X. C. 330. When claims aYe conflicting 28o. tlie money may be paid into court. ^Xewlin v. Scott, 26 Pa. .St. 102. McBroom's Appeal, 44 Pa. St. 92; ^Xewlin v. Scott, 26 Pa. St. 102; Good V. Grant, 76 Pa. St. 52. See Herring v. Jolmson, .3 Phila. 443; Baldy v. Brady, 1.5 Pa. St 103 ; Wil- Foyle v. Foyle, 1 Pbila. 182. When .-^on !'. Mayhew, 6 Phila. 273 ; Fuller verdict wais against one garnishee, V. Bleim, 9 W. JT. C. .574. But, wli-en and, as to the other, the plaintiff was the fund in the hand of the garnishee nonsuited, the latter garnishee had was claimed by eight diff'erent per- no lien on the amount of the verdict sons, three under attachments out paidintocourtby the former, and the of different courts of Philadelphia plaintiff was permitted, therefore, to county, four as preferred creditors take it out of court, but without en- nnder the act of 1872, in respect to tering satisfaction of the judgment yii\"es, and one under a magistrate's against the garnishee who paid it, attachment, the garnishee was re- sincebecontinuedliableforthecosts. mitted to a bill in equity, making * Griffiths v. Stadtmuller, 9 W. N. the claimants parties to interplead. C. 348. 442 LAW OF LIEXS. refusal to pay the debt when summoned to do so according to law, but not the defendant.^ The garnishee will be liable for costs when he admits only a part of the debt subsequently found to be owing by him.^ That a debt in suit is attached does not relieve the garnishee from the payment of costs.^ If there are several garnishees, some of whom obtain judg- ment, these are entitled to costs.* Beginning of Lien of Attachment. § 400. The thirtv-sixth section of act of 16th June, 1836, provides for service of the writ of attachment of stocks, debts, deposits, goods pawned, pledged or demised, upon the defendant and the garnishees, in the manner provided for the service of a writ of summons in a personal action. Such stocks, debts, etc., shall remain attached "from and after the service of such writ."® The lien begins, therefore, with the service of the attachment. But no fractions of a day are heeded, in determining the origin of this lien. Thus, when three writs of attachment were pilaced in the sheriflF's hands at the hours of 3:25, 3:30 and 5:45 p. m., and they were served on the garnishee, the first two of them at 12:30 and the last at 12:35 p. m. of the following day, the proceeds of the stock attached were applied to them pro rataf' The exact moment of the service of the attachment will be considered as against an assignment for the benefit of creditors made on the same day.' An attachment served on a maker of a note payable to A., is valid against an assignee in bankruptcy of A., the defendant, in proceedings in bankruptcy begun after the service of the attachment.^ ' Herring v. Johnson, 5 Phila. +43. Phila., 2d February, 1850, cited ' Foyle V. Foyle, 1 Phila. 182. Bright , Troub. & H. I 92-5, n. ' Dean r. Rockwell, 2 Luz. L. Obs. ' Section 37, act 16th June, 1S36. 187. The attachment does not inter- "Baldwin's Appeal, 86 Pa. St. 483. fere with the prosecution of the suit In Jones c. Bonsall, 11 Phila. .561, between the defendant and the gar- the decision of a lower court to the nishee. Kase v. Kase, 34 Pa. St. contrary, is reported. 128. 'Smethurst v. Oppenheimer, 7 W. < Magruder v. Adams, Dist. Ct. ^'. C. 146. *Ege V. Koontz, 3 Pa. St. 109. LIEX OF ATTACHMENTS IX EXECUTION. 443 Service of the Writ. § 401. A copy of it must be served ou the defendant only when he resides in the county in wliich it issues.^ It must be served on the person or corporation named as garnishee therein, if within the county.- Two returns of ''nihil haheV a? to the defendant, are conclusive of his non-residence ; one such return is prima facie evidence thereof.^ When he does not reside in the county, service on him is unnecessary, though the judgment against him is more than five years old.* Judgment in the attachment proceedings will not be opened at the request of the defendant if the sheriff has returned as to him nihil habet, and he has since appeared de bene esse for the purpose of asking the court to open the original judg- ment/ and the writ and proceedings thereon will not be set aside on rule by the garnishees, because of want of service on the defendant, the garnishees having appeared and pleaded, and the case being on the trial list.' If the defend- ant, a non-resident, is notified by the garnishee to make defence to the attachment issued on a justice's transcript, but fails to do so, the payment of the judgment against the garnishee will protect him against a subsequent demand for j)ayment by the defendant, though he omitted to avail him- .self of the defence that a certificate of "no goods" had not been filed before the writ issued.^ The sheriff's return should show not service on the parties merely, but also what was attached.* '.Section 36, act 16th June, 1836, to hold one return of "nihil" con- and Section 4, act 20th March, 1845, elusive. See Skidmore v. Bradford, [P. L. 189.] A return of non est 4 Pa. St. 296. inventif!! is not equivalent to service. * Brock v. Driebelbies, 2 Leg. Chro. Corbyn v. Bollman, 4 AV. & S. .342; 317. Hains v. Viereck, 2 Phila. 40. = Skidmore D.Bradford, 4 Pa. St. 296. -Section 36, act 16th June, 1836. "Moorehead v. Harwood, 2 CI. 73. •'Gemmill v. Butler, 4 Pa. St. 232 ; 'Swanger v. Snyder, .30 Pa. St. 218. Bencke r. Frick, Dist. Ct. of Phila., "Rhoads v. Megonigal, 2 Pa. St. 39. 10th June, 1848, cited 1 Troub. & H. For matters of practice, under at- Pr. 695. iMurphy v. Burke, Dist. Ct. tachment in execution, see Bright., Phila., 30th March, 18-50, Ibid., seems Troub. & H. Pr. 444 LAW OF LIENS. CHAPTER XI. EXECITTIOX-ATTACHMEXTS BY JUSTICES OF THE PEACE. § 402. The act of 15t.h April, 1845, [P. L. 459,] confers on justices of the peace and aldermen the authority to issue attachments in execution, similar to those provided for by the act of 16th June, 1836. Before the attachment can issue, an execution must have been issued, and returned " no goods." ^ The execution, with the constable's return "no goods," accompanied by the oath of the constable that he returned it to the justice, is as good evidence of the fact of such return as the justice's docket would be.^ After this return the justice may, on the plaintiff's complying with the requisitions of the act of 16th June, 1836, in regard to the issue of attachment-executions, issue an attachment in the nature of an execution, under which stocks, debts and deposits of money belonging or due to the defendant may be levied. The interest of the defendant as an heir in the estate of a decedent cannot be levied,* and a debt which has been ^oria^c^e assigned cannot be afterwards attached on , a judgment against the assignor.* § 403. The writ must be returnable in not less than four nor more than eight days from the time of its issue,° the day of its issue not being counted as one of them.^ The writ must be served as a summons, according to the second sec- tion of the act of 20th March, 1810, [5 Sm. L. 162,] upon the debtor, depositary, bailee, pawnee, or other person, hav- 1 Section 2, act of 15th April, 1845 ; * Mitch ell v. Gipple, 2 Pearson 276. Hagarty v. Seitzinger, 1 Luz. Leg. ^Section 3, act of 15th April, 1845. Reg. 109. «Love v. North Branch Canal Co., niitchell V. Gipple, 2 Pearson 276. 2 Luz. Leg. Obs. 28. ^ Raysor v. Hoke, 2 Pearson, 362. justices' execution-attachments. 445 ing property of the defendant, and liable to attachment under the act of 16th June, 1836. On or before the return day of the writ, the plaintiff may file interrogatories with the mag- istrate, a copy of which, with a rule to answer, shall be served on the garnishee personally, whose duty it then becomes to answer them, under oath or affirmation, within eight days after the service of the same. Xeglecting to do so, he shall be adjudged to have property of the defendant in his posses- sion equal in value to the plaintiff's demand, and judgment for the amount of the same, with costs, shall be rendered by default against him. If the garnishee admits by his answer that there is in his possession or control property of the defendant liable to attachment, the magistrate shall enter judgment specially, to be levied out of the effects in his hands, or so much of the same as may be necessary to pay the debt and costs. Wages. § 404. The wages of any laborer, or the salary of any person in public or private employ, shall not be liable to this attachment in the hands of the employer,^ even though the laborer consent, for the justice has no jurisdiction,^ and though this consent is embodied in a promissory note on which a loan was made to him." When A. and B. are employed as miners, in a chamber in a coal mine, they in turn employing one laborer, who is paid by the day so much, according as the miners get so much per ton for the quantity mined, and payments made by the mine owner are appropriated first to the laborer, and then to B. ; the balance still due to A. rep- resents wages, which cannot be attached on a justice's judg- ment against him, and the garnishee may raise the objection.^ If B., the defendant in a judgment before a justice, works for A., and there is an agreement in parol between them for the ^ Section 5, act loth April, 1845, This was wages of a laborer at a fur- [P. L. 459.] nace. 2 Firmstone v. Mack, 49 Pa. St. 387. ' Pennsylvania Coal Co. ■;;. Costello, 33 Pa. St. 241. 446 LAW OF LIENS. conveyance by A. to B., of a lot of ground, the consideration of which is to be paid by the wages earned by B., but the conveyance is never consummated, and B. is subsequently dispossessed of the lot by A., the debt due from A. to E. does not cease to be wages, and is not attachable.^ The act of May 8th, 1876, [P, L. 139,] makes the wages of labor attachable, for any debt for boarding, for any time not exceeding four weeks, due to any proprietor of a hotel, inn, or boarding and lodging house, and confers on justices of the peace the jurisdiction over attachments of sudi wages. Attachment on Transcript. § 405. The seventeenth section of the act of 20th March, 1810, [5 Sra. L. 169,] requires the person in possession of the docket of a justice of the peace in which any judgment may be entered, on the application of the plaintiff or his agent, to make out, certify and deliver to him a transcript thereof, and directs that this transcript may be taken before any justice of the peace in any county other than that in which the justice who rendered the judgment acted, and where the defendant may reside or may be found, and the justice to whom the transcript is thus taken shall issue execution for the recovery of the amount of the judgment and costs. It is essential to this jurisdiction, that the defendant be or reside in the county in which the execution issues. Hence, if, on such transcript, a justiii- issue an attachment execution, to which the constable re: urns as to the defendant, " nihil habet," the attachment is vi )id.'^ Judgment. § 406. The judgment which the justice should enter, in the attachment proceedings, is that the plaintiff" have exe- cution against the debt of the garnishee to the defend- ant, or against the property of the defendant in his hands, for the amount of his judgment against the defendant, with interest and costs, and that if the garnishee refuse or ' Scott V. Watson, 36 Pa. St. 34? » Minnig v. King, 8 W. X. C. 342. justices' executio:n'-attachmexts. 447 neglect, on demand by the constable, to pay the same, the plaintiff have execution against the garnishee's goods and chattels as in case of a judgment against him for his own proper debt, and further, that the garnishee be thereupon discharged as against the defendant of the sum so attached and levied. A judgment "in favor of plaintiff, and against J. W. (the defendant) and G. G. T., garnishee, for $51.98," is void.^ An amicable action was entered into before a justice in a suit entitled A. v. B. and C. B. did not appear nor have any knowledge of the suit, but C. appeared, and, without authority, confessed judgment both for B. and him- self. An attachment issued on this judgment, and levied on a judgment before a justice in favor of B. against D., was void, and D.'s payment to A. did not discharge him as to B.* 'Masters t. Turner, 10 Phila. 482. on the recognizance of the bail for ^Calhoun v. Logan, 22 Pa. St. 46. stay in the suit of B. v. D. Nor is such payment a good defence 448 LAW OF LIENS. CHAPTEE XII. FOREIGN ATTACHMENT.^ Who may be Defendant. § 407. The writ may issue against the real or personal estate of " any person," not a resident of the commonwealth and not in the county.^ Anj foreign corporation, aggregate or sole, is such a person.^ A foreign corporation is one estublished by the laws of another state. One established by the laws of this state, though the persons who compose it are residents of other states, is not a foreign corporation. The Charleston and Philadelphia Steam Packet Company, chartered by the state of South Carolina, though its only place of business is Philadelphia, and though its corporators, directors and oflScers are all residents of Pennsylvania, is liable to foreign attachment.* The property of a national bank, established in another state, cannot be attached," nor the property of another state.^ A foreign attachment against a corporation is dissolved by a decree of forfeiture of its charter, rendered before judgment is recovered, and though 'The principles and methods of St. 291 ; Warren v. Union National foreign attachment must be sought Bank, 7 Phila. 156; Selser v. Dia- in the act of 13th June, 1836, [P. L. logue, 4 W. N. C. 10 ; Memphis, etc., 580.] R. E. Co. V. Wilcox, 48 Pa. St. 161 ; 2 Act of June 13th, 1836, ^ 44, [P. Dougherty v. Hunter, 54 Pa. St. 380, L. 580.] foreign corporations were attached. ' Section 76, act of June 13th, 1836. * Harley v. Charleston Steam Pack- In Bushel V. Commonwealth Ins. et Co., 2 M. 249. Co., 15 Serg. & B. 179, foreign at- "Bank of Commerce -i). City Bank, tachment was held to lie against a 34 Leg. Int. 115. The Revised Stat- Massachusetts corporation, though utes of the United States, ?J 5198, the statutes then existing did not 5242, prevent. distinctly make foreign corporations * Nathan v. State of Virginia, 1 liable to attachment. In Bagley v. Dall. 77, n. Clothing imported by Atlantic, M. and O. R. R. Co., 86 Pa. Virginia from France. FOREIGN ATTACHMENT. 449 the decree be afterwai'ds reversed oa appeal, the law of the state not giving to such appeal the property of superseding the decree. The restoration of the corporation does not rehabilitate the attachment.^ Several non-residents, doing business as a partnership, may be sued in foreign attach- ment,^ and be attached by the bank deposit belonging to one of their number.' That one of the firm is an American consul, residing abroad in the public service, wilt- not ■exempt it.* Prior to the act of 13th June, 1836, if one of several joint debtors was a resident within the state, foreign attachment could not be sustained against the absent ones. There was thus no means of reaching the individual prop- erty of the non-residents for a joint debt. The seventieth section of that act permits action to be begun by summons as to the resident partner, and foreign attachment as to the absent ones. Under this provision, not the joint property, but only the individual property, of the foreign joint debtors can be attached.' The act of April 21st, 1858, [P. L. 403,] directs that when any person or persons, non-residents of this state, shall engage in business in any county of the state, process may be served on any clerk or agent of such persons at the usual place of business, or the residence of the clerk or agent, with like effect as though such process was served personally upon the principals. This act does not take away the remedy by foreign attachment against non-resident debtors doing business in this state, and having a clerk or agent at their place of business.'^ There is no foreign attach- ment in the federal courts for the reason that the eleventh section of the judicial act provides that no civil suit shall be brought against an inhabitant of the United States by any original process in any other district than that whereof he is ^ Farmers' and Mechanics' Bank * Caldwell v. Barclay, 1 Dall. 305, n. V. Little, 8 W. & S. 207. ^ White & Schnebly's Case, 10 W. 2 Porter v. Hildebrand, 14 Pa. St. 217. 129. * Chase v. Ninth National Bank of ' Jackson's Appeal, 2 Grant 407. New York, 56 Pa. St. 355. 2d 460 LAW OF LIEXS. an inhabitant, or in which he shall be found at the time of serving the writ.^ Non-Residence of the Defendant. § 408. By the forty-fourth section of the act of 13th June,, 1836, the defendant must be a non-resident of the state when the writ issues, but no definition of the word "resident" can be given which will be in all cases satisfactory. The circum- stanees of each case will determine it.^ We therefore give the facts which in the several cases have been decided to constitute non-residence. K. came to Philadelphia about April 15th, 1784, bringing furniture with him, and hired a house and store, professing an intention "to lay his bones here." In February, 1785, he went to Virginia, leaving a small quantity of furniture behind, but no more probably than enough to accommodate a partner, a single man, who had occupied the house with him. From Virginia he sailed to England, in consequence of intelligence of some miscon- duct of another partner who resided there and had never been in America. K. thus became a subject of foreign atachment.