text:
    Shearer et al. versus Brinley et al.

    1. A judgment was recovered against the executors of a decedent in 1827, fi. fa. issued, laud levied on and condemned in 1828 ; a venditioni issued 1838. Held, that it was not necessary, under the Act of February 24th Sect. 34, to make the widow and devisees parties previously to issuing the venditioni.
    2. Had there been a judgment only against the executors, an execution could not have issued after the Act of 1834 was in force, without making the devisees, &c., parties.
    3. The fi. fa., levy and condemnation created a lien on the land, and it was in the custody of the law to answer the. debt.
    4. The lien acquired by the levy and condemnation subsisted unaffected by the lapse of time, and the sheriff's sale under the venditioni divested the title of the devisees of the decedent.
    5. The levy and condemnation being at a time when the lien of the debt was in force was a sufficient prosecution of the action: and under the Act of April 4th 1798, sect. 4, no revival of the judgment within five years was necessary.
    6. The lien of a judgment against a decedent at the time of his death is without limit as against his heirs or devisees, and need not be revived in order to be executed on the land held by them.
    7. McLaughlin v. McOumber, 12 Casey 14; Payne a. Craft, 7 W. & S. 465; Steel v. Henry, 9 Watts 528, remarked on.
    May 25th 1874.
    Before Sharswood, Williams, Mercur and Gordon, JJ.
    Error to tbe Court of Common Pleas of Franklin county: Of May Term 1874, No. 74. _
    _ This was an action of ejectment, commenced September 1869, by Abraham Brinley and Ann Jane Brinley his wife, in her right, and John Wilson, against William Shearer and Elias Shearer, for a tract of land in Fannet township.
    The land originally belonged to Samuel Moore, who, by his will dated January 21st 1825, and proved April 1st 1825, devised it as follows:—
    “I leave and bequeath to my daughter Nancy Wilson (otherwise Moore), wife to William Wilson, part of the place I now live upon after the death of her mother Catharine Moore, otherwise Patterson * * * supposed to be thirty-five acres of land, be the same more or less, and no debt or debts that her said husband William Wilson, have contracted or may contract shall be any lien or embarrassment, upon said described thirty-five acres of land, be the same more or less, but to be entirely for the support of my daughter Nancy Wilson (otherwise Moore) and her children or issue, and at the death of my said daughter, my grandchildren, if of age, they may sell the said thirty-five acres of land, be the same more or less; that is, the children or issue of my daughter Nancy Wilson (otherwise Moore).”
    To April Term 1827, of the Court of Common Pleas of Franklin county, Thomas H. Crawford recovered a judgment for $190.08 against Catharine Moore, William Wilson and Thomas Redman, executors, &c., of Samuel Moore, deceased. A fi. fa. on this judgment was issued April 26th 1828. On the 17th of May 1828, an inquisition was held and the land was condemned. On the 14th of April 1838, a venditioni issued. On the 10th of August, the land was sold by the sheriff to Jacob Shearer, and the deed acknowledged October 2d, 1838. There had been no scire facias issued on the judgment to bring in the widow and heirs of the decedent. Nancy Wilson, the daughter of the testator, died on the 11th of May 1854. Mrs. Brinley and Wilson are her only children.
    The cause was tried November 7th 1873, before Rowe, J., when the foregoing facts appeared in evidence. There was evidence also by the defendants for the purpose of raising an equitable estoppel against the plaintiffs. The only question discussed and decided by the Supreme Court was as to the validity of the sheriff’s sale.
    The plaintiffs’ fourth point, which was affirmed, was :—
    “ The sale of the land in 1838,- by Sheriff Burns, on writ of venditioni exponas, and his deed to Jacob Shearer for the same, were invalid, and conferred no title upon the purchaser, unless a writ of scire facias was previously to said sale issued against, and served upon the widow, heirs at law and devisees of Samuel Moore, deceased, and that any such writ of scire facias was so issued and served, the defendants have wholly failed to show.”
    Judge Rowe instructed the jury that under the evidence Mrs. Brinley was not estopped from claiming the land; and as to Wilson, submitted the question of estoppel to the jury.
    The jury found for Mrs. Brinley for one undivided half of the land; and as to the other, they found for the defendants.
    The defendants took a writ of error, and, amongst others, assigned for error the answer to the plaintiffs’ fourth point.

