St. Bartholomew's Church v. Wood

1. A judgment entered by a prothonotary under a power contained in the instrument, is a judicial act, and has the same effect as a judgment confessed by attorney or given in open court. The entry of an amicable action and confession of judgment has the same effect. 2. An amicable action and confession of judgment between the plaintiff and a church, signed by the rector and churchwarden, with the corporate seal, was filed in the prothonotary’s office; the judgment entered thereon was not void although the persons signing may not have had authority. 3. It is the owner only of the estate taken in execution who can waive the inquisition. 4. A sale on fi. fa. without a waiver of inquisition is without authority and void, and is not confirmed by the acknowledgment of the sheriff’s deed and distribution of the proceeds. 5. Spragg v. Shriver, 1 Casey 282, considered and explained. 6. A venditioni exponas is in legal contemplation issued by the court; is its express command to sell, under its seal and cannot be disobeyed by the sheriff. 7. The acknowledgment of a sheriff’s deed cures irregularities in process or proceedings, but not want of authority to sell. 8. On the trial of an ejectment against the vendee of a purchaser at sheriff’s sale on a fi. fa. under a judgment confessed and waiver of an inquisition, evidence offered by the plaintiff to show that no waiver was made or authorized by the defendant in the execution, and that a paper filed containing the waiver was a fraud, was rejected by the court below. Held to be error. 9. That the sale was made on and not before the return-day of the writ did not render it void. 10. Under Act of April 16th 1845, § 2 (Execution), the practice has been to sell on any writ of fi. fa., &c., at any time not later than Saturday of the first week of the term.

Error to the District Court of Philadelphia: No. 220, to January Term 1868. This was an action of ejectment by the Rector, &c., of the Church of St. Bartholomew against James E. Wood and Edward McCann. The premises in controversy were a church and lot of ground in the Ninth Ward, Philadelphia. The plaintiffs were incorporated December 8th 1849, and were the owners of the premises on and for some time before the 20th of May 1866, subject to three mortgages to the trustees of the estate of Joseph P. Norris, the aggregate principal of which amounted to $4260, and on which interest for about twelve years was piue. On the 20th of May 1865, an amicable action was entered in the District Court between John Gibson and the plaintiffs, and judgment confessed to Gibson for $361. The agreement for the entry of the action and confession of judgment was signed by “ N. M. Jones, Rector,” and “ Geo. M. Taylor, Warden,” with the seal of the church. Under this judgment and subject to the mortgages, the premises were sold to James Otterson, Esq., for $200, and conveyed to him by the sheriff on the 8th of July 1865. On the 20th of September 1865, Mr. Otterson conveyed to the defendant, Bishop Wood, who went into possession and has continued in possession by his tenants ever since. On the 12th of March 1866, on a writ of error coram nolis, the District Court reversed the judgment in favor of Gibson under which the premises had been sold. On the trial before Hare, P. J., the plaintiffs showed their original title; and the defendants admitted their possession. The plaintiffs then rested. The defendants offered in evidence the record of Gibson’s judgment: fi. fa. thereon with waiver of inquisition; sheriff’s sale under the fi. fa. on the 3d of July, which was the return-day of the writ; to be followed by proof of confirmation of sale and sheriff’s deed to Mr. Otterson. The paper containing the waiver, had a statement of the parties to the case, debt, costs, &c., and a description of the property levied on; it concluded with the waiver as follows :— “ The defendant waives any inquisition and condemnation, and requests the sheriff to. sell under this writ. For the church, [seal.] Isaac Norris, Geo. M. Taylor, Churchwardens.” The plaintiffs objected to the admission of the evidence, because the judgment had been reversed for fraud; because the judgment was confessed by parties not having authority; because there was no proof of the seal to the confession ; because of want of proper parties on the face of the waiver; because the sheriff’s sale was not made before the return-day, and because there was no specific statement of the cause of action as required by the rule of court. The objections were overruled, the evidence admitted and a bill of exceptions sealed for the plasntiffs. The defendants then gave in evidence the sheriff’s deed to Mr. Otterson dated July 8th 1865, and his deed to Bishop Wood dated September 25th. They further proved the payment on the 28th of September 1865, of the Norris mortgages, amounting, principal and interest, to $7533.34. They gave evidence that Mr. Otterson sold the property to Bishop Wood for $15,000, and that the Norris mortgages were paid, out of that sum* Mr. Otterson testified that the church was occupied by the plaintiffs until the sale to Bishop Wood; that after the sheriff’s sale witness received the keys from the rector, Mr. Jones, and handed them back to him, taking a receipt from him, and saying that so far as he was personally concerned, if the church would pay the judgment he would convey his title to them. Some time in September witness was informed that the bishop was willing to buy the property, and- he told Mr. Jones. The defendants rested. The plaintiffs in rebuttal offered the record of the proceeding of the writ of error coram nolis to show that the judgment had been reversed; also the minutes of the plaintiffs to show that no authority had been given to sign the waiver of inquisition or affix the seal; also to prove by Gibson, the plaintiff in the judgment, that he had been applied to by Isaac Norris, Esq., to have his claim placed in the hands of Mr. Norris’s counsel