^ F. spent a portion of his youth in Philadelj)hia,. serving an apprenticeship there, after the expiration of which he became a partner with his former master. For six years, on account of domestic discord, he had lived apart from his wife and children. He then sailed as supercargo to the West Indies, taking with him property of the value of $30,000. Just before sailing, he assigned in trust for his creditors, all his other property, amounting to $7,000, and as he left, declared his purpose to return in twelve or eighteen months. Letters received from him since his departure said nothing of his returning, and it was under- stood generally, where he had established himself, that he intended to go into business there. Foreign attachments • Hoi lings worth v. Adams, 2 Dall. r. Ferris, 2 Luz, L. 01>.s,34-5; Rauli r. 396. Eakin, 2 Leg, Chro, 25: Gross r. ^Taylor'r. Knox, 1 Dall. 15s ; Ken- IM.ihler, 2 L. Bar, 22d April, 1S71. nedy r. Baillie, 3 Y, 55, See Everilt 'Taylor v. Kuox, 1 Dall. 158. FOKEIGX ATTACHMEXT. 451 issued within seventeen days after he had sailed, were, on motion, not dissolved.^ § 409. T., having been for some years a resident of Wayne county, left with his family, July 28th, 1869, for San Fran- cisco, but stopped at Chicago, where he boarded at a hotel. His wife refusing to go further, he rented a house there, and three weeks afterwards went into business. His abode in Chicago, with the intention to make there his permanent residence, had actually begun, when, on August 2d, 1869, a writ of foreign attachment was issued, under which his real estate was attached.'^ E,., having no family, left this state June 13th, 1866, for the Southwest. His debts exceeding S800, his property that remained was worth barely S200. On August 2d, 1866, a foreign attachment issued, and the goods left by him were attached. Five months later a rule was granted upon the plaintiff to show cause why the attach- ment should not be dissolved. A year later, the rule was discharged, the defendant having never returned, though letters received from him at intervals stated his intention to return." L., an unmarried man. having lived in Xew Jersey, engaged in the lumber business in Luzerne county, boarding and lodging near the scene of his operations, and paying taxes and military fines there. This, while a presumption that he was a resident, was not conclusive, since his declara- tions might have unequivocally evinced that his absence from his original home was but temporary.* Foreign attach- ' Xailor v. French, 4 Y. 241. the boundai'ies of Pennsylvania. ^Reed's Appeal, 71 Pa. St. 378. Where there is an avowed intention 'Eherlyv. Rowland, 1 Pearson 312. of returning, such avowal will he Here Judge Pearson remarked that taken, in the first instance, as evi- when one goes into another state or dence of the fact, but a long con- foreign country, with intent to make tinued absence may raise a convic- it his place of abode, and abandons tion that the intention to return was bis home here, he becomes the sub- only pretended, and thus destroy jpct of foreign attachment so soon as the rights of citizenship, be )-eaches his intended domicile, *Lindsley r. Malone, 23 Pa. St. 24. apd perhaps at once after leaving In Yelverton v. Burton, 26 Pa. St. 452 LAW OF LIENS. ment may issue, though the defendant has never resided in this state,^ and though the defendant, residing in Ohio, does business in Pennsylvania, in a store, where he has an agent to manage for him, himself being absent.^ The act of 15th May, 1874, [P. L. 183,] gives the remedy of foreign attach- ment when one who has resided in this state removes there- from after becoming liable in an action ex delicto. Foreign Attachment Did Not Lie. § 410. On May 12lh, 1783, A. rented a house in Phila- delphia, and continued to reside there, as a store-keeper, till about December 1st, 1784, when he either left the city or secreted himself. He appeared to be a married man, having a family and servants in the house. In a contest between domestic and foreign attaching creditors, the former class of creditors prevailed.^ A., having been a resident of Phila- delphia, was, on December 5th, 1789, at Lancaster, on his way to Fort Pitt, where he intended to proceed to the Span- ish settlements on the Mississippi. He was, however, at Fort Pitt on the 2d January, 1790, when a foreign attachment issued. The writ was quashed because A. was not a non- resident.* B., unmarried, came to Philadelphia in Novem- ber, 1799, took lodgings and rented a store, where he carried on trade. After frequently declaring his purpose to make the city his permanent residence, he absconded within one year of his arrival there. As between foreign and domestic attaching creditors he "was declared a resident, and the for- eign attachment was quashed.'* P. had, for several years, 35],, C, formerly a merchant in Gi- for exemption, from the proceeds of' rard, Erie county, absconded about the sale of defendant's property. the 10th September, 1850, his wife ^Redwood v. Consequa, 2 P. A. having preceded liim a few days, to Brown 62. New York state. On the 23d of * Hampton v. Matthews, 14 Pa. St. September, 1850, foreign attacliment 105. was issued, and the sherift' was held 'Burnet's Case, 1 Dall. 152. liable to the plaintiff therein for per- *Lyle x>. Foreman, 1 Dall. 480. mitting the wife of the defendant to ^Kennedy \\ Baillie, 3 Y. 55. receive for him $300, under a claim rOEEIGN" ATTACHMEXT. 453 resided in Clearfield county, keeping a store at Ansonville. Failing in business, executions were issued against him and levied on his personal property. Shortly afterwards, he started on a trip to the West in quest of a situation, but, before leaving, he packed up his goods in boxes, Avith the exception of his furniture, and left them in his dwelling- house, the key of which he put in charge of a neighbor, tell- ing him he intended to take his family to Chambersburg, and leave them there while he sought employment in the West ; that he would return in five or six weeks, remain at Anson- ville till fall, and then go West. Three days after he started, a writ of foreign attachment was issued and levied on good< already seized in execution. P. returned with his family in four or five weeks to Ansonville, remained a short time, and then removed to some Western state. The attachment, it was held, was erroneously issued. Residence is not broken by going to seek another abode, but continues until an abode is actually taken up elsewhere.* § 411. B., a native of Pennsylvania, resided for several years in Fayette county. About June, 1850, he removed with his family to Greensburg, Westmoreland county, where he rented a house till April, 1851. On January 3d, 1851, he rented another house in Greensburg for one year, from the following April 1st, paying rent in advance for six months, and commenced to occupy it. During portions of this time he was engaged in erecting buildings in West- moreland, Washington and Greene counties, and had a con- tract on the Baltimore and Ohio Eailroad, in Maryland. About the middle of April, 1851, he broke up housekeep- ing, stowed away his household goods in another house, and the same week his wife and family left for Harrisburg, where they stayed with his father-in-law, and did not return to Greensburg till about August 19th, 1851. After board- ing there nine or ten days they left, the wife taking away 1 Pfoutz V. Comford, 36 Pa. St. 420. 454 LAW OF LIENS. her tilings. B. was, during this absence of his family, for the most part in Maryland, though occasionally in Pennsyl- vania, attending to contracts. In the fall of 1851 B. left for California, taking his family with him. A foreign attach- ment, issued against him August 14th, 1851, was dissolved.^ W., for many years a resident of Philadelphia, in January, 1837, suddenly disappeared, alleging that he intended to go to Missouri. After an absence of ten days, he, however, returned, having been no farther than Pittsburgh. A foreign attachment, issued the day after he left Philadel- phia, was, on a rule obtained by a domestic attaching cred- itor, dissolved.^ A., a resident in Philadelphia, left in 1874 to look for work in the AVest, and was still absent in March, 1875, when a foreign attachment issued, though his wife and children were yet in Philadelphia. The attachment was dissolved.^ T., likewise a resident of Philadelphia, was called abroad a considerable portion of every year, leaving, however, his wife and children behind, who continued to occupy a part of a house, either as joint tenants with another family or as mere boarders. T. was not a subject of foreign attachment during one of these absences.* D. came to Phila- delphia from Holland, September, 1833, and, marrying in 1834, he commenced the grocery business and went to house- keeping. On the 19th or 20th of December, 1837, he went from home, leaving his family and household goods, as well as the goods in the store. A foreign attachment, issued 10th February, 1838, was quashed, at the instance of creditors in domestic attachment, issued December, 1837.' D. resided several years in Dauphin county, where he kept a store. About August 20th, 1873, he went to Philadelphia, leaving ^Fuller V. Bryan, 20 Pa. St. 144. -Shipman r. Woodbury, 2 M. 67. Lowrie, J., said this was a case of a 'Hentz v. Asahl, 1 W. N. C. 282. resident debtor absconding, and * Burch v. Taylor, 1 Phila. 224. hence domestic attachment was the 'Eiley v. Dekkar, 2 M, 183. remedy. B. continued a resident, ' notwithstanding his absconding. FOREIGN ATTACHMENT. 455 Jiis son in charge of the store. He had spoken of going to Colorado, but never started thither. He was out of the state only part of one day, on a short excursion from Phila- delphia, and was in that city when the foreign attachment issued. The attachment was void.^ Non-Residence and Later Liens. § 412. The fact of non-residence, is, as we have seen, essential to the validity of the lien of a foreign attachment. Later lien creditors, therefore, may, in a distribution of the proceeds of a judicial sale of the property attached, contest the right of the attaching creditor, on the ground of the residence of the defendant within the state.^ Absence from the County. § 413. Besides non-residence in the state, another condi- tion for the proper issue of the writ of foreign attachment is that the defendant shall not be within the county in which the writ issues, at the time of its issue.' That he was twice in the city of Philadelphia, for a short time, on the day on which fbreign attachment issued, but the rest of the day was in Camden, X. J., did not justify the presumption that he was in Philadelphia at the precise time that the writ was issued* The Plaintiff. § 414. Any creditor may sue out foreign attachment. He may be a resident of another state," and of the same state as ' In the matter of Dillon';^ Personal [P. L. 580 ;] Bainbridge v. Anderson Property, 2 Pearson 182. In Coble & Co., 2 P. A. Brown 51 ; Maule v. V. Nonemaker, 78 Pa. ?^t. 501, the Cooper, 1 W. N. C. 109 ; Lummis v. defendant, having been n resident Coz-ier, 85 Leg. Int. 262. 'i'he cburt of Pennsylvania, removed to North will not put the defendant on terms Carolina four months before the to appear or accept service of the foreign attachment issued. It was, summons before quashing a writ of in that case, sustained. foreign attachment, issued while he ^Reed's Appeal, 71 Pa. St. 378; is in the county. Burns i'. Bowers, Pfoutz V. Comford, 36 Pa. St. 420. 3 W. X. C. 64. Jn re Dillon's Personal Property, 2 *Kingt). Cooper, 2 M. 176. Pearson 182. '" MuUikin v. Aughinbaugh, 1 P. & ' Section 44, act of 13th June, 1836, W. 117 ; Farmers and Mechanics' 456 LAW OF LIENS. the defendant.^ A domestic corporation,^ and a foreign cor- poration {e. g., a national bank in another state)/ a state bank,* an insurance company,' may be plaintiff. When the- plaintiff resides in the same state as the defendant, any decree of the courts of that state in any proceeding, which would preclude an action by the plaintiff against the defend- ant there, and a levy on the property attached in this state, will also be a bar to foreign attachment in this state> Thus, if the courts of that state have, in proceedings in equity, foreclosed a mortgage on the estate of a railroad cor- poration, and appointed a receiver, who, by the order of the court, is empowered to collect debts due the corporation, one of which is due by a person in this state, the debt so due cannot be attached in this state by a creditor of the corpora- tion who resides in the state which incorporated it, and whose courts have made the decree of foreclosure." If a resident of Maryland makes application for the benefit of its insolvent laws, and a provisional trustee in insolvency is appointed, whose business it is to collect all the assets of the insolvent, and to distribute them among his creditors, a foreign attachment by a citizen of Maryland, of a debt due in this state to the insolvent, will not be sustained.' If a judgment has been obtained in another state against a resi- dent thereof, and an execution thereon has been provisionally Bank v. Little, S W. & S. 207 ; Bag- ^ Buflfalo Coal Co. v. Rochester and ley V. Atlantic, M. and 0. B,. E. Co., State Line E. E. Co., 8 W. X. C. 126. 86 Pa. St. 291. In Morgan v. Neville, 'Chase v. Xinth National Bank of 74 Pa. St. 52, a citizen of Pennsylva- Xew York, 56 Pa. St. 355. Ilia sued out foreign attachment in *Piscataqua Bank v. Turnley, 1 Marj'land against another Pennsyl- M. 312 ; Merchants' Bank <. Peters- vanian. burg R. E. Co., 4 W. :X. C. 264. 'Mullikin v. Aughinbaugh, 1 P. & ^Albany City Ins. Co. v. Whitney, W. 117 ; Chase v. ^"inth National 70 Pa. St. 248. Bank of New York, 56 Pa. St. 355; "Bagley t. Atlantic, M. and 0. R. Bagley v. Atlantic, etc., E. E. Co.," R. Co., 86 Pa. St. 291. 86 Pa. St. 291 ; Rushton i'. Rowe, 64 " Mullikin v. Aughinbaugh, 1 P. & Pa. St. 63 ; Merchants' Bank v. Pe^ W. 117. tersburg R. R. Co., 4 W. N. C. 264. FOKEIGX ATTACHMENT. 457 enjoined by the court of chancery of that state, the plaintiff in the judgment cannot sue for the same debt in foreign attachment in this state, pending the injunction.^ A citizen of Kentucky may sue out foreign attachment against a Tennessee corporation, and attach a balance due it in a bank, notwithstanding that, three days before, a receiver in insol- vency of the corporation was appointed by the court of the city of Memphis.^ A foreign attachment -by one Virginia corporation against another was sustained, though, after the attachment was served, a receiver of the defendant corpo- ration was ajjpointed by the Circuit Court of the United States for the Eastern District of Virginia.' Cause of Action for -which Foreign Attachment Lies. § 415. Foreign attachment could not issue for a tort* prior to the act of 15th May, 1874, [P. L. 183,] by which, when the tort has been committed by a resident of the state, who has subsequently removed beyond its limits for the purpose of evading liability for the tort, the remedy of foreign attach- ment is allowed. When bank notes of a bank in New Hampshire were stolen by A. from the bank's agent, the bank could not sustain foreign attachment against him in the courts of this state. The tort could not be waived for this purpose.® If the foreign attachment is against some only of the members of an unincorj)orated stage coach com- j^any, for loss, by their neglect, of goods entrusted to them for carriage, it could be sustained, notwithstanding the non- joinder of other members, only on the ground that the cause of action is the tort. It cannot, therefore, be sustained at all.® Foreign attachment lies in an action of debt upon a judgment recovered against the defendant while he was ' Downing v. Phillips, 4 Y. 274, 450 ; Porter v. Hildebrand, 14 Pa. St. '' Warren v. Union National Bank, 129 ; Lowry v. Fox, 2 Luz. L. Obs. 220. 7 Phila. 156 =Piscataqua Bank v. Turnley, 1 M. 'Merchants' Bank v. Petersburg 312. E. E. Co., 4 W. N. C. 264. « Porter v. Hildebrand, 14 Pa. St. *Jacoby v. Gogell, 5 Serg. & R. 129. 458 LAW OF LIENS. within the state, he having ceased to be a resident thereof/ notwithstanding the remedy by attachment in execution.^ In debt on a judgment against a firm, foreign attachment may be executed upon a debt due to one of the firm.^ This attachment lies in debt on a bond to the sheriff" for the appearance of the obligor;* in assumpsit, on a promissory note;^ in account-render, for the plaintiff can swear to the amount claimed by him, or the court, on a rule to show cause of action, can get at the sum in controversy with suf- ficient accuracy to fix the amount of bail necessary in order to dissolve the attachment." A claim for salvage may be enforced against the owners of the vessel by foreign attach- ment,^ as may also a claim for general average.* Foreign attachment may be employed by A. to recover damages for a breach of B.'s contract with him to furnish teas of a certain quality, B. having in fact furnished teas of an inferior grade. The difference in the value of the two grades of teas can be ascertained with sufficient precision." A. assigned a judg- ment to B., on B.'s undertaking to issue execution on it, pur- chase in a store of goods, and appoint A. his agent to retail them, who, after deducting a moderate support for himself and family, was to apply the proceeds to a debt owing by C. to B., in consideration of whose discharge from arrest, A. made the assignment of the judgment. The sale took place, but B. refused to put A. in charge of the store unless he gave secu- rity for the proper application of the proceeds A. had the remedy of foreign attachment.^" So had he when, having contracted with B. to convey land to B., in consideration of B.'s transfer to him of a printing establishment, B. failed to ' Broliisky v. Landers, 2 M. 371. "Stroek v. Little, 45 Pa. St. 416. 2 Brown v. Wilson, 1 Phila. 120; 'Albany City Ins. Co. r. Whitney, Christmas v. Biddle, 13 Pa. St. 233. 70 Pa. St. 248. Here the vessel was 'Jackson's Appeal, 2 Grant 405. attached. 'Thornton v. Bonham, 2 Pa. St. * Morris n. Turner, 3 CI. 423. 102. " Redwood v. Consequa, 2 Brown 62. ^Grant v. Hick ox, 64 Pa. St. 334. '"Garland v. Cunningham, 37 Pa. St. 228. FOEEIGX ATTACHMENT. 459 make the transfer. A.'s damages were the difference between the value of the land and of the printing establishment.^ When B., who has contracted to buy of A. 1,000 barrels of petroleum, refuses to take it, A. may obtain damages by foreign attachment.' If A. and B. make a joint and several note, and A. has to pay the entire note, he may, if a surety only, compel re-imbursement from B. by foreign attachment.* § 41G. When a vessel which had been captured by an American privateer during the Revolution and condemned as prize in the admiralty court of New Hampshire, was, on appeal to the federal court of appeals, ordered to be restored, the owner of the vessel could not sue the captor in foreign attachment, in Philadelphia, for the value of the vessel, he having failed to restore it or its value, in conformity with the decree of the court of appeals.* In general, foreign, attachment lies for the recovery of money becoming due in virtue of a contract, though damages for the breach of a contract must be capable of reduction to reasonable cer- tainty.' The contract need not be express,* but the money must be presently payable.^ That the defendant has, when a resident of this state, been discharged as an insolvent debtor, does not preclude a subsequent foreign attachment founded on a debt existing at the time of his discharge, and executed against a debt become due to him since his dis- charge.* That a receiver of the defendant corporation has been appointed in the state in which it is domiciled, is no bar to a foreign attachment of property belonging to it, at the suit of a resident of this state.' Objection to the fitness of foreign attachment is waived by the defendant if ' Jleylert v. White, 5 W. N. C. 342. « Morris r. Turner, 3 CI. 423. ^Penna. R. K. Co. v. Pennock, 51 'McCullough v. Grishobber, 4 W. Pa. St. 244. & S. 201. '' Collins V. Walker, 6 W. N. C. 175. « Brolasky v. Landers, 2 M. 371. ■■Doane's Adm. v. Penhallow, 1 'Bagley v. Atlantic, M. and O.K. Dall. 218. R. Co., 86 Pa. St. 291. 'Strock V. Little, 45 Pa. St. 416. 460 lAAV OF LIENS. he appears and pleads. The act of 13th June, 1836, section 64, declares that in such case the action must proceed as if begun by summons.^ What may be Attached. § 417. "Real or personal estate" of the defendant may be attached according to the forty-fourth section of the act of 13th June, 1836. Every variety of personal property is subject to be taken in foreign attachment, as will be seen by the follow- ing examples : Drug store, fixtures and stock,^ clothing,* a schooner,* a steamboat," horses," horses and store goods,^ canal boats,* certain oil,^ quantity of rum,^" carriage, cords of wood, lot of wheat,^^ cases and bales of merchandise in custody of a carrier,^^ forty-four casks of cheese,^' eleven hogsheads of tobacco," chairs and cabinet ware," lot of railroad iron,^* stone-coal,^'' bales of wool," ten sacks of wool,^° railroad cars forming part of the rolling stock of a foreign corporation,^* interest in oil leases, oil wells, fixtures,"^ a shallqp.^^ § 418. Choses in action are, like chattels, attachable. Specimens are : bank stock,^* shares in a gas and water ' Memphis, etc., R. R. Co. v. Wil- '^ Jones .. Hill, 2 M. 75. cox, 48 Pa. St. 161. Here the dis- ''fredway v. Stanton, 1 M. 388. puts was between the defendant and "Bingham v. Lamping, 26 Pa. St. the plaintiff in an action of covenant 340. begun by foreign attachment. '^Crawford v. Barry, 1 Binn. 481. 2 Coble !'. Nonemaker, 78 Pa. St. '"iiemphis, etc., R. R. Co. ii. "\Vil- 501. cox, 48 Pa. St. 161. 'Nathan v. State of Virginia, 1 "Vansyckel's Appeal, 13 Pa. St. Dall. 77, n. 128. ■•Albany, City Ins. Co. v. Whitney, '^ Green v. Kenney, 6 W. N. C. 574. 70 Pa. St. 248. '^Shriver v. Harbaugh, 37 Pi. St. = Glenn v. Davis, 2 Grant 153 ; Sel- 399. ser V. Dialogue, 4 W. N. C. 10. ™ Buffalo Coal Co. v. Rochester, « Duffy V. Owings, 1 CI. 33. etc., R. R. Co., 8 W. N. C. 126. ' Hampton v. Matthews, 14 Pa. St. -' Vandergrift & Foreman's Appeal, 105. 83 Pa. St. 126. » Lehigh Co. v. Field, 8 W. & S. 232. '^ Oniel v. Chew, 1 Dall. 379. »Penna. R. R. Co. v. Pennock, 51 ^Cramond v. Bank of the United Pa. St. 244. States, 1 Binn. 64; Ellmaker's Exr. '° Stevenson v. Pemberton, 1 Dall. 3. v. Bank of United States, 3 CI. 504. " Long's Appeal, 23 Pa. St. 297. FOE EIG X ATTACHMENT. 461 company/ bauk deposits," money due on a policy of fire insurance,^ money due on a mortgage,* on a bond,' on a promissory note, whether negotiable" or non -negotiable;'' money due by one railroad company to another, for tickets sold by the former for transportation partly over the latter's road;* a debt due the defendant, whether in domestic" or foreign judgment;^" any debt.^^ A debt due from a railroad company to A., payable in bonds, may be attached by a creditor of A., and he may recover so many of such bonds so due as, sold in the market, will produce his debt. He is not bound to accept them at par, unless his contract with A. obliged him to do so.^' Money in the hands of a stake- holder or agent, to be delivered to the owner, is liable to attachment. Thus, when an executor, under a direction in the will, sold lands, the proceeds of which were to be divided among certain legatees, and the share of A., a legatee, was ' Littell r. Scranton Gas and Water Co., 42 Pa. St. 500. ^Jackson's Appeal, 2 Grant 407; Jackson v. Bank of United State.?, 10 Pa. St. 61. ^Franklin Fire Ins. Co. v. West, 8 W, ct S 3.50 ; Girard Fire Ins. Co. v. Field, 4.5 Pa. St. 129. 'Rushtonr. Howe, 64Pa.St. 63. If a non-retident mortgagor pays the mortgage, directing it to be assigned to his attorney, who, on a subse- quent sale of the land, marks the mortgage satisfied, a foreign attach- ment served on the attorney between the assignment and the entry of sat- isfaction, seizes nothing. Bement v. Samuel, 1 W. N. C. 152. nValker v. Gibbs, 2 Dall. 211; Moser v. Mayberry, 7 W. 12. * Anderson v. Young's Exr., 21 Pa. St. 443 ; Ludlow v. Bingham, 4 Dall. 47 ; Kieffer v. Ehler, 18 Pa. St. 388. 'Anderson v Young's Exr., 21 Pa. St. 443. "Bagley v. Atlantic, M. and O. R. R. Co., 86 Pa. St. 201 ; Merchants' Bank i'. Petersburg R. R. Co., 4 W. N. C. 264. 'Brolasky v. Landers, 2 il. 371. Glenn v. Davis, 2 Grant 153, even though the attaching plaintiff be the defendant in the judgment. I'McCoombe v. Dunch, 2 Dall. 73.^ A judgment for the debt attached had been recovered in England, " Mullikin v. Aughinbaugh, 1 P. & W. 117 ; Farmers and Mechanics' Bank v. Little, 8 W. & S. 207; Erskiue r. Sangston, 7 W. 150 ; Adlum v. Yard, 1 R. 163; Hill v. Culan, 1 Grant 463 ; Bujac v. Phillips, 2 M. 71. "Frederick v. Easton, 40 Pa. St. 419. Hence, if, after the attachment is served on the railroad company, it parts with all the bonds save an amount insufficient when sold to realize the debt of the attaching creditor, it will be liable for the defi- ciency out of its proper funds. 462 LAW OF LIENS. paid by the executor to B., as A.'s agent to receive it, this u.iiiey in B.'s hands was liable to foreign attachment.^ If a sale of lands or goods is made for the purpose of defrauding creditors, and bonds are given by the vendee for the pur- chase money, a creditor sought to be defrauded by the sale may attach the lands or goods, as if they had never been sold, and another creditor may subsequently attach the bond?, and the vendee will be liable to him for the excess of the bonds bej'ond the value of the property taken away from him by the former attachment.^ Rent is attached incidentally by attaching the land demised, out of which it issues.'' Legacies and distributive shares in a decedent's personal estate, except such as are payable to married women, may be attached.* But when the testator directs the sale of his land after the death of his widow, there is, in the life- time of the widow and before the sale, nothing which can be taken in attachment against one of the legatees to whom the proceeds of the land are by the will to be distributed.^ DeM Need not be Presently Due. § 419. If the thing attached is money due, or a legacy, or a distributive share in a decedent's estate, it is not necessary that such money be presently demandable when the writ issues." Thus, a bond was attached which was not payable till two years after the date of the attachment.' So, was money due on a policy of fire insurance, after the fire, but before the loss was adjusted and settled.' A legacy was ^Gocbenaurs Exr. t'. Hostetter, 18 'Walker v. Gibbs, 2 Dall. 211; Pii. St. 414. Moser v. Mayberry, 7 W. 12. -Moser v. ^Iny berry, 7 W. 12. * Franklin Fire Ins Co. r. West, 8 " Section 05 of the act of 13th June, W. & S. 350 ; Girard Fire Ins. Co. v. 1836, [P. L. 584.] Field, 45 Pa. St. 129. Here the com- ''Actof27tb July,1842,|l,[P.L.436.] pany had the option within a certain ^ Hess V. Shorb, 7 Pa. St. 233. This time after the fire to repair the was attachment in execution. building, but the time had elapsed * Farmers and Mechanics' Bank v. for exercising it, when the attach- Little, 8 W. & S. 207 ; Walker v. ment issued. Gibbs, 2 Dall. 211. FOEEIGX ATTACHMENT. 463 attached three weeks after the testator's death, and judgment was recovered against the executor as garnishee, though he had not settled the estate nor filed an account, and the amount which the legatees would probably receive \Yas yet uncertain/ Even before the taking out of letters of adminis- tration by the executor, who, on that account, could not be made a garnishee, a legacy charged on land in behalf of a widow, who likewise had a life estate in that land, could be attached in her hands, as widow and life-tenant.' Cash Sales. § 420. Money becoming due from a vendor to a vendee, by a cash sale, whether of land or personalty, is not a debt which can be attached. A non-resident contracted with A. to sell him a stock of goods for cash, the payment to be made so soon as the quantity and value of the goods should be ascertained. A foreign attachment was served on A., on the day on which the payment was to be made, but before it was in fact made. A. then deposited so much of the purchase money as would meet the attaching plaintiff's demand, in the hands of a stakeholder to await the decision of the court. It was held that the money was not a debt, the sale being for cash, and could not be attached.^ So, when, on a sale of land for cash, the deed was delivered and the purchase money was paid at the same time, the purchase money could not be attached between the making of the contract of sale and its consummation by the delivery of the deed.^ Debt Extinct. § 421. As in the cases just considered no debt arises, so, in others, the debt may be extinguished before attachment. If a debtor to a corporation makes a due bill for the debt, payable to the order of A. B., who is in fact its president and business 'Sinnickson v. Painter, 32 Pa. St. MVilliam's Estate, 1 Leg. Gaz. 67. 384 ; Lorenz's Adm. v. King, 38 Pa. 'Furness v. Smith, 30 Pa. St. 520. St. 93. * Sarvi v. Brazier, 1 Phila. 214. 464 LAW OF LIENS. agent, and the proceeds of the negotiation of the due bill are received by the corporation, the- debt ceases to exist, and consequently cannot be subsequently attached.^ Interest. § 422. A part of the debt is the interest which it bears. A foreign attachment, however, has the eflfect, in the absence of fraud, collusion or unnecessary delay by the garnishee, of destroying the interest-bearing faculty of the debt attached, between the service of the attachment and the judgment on the scire facias against the garnishee,' but not of more of the debt than will be reasonably necessary to meet the claim of the attaching creditor, when the debt due by the garnishee exceeds that of the defendant to the plaintiff in the attach- ment.'* In such a case, a liberal allowance, in addition to the sum demanded in the attachment, will be made for costs and expenses.* When a deposit is kept with a bank, in the name of "A., agent," and the bank, garnisheed on a judg- ment against B., answers truthfully that it does not know B., and has no information for whom A. is agent, and, also, that it has discounted two notes made for the accommodation of "A., agent," but not mature at the date of the attachment, it is not liable for interest between the attachment and the judgment therein against it.' When the garnishee causes unreasonable delay, he is liable for interest.* The plaintiff in the attachment is entitled to interest on his debt, together with the costs down to the execution of the judgment against the garnishee, if the property of the defendant, in the hands of the latter, is sufficient.' 'Doughertyt),Hunter,54Pa.St.380. * Jackson's Exr. v. Lloyd, 44 Pa. St. •'Irwin V. Eailroad Co., 43 Pa. St. 82; Fitzgerald v. Caldwell, 2 Dall. 488; Allegheny Savings Bank v. '215. Meyer, 59 Pa. St. 361 ; Updegraff v. ^ Jones v. Manufacturers' Bank, 10 Spring, 11 Serg. & E. 188 ; Weber v. W. N. C. 102. Carter, 1 Phila. 221. "Rushton v. Rowe, 64 Pa. St. 63. »Mackey v. Hodgson, 9 Pa. St. 'Frederick v. Easton, 40 Pa. St. 468; Updegraff t). Spring, 11 Serg. & 419. R. 188. FOEEIGX ATTACHMEXT. 465 Heal Estate Attachable. § 423. Real estate of the defendant is liable to foreign attachment.^ Lands devised or inherited, whether in specie, or converted into money by sales in partition, or otherwise, may be attached.^ Property Attachable Considered as to its 0-wnership. § 424. The lands and chattels which may be attached are, it need not be said, the property of the defendant in the attachment. If the defendant is a firm com^josed of several partners, the joint property of these partners, and the indi- Tidual property of each, can be attached. A.'s bank deposit may be attached on a debt due from A. and B., as partners, to the plaintiflF," as may a debt of any kind due to either of the partners.* A debt due a firm of A. and B., cannot, however, be attached for a debt due from either A. or B., on individual account, to the attaching plaintiff." Though the individual property of an absent joint debtor may be attached in a suit begun against the joint debtors, one of whom is personally served, in conformity with the provisions of the seventieth section of the act of 13th June, 1836, the partnership prop- erty is not subject to such attachment, since it can be levied on in execution on a judgment recovered against the present partner alone, for the firm debt.* § 425. If the defendant in the attachment has sold the property before the attachment to a bona fide purchaser, it cannot be attached for his debt. Xor can it if it has been assigned to the garnishee to secure a debt due him, before the attachment issues and is served;^ or if it has been sent 'Fitch V. Ross, 4 Serg. & K. 557. one partner might attach a debt clue Two houses were attached. the partnership and appropriate a. Mctof July 27th, 1842. [P. L. 436.J moiety thereof. This case was fol- ' Jackson's Appeal, 2 Grant 407. lowed in Morgan v. Watmough, 5 * Caignett v. Gibaud, 2 Y. 35. Wh. 123. 'McCoombe v. Dunch, 2 Dall. 73; •'White v. Schnebly, 10 W. 217. Lewis r. Paine, 1 Leg. Gaz. Kep. 508. 'Childs v. Digby, 24 Pa. St. 23; Yet, in McCarty v. Emlen, 2 Dall. Hampton v. Matthews, 14 Pa. St. 277, it was decided that a creditor of 105 ; Noble v. Thompson Oil Co., 79 2e 466 LAW OF LIENS. to the garnishee to be sold, and its proceeds to be first applied to a debt due by the defendant to the garnishee, and then tc other designated creditors;^ or if it has been assigned to a third person, though the garnishee in whose possession it is, receives no notice of the transfer till after the attachment is- served, but before judgment is recovered against him.^ A retransfer to the vendor by the vendee before the attachment against the vendee is served, of cattle on which the vendor had reserved a mortgage for the purchase money, will prevail against. the attachment.' A valid assignment for the benefit of creditors of all his estate and effects, by the defendant before the service of the attachment, embraces debts due to him, a subsequent attachment of which Avill be void.