for the mere purpose of having it secured with other claims against the church; that the sale and deed had been made without any knowledge by Gibson, to be followed by proof that the Catholics were negotiating with Mr. Norris for the purchase of the premises just before the transaction, and that he procured them possession immediately after its consummation; also to prove by Rev. G. A. Durborrow, a clergyman of the Episcopal Church, that just before the confession of judgment he heard a committee of Roman Catholics negotiating with Mr. Norris for the purchase of the church, to be followed by proof that Mr. Norris at once procured the confession of judgment, and immediately after the sale procured the church for the defendants; also to' prove by Rev. Dr. Howe, an expert in the laws, &c., of the Episcopal Church, that a rector and churchwarden have no authority to confess a judgment or waive an inquisition, binding the real estate of the church; also to prove by Mr. Jones, the rector, that the confession was signed by witness and Mr. Taylor, and the seal affixed by Mr. Norris, — who had no right to its custody, being improperly in his custody,— without any authority of the church to do so; that the waiver was signed, and the seal affixed by Mr. Norris without authority and without the knowledge of the vestry or' congregation, until long after the sale and sheriff’s deed, and that Mr. Norris never was a warden of the church; also by Carpenter Wharton that on the 24th of February 1865 Mr. Norris informed him that Bishop Potter and he had agreed that money could be raised to pay the encumbrances on the church, that witness was requested to raise money to pay the debts, that at their next interview Mr. Norris informed witness that the Catholics were negotiating for the church, that afterwards Mr. Norris changed his course of behavior and declined to assist raising the money; also to prove by Mr. Durborrow that after the purchase of the church by defendant, witness on behalf of the Episcopal Church offered him $20,000; that the offer was refused, as being much too small, the property being worth above $30,000; also to prove by Charles E. Lex, Esq., that no authority had been obtained from the committee of the diocese according to the charter to issue the bond on which the judgment had been obtained; also to prove by Charles M, Burns that at the time the Norris mortgages were given, it was the understanding of the people of the church as frequently expressed by Mr. Norris, that no interest was to be claimed on them nor the principal ever asked for; also to prove by George M. Taylor that the confession of judgment and waiver were brought to him by Mr. Norris, who requested him to sign them; that witness signed them without authority of the church, saying to Mr. Norris that whatever he recommended would be right. All these offers were rejected by the court, and several bills of exceptions sealed for the plaintiffs. The plaintiffs then closed and submitted the following points:— 1. The plaintiffs in this case have shown a clear title in themselves to the premises described in the writ, which no evidence given on the part of the defendants has proved to have been divested. 2. The foundation of the defendants’ title in this case is an alleged judgment which they claim one John Gibson obtained against the plaintiffs; which was invalid at the time of the sheriff’s sale, on the process issued thereon, by reason of its having been entered in violation of the 44th rule of this court. No title passed therefor at said sheriff’s sale. 3. If the jury find from the evidence that the parties signing the paper, upon which the judgment of Gibson was entered, had no authority from the plaintiffs, express or implied, to execute the same, and no authority to execute the same being recited upon the face of said paper, the judgment was void, and no title passed to the purchaser at the sheriff’s sale, on the process issued thereon. 4. By the law of Pennsylvania, a rector and churchwarden have not authority by virtue of their offices to confess a judgment to bind the real estate of the corporation in which they hold said offices. The judgment of Gibson, having been so confessed, was void, and the sheriff’s sale on the process issued thereon passed no title to the purchaser. 5. In order that the sheriff’s sale of a defendant’s lands of which he is possessed upon a fi. fa. without an inquisition should be valid, it is necessary that the defendant himself, or some one by his expressly delegated authority, should waive the holding of the inquisition; and in this case, if the jury find from the evidence that the waiver of an inquisition, handed the sheriff on Gibson’s judgment, was executed without the authority of the plaintiffs, the sheriff’s sale, under which the defendants claim, was void, and no title passed to the purchaser. 6. The sheriff’s sale having been held upon the return-day of the fi. fa. upon which it was made, and not before that day, was ipso facto void, and no title passed to the purchaser. The court refused all the points ; and further charged :— “ In the view which I take of the law, this property having been sold at sheriff’s sale, having been bought by Mr. Otterson, representing certain judgment-creditors, and having been resold by him to Bishop Wood for the Catholic Church, a good title passed to the defendants, which is to say, to the Catholic Church, or Bishop Wood, for it. If Mr. Otterson paid his money to the sheriff, as he stated, and if Bishop Wood paid his money to Mr. Otterson, as he (Mr. Otterson) has stated, and counsel do'not dispute, your verdict ought to be for the defendants in this case.” The verdict was for the defendants. The plaintiffs took a writ of error and assigned 19 errors. The specifications from 1 to 12, inclusive, were to the rulings upon the questions of evidence in their order: from 13 to 18 to the answers to the plaintiff’s points, and 19 to the direction to the jury to find for the defendants.