* A non-resident, indebted to several persons, and owning a bill of exchange, transmits it to A., with direction to apply its proceeds to certain enumerated creditors. One of these creditors instituted a foreign attachment, attaching this bill in A.'s hands. He was permitted to recover only so much of it as A. had been directed to pay to him.'' Goods shipped to a creditor in payment of his demand, are not liable to foreign attachment by another creditor, while in the ship and before they have reached the consignee whose debt they were intended to pay." If, before the attachment is served, the garnishee has accepted an order to pay a part of his debt to a third person, only the remainder of the debt continues^ subject to attachment in a suit against the original creditor of the garnishee.' A negotiable promissory note negotiated Pa. St. 354. The fii'st two of these not if the assignment is made with cases show that an assignment made a view to dehiy creditors, and is, li_v an agent without anthority, and therefore, void, not ratified till after the attachment, "Sharpless v. Welsh, 4 Dall. 270. Avill not prevail against it. "Wood v. Roach, 1 Y. 177. 'Stevenson 1' Pemherton, 1 Dall. 3. 'Erskine r. Sangston, 7 W. 150. ^ Noble I'. Thompson Oil Co., 79 The answer of the garnishee to in- Pa. St. 354. terrogatories being read to the jury 'Megee v. Beirne, 39 Pa. St. 50. by the plaintiff, the garnishee may *rianigan v. Wetherill, 5 Wh. 280; show the accepted order. Adlum V. Yard, 1 Eawle 162. But FOEEIGX ATTACHMEXT. 467 even after the service of tlie attachment upon the maker, but before maturity, to a bona fide purchaser for a consideration, is not held by the attachment.^ If a non-negotiable note is assigned bona fide and for consideration by the defendant, it cannot be bound by an attachment subsequently issued against the defendant.^ Death of Defendant. § 426. When goods devolve by death on the executor or administrator, they cease to be subject to attachment. Other- wise the attaching creditor could disturb the order established by law for the payment of a decedent's debts.^ The defend- ant's death before final judgment dissolves an attachment.* By analogy, the dissolution of a corporation by a decree of forfeiture of its charter, works the same result.* But, judg- ment in foreign attachment being obtained April 30th, 1816, on which, under a writ of inquiry, returnable to the follow- ing December Term, the damages were assessed, the death of the defendant January 6th, 1818, after afi. fa. had issued and been levied on the property attached, did not dissolve the attachment." Assignments. § 427. An assignment of property, made for the j)urpose of defrauding creditors, will not withdraw the property so assigned from the attachments of the creditors intended to ' Anderson r. Young's Exr., 21 Pa. Pennsylvania. Bank v. MeCall, 4 St. 443 ; Ludlow v. Bingham, 4 Dall. Binn. 371. 47 ; Kieffer v. Ehler, 18 Pa. St. 388. ' Ludlow v. Bingham, 4 Dall. 60. ' Anderson v. Young's Exr., 21 Pa. ^Farmers and Mechanics' Bank St. 443. V. Little, S W. & S. 207. •'Williamson v. Beck, 8Phila.269; « Pitch v. Koss, 4 Serg. & R. 557. Pringle v. Black's Exr., 2 Dall. 97 ; In Mullikin v. Aughinbaugh, 1 P. & . McCoombe v. Duneh, 2 Dall. 73; W. 117, the defendant dying between Bushel r. Commonwealth Ins. Co., the interlocutory judgment and the 1-5 Serg. & R. 173. But an attach- execution of the writ of inquiry of ment in San Domingo, of a dead damages, it was said to be a " nice man's effects there, will not be and critical question" whether the treated as void by the courts of attachment would be dissolved. 468 LAW OF LIEXS. be defrauded.^ If A., purchasing from B. a stock of drugs in a store, mortgages it to him for the purchase money, (B. having the right to resume possession, to sell, and apply the proceeds to the debt,) and subsequently sells this stock to C, who has knowledge of the mortgage, these drugs continue the property of A., so far that B. may attach them in debt as A.'s, in the hands of C, as garnishee.^ An assignment in trust for the benefit of creditors, executed in another state, is valid in Pennsylvania, under the act of May 3d, 1855, [P. L. 415,] with respect to the property of the assignor in the several counties of the state, as against bona fide pur- chasers, mortgagees or lien creditors, only from the time of the recording thereof in the several counties. Hence, an assignment made in Maryland, January 4th, 1860, but never recorded in Somerset county, was invalid as against A., who, having no notice of it, issued in that county an attachment ijanuary 9th, 1860, which was served January iSth.'' That a firm of A. & Co., had been dissolved by the circuit court of the United States for the district of Delaware, and a receiver appointed, did not prevent an attachment of a debt due the firm in the state of Pennsylvania, and a rule to quash the writ, for that reason, was discharged.* § 428. An assignment made subsequently to the attach- ment cannot weaken its hold on the property assigned.^ This is true of the money due on a fire policy, after the fire, though, when the attachment issued, the loss had not been settled and adjusted.** If, after attachment, the defendant takes the benefit of the insolvent law of Massachusetts, ^ Moser v. Mayberry, 7 W. 12. leave to ameud was accorded the ^ Coble V. Nonemaker, 78 Pa. St. plaintitl'. 601. Other remedies of B. were a * An exception is a negotiable note, sale under the power reserved in the negotiated before maturity. Ander- mortgage, or replevin. son v. Young's Exr., 21 Pa. St. 448 ; ^ Philson r. Barnes, 50 Pa. St. 230. Ludlow v. Bingham, 4 Dall. 47; * Lucas V. Diggens & Co., 11 W. N. Kieffer i;. Ehler, 18 Pa. St. 388. C. 77. The writ and pra-cipe not " Franklin Fire Ins. Co. v. West, 8 giving the names of the partners W. & S. 350. FOREIGN ATTACHMENT. 469 ^liere he resides, and trustees are duly appointed on whom all his property devolves, their title thus acquired is subject to the attachment.^ A mortgage of a foreign railroad, its roll- ing stock and fixtures, will not prevent a subsequent attach- ment of cars covered by the mortgage, when found in this state,'^ nor of debts due the mortgagor, a railroad comj^any.' Attachable Property, as Related to the Garnishee. § 429. Certain property is exempt from attachment, on account of the person in whose possession it is. A debt due from a foreign corporation to the defendant cannot be attached, though it is required by act of assembly to have a resident agent on whom service can be made.* The thirteenth section of the act of April 4th, 1873, [P. L. 20,] requires all foreign insurance companies doing business in this state to consent that any legal process may be served on the insurance commissioner, or a party designated by him, or an agent indicated by the company, with the same effect as if served personally on the company within the state. Under this provision, such foreign insurance companies may be garnisheed in foreign attachment." § 430. The act of Aj^ril 12th, 1855, [P. L. 213,] exempts all persons or companies engaged in the business of forward- ing or transporting goods, wares and merchandise, from liability in attachments as garnishees or otherwise, when such goods, wares or merchandise are in transitu and, at the time of service of the process, beyond the limits of the state, without default, collusion or fraud on the part of any such person or company. A municipal corporation, e. g., the city of Erie, cannot be made a garnishee;" nor a prothonotary, in ' Kushton V. Howe, 64 Pa. St. 63. t^nrance company, liable for loss by ^Buffalo Coal Co. v. Rochester, fire in New York. See, also, Barron etc., R. R. Co., 8 W. & S. 126. v. Morrison, cited 2 Bright., Troub. ^Merchants' Bank v. Petersburg & H. Pr. § 2258, n. 4. R. R. Co., 4 W. N. C. 264. = Darlington v. Rogers, 36 Leg. Int. * Meylert v. White, 5 W. N. C. 342. 115. The garnishee here was a foreign in- ^City of Erie v. Knapp, 29 Pa. St. 173. 470 LAW OF LIENS. respect of money paid to him in satisfaction of a judgment;^ nor a justice of the peace, for moneys collected by him for the defendant in the attachment;^ nor a constable, concerning the balance of money in his hands after paying the execu- tion;^ nor the county commissioner or treasurer, in respect of fees due the defendant in the attachment, as a juror;* nor the supervisor of the Philadelphia and Columbia railroad, (an officer under the employ of the state, appointed by the board of canal commissioners,) with respect to a sum due to a foreman of a section of that road.® § 431. A domestic corporation may be made a garnishee, e. g., a fire insurance company,^ a railroad company,'' a national bank,* the bank of the United States.' An execu- tor or administrator may, under the act of 27th July, 1842, £P. L. 436,] be garnisheed with respect to any legacy or dis- tributive share.^° And when the executor declined to take out letters of administration, the owner of the land upon which a legacy was charged, was garnisheed with respect to the legacy." When an executor, authorized by the will to sell laud of the decedent, appoints an agent to make the sale, and, after the sale. A., one of the persons to whom the pro- ceeds are distributable, appoints the same person agent to re- 'Eoss V. Clarke, 1 Dall. 354. the hands of an executor could not ' Corbyn v. BoUman, 4 W. & S. 342. be attached. The act of 2Sth Feb- 3 Crossin v. McAllister, 1 CI. 257. ruary, 1873, 1 1, [P. L. 37,] authorizes 'Simons V. Whartenaby, 2 CI. 438. executors or administrators, when 'Pierson O: McCormick, 1 CI. 260. made garnishees, to petition the "Franklin Fire Ins. Co. v. West, 8 court after the third term for a rule W. & S. 350. on plaintiff and defendant to show 'Merchants' Bank v. Petersburg cause why the attachment should R. R. Co., 4 W. N. C. 264 ; Memphis, not be proceeded in within such etc., E. E. Co. V. Wilcox, 48 Pa. St. time as the court may order. On 161. the plaintiff's neglect to proceed ac- * Warren v. Union Xational Bank, cording to this order, the court may 7 Phila. 156. discharge the garnishee and the 'Jackson D. Bank of United States, property in his hands from the at- TO Pa. St. 61. tachment. "In Shewell v. Keen, 2 Wh. 332, "Williams' Estate, 1 Leg. Gaz. 67. and Bnrnett v. Weaver, 2 Wh. 418, it Though the garnishee and the de- had 1 cen decided that a legacy in fendant were the same person. FOREIGX ATTACHJIEXT. 471 ceive his share of the purchase money, such agent may be gar- nisheed in an attachment against A.^ A plaintiff in foreign attachment may attach in his own hands the property of the defendant, or debts owing by him to the defendant.^ Thus, a steamboat in charge of the plaintiff has been attached, and a judgment in which the attaching plaintiff was defendant.^ Set-oflf. § 432. When an attachment is made of money payable by the garnishee to the defendant, the former has the right to set off a sum of money due to himself from the latter. But when the defendants are a partnership, the garnishee ■cannot set off a debt due him by one of the partners, unless all the partners have made it a firm debt.* If the garnishee, a bank, holds dejjosits in the name of " A., agent," which are attached on a judgment against B., the principal, the bank cannot set off notes discounted by it, drawn for the accommodation of " A., agent," and endorsed by him to the bank, but not mature when the attachment was served.^ If the garnishee is simply a representative of another, e. g., an executor, administrator or trustee, he has the right of set-off as respects any moneys due by the defendant to the estate or j)ersons whom he rejjresents. A creditor of a legatee who is indebted to the testator, can attach effectually only so much ■of the legacy as exceeds the indebtedness of the legatee. If the testator was liable as surety, for the legatee, and it is still uncertain whether his estate will be compelled to pay the debt, the attaching creditor can recover the legacy only ■on indemnifying the executor from the payment of the debt.'^ § 483. The garnishee has also the right to set off a debt ' Gochenaur's Exr. v. Hostetter, 18 it is his duty to give timely notice to Pa. St. 414. his principal of that fact. Moore & 2 Mover v. Lobengeir, 4 W. 390; Co. t). Thompson, 9 Phila. 164. <^raighle r. Notnagel, 1 Pet. Eep. 245 ; ^ Glenn v. Davis, 2 Grant 153. Coble V. Noneraaker, 78 Pa. St. 501, *Xorcross v. Benton, 38 Pa. St. 217. 2 Bright., Troiib. & H. | 2283. But * Jones v. Manufacturers' Banlc, 10 when the plaintiff aliaches goods in AV. N. C. 102. his hands as agent of the defendant, *Ross v. McKinney, 2 Eawle 227. 472 LAW OF LIENS. due by the plaintiff in the attachment to himself. If, how- ever, the attaching plaintiff is the executor or administrator of a deceased creditor, the garnishee loses the right of set-off,, because otherwise he would gain a preference over other creditors of the decedent, in case of the insolvency of the- estate of the latter. A. & B., partners, attached stock of C. in the Bank of the United States, and dividends that were payable thereon' A. and B. were also liable to the bank for a note drawn by X. and endorsed by them, and discounted by the bank. After the attachment had been begun, A. & B. died, and the adminis*^rator of the last surviving was sub- stituted. The bank was not permitted to set off against C.'s stock and dividends the money due by A. & B. as endorsers on the note.^ Seginning and Duration of the Lien. § 434. The lien of the attachment begins with the actual service of the attachment of the goods and lands of the de- fendant, in pursuance of the command of the writ," not with the recovery of the judgment thereon against the defendant. Thus, a writ was issued at the suit of A. against B., August 2d, 1869, and B.'s real estate was attached before August 9th. On August 9th, a judgment was recovered by another cred- itor of B., in a personal action against him. A.'s attachment was the prior lien, though judgment was not recovered thereon until March 14th, 1870.' K. issued a writ of foreign attach- ment, which was executed January 18th, 1847, against M.,. and L. recovered a judgment against M. personally, Mav 12th, 1848. In a distribution of the proceeds of the sheriff'^ sale of the attached property, K. had precedence, though ' Cramond v. Bank of the United and 6th of October take precedence States, 1 Binn. 64, 4 Dall. 291. Con- of executions coming into the sher- versely, if, after the attachment, the iff's hands on the 13th and loth garnishee dies insolvent, the plain- of the same month. Vatidergrift & tiff in the attachment gains no pref- Foreman's Appeal, S3 I'a. St. ]"2ii; erence over other creditors. Parker YeUerton v. Burton, 20 Pa. St. 351 ; V. Farr, 2 Brown 331. Littell v. Scranton Gas and Water '' Section 50, act of 13th June, 1836, Co., 42 Pa. St. 500. [P. L. 581.J Writs served on the 3d ^ Reed's Appeal, 71 Pa. St. 378. FOHEIGX ATTACHMENT. 473 judgment was obtained in his attachment only to November Term, 1848.' § 435. As respects foreign attachments of the same proj)- erty inter se, a day is the ultimate unit of time. Fractions of a day are not considered. Writs executed on the same day, but at different hours, share pro rata in the proceeds of the sale of the attached property, whether it be real or per- sonal.^ Hence, when, of several writs of attachment, the sher- iff's returns showed service at different hours of the same day, and, of another attachment, his return showed service on the same day, but mentioned no hour, all these writs took the pro- ceeds of the sheriff's sale of the attached property pro rata.^ § 436. The fifty-first section of the act of June 13th, 1836, [P. L. 580,] makes it the duty of the sheriff to file in the office of the prothonotary, a description of the real property attached, within five days after the attachment shall have been made. This description must be entered in the pro- thonotary's docket, and the names of the parties, the date of the service of the attachment and the amount of bail required, must be entered in his judgment docket. What the effect of the omission of the sheriff or the prothonotary to perform the duty thus imposed upon him, would be, does not yet aj^pear. Before the expiration of the five days, however, and after it, if within that time the directions of this section have been complied with, the attachment is and continues a lien from the time of its service upon real estate, as against subsequent purchasers and mortgagees,* and judgment cred- itors." That an appearance of the defendant is entered four 'Sehacklett's Appeal, 14 Pa. St. were permitted to share in the pro- .326. ceeds in the order in which they ^Long's Appeal, "3 Pa. St. 207; were served. This case was affirmed Yelverton i'. Burton, 26 Pa. St. 351 ; by the supreme court. Baldwin's Appeal, 86 Pa. St. 483. 'Long's Appeal, 23 Pa. St. 297. Yet, in Ca.-e t'. Case, 5 CI. 281, where 'Xeely v. Grantham, 58 Pa. St. several attachments were served on 433 ; act of 13th June, 1836, I 51. the same personal property at differ- * Schacklett's Appeal, 14 Pa. St. ent hours of the same day, they 326. 474 LAW OF LIENS. days after the service of the attachment, and a judgment is uhimately recovered in personam, does not relax the lien acquired by the attachment.^ § 437. The judgment recovered regularly in the foreign attachment is simply an instrument for enforcing the pre- viously-acquired lien of the attachment, and on such a judgment against the defendant, land which has been attached may be levied on and sold, although no sci. fa. has issued to the garnishee.^ The judgment, unless after an appearance of the defendant, can neither extend the lien to property not attached,' nor authorize its sale. A tract of land described as attached by the sheriff's return to a foreign attachment was stated to contain 150 acres. An amendment was subsequently allowed by which 8144 acres was substituted for 150 acres. Under the judgment recovered, the defendant never appearing, only the tract described as attached in the original return, was lawfully sold.* An action of debt can- not be sustained on a judgment recovered in foreign attach- ment without appearance of the defendant, since such a judgment is valid against the attached property only.* Such a judgment is not conclusive evidence of the indebtedness in collateral proceedings,'' and when the attaching creditor attaches money in his own hands due the defendant, the judgment recovered by him is not even prima facie evidence of his claim against the defendant, in an action subsequently brotfght by the latter against him to recover the debt.'' iScliacklett'sAppeal,14Pa.St.32^;; ^Darrah v. Wilson, 2 M. 116; Steel Littell I'. Seranton Gas and Water Co., c. Smith, 7 W. ife S. 447. Fur this 42 Pa. St. 500. reason, a 8ci. fa. post annum et diem ''Gibson V. Robbins, 9 W. 156. w:i.s unnecessary, when the interloc- 'Megee v. Beirne, 39 Pa. St. 50; utory judgment was entered, in Glenn v. Davis, 2 Grant 153 ; Plana- 1797, before issuing the writ of in- fcin I' Wetherill, 5 Wh. 2.S0 ; Steele. quiry of damages, in 1811. Cookson Smith, 7 W. & S. 447 ; Blyler v. v. Turner, 3 Binn. 416. Kline, 64 Pa. St. 130; Steinn)etz c. «Phelps v. Holker, 1 Dall. 261; XLxon, 3 Y. 285; Morgan v. Neville, Betz v. Death, Add. Rep. 256. 74 Pa. St. 52. ' Meyer v. Lobengeir, 4 W. 390. !". S.) 61. to dissolve, furnish specific affida- ''Sharpless v. Zeigler, 92 Pa. St. vits ; but when the original affidavit 467 ; Baj'ersdorfer v. Hart, 7 W. N. is specific, the burden is on the de- C. 487. fendant to deny, specifically, the "Frailey r. Central Fire Ins. Co., & fraud. Matthews v. Dalsheimer, 10 Phila. 219. W. N. C. 871. « Sharpless v. Zeigler, 92 Pa. St. iWightman v. Henry, 1 W. N. C. 467. 74. " Section 5, act 17th jVlarch, 1869 ^ Quay V. Bobbins, 1 W. N. C. 154. [P. L. 10.] ^McCallum v. Hodder, 2 W. N. C. ^Conway v. Butcher, 28 Leg. Int. 185. To the contrary, are Gould v. 220. ATTACHMEXT U^SfDER THE ACT OF 1869. 499 tiff may, at any time after the first day of the second term succeeding the issue of the attachment, proceed against the defendant and the garnishee, by rule, interrogatories, etc., as in case of foreign attachment.-' The term to which the writ issues is counted as one of these two terms. Hence, when an attachment issued to September Term, 1874, returnable on the first Monday in October, judgment by default might properly be taken on December 14th, for want of an appear- ance, and interrogatories might be filed with rule to answer in twenty days.^ Indeed, if there has been service of the summons on the defendant, a judgment by default for want of appearance can be taken as in an ordinary action. It is not necessary to wait for the second succeeding term, and the interrogatories may be filed at once.^ Exemption. § 469. The act of March 17th, 1869, does not interfere with the right of exemption of property from levy and sale under existing laws,* whenever the demand is founded on a contract.® But the defendant must claim it, and with such promptness as to occasion no delay to the plaintiff, nor cause him to incur costs that might be avoided." The claim is not too late, however, because not made till after the recovery of judgment. An attachment issuing August 2d, 1875, a motion to dissolve was filed August 9th, but counsel subsequently agreed the attachment should continue. On October 15th, 1877, after narr. in debt, and plea, judgment was entered by agreement. On October 30th, 1877, a vend. ex. issued which, on November 9th, was stayed on the petition of the defend- 1 Section 4, act 17th March, 1869. C. 839. Comp. Klett v. Craig, 1 W. ^Yerkes v. Craig, 1 W. N. C. 157. K C. 129. Writ issued December 2d, 1881, re- ' Klett i'. Craig, 1 \V. N. C. 129. turnable to first Monday of Decern- * Section 6. ber. It was returned mM M6e<, and ^Washburn v. Baldwin, 10 Phila. on March 10th, 1882, judgment was 472. properly entered for want of appear- ^ Morris v. Shafer, 8 W. N. C. 480. ance. Artman v. Adams, 11 W. N. 500 LAW OF LIENS. ant, alleging that vend. ex. was not a proper writ. The court deciding the vend. ex. proper, an alias vend. ex. issued January 18th, 1878. At the defendant's request, before the advertise- .ment of the sale, the sherijBf appraised and set aside property- attached, of the value of $257.65. The claim was in tiine.^ The claim can be effectively made by the answer of the gar- nishee to interrogatories, in which, while admitting his debt, he states that the defendant demands the exemption." A claim for exemption before judgment was even denied as premature, when made against perishable j^roperty, which the court, in accordance with the provisions of the fourth section of the act of March 17th, 1869, ordered to be sold.^ The claim was made too late in the following case : Attach- ment was issued August 1st, 1877, returnable the second Monday of September. On August 13th, 1877, a rule issued to show cause why the attachment should not be dissolved, which, after depositions were taken and a commission to take testimony was dispatched to Texas, at the instance of the plaintiff, was on May 6th following, discharged, and on the same day judgment was entered for the plaintiff. On May 7th, interrogatories to the garnishee, and on May 11th, his answers, were filed. On May 22d, plaintiff proceeded to arbitrate the case against the garnishee, and the arbitrators filed their award on June 27th, for $228.80. A demand for the $300 exemption, filed by the defendant July 10th, was too late.* ' Cornman's Appeal, 90 Pa. St. 254. before the sale, was set aside by the In Ashworth v. Addy, 7 W. N. C. court. 342,. the exemption claimed after * Morris v. Shafer, 8 W. N. C. 480. execution had issued and the sale In Mulligan v. Leeds, 2 W. N. C. 248, had been advertised, was allowed. it seems to be implied that the de- ^Hilbronner v. Sternberger, 4 W. fendant has a right to the exemp- N. C. 186. tion, though he make no claim for * Martin v. Magarry, 8 W. N. C. it; and in Hilbronner r. Sternberger, 145. The appraisement and setting 4 W. N. C. 186, Elcock, J., remarked .apart of $300 worth, made an hour that "the act itself exempts property to the value of $300." ATTACHMENT UNDER THE ACT OF 1869. 501 Execution. § 470. In several eases a fi,. fa. has been employed as the writ of execution of the judgment recovered.^ Since the attachment is a mere preliminary lien, a fi. fa. issued on the judgment is not a double execution, justifying the setting aside of the attachment.'-^ On the theory that the sheriff already had the goods attached in his possession, a vend. ex. was once issued as the first writ of execution, and sustained by the common pleas.' 3 ' Gould V. Walker, 2 W. N. C. 81 ; ^ Gould v. Walker, 2 W. N. G. 81. Frailey v. Central Fire Ins. Co., 9 ^Cornman's Appeal, 90 Pa. St. Phila. 219 ; Mulligan v. Leeds, 2 W. 254. N. C. 218. 502 LAW OP LIENS. CHAPTEK XVII. ATTACHMENT XJNDEK. THE ACT OP APRIL 6tH. 1870.^ § 471. la cases of arrest for homicide, or for assault and battery resulting in great bodily barm with imperilment of life, if, being held to bail, the person arrested shall make default whereby his recognizance shall be forfeited, and shall flee the jurisdiction of the court, the person injured by the crime, or his executors or administrators, may begin an action for damages by filing in the proper court a certified copy of the record of the criminal proceedings, together with an affidavit that the defendant has left, or is about to leave the jurisdiction of the court. The court shall then award and issue an attachment against all the goods and chattels, lands and tenements, rights and credits of the defendant, or against any part thereof within the jurisdiction of said court. This attachment shall be served, and shall have the same effect, "and the proceedings under it against the defendant and the garnishee shall be the same as in cases of foreign attachment. This act applies only to the city of Philadelphia. 'P. L. 960. INDEX TO VOL. I. Index to Vol. I. The bold figures indicate the Pages, the others the Sections and, when preceded by the letter n., the Notes. ATTACHMENT IN EXECUTION, LIEN OF § 378 ACTS OF ASSEMBLY. Act of 24th February, 1721, 1 Sm. L. 124 383 29th March, 1819, 7 Sm. L. 248.... 391 16th June, 1836, P. L. 767 378, 390, 429, n. 1, 394, 400 13th April, 1843, P. L. 235 378, 387, 427, n. 1 15th April, 1845, P. L. 460 386 10th April, 1849, P. L. 620 378, 387, 388, 427, n. 2 27th March, 1873, P. L. 49 378 13th June, 1874, P. L. 285 397 Administrator of defendant, calling in by sci.fa 380 Alimony, attachment founded on decree for 379 Assignment of debts, legacies, etc 392 et seq. ATTACHMENT. matters collateral to judgment as affecting issue of. 380 one pending, no bar to another 380 service of writ of 401 Award of arbitrators, attachment on 379 BEGINNING OF LIEN. on land 381 personalty 400 Certificate of " no goods," transcript of justice's judgment. , 380 Cbattels, attachment of. 389 Corporation, attachment on judgment against 379 Costs, recoverable from garnishee 399 Debts, attachment of. 382 et seq. , ' Decedent's estate, attachment of share in 386 et seq. Dtiration of lien on land 381 Executions and subsequent attachment 380 GAKMSHEE Sdietseq. what may be recovered against 398, 399 G-OOds, attachment of. 389 Interest, recoverable from garnishee 399 Judgment, as support of attachment 379 (3J 4 INDEX TO VOL. ONE. ATTACHMENT IN EXECUTION— Continued. Judgment docket 381 Justice's judgment, attachment on transcript of. 380 Land, subject of lien of attachment 381 Legacies, attachment of. 387 et seq. Opening judgment, and issue of attachment 380 Orphans' court, decree of as basis of execution 378 Service of the attachment 401 Set-off, garnishee's right to 398 Sheriff's docket 381 Stock, attachment of. 390 SUBJECT OF LIEN OF ATTACHMENT. land 381 debts 382 wages 386 legacies and distributive shares 387 "Wages, attachment of 386 ATTACHMENT, ACT OP I7th MARCH, 1869 § 460 Act of 25th May, 1878, P. L. 147 496, n. 3 Affidavit on which attachment issues 463 Assignment of goods, fraudulently, a cause of attachment 462 IBond on which attachment issues 464 Causes for which the attachment may issue 460 et seq. Concealment of goods fraudulently, a cause of attachment 461 Debts fraudulently contracted, cause of attachment 460 Dissolution of attachment 466 Execution of judgment in the attachment 470 Exemption 469 Origin of lien of attachment 467 Proceedings on attachment to judgment 468 Removal of goods, fraudulently, cause of attachment 461 Service of attachment 465 Subject of attachment 465 ATTACHMENT, ACT OF Bth APRIL, 1870, P. L. 960 §471 DECREES IN EQUITY, LIEN OP § 217 ACTS OF ASSEMBLY. Act of 29th March, 1859, P. L. 289 217 16th April, 1840, P. L. 410 217 INDEX TO VOL. ONE. O DEPOSIT NOTES OF INSURANCE, LIEN OF § 248 ACTS OF ASSEMBLY. Act of 13th April, 1838, P. L. 863 306, vi. 1 26th July, 1842, P. L. 426 306, n. 2 Beginning of lien 249 Duration of lien 249 Losses, for which assessments are lien 249 Married -woman's note, lien of 249 Source of lien 248 Subjects of lien 249 DOMESTIC ATTACHMENT § 451 EXECUTIONS, LIEN OF § 254 ABANDONMENT. oifija 261 effect of, on lien 297 ACTS OF ASSEMBLY. Act of 21st March, 1806, 4 Sm. L. 326 256 20th March, 1810, 5 Sm. L. 166 257, 325, 327, 329 28th March, 1820, 7 Sm. L. 309 325 16th June, 1836, P. L. 717 256 16th June, 1836, P. L. 768 267, 269, 318, 321 16th July, 1842, P. L. 407 298, 301 nth AprU, 1848, P. L. 536 257 19th February, 1849, P. L. 84 256 20th April, 1853, P. L. 610 317, 319 22d April, 1856, P. L. 532 317 7th April, 1870, P. L. 58 324 8th April, 1873, P. L. 65 311 Administrator, lien of execution against, on decedent's land 316 Afildavit of defence, judgment for part of debt admitted by, execution on... 257 Agreement between lien creditors, effect of, on lien 268 ALIAS FI. FA. form of. , 261 when returnable 262 Assignment for benefit of creditors, lien of execution as to 271, 276,. 283, 291, 294 Assignee in trust for creditors, sale by, instead of by sheriff. 294 Auditors, county, report of, execution on 25& b INDEX TO VOL. ONE. EXECUTIONS— Continued. AWAED. in amicable arbitration, execution on 256 in compulsory arbitration, execution on 256 of viewers, under railroad law, execution on 256 BEGINNING OF LIEN OF EXECUTION. on chattels 267,268 when chattels come into county while sheriff has writ 268 levy on later of two writs, effect of, on lien 272 plaintiff in later of two writs, effect of a bond of indemnity by 272 sheriff's interpleader, effect of, on order of lien 272 levy and sale under later of several writs only, effect of. 273 lien of testatum executions, beginning of. 823 executions on realty, begins with levy 313 Bond of indemnity, to sheriff. 272 Bond for forthcoming of goods 280, 302 Bond for stay, under act of 16th July, 1842 281 Chattels, real, levy on 286 Constable, executions enforced by 325 et seq. Constable and sheriff, competing executions of. 279, 299, 300 Constable and constable, competing executions of. 326 COEPOEATIONS. executions against, form of. 324 not liens 324 County, all chattels of defendant in, bound hj fi.fa 263 et seq. County auditors, execution on report of 256 Court, stay of execution by, effect of on lien 277 DELAY IN EXECUTING FI. FA. effect of on lien 291 caused by the law, effect of on lien 301 et seq. DELIVEEY OF FI. FA. to sheriff, what is 270 time of, delivery evidence of 269 lien begins with delivery 267, 268, 272 DISCHARGE OF LIEN. by mode of levy 274 by levy and sale under a later writ exclusively 273 sale of part of goods levied on, not discharge i.... 274 DURATION OF LIEN OF FL FA. ON PEESONALTY 271 as affected by levy '. 287 DURATION OF LIEN OF EXECUTION ON LAND 318,319 return oi fi.fa. without inquisition, effect of. 320 Duration of lien of testatum execution 323, 324 Endorsement on fl. fa., of time of receiving, ~by sheriff. 260 INDEX TO VOL. ONE. 7 EXECUTIONS— Continued Estoppel of creditors consenting to improper use of execution 296 Executor, execution against, as lien on decedent's land 316 Extent, territorial, of lien of /i. /a 263, 264, 265 FIERI FACIAS 258 recital of judgment in 258 naming all defendants 259 'stating debt properly 259 successive /. /as 260 issues of writ while previous fi. fa. is outstanding ...260, 261 abandonment of fi. fa 261 when /./a. is returnable 262 delivered to sheriff, evidence 269 what constitutes such delivery 270 Ji.'fa. against partnerships, form of 311, 312 Immature judgment, execution on 255 Inconclusive judgment 256 Interpleader, sheriff's, effect of on lien 272, 302 Inventory of goods levied on 284 Judgment docket, levies on land docketed in 317 JUDGMENT. as basis of execution 254 interlocutory, will not support execution 254 not payable, will not support execution 255 of indemnity, execution before damage 254 special judgments, execution on 257 partial judgments on affidavit of defence, execution on 257 JUSTICES' JUDGMENT. execution on transcripts of. .'...257, 258 executions on 325 et seq. eleigning goods beyond constable's bailiwick 329 lien of justice's execution begins with levy 325 duration of lien of justice's execution 327 effect of appeal on justice's execution lien 328 XAND. levy of execution on, a lien 265, 313 when the judgment is not a lien 316, 317 a lien 315 docketed executions in Philadelphia, liens for five years 319 duration of lien of execution on land 318, 319, 320 levy and return, without inquisition, effect of on lien 320 Leasehold, levy on 286 LEVY. nature of, on personalty 278 et seq, upon household goods 27S 8 INDEX TO VOL. ONE. EXECUTIONS— Continued. IiEVY — Continued. upon domestic animals, grain, etc 278- goods kept for merchandise 279^ mode of levy, on personalty 27i sheriff must have goods in view and power 282 nature of levy as to purchasers 283 paper levy, generally, void 282 when paper levy valid 285, 286 levy on leasehold 286 first levy on last writ, effect of. 272 levy and sale solely on last writ, effect of 273 on part only of defendant's goods 274 several levies on same writ 275' time within which levy must be made 275, 276, 277 levy prevented by court, before return day, lien lost 27T effect of levy on protraction of lien 287 levy on land, as source of lien 313^ mode of levy on land 314 levy on land, when not lien 315 et seq^ justices' executions, levies on 325, 326 LIEN. see Beginning of Lien ; Dueation of Lien. effect of order of levy, on lien of several executions 272. levy and sale on last execution, effect on lien of first 273, 30O lien not impaired by forthcoming bond 280 exclusion of chattels from levy, effect of, on Hen 274 what impairs lien 288 e< seq^ fi.fa. issued merely for lien, effect of 289, 290 diversion oi fi.fa. to purposes of lien merely 291 delay in executing writ, impairment of lien by 291 private sales of goods levied on 293 et seq. Hen restored by revoking improper orders to sheriff. 295 creditors consenting to improper use of execution estopped 296 lien impaired by act of sheriff. 298 et aeq.. stay of execution by court, lien affected by 303 delay caused by law, effect of, on lien 301 sheriff's interpleader, effect of delay by, on lien 302 justices' execution, lien of 325 et seq. Married ■woman, execution against 257 Married ■woman's execution against husband 257 Marshal of United states Court, competing with sheriff.... 271, 281, 295, 298 Opened judgment, no execution on 256 Parol e^vidence, when _/!. /a. is delivered to sheriff. 26^ PARTNEESHIP. execution against 304, 305 all partners, but not as such 305 INDEX TO VOL. ONE. 9 EXECUTIONS— Continued. PARTNERSHIP— CfeniraMeti. execution against partnership, lien on private property 306 partner for partnership debt, lien on firm property 307 sale of firm property on joint execution, effect of. 308 simultaneous sales on individual executions against each of partners 309 levy on chattels before they become partnership property « 310 after they cease to be partnership property 310 assumption of .partner's individual debt, by firm, effect of. 310 Personalty, bound by execution 263, 264, 266 PRIVATE SALES. of defendants' goods, effect of on lien 293 et seq. by assignee in trust for creditors, effect of on lien 294 RETURN. of fi. fa., without inquisition, effect of on lien 320 returnable, whenjf./a. should be 262 return day of ./!'. fa., levy before 275, 276, 277 returns, sheriff's 284 SHERIFF. competing with marshal 271, 281, 295, 298 constable 279, 299, 30O SHERIFF'S ACTS. preferring later executions 273 interpleader 272 indemnity bond 272 sheriff's mistakenly accepting bond under act of 16th July, 1842 281 sheriff's return 284 sheriff, delivery of .^. fa. to 269 Stay of execution, effect of on lien 277, 301 et seq. SUBJECTS OF LIEN OF EXECUTION. chattels coming into county after issue of writ 264 after-acquired chattels 264 chattels entering county after return day.... 275 corporation property ' 324 partnerehip property 305, 307 land, when levied on 265, 313 Sunday, orders to sheriff on, a nullity 295 TESTATUM EXECUTIONS 321 et seq. docketing of 322 beginning of lien of 323 continuance of lien of. 324 Time /. fa. is delivered to sheriff, evidence of 269 Transcript of justices' judgments, executions on 257, 258 Venditioni exponas, ancillary to /./a 287 10 INDEX TO VOL. OWE. FOREIGN ATTACHMENT, LIEN OF § 407 ACTS OF ASSEMBLY. Act of 13thJune, 1836, P. L. 580 407, 417, 436, 438, 444 27th July, 1842, P. L. 436 423, 431 20th March, 1845, P. L. 189 438 12th April, 1855, P. L. 213 430 g 8th May, 1855, P. L. 532 448 21st April, 1858, P. L. 403 407 28th February, 1873, P. L. 37 , 431, n. 10 4th April, 1873, P. L. 20 '. 429 15th May, 1874, P. L. 183 409, 415 13th June, 1874, P. L. 285 439 Appearance of defendant, not dissolution of attachment 436 Assignment of property, subsequent attachment of. 425, 427, 428 Attaeliinent, form of writ 444 Beginning of lien of foreign attachment 434, 435 Cash sales, attachment of purchase-money in 420 Cause of action in foreign attachment 415, 416 Costs 443 County, defendant's absence from 413 Death of defendant, effect of on attachment 426 DEBT. as subject of attachment 418 need not be presently payable 419 in cash sales 420 paid cannot be attached 421 Defendant, who maybe 407 Dissolution of attachment 438, 439, 440 Docket, prothonotary's description in of real estate attached 436 Duration of lien of foreign attachment 434 et seq., 440 GAENISHEE 4:29 et seq. foreign insurance companies 429 common carriers 430 ofiicers who cannot be garnisheed 430 domestic corporation as garnishee 431 warehousemen, wharfingers, etc 439 garnishee's liability for costs 443 INTEEEST. on the debt attached 422 on plaintiff's debt 422, 443 JUDGMENT. without appearance of defendant, is in rem 437 in personam 438 Partner's property attachable for firm's debts 424 Partnership property not attachable for partner's debt 424 INDEX TO VOL. ONE. 11 FOREIGN ATTACHMENT— Continued. Plaintiff in foreign attacliment, who may be 414 Real estate attachable ' 423 EESIDEIS'T OF STATE. defendant cannot be 408 what is non-residence 408, 409 what is residence 410, 411 lien creditors may avoid attachment for residence 412 Scire facias to garnishee unnecessary as to land 437 Scire facias ad disprobandum debitum 441 SEE VICE. of the attachment 445 et seq. on debts 446 on rent 447, 449 on mortgage debt 448 on houses and land 449 Set-off 432, 433 SUBJECT OF. attachment 417 et seq., 442 chattels 417 choses in action 418 debts not yet due 419 purchase money in cash sales 420 real estate 423,436 Tort, foreign attachment for 415, 416 JUDGMENTS, LIEN OF § 166 ABANDOKMEXT. of sci.fa. to revive 5!20 and judgment thereon 221 ACTS OF ASSEMBLY. Act of 1688 166 1693 166 1694 166 1700, 1 Sm. L. 7 166 1705, 1 Sm. L. 57 166 1705, 1 Sm. L. 49 173 2lBt March, 1772, 1 Sm. L. 390 175 13th April, 1791, 3 Sm. L. 32 244 4th April, 1798, 3 Sm. L. 331 201, 202, 203, 206, 208, 214, 216, 217 20th March, 1799, 3 Sm. L. 358 172 28th March, 1803, 4 Sm. L. 48 203 12 INDEX TO VOL. ONE. JUDGMENTS— Continued. ACTS OF ASSEMBLY— Continued. Act of 26th Maji-ch, 1827, 9 Sm. L. 303 202, 203, 247, n. 4, 207, 208, 217, 222 29th March, 1827, 9 Sm. L. 319 230 3d April, 1829, 10 Sm. L. 317 213 13th April, 1.833, P. L. 364 196 24th February, 1834, P. L. 77 202, 219 14th June, 1S3H, P. L. 639 170 16th June, 183H, P. L. 715 173 16th June, 1836, P. L. 785 172 14th April, 1838, P. L. 457 186 Ifith April, 1840, P. L. 410 198 2d April, 1841, P. L. 142 198, n. 2 2d August, 1842, P. L. 459 211 Kesolution of 21st January, 1843, P. L. 368 176, 227 Act of 6th May, 1844, P. L. 565 264, n. 6 16th April, 1845, P. L. 538 217 16th April, 1849, P. L. 663 168 16th April, 1849, P. L. 664 216 14th April, 1851, P. L. 612 245 6th April, 1859, P. L. 384 21P 17th February, 1876, P. L. 4 205 14th March, 1876, P. L. 7 245 4th AprU, 1877, P. L. 53 253, n. 4 25th May, 1878, P. L. 152 300, n. 3 17th June, 1878, P. L. 214 196 Statute of Westminster 11 166, 201, 217 Administration bond, revival of lien of judgment on 203 ADMINISTKATOES. judgments against, for intestate's debts, not liens 171 on tyfo nihils 219 Advances, judgment to secure, when lien begins 174 After-acquired land, judgments not liens on 194 et seq. AFFIDAVIT OF DEFENCE. judgment for part of debt admitted by, a lien 169 want of, on sci.fa 229 AGEEEMENT. as restricting lien to particular land 196 preferring a mortgage to simultaneous judgment 182, 220, n. 1 Alias, sd. fa 219 Alimony, lien of decree for, in proceedings in divorce 173 Amendment of sci.fa 257, ■«. 3 AMICABLE SCIKE FACIAS. validity and form of 208, 209, 224 consolidation of judgments in 209 judgment confessed by terre-tenant 224 INDEX TO VOL. ONE. 13 JUDGMENTS— Continued AMICABLE SCIKE FACIAS— Continued. lien of judgment confessed in ; 167 effect of, on previous restriction of lieu 198 docketing of 209, 220 Assignee of judgment, rights of 180 ASSIGNMENT OF JUDGMENT 234 et seq. recording of. 234 successive assignments of parts of same judgment 236- ASSIGNMENT FOE BENEFIT OF CEEDITOES. lien of judgment entered same day 182, 194 revival of judgment necessary as to assignment 203 assignee not a terre-tenant 216 sale of assigned land, effect of on lien of judgment 205 Attorney's commissions, judgment including 168 AWAEDS. in amicable arbitrations, lien of. 173 under defalcation act,, lien ofr. 173 BANKEUPTCY. effect of, on revival of judgment 208 special pleading of. 226 as a defence to sd.fa , 227 BEGINNING OF LIEN. of judgment 174 transferred to another county 200 see Eelation op Lien. Building' association, bond for purchase money of, lien of 196 Oanal-basin, owned by railroad, when judgment is lien on 193 Certain and determiinate judgments, lien of 167, 168 Charge by "will, relation of Uen of judgment for installments 176 Churches, bound by lien of judgment 193 CIECUIT COUET OF UNITED STATES. liens of judgments of 172 territory over which judgments of are liens 197 Collateral security, lien of judgment for 170 Consolidation of judgments in one amicable sci.fa 209 Contractors, railroad, relation of lien of judgment of 176,, 227 Conversion of land into personalty, precludes lien of subsequent judg- ment 183 COSTS. judgment of non-suit, a lien 168 for plaintiff lien for costs, as well as debt 168 revival of judgment when all but costs has been paid 213 costs of revival, when terre-tenant must pay 214, 223 14 INDEX TO VOL. ONE. JUDGMENTS— Continued. COSTS— Continued. judgment of on sci.fa. carries costs 223 on two nihils, inconclusive as to amount of costs 225 omission of costs in judgment docket 232 COUNTIES. effect of subdividing, on lien of judgments 197 transfer to of judgments to other counties 198 et seq. COUKTS. judgments of what, are liens 172 territory over which their"judgments are liens 197 Covertiire, as plea to sci.fa 226 Death, of defendant, effect of on duration of lien of judgment 202 DEED. relation of lien of judgment for money charged by 176 rent reserved in 176 Defences to sol. fa 227 etseq. Distribution of proceeds of judicial sale, contests arising in 238 Docket. iSee Judgment Docket '. 230 Donation by State to citizens of Chambersburg, no lien on 193 Drunkenness as defence to sci.fa 227 DUEATION OF LIEN. of judgment 201 et sef. transferred to another county 200 the five years' limit 202, 203 death of defendant, effect of on length of Uen 202 issue of sci.fa. prolonging lien by 218 lien lost by abandonment of sci.fa 220 judgment sur sci.fa. must be obtained in five years 218 of revival, prolonging of lien by 222 Eminent domain, judgment for land taken under 177 Equitable fee, lien of judgment on 190 etseq., 215 Equitable life-estate, lien on 190 EQUITABLE TITLE. surrendered, judgment acquired after 192 when judgment grasps, it seizes the complete title 195 Error, -writ of, no obstacle \a sci.fa 212 Estoppel, as to assertion of purchase-money judgment 177 EXECUTION. liability to, test of lien of judgment 166 levied same day as judgment recovered, priority of. 182 stay of, as means of continuing lien ,206, 207 levy of, on land, as means of continuing lien 206, 207 pending of, no obstacle to sci.fa 212 whether on original judgment or judgment of revival 225 INDEX TO VOL. ONE. 15 JUDGMENTS— Continued. Executors, judgment against V /testator's debts, not liens 171 Exemplification of record, I'nto other counties 198 el seq. EXEMPTION. as against purchase-money judgment 179 claim for 298, n. 3 Extent of land in execution, issue of sei.fa. during 212 FIVE YEARS' LIMIT. of lien 202 et seq. mode of computing 204, 209 when judgment payable at future time 206 Fixtures, bound by judgments 187 Foreign attaolinient of judgment, sei.fa. may issue upon 212 Forgery, how defence must be taken for 228 Fractions of day, as to liens 182 Fractional interests in land, bound by judgment 187 Fraud in original judgment, defence for 22S FRAUDULENT CONVEYANCES. relation of judgments as to 181 diuation of lieu as to 201 revival of Uen as to „. «„ 203 GEOUND-RENT. lien of judgment on 187 on land out of which it issues 187 Heirs, need not be parties to sei. fa. 216 Inchoate judgments, not Hens 173 Infancy, as plea to sei.fa 226 Insanity, as defence to sei.fa 228 Insolvent debtor, lien on his resulting interest 191 Interest, embraced in judgment of revival '. 223 Irregularity of judgment, effect of on lien : 169 JUDGMENTS. kinds of, that are liens 167 et seq. against executors or administrators, not liens 171 on sei.fa. sur judgment, lien of. 171 on after-acquired land 194 effect of, on duration of lien 222 relation of lien of. 176 on amicable sei. fa. for sums additional to original judgment 209 on sei. fa. generally 223, 224, 225, 228 as to terre-tenant, de terris, except for costs 223 on sei.fa., as basis of execution and of sd./a 225 reversal of judgment sur sei.fa., effect of, on original judgment 225 judgment on two nihUs • 219 16 INDEX TO VOL, ONE. JUDGMENTS— Continued. JUDGilENTS— OwKmoed. judgment must be had in five years from issue of 8ci.fa 218 on 8ei.fa., conclusiveness of, as to Urre-tenant 214, 215, 223 judgments, several, for same debt, application of proceeds to 238 judgment-note, alteration of, after judgment entered on it 208 JUDGMEXT-DOCKET 230 substitute for... 230 defective registration of defendant's name 231 otherwise defective registration 232 ■ correction of errors in docket 233 Judicial sale of premises, revival of judgment after, tmnecessary 205 Leaseliold interests, not bound by judgment 183 Lien-creditore, contests among, and with terrc'tenants 238 et seq. LIENS. judgments on other liens, not 171 of judgment on gci.fa. mtr judgment 171 beginning on same day, equal rank of 182 effect of agreement to prefer one of several 220, n. 1 of judgment, restriction o^ to particular land 196, 209 earliest of tliree superior to last, if superior to second 241 of judgment, origin of 166 LIFE-ESTATE. lien of judgment on 187 on, does not embrace after-acquired fee 194 equitable life-estate, lien on, binds legal title subsequently acquired 195 Lunacy, costs attending commission of, when a lien 168 ilAKKIED WOMAN. lien of judgment against, on land 196 revival of judgment entered against her while sole 208 recovered by her while sole .'..... 213 trustee to use of married woman, service of sci. fa. on 214 judgment on sci. fa. sur judgment against married woman 224 coverture as plea to sci. fa 226 entry of satisfaction of judgment by married woman 242 Mechanics' lien, judgments on, not liens 171 Mortgages, judgments on, not liens 171 Mortgage bonds, relation of judgment on, to date of mortgage 176 Mortgages and judgments of same day, rank of liens of. 182 Mortgagor's equity of redemption, bound by lien of judgment 187 Ne'W counties, lien of judgments in. 197 NIHIL HABET. return of. 219 two nihils, effect of. 219 judgment on two nihils 22.5 INDEX TO VOL. ONE. 17 JUDGMENTS— Continued. IJUL TIEL RECCED. plea of, to sci.fa 225 how it must be determined 228 Non danmificatus, plea of, to sei./a 226 Occupant, service of sci.fa. on 215, 216 OPENiya JUDGMENT. effect of, on lien 169 means of prolonging lien 206 no obstacle to sci.fa 212 and usury 227, 228 for fraud, forgery, etc 228 while judgment open, judgment on sci.fa. thereon 225 Orders and decrees, interlocutory, not liens 173 Origin of lien of judgment 166 OWNERSHIP OF LAND. commencement of, as to lien of judgment 194 land acquii-ed between original judgment and judgment of revival, bound by latter 194 judgment binding equitable title, gi-asp subsequently acquired legal title 195 Partnerships, having same member, judgments by one against the other 186 PARTNERSHIP REAL ESTATE. what judgments not liens on 184 are Hens on 184, 186 what is 185, 186 PAYMENT. plea of, to sci.fa 226 defence of 229 effect of 242 Pleas to sci.fa 226 PRECIPE. for sci.fa., as evidence of time sci.fa. issues 210 amendment of clerical errors in sci.fa. by 211 Premium note, restriction of lien of judgment on 196 PURCHASE-MONEY. what are judgments for 179, 180, 235 judgment of building association 196 relation of lien of 177, 178 when title is conveyed to trustee for vendee 187, 188 before conveyance, binds whole title 195 Quod recuperet, judgment en sci.fa. is 223 Railroad, land used for highway not bound by judgment 193 18 INDEX TO VOL. ONE, JUDGMENTS— Continued. EEAL ESTATE. only, subject of lien of judgment 18S of partnership 184 kinds of bound by judgment 187 KEC0GN1ZA>XE IX OEPHANS' COUKT. judgments on not liens 171 relation of such judgments 17& Recognizance, lien of judgment on sheriff's 171 EELATION OF U^S 175 etseq. relation of judgments for purchase-money 177 to beginning of other liens 17& dependent on judicial sale 178 transferred judgment, no relation of to beginning of original 20O Kelease of part of premises bound, effect on lien 239, 240 Remainder, estates in bound by judgment 194 Rent reserved in deed, relation of judgment for 17& KEVEESAL. of judgment on set. fa., effect of an original judgment 22> original judgment, effect of on judgment sur sci.fa 225 Reversionary interests, bound by judgments 194 EEVIVAL OP LIEX. of judgment 202 et seq. method of 206 et seq. as to whom revival necessary 201 et seq. revival unnecessary after judicial sale of premises 205- as to whom revival unnecessary 201 judgment satisfied except as to costs, revival of 21X SATISFACTION. effect of entry of. ; 235, 242 when stricken off 242, 243, entry of, obligatory.... 244 entry of by officer of court 245 SCIRE FACIAS. to revive lien of judgment 206 et seq. amicable sci.fa 207, 208 substitutes for sci.fa. before act of 1827 206 when sei.fa. may issue 210 issue oi sci.fa., though judgment not yet payable 212 notwithstanding writ of error 212 other matters that are not obstacles to issue of sci.fa 212 contents of sci.fa 211 sci. fa. when judgments at different times are rendered against joint defendants, 211 parties to sci.fa 213 INDEX TO VOL. ONE, 19 JUDGMENTS— Continued. SCIEE FXCIXS— Continued. service oi sei.fa, on terre-tetmnis 214 occupant 215, 216 who need not be parties to sei.fa 216 wliat sei.fa. should command sheriff to make known 217 sei.fa. qiiare executionerti non 217 amendment of sei.fa 257, n. 3 mere issue of sei.fa. prolongs lien five years 218 judgment on sei.fa. must be had in five years 218 service of sc/. fa 219 alias sei.fa 219 interval allowable between sei.fa. and alias 220, 270 two nihiU 219 abandonment oi sei.fa 220, 221 judgment on sei.fa 222 et seq. defences to sei.fa 227 issue oi sei.fa. noted in judgment docket 232 judgment on sei.fa. on judgment of revival, lien of. 221 (SET-OFF. plea of to sei.fa 226 as defence 229 of judgment against judgment 240 SHERIFF'S SALE. after judgment, recovered same day 182 on vendor's judgment, proceeds, how payable , 178 Simultaneous liens 182 Simultaneous parol agreement for preferring one of 182, 220, n. 1 Street, land devoted to not bound by judgment 193 SUBJECT OF LIEX. of judgment , 183 et seq. land not subject to lien 193 land aliened before judgment 194 subsequently-acquired land 194 et seq. lien restricted to particular land 196, 209 territorial limit of lien 197 SUPREME COURT. lien of judgments of. 172 territory over which such judgments are liens 197 Tarde venit, sheriff's return to sci. /a 219, 220, 270 Tenant from year to year, not party to sa../a 216 Term, first day of, relation of Hen to 175 Termination of lien by judicial sale 205 TEERE-TENA^'T. party to sci. fa 181, 214 amicable sei.fa 208, 224 20 INDEX TO VOL. ONE. JUDGMENTS— Continued. TEERE-TENANT— Comimtied. omitted from one set. fa. may be made party to a later 212 when he may be ignored 216 who is terre-tenant 214, 215, 216 terre-tenant may insist on agreement to restrict lien 196 judgment against terre-tenant , 214, 215, 223, 224 defences by terre-tenant 229 on judgment improperly omitting terre-teTumt no valid lien by sci. fa. against him 221 Territorial scope of lien of judgment 197 Transfer of judgments to other counties 198 Trust Estates, lien of judgment upon 187, 188, 191, 192 Turnpikes, not subject to lien of judgments 193 USE PLAINTIFF. name of in amicable sci. fa 209 sci. /a 213 USURY. as defence to sci. fa 227, 228 rights of subsequent lien creditors, as to 237 Vendor and vendee, lien on respective interests 18S et seq. Vendor's sheriff's sale for purchase-money, before conveyance, effect of...'. 178 Void judgment, cannot be lien 169 ■Wido"W of defendant, service of sci. fa. on 216 JUSTICES' DOMESTIC ATTACHMENT § 455 ACTS OP ASSEMBLY. Act of 12th July, 1842, P. L. 345 455 ei seq. 22d March, 1850, P. L. 235 459 Affidavit on which attachment issues 455 Continuance of lien of attachment 459 Execution of •writ of attachment 456 Origin of lien of attachment 459 Proceedings under act of 1842 455 Return of attachment 457 Subject of lien of attachment 458 JUSTICES' EXECUTION ATTACHMENT '. . § 402 ACTS OP ASSEMBLY. Act of 20th March, 1810, 5 Sm. L. 162 403,405 16th June, 1836, P. L. 767 402, 403 15th April, 1845, P. L. 459 402 8th May, 1876, P. L. 139 404 INDEX TO VOL. ONE. 21 JUSTICES' EXECUTION ATTACHMENT— Continued. Gamishee 403 Judgment in attachment proceedings 406 Justices' transcripts to justices in other counties, attachment on 405 Service of -writ 403 Subject of the lien 402 "Wages 404 JUSTICES' FOREIGN ATTACHMENT § 450 JUSTICES' TRANSCRIPTS, LIEN OF § 250 ACTS OF ASSEMBLY. Act of 4th April, 1798, 3 Sm. L. 331 253 20th March, 1810, 5 Sm. L. 166 250, 252 26th March, 1827, 9 Sm. L. 303 253 16th June, 1836, P. L. 780 252 21st June, 1839, P. L. 376 251 21st April, 1846, P. L. 432 251 APPEAL FBOM JUDGMENT. effect of on power to transcript 252 lien of judgment already transcripted 253 DURATION OP LIEN. effect of appeal on 253 revival necessary, and proper writ for 253 Judgments -which may be transcripted 252 Justice, who may give transcripts 251 LANDLORD'S LIEN ON GOODS LEVIED IN EXE- CUTION § 330 ACTS OF ASSEMBLY. Act of 21st March, 1772, 1 Sm. L. 370 331, 343, 346, 349, 360 24th February, 1834, P. L. 77 376 16th June, 1836, P. L. 777 332, 349, 359, 360, 377 12th July, 1842, P. L. 339 332 30th March, 1859, P. L. 318 360 13th May, 1876, P. L. 171 357 Agent, lease by 336 22 INDEX TO VOL. ONE. LANDLORD'S LIEN ON GOODS, &c.— Continued. APPOEJIOXilENT OF :RKST. as to time 362, 363, 364 parts of premises 364j 385, n. 2 ASSIGXilEXT. of term 337 of rent, effect of on lien 344 ATTACHilEXT. under act of 12th July, 1842, equivalent to execution. 332 foreign, equivalent to execution 332 Bankruptcy, lien as against assignee in 352 Bedford Mineral Springs, rent for 363 Collieries in Schuylkill and other counties, lien for rent o£ 360 Oollateral securities for rent, effect of on lien 375 Common la"W, landlord has lien only hy distress, at 330 Costs 377 Cropper 335 DISTRESS. right of, measures landlord's lien 332 effect of levying, on lien 375 only lien of landlord, at common law 330 Do'wer, widow a landlord as to 334, 353 DJTRXTIO'S. of landlord's lien 346 et seq. of Hen not affected hy termination of lease 317 Exemption of goods from landlord's lien 359, 375 Ground-rent, grantee of fee subject to 333 Guardian, lease by 345 Impairment of lien '. 375 Judgment for rent, effect of on lien 375 LA>'DLOED. change of, during term 341 et aeq., 361 aUejj^tiou of part of premises during term. 364^ 385, n. 2 after parting with title, landlord's lien ceases 343 Landlord and tenant, relation of. 333 LEASE. renewal of 339 sub-lease 337, 338 termination of lease, effect of on lien 347 surrender of lease, effect of on lien 348 Melodeon, lien on 357 Notice of landlord's claim to officer 373, 374 Note for rent, effect of on lien 375 Organ, lien on 357 i:XDEX TO VOL. OXE. 23 LANDLORD'S LIEN ON GOODS, &c.— Continued. Parol lease 335,374 Particular questions about rent 371 Piano, lien on 357 HEXT. payable otherwise than in money 335, 361, 371, 372 assignment of, effect of on lien 344 amount of rent for which lien exists 360 time for whose rent lien exists 361 apportionment of rent 362, 363 apportionment, when there are two or more levies 366 rent accruing after levy 365 apportionment, lessee dying before levy 376 joint rent for personalty and realty 371 in advance, renewal of lease 339 change of landlord 342 apportionment of. 368 et seq. not yet due 370 certainty of. 371 peculiar matters about rent 371 Reversion, alienation of, effect of on lien 341 etseq. SUBJECT OF LIEN 349 et seq. chattels on demised premises 349 removal of chattels, aiter levy 350 goods on premises in course of trade 354, 855 chattels of stranger 351 sub-lessee 353 when stranger's goods not liable to lien 354 et seq. goods in boarding house 356 pianos, organs, etc 357 second lease to another tenant, stranger's goods on premises 358 exemption of goods from lien 359 SUB-LEASE. distinguished from assignment of term 337 sub-lessor's Hen 338 .Surrender of lease 348 Taxes, when tenant must pay 371 Tenants in common, as landlords 336 TEXAXT AXD LAXDLOKD. relation of. 333 et seq. tenant, grantee of fee not 333 cropper, not tenant. 335 "USE AXD OCCUPATIOX. no lien for value of 335 beginning after levy on goods 367 "WidO'wr, as to dower, a landlord 334, 353 24 INDEX TO VOL. ONE. MECHANICS' LIENS § 1 ACTS OF ASSEMBLY. Act of 17th March, 1806, 4 Sm. L. 300. 28, 52, 62 28th March, 1808, 4 Sm. L. 528 52, 69- 30th March, 1831, P. L. 243 52 16th June, 1836, P. L. 696 ; 2 et seq- 28th April 1840, P. L. 471 IS, 25, 29, 39, 75 13th October, 1840, P. L. 3 75 16th April 1845, P. L. 638 26- 24th March, 1849, P. L. 675 7, 605 14th AprU, 1855, P. L. 238 48- 21st April, 1856, P. L. 496 10, 31 17th February, 1858, P. L. 29 29, 55, 63- 1st May, 1861, P. L. 550 4, 8, 12, 25, 34, 42 9th April, 1862, P. L. 402 66, ■«. 13- 31st March, 1864, P. L. 171 67 16th February, 1865, P. L. 150 .' :... 25- 16th February, 1866, P. L. 50 GT nth April, 1866, P. L. 649 9^ 20th March, 1868, P. L. 407 23, 42: 8th April, 1868, P. -L. 752 30, 43, 50, 55, 64r 1st August, 1868, P. L. 1168 4, 9, 12, 23, 25, 34, 37, 42 18th March, 1869, P. L. 410 50. 13th AprU, 1869, P. L. 888 43^ 16th March, 1870, P.X. 452 50 3d April, 1872, P. L. 857 26- 6th March, 1873, P. L. 217 26, 37 7th March, 1873, P. L. 219 31 21st May, 1878, P. L. 76 28- nth June, 1879, P. L. 122 56, 66, 67 28th June, 1879, P. L. 182 4, 5, n. 3, 28, 34, 50- 8th June, 1881, P. L. 56 41 Additions, as sources of lien 5, 7, 43- ADVAjSTCE-MONEY MORTGAGES. postponed in Philadelphia 28- generally 41 Afildavit to support claim 64, 68 AFFIDAVIT OF DEFENCE. judgment for want of. 69, 8L when unnecessary 71 AGENT. of owner, in contracting for building 17, 18 not a contractor 21 life-tenant is not, for remainderman IS AGEEEMENT. to look exclusively to contractor, effect of on materialman's lien 27 of contractor, that no liens shall be entered, effect of on his lien 27 INDEX TO VOL. ONE. 25 MECHANICS' LIENS— Continued. Agricultural exhibition building 33 Allegheny county, lien in, for alterations and repairs 25 Alterations, sources of lien 4, 8, 10, 42, 43 AMENDMENT. of claim 56, 66, 70 of mechanics' lien docket 67, IT of sci.fa 69 APPORTIONMENT. of debt, before filing claim 53 of joint claim 62 judgments on apportioned claims 75 Architect, when he has lien 9 Auditor, powere of 5, 36, 53 Barn, lien for erection of. 7, 33, 35 Berks county, lien' in, for alterations, repairs and additions 4, 5, 9, 12, 34, 42 BILL OF PAETICULARS. as part of claim 64 to ascertain time of furnishing work or material 58, 59 locality of the buildings 61 character of buildings 63 of the process, whether of erection or alteration 63 copy of bill in the mechanics' lien docket 67, 77 Blacksmith shop, on leasehold, lien for erection of 29 Bonds or notes, for debt, do not impair lien 3 Books, claimants', as evidence 13 Bre^wery, lien for erectign of 7, 11, 33 Bre'W-kettle, as source of lien 11 Buildings, subject to lien 33, 34 Burial-ground, lien on 35 Butler county, lien for boring on leaseholds 31 Cartage 9 Certificate of search, in Philadelphia 67 Chandelier, no lien for 11 CHESTER COUNTY. lien in, for alterations, repairs and additions 4, 5, 9, 12, 34, 42 claim, when there is entire contract for building 57 as to time of doing work 60 Churches, liens on 6, 11, 33, 35, 45 CLAIM. apportionment of joint claim necessary 52 by separate writs of lev.fac. ineffectual 52 apportionment of, on several interdependent buildings, imnecessary 53 joint claims improper, unless houses are contiguous 53 belong to same owner 53 are erected simultaneously 53 26 INDEX TO VOL. ONE. MECHANICS' LIENS— Continued. CLAIM — Continmd. joint claims against contiguous houses of same owner 4, 52 distinct claims for apportioned debt, arising from erection of several houses.. 53 debt cannot be apportioned into distinct claims, unless houses are contiguous.. 53 must contain name of claimant 54 owner .« 55 contractor 66 state debt, and kind and amount of work and material 57, 63 state time of furnishing material and doing work 58, 59, 60 must describe the premises, on which lien is asserted 63 description of source of lien as erection or alteration 63 of the building whence Uen arises 63 naming the court in which claim is filed 64 signing the claim. 54 invalid claim, eflTect of filing on lien 50 married woman, claim against 65 when claim must be filed 44 valid one miy be filed after an invalid one 44 interruption in building, effect of on time of ffling 45, 46 entire contract, time of filing claim 45 departure from original contract, time of filing 45, 46 additions to original contract, time of filing 48 repair of building shortly after completion, effect of on time of filing claim.. 45 joint contract for several houses, time of filing against each 47 time of filing, when there is no entire contract 48 two concurrent contracts for distinct parts of building, effect of on time of filing J. 49 interruption in furnishing labor or material, effect of on time of filing claim 48,49 the claim, as evidence 72 Coal-breakers, as source of lien 10 College, lien on 33 COMMENCEMENT OF LIEX. time of 38 when lien for alterations and repairs commences with filing of claim 42 see Relation or Liex. Commissioners to fix bounds of curtilage 36 Completion of building, material furnished after, no lien for. 13 Continuous furnishing of labor or material 48 CONTRACT. recording of in Philadelphia. 26, 68 entire 48 CONTRACTOR. power to bind the premises 19 for part of the work of construction 19 20 lA'DEX TO VOL. ONE. 27 MECHANIC'S LIENS— Continued. CONTRACTOR— Conimucd. to furnish materials, cannot bind building by sub-contracts 20 for construction, may bind building 21 distinguished from agents ". 21 by lease 22, 23, 25 vendee under articles is not 24 insurance company having power to re-erect the building is not 25 lien of. 26 contract of -with materialman not measure of tatter's lien 27 with firet contractor, cannot bind building to others 21 Costs 75 Counties having not more.than 200,000 inhabitants, liens in, for alterations and repairs 4, 34, 43 Court, when to decide whether process is one of construction or alteration 5 Court-house, lien on 33 CRAWFORD COUNTY. act of 11th April, 186«, applicable to 9 propping timber for mining purposes, lien for 9 CREDIT. must be given to building 13 to the building, what is ■. 13 notice from owner not to give 13 evidence of. 13 not exclusive of contractor's personal liability 13 CREDIT ON NOTE, ETC. from contractor, does not impair lien 3 owner does not impair lien , 3 CUMBERLAND COUNTY. lien in, for alterations, repaira and additions 23 time lienfor alterations begins 42 Curtilage, designation of 36 DEBTS. for which lien arises 2 et seq. payable originally in something else than money 2 materialman's contract with contractor not measure of 27 for erection or construction, liens of. 2, 5, 6 for alterations and repairs, liens of. 4, 5, 8 Dela^ware county, liens in, for alterations and repairs 4, 5, 9, 12, 34, 42 DerQurrer, to claim 57, 68 DERRICK. on leasehold, lien on 28 hoisting by, lien for 9 Docket, mechanics' lien 67 28 INDEX TO VOL. ONE. MECHANIC'S LIENS— Continued. DURATION OF LIEN. without filing claim » 45 filing invalid lien, effect of, on 43 computation of the' six months from furnishing matelrials 4S effect of filing claim on 50- sct./a. on 51 Elevator 12, 20 Engine, on leasehold, lien on 2S, 29 Engine-house of public water company, lien on S3 Entire contract, for labor or material 48 Equitable title, lien upon, attaches to subsequently conveyed legal title 32 Erection and construction -. & Erie county, liens on engines, pumps, etc 9 ESTATE. bound by lien 29 only that of the person in possession, when building is commenced 2& for life, or of freehold, may be bound 29 lessee's interests bound by lien 29, 30 vendee's legal title bound by liens commencing during his equitable title 32 ESTOPPEL. against asserting lien as against mortgagee 3 judgment creditor 16 other mechanics' liens 16 materialman's asserting lien, after agreeing to look solely to the con- tractor 27 contractor's asserting lien, as against owner or others with whom he has sub-contracted 26 EVIDENCE. generally 72, 73, 74 parol, to explain claimant's books 13 without book entries 13 to show building was not credited 13 admission of owner as to time of completion of building 48 claim as 72 Excess of material beyond requirements of building, lien for 12 EXTINCTION OF LIEN. by destruction of the building 34. by substituting security 37 70 by sheriff's sale of the building 39 75 Extra-'work or material, unauthorized by owner 11 Pans in mines, liensfor and on 29 Fixtures, liens arising from, on realty 10 11 FRANKLIN COUNTY, liens in, for repaiis, alterations and additions 23 time lien for alterations begins 40 INDEX TO VOL. ONE. 29 MECHANIC'S LIENS— Continued. Purnaces, lien for 7, 11, 33 G-as-burners, no liens for 11 <3-as-fittings, liens for 11 Oas-works, lien on 33 Orates, liens for 11 G-rist-mill, lien on 8, 11, 33 GEOUND. amount of, covered by lien 34, 35 defining it 36 GUARANTEE. • ' of materialman's debt by third person, effect of on lien S by contractor against liens, does not preclude tbem 26 Heater, lien for 12, 19, 21 Hoisting by derrick, Uen for 9 Hoisting machine, lien for 10 Hotel, lien on '. 6, 7, 22 HUSBAND. agent for wife 17, 21 as defendant to sci./o 69 Ice-house, lien for and on 29 Index, locality 67 Insurance company, re-erection of Iwajse by, creates no lien 18, 25 Iron- ■works, lien on 7 Issue, when awarded 5, 36 Joint claims (see Claims) 4, 52 et seq. Journeymen and laborers, in general, no lieu 28 Journeymen in Philadelphia, liens of. 28 JUDGMENT. against married women 65 dli return of nihil habet .'. 69, 81 generally 75 effect of, as aga,inst other lien creditors 75 of non-suit 70 against lessee, prior to act of 1836 75 for purchase money and mechanics' liens 38 JURY. when to decide between alteration and construction 5 to determine the cui'tilage 36 to determine whether structure is one or two buildings 53 to decide point of time to which lien relates ^ 39, 41 Laborers. See Joukneyman. LEASEHOLD. ice-house on 29 blacksmith shop on 29 30 INDEX TO VOL. ONE. MECHANIC'S LIENS— Continued. LEASEHOLD— Cojitimued. engines, etc., on 28, 29 derrick on 28 tank on 28 no lien on, under act of 1836 29 lien on, under special acts 28, 29, 30, 31, 75 LiliobEE. when he may bind fee as contractor 22 judgment against, effect of prior to act of 1836 75 as contractor for alterations and repairs : 23, 25 LEVAEI FACIAS. joint unapportioned claims will not support one against each house 52 proper writ to execute judgment on lieu 75 Life-tenant 18, 55 Locality-index 67 LUZERNE COUNTY. lien in, on engines, pumps, on leaseholds 29, 63 for propping timber in mines 9 Machinery. See Fixtures. Machinery, in mills, iron works, coal works, liens for 10 Mantels, lien for 11 19 MAEKIED WOMAN. lien on building of, only for material actually used therein It agent for, in causing construction of house 17, 21 name of, in claim 55 claim against 65 husband of, made defendant to sai.fa 69 MATERIAL AND LABOR. for which liens arise 9 must be used in building of married woman 14 otherwise, need not be used in building 14 need not be traced to any particular one of several buildings jointly erected... 14 need not be delivered at site of building , 15 measurement and valuation of work, etc., lien for 1 9 propping timber in mines, lien for 9 MATERIALMAN. lien of. 27 effect of agreements on lien of. 27 Measurement of work and material, lien for 9 Merger of old buildings in new 6 Millstones, lien for 11 Non-suit, judgment of 70 Notes and bonds, acceptance of does not preclude lien 3 INDEX TO VOL. ONE. 31 MECHANIC'S LIENS— Continued. Odd Fellows' hall, lien on 16,33 Opera liouee, lien on 22 Origin of meclianics' lien, in statutes 1 OWXEK. no lien of, as against lien creditors 3, 16 owner's work on building, ignored in fixing time to which liens relate 16 authorization, the condition to rise of liens 17 possession of premises necessary, when contract for construction is made 18 Paper-hanging, lien for 11, 39, 42 Parts of building for which lien arises 11 Passenger railway company, lien upon stable of. 33 Patented machine, architects' lien for use of 9 Pavement before a house, lien for...., 11 Payments, appropriation of , 74 Pendants, no lien for 11 Personalty, lien on 28, 29, 30, 31, 43, 4& PHILADELPHIA. liens of journeymen in 28 claims filed therein, to contain what 57, 60 locality-index 67 certificate of search 67 rule on plaintiff to sue out sd.fa 69 lien of alterations and repairs 4, 5, 12, 23, 34, 42 lien for measurement and valuation of work 9 lien of alterations by lessee , 25 recording of contract with builder 26, 68 advance-money mortgage 28 substituted security for the mechanics' Uen 70 PLEAS. difierent pleas of terre-tenant and defendants 69 nii debet 71 non assumpsit 71 nunquam indebitatus 71 payment 71 payment, with leave, etc 71 no lien 71 no lien, what may be shown under 13, 27, 71 nvJ. tiel record 67, 71, 76, n. 5 set-off 71 special pleas 71 plea in abatement 71 plea waives defects in claims 68, 71 rule to plead 70 Plumbing, lien for 11 32 INDEX TO VOL. ONE. MECHANIC'S LIENS— Continued. Poor directors' land, lien in erecting house on 33 Possession of premises by O'WTier necessary, when contract is made 18 Pump-gearing, lien for 10, 45 Purchase-money securities 38, 39 Quality of material, when different from that contracted for, lien for 12 Railroad depot, lien on 33 RELATION OF LIEN. several inter-dependent buildings constructed under one plan 41 relation as to advance-money mortgage 41 purchase-money judgments 38 work done by owner, as affecting relation of lieu '. 16 commencement of work on the ground 38 equal rank of liens springing from same construction 38 distinct stages of construction, effect of on relation of lien 39, 40 change of ownership during construction 39 abandonment of old plan in midst of construction, effect of on relation of lien 40 Repairs, lieu for 4, 8, 42, 43 Sa^w-factory, lien on 33 Saw-mill 7, 8, 22 School, Reform, lien on 33 SCHUYLKILL COUNTY. lien in, for propping timber ». 9 on engines, pumps, leaseholds, etc 29, 63 SCIRE FACIAS. nature of the writ 69 effect of, on duration of lien , Bl may issue at any time within five years of filing claim 50 when it issues 69 proceedings on 71 • discontinuance of proceedings under irregular sci. /a 70 sci.fa. on apportioned claim 70 service of sci. fa 69, 81 substitute for sci.fa 70 judicial sale of premises before judgment on sei.fa 51 Scrapers, lien for 48 Search, certificate of. 67, TT Shelving, in vault and store, lien for. 11 Shingle mill, lien on 33 Stable, passenger railway, lien on 33 Stair-case, lien for 11 Statutory origin of mechanics' liens 1 STRIKE OFF CLAIM. rule or motion to, generally 68 for want of particularity in describing work or material 57 INDEX TO VOL. ONE. 33 MECHANIC'S LIENS— Continued. STEIKE OFF CLAIM.— Continued. for erroneous description of premises 61, 62 insufficient averment of time of doing work 58 want of affidavit 64 rule to strike oif, too late after plea 71 Sub-contractors, cannot bind building to others '21 SUBJECTS OF LIEN. what buildings are 33, 34 amount of land 34 several buildings connected in use and purpose 34, 46 substituted subject of lien 70 Substitute for lien on premises 37, 70 Tank on leasehold, lien on and for 28 Teamster, lien of. 9 Ten-pin alley, lien on 14 TEREE-TENANT. evidence against 73 defendant to sci.fa 69 Theatre, lien on 6, 8, 11, 22, 33 Tbeatre-stag-e, lien for 11 VENANGO COUNTY. lien in, for propping timber 9 for steam engines, etc 30, 43, 50, 55, 64, 68 VENDEE. under articles, not contractor for vendor 24 lien on his title 32 ■Walls, guarding church-windows, liens for 11 ■Warehouse, lien on 33 ■Warren county, lien in, for propping timber. 9 ■Workmen, lien of. 28 MORTGAGES, LIEN OF §76 ACKNOWLEDGMENT OF MOETGAGE. necessary to recording 109 acknowledgment of married woman's mortgage 120 ACTS OF ASSEMBLY. Act of 1705, 1 Sra. L. 59 82, 146, 148, 160 28th May, 1715, 1 Sm. L. 90 137 28th May, 1715, 1 Sm. L. 94 115, 165 24th Februaiy, 1770, 1 Sm. L. 307 120 34 INDEX TO VOL. ONE MORTGAGES— Continued. ACTS OF ASSEMBLY— Conimtted. Act of 23d September, 1783, 2 Sm. L. 79 115- 13th April, 1791, 3 Sm. L. 32 16& 28th March, 1820, 7 Sm. L. 303 109, 115, 123, 151, n. 2 29th March, 1822, 7 Sm. L. 520 144, VTT, n. 4 31st March, 1823, 8 Sm. L. 131 202, n. 3 6th AprU, 1830, P. L. 293 115 Eesolution of 21st January, 1843, P. L. 367 125 Act of 9th April, 1849, P. L. 524 142 10th April, 1849, P. L. 621 163 3d April, 1851, P. L. 871 162 5th April, 1853, P. L. 295 115 27th April, 1855, P. L. 368 ■ 100, 115, 116 11th April, 1856, P. L. 304 202, n. 5 22d April, 185P, P. L. 533 86, 161 12th April, 1859, P. L. 544 107 18th April, 1861, P. L. 409 161 27th March, 1862, P. L. 192 202, n. 4 3d April, 1860, P. L. 360 202, n. 2 11th April, 1862, P. L. 447 147 11th January, 1867, P. L. 1373 100, 115, 116 28th April, 1868, P. L. 1151 164, 201, n. 2 18th April, 1874, P. L. 61 116 6th April, 1876, P. L. 18 142 18th May, 1876, P. L. 181 115 23d March, 1877, P. L. 32 147 25th May, 1878, P. L. 152 119, 147, n. 3, 137, 169, ™. 9 12th June, 1878, P. L 205 136 11th June, 1879, P. L. 141 164 8th June, 1881, P. L. 84 86, 103 Advances, mortgi^ges for 103, 104, 156 Affidavit of defense, judgment for want of. 152, 153 Agreement, as changing order of lien 98, 124 Alias scLfa 152 Amicable sai.fa 148 Annuity, mortgages for 105, 130, 131 Assignment in trust for creditors, mortgage distinguished from 84 ASSIGNMENT OF MORTGAGE 137 et seq. how assignment may be made 137, 141 eifjct of assignment of one of several mortgages of equal rank 124 assignment, as making mortgage effectual 104 recording of assignment 142 Assignment of articles of agreement, equivalent to mortgage 88, 91 Assignment of a deed, equivalent to mortgage 91 Attorney's commissions, provision for, in mortgage 108 Bankruptcy of mortgagor, as defence to sci. fa 156 INDEX TO VOL. ONE. 35 MORTGAGES— Continued. BANKS. mortgages by 116 national, mortgages by 116 BellO'VCS, annexed to land, bound by mortgage made before annexation 99 BILL IN EQUITY. by mortgagor, to recover possession 144, 145 by mortgagee, to etfect sale of premises 147 Boiler, bound by mortgage of premises, made before its annexation 99 BUILDING ASSOCIATIONS. interest charged by 107 married woman's mortgage to 117 payment of stock in 129 Canal-boats, mortgage of 115 Canal company's mortgage, as to contractors, laborers, etc 125 Cars, railroad, mortgage of. ; 81 Cattle, mortgage of 81 CERTIFICATE. of no defence 14S alteration in 155 Certificate, prothonotary's, of satisfaction of judgment sur mortgage 105 Certified copy of record of mortgage, as evidence 157 Chairs, for rails, mortgage of 100 Chattel mortgages, possession under 81 Chattels, kinds mortgaged 101, 115 Coal corporation, equitable control over mortgages of 147 Colliery, mortgage of leasehold in 100 Commissions, attorney's 108 CONSIDEBATION OF MOETGAGE. effect of, on lien 105 inadequacy of, in deed, evidence of mortgage 93 failure of ^ 133 et seq. CORPORATIONS. power to make mortgages 154 chattel mortgages of. 116 what corporations can mortgage 116 Corporation, foreign, mortgage to 116 COURT. function of, in deciding absolute deed a mortgage 93 decree that satisfaction be entered on mortgage 164, 165 Costs, premises only liable for. 159 Crop in ground, mortgage of. 81, 83, 100 Curtesy, in mortgagee's interest in premises 76 36 INDEX TO VOL. ONE. MORTGAGES— Continued. of mortgage, time of delivery 126 antedating does not vitiate mortgage 156 acknowledgment of mortgage before its date 156 DEBT. secured by mortgage 102 statement of, in mortgage 105 Declarations of trust, not mortgage defeasances 86 Declarations of grantee, evidence that deed is mortgage 93 DEED. in form an absolute grant, may be a mortgage 92, 93 absolute as to one undivided half, a mortgage as to the other 93, 112, 95 DEFEASANCE. must be in writing 86 forms of. 1 91 recording of. 86 Defences 154 et seq. Delivery, date of mortgage not conclusive of time of. 126, 156 Discharge of lien of mortgage 127 Do"wer in mortgagee's interest in premises 76 EJECTMENT. by mortgagee 77, 146 by assignee of mortgagee 146 by mortgagor 77, 79, 144 under mortgages for maintenance 102 Engine, bound by mortgage of land made prior to its annexation 99 Equitable jurisdiction over mortgages 147 Estate, mortgage considered as 76 Estrepement, to prevent waste by mortgagor 144 EVIDENCE. generally , 157 that deed absolute is a mortgage 92 et teq. direct evidence of mortgage character of deed unnecessary 93 grantee's declarations, evidence he is a mortgagee 93 grantor's continuance in possession, evidence he is mortgagor 93 inadequacy of consideration in deed, evidence it is a mortgage 93 survival of debt, evidence deed is a mortgage 93 extinction of debt, as evidence of absolute character of deed 94 improvements by grantee, as evidence of character of his deed 94 delay in grantor's assertion of right to redeem, inference from 94 EXECUTION. on judgment mr mortgage 160 control of, by courts 161 not leviable on mortgagee's interest in premises 76 INDEX TO VOL. ONE. 37 MORTGAGES— Continued. Exemption, disallowed as against mortgage 160 First mortgage bonds, meaning of. 3 Fixtures, subsequently annexed to land, bound by mortgage 93 Foreign attachment, to enforce chattel mortgage 100 Foreign corporation, mortgage to 116 FORMS. of mortgage 85 et seq, abnormal forms of mortgage 87 et seq. conveyance by vendee to another, as mortgage 88 assignment of articles of agreement for sale, as mortgage 88 sheriff's sale, as means of mortgaging 89 contract of sale, mortgage by means of. 90 Foundry, mortgage on 99 GEOrXD-RENTS. moi-^agee in possession entitled to credit for payments of 80 maybe mortgaged 96 land charged with ground-rents may be mortgaged 96 Guarantee of mortgage bond, effect of, on order of payment 124 Hides in vats, mortgage on 100 Indemnity, mortgages for 102, 105, 106 IXJUNCTIOISr. to prevent waste by mortgagor 144 mortgagee in possession 145 Insanity, as defence to mortgage ; 156 INSURANCE. right of mortgagee to effect 80 right of mortgagee to apply money received on policy to rebuilding 80 Iron corporation, equitable control over mortgages of. 147 JUDGMENT. on sci.fa. sur mortgage 158 for want of affidavit of defence 152, 153 on two nihil^ 152 effect of judgment 158, 159 payment and satisfaction of judgment 162 et seq. Latbe, covered by mortgage on machine shop 99 Leasehold interests, mortgage of. 79, 81, 83, 100 LEVARI FACIAS. the execution for judgment sur mortgage 82, 160 description of premises in, supplying description in sci.fa 119 HEN OF MORTGAGES..., 76, 123 order of lien, as affected by agreement 98, 124 lien of purchase-money mortgages 12S 38 INDEX TO VOL. ONE. MORTGAGES— Continued. LIEN OF MORTGAGES— Cbn(mued. lien beginning with assignment of mortgage 104 lien of mortgages for optional advances, wlien it begins 103 obligatory advances, when it begins 104 lien of advance money mortgages, postponed to mechanics' liens 103 lien, discharge of 127 Lost or destroyed raortgages, payment of. 163 Lumber corporation, equitable control over mortgages of. 147 Machine shop, what mortgage of includes 99 Machinery, embraced in mortgage of the realty 99 Manufactory, leasehold in, mortgage of 100 Manufacturing corporation, equitable control over mortgages of 147 MAEEIED WOMAN'S MORTGAGE 117 attorney's commissions in 108, 117 mortgage to building associations 117 mortgage of property settled on her 118 acknowledgment of mortgage 120, 121 joinder of husband in her mortgages 122 assignment of mortgages by her 137 her certificate of no set-oif. 143 Mechanics' lien, effect of release of mortgage on 127 Merger of mortgage in fee 131 Mining corporations, equitable control over mortgages of. 147 Misnomer of mortgagor in mortgage 156 Money in which mortgage debt is payable 106 Mortgagee's right of possession 77, 78, 79 MORTGAGEE. in possession must account for rents and profits .' 79, 144, 145 remedy by ejectment, of mortgagee 146 el seq. sale 147 MORTGAGOR'S. interest in premises after mortgage 76 right to possession 77, 144 remedies to recover possession 144 Nature of mortgage 76 Nihils, judgment on two 149, 152 Non assumpsit, plea of 153 Non damnificatus, plea of. 167 Non est factum, plea of. 153 No lien, plea of 153 Nul tiel record, plea of, it nullity i^g 153 Oil corporation, equitable control over mortgages of 147 Ore, iron, mortgage of : II5 OTwelty, precedence of to mortgage on undivided half, after partition 125 IXDEX TO VOL. ONE. 39 MORTGAGES— Continued. Parol mortgage, when invalid 85 Parol application of mortgage to new debt 85, 106 Parol defeasance 86 Parol contract of purchase, mortgage of. 88 Partition, effect of on mortgage of undivided interest 125 Partnership property, mortgage of to a partner 125 PAYMEXT. of mortgage 128 et seq. presumption of 130 by merger 131 plea of payment 153 payment by trustee 128, 159 to trustee 128, 159 of judgment sur mortgage 162 et seq. of lost or destroyed mortgages 163 PEESOXAL PEOPEETY. mortgage of. 100 kinds of, mortgaged 101 PEESOXAL LIABILITY. of mortgagor 136 of terre-tenant 136, 139 Petroleum, mortgage of. 115 Pleas to sci.fa. sur mortgage 153 POSSESSIOX. by mortgagee, of premises 76, 77 by mortgagor, of premises 77, 144 what mortgagee's right of possession includes 78 waste by mortgagee in possession 78 duration of mortgagee's right of possession 79 redemption of possession by mortgagor 80 possession by mortgagee under chattel mortgage 81 EAILEOAD MOETGAGE 99,116 as to contractors, laborers, etc 125 Rails, mortgage of. 100 RECOEDIX'G OF MOETGAGES 109, 11& what recording is necessary 110 as to whom necessary Ill unnecessary Ill actual notice dispenses with recording 112 notice to purchasers of the premises 113 later lien creditors 114 recording leasehold mortgages 115 of defeasance 86, 109, 110 assignments of mortgages 104, 142 40 INDEX TO VOL. ONE. MORTGAGES— Continued. EEDEMPTION OF POSSESSION. by mortgagor 80 mortgagor's right of redemption 95 release of right of redemption 95- when release of redemption void as to creditors 95 extinction of redemption by sheriff's sale, or sale under power in the instru- ment 95 ejectment i:. liiortgages for maintenance 102 by sale of grantee in absolute deed, to bona fide purchaser Ill Release of mortgage, effect of 127, 128, 138 Rene"wal notes secured by mortgage 102 Rents and profits, mortgagee in possession must account for. 79 Repairs, that mortgagee in possession may make. 80 Replevin, to enforce delivery of mortgaged chattel 100 Rolling mill, mortgage of. 99 Rolls, covered by mortgage of rolling miU 99 SALE, POWEE OF. in or under mortgage 76, 79, 82, 84, 147 power of sale conferred by act of 1705 83 expressly conferred in mortgage S3 payment of debt, determines power to sell 84 forms in which power to sell may be conferred 83 modes of sale 88 power to sell a mortgaged chattel resting in parol 82 sale, decree for, by court of equity 147 distinction between mortgages with power of sale and assignments in trust... 84 Sale, contract of as means of mortgaging premises 90 SATISFACTION OF MORTGAGE 132, 139 decree of court for entry of 164, 165 entered by recorder 165 entry of by mortgagee 165 Sa-wlogs, sawed lumber, mortgage of 115 SCIRE FACIAS. under act of 1705 82, 148 issues on sealed mortgage only 148 amicable sci. fa 148 alixis sci. fa 152 issues on the mortgage, not on its registry. 148 substitute for declaration 148 parties to sci. fa 149 sheriff's return to sci.fa 150, 152 appearance by married woman, by husband 119 time sci.fa. may issue 151 proceedings on sci. /a 153 sci.fa. to revive judgment sur mortgage 169 INDEX TO VOL. ONE. 41 MORTGAGES— Continued. SEAL. unnecessary to a valid mortgage 86 sci.fa. issues only on sealed mortgage 148 SET-OFF 128 of personal judgment against mortgagee 159 plea of 153 Sheriff's sale, as means of mortgaging 89 Ship, mortgage of. 81, 83, 100 Slate, mortgage of 115 SUBJECT. which may be mortgaged 96 et seq. grouud-rents 96 equitable interests in land 96 leasehold interests 96 undivided fractional interests 96 land held jointly by husband and wife, mortgage of. 97, 119 equitable fee in remainder 97 interest acquired by mortgagor after execution of mortgage 98, 116, 117 mortgage of mortgagee's interest in premises 98 personal property 100 pai-tnership property mortgaged to a partner 125 Support and maintenance, mortgages for 102, 105 TAXES. . mortgagee in possession allowed for payment of. 80 duty of mortgagor to pay 144 Tenants-in-common, joint mortgage of. 96 TEEKE-TEXANTS. parties to sci. fa 150 may redeem possession 80 when they may take advantage of usury paid 107 perso.nal liability of terre-tenant for mortgage debt 136, 139 Tolls, mortgage of 97 USCKY. who may take advantage of. 107 building associations 107 WASTE. by mortgagee in possesssion 78 by mortgagor 144 Water po^wer, mortgage of. 97 VERDICTS, LIEN OP § 246 ACTS OF ASSEMBLY. Act of 23d March, 1877, P. L. 34 246 16th April, 1840, P. L. 410 246 ,'«¥»? ♦ ', '" /./m