      J. Stewart (with whom was F. M. KimmeU), for plaintiffs in error.
    As against devisees, the lien of a judgment obtained against the testator in his life would have been without limit: Brobst v. Bright, 8 Watts 125; Fetterman v. Murphy, 4 Id. 425; Konigmaker v. Brown, 2 Harris 269; Aurand’s Appeal, 10 Casey 151.
    The Act of February 24th 1834, sect. 34, Pamph. L. 80, 1 Br. Purd. 426, pl. 102, required notice to widow, heirs and devisees to charge the real estate of a decedent with his debtbut here the judgment, execution and condemnation were before that act. There was nothing to be done but issue a writ to sell, the property being already in the custody of the law. These proceedings having been commenced before Act of 1834 went into effect, bring the case within the exception of the 70th section. The length of time between the condemnation and the venditioni would not affect the validity of the sale : Hinds v. Scott, 1 Jones 19.

      J. McJD. Sharpe (with whom were H. Grehr and Gr. W. Brewer), for defendants in error.
    Under the 34th section of the Act of February 1834, the sheriff had no power to sell the land, no scire facias to widow and devisees having been issued: Atherton v. Atherton, 2 Barr 112; this although the proceedings commenced before the passage of the act: Warden v. Eichbaum, 2 Harris 121; Sample v. Barr, 1 Casey 457. The proviso of the 70th section does not apply to cases like this: Keenan v. Gibson, 9 Barr 249. The lien of the debt had expired at the time of the sheriff’s sale: Acts of February 24th 1834, sect. 24, Pamph. L. 77; 1 Br. Purd. 422, pl. 88; April 4th 1797, sect. 4, 3 Smith’s L. 297; Benner v. Phillips, 9 W. & S. 13; Keenan v. Gibson, 9 Barr 249.
   Mr. Justice Sharswood

delivered the opinion of the court, July 2d 1874.

By the 34th section of the Act of February 24th 1834, Pamph. L. 80, it was enacted that “ in all actions against the executors or administrators of a decedent, who shall have left real estate, where' the plaintiff intends to charge such real estate witlf the payment of his debt,” the widow and heirs, or devisees, shall be made parties thereto. As well upon the words, as the evident intent of the statute, where at the death of the decedent the land was already charged with the debt, the provision has no application. Such have been the decisions. Thus, a scire facias on a mortgage is not within the act: Hare v. Mallock, 1 Miles 263 ; Chambers v. Carson, 2 Whart. 9; Wallace v. Blair, 1 Grant 75; nor a scire facias to revive a judgment recovered before the death of the decedent : McMillan v. Red, 4 W. & S. 237; Riland v. Eckert, 11 Harris 215; Bennetts. Fulmer, 13 Wright 155. It is equally clear that where the land was charged with the debt before the time when the Act of 1834 went into operation, namely, October 1st 1834, it was not necessary to make the widow and heirs, or devisees, parties before proceeding to execution. Were then the premises charged with the debt of Samuel Moore to Thomas H. Crawford before the 1st day of October 1834 ? It is true that the judgment recovered against his executors to April 1827, in the Court of Common Pleas of Franklin county, had not that effect. It was no lien. Under it, however, as the law then stood, the real estate of the decedent might have been seized in execution, condemned and sold. If the case had rested on that judgment alone, no execution could have been issued upon it to reach the land, after the Act of 1834, without a scire facias to bring in the widow and devisees. This is the extent of Keenan v. Gibson, 9 Barr 249; Warden v. Eichbaum, 2 Harris 121; Kessler’s Appeal, 8 Casey 390; McLaughlin v. McCumber, 12 Id. 14. What distinguishes the case before us from all these determinations ■ is, that before October 1st 1834, there was an execution, a levy on the premises and an inquisition and condemnation returned. This undoubtedly created a lien on the land so levied on; it was in the custody of the law to answer that debt, and consequently was already charged with it: Stauffer v. The Commissioners, 1 Watts 300; Packer’s Appeal, 6 Barr 277; Lea v. Hopkins, 7 Id. 492; Hinds v. Scott, 1 Jones 19; Riland v. Eckert, 11 Harris 215. No one can doubt that a venditioni exponas, founded on that levy and condemnation, followed by a sheriff’s sale and deed, duly acknowledged, would have divested the title of Samuel Moore in the premises. Without any resort to the 70th section of the Act of 1843, which excepts from the repealing clause all such acts as may be necessary to finish proceedings commenced before that time, the 34th section had no application to this proceeding. It may be worth while, however, to observe that the exception has been held not to apply in favor of an action commenced or judgment obtained against the personal representatives of the decedent before the act, because, having no necessary reference to the real estate, no proceeding with such reference can be said to have commenced until execution and levy. But where there was such an execution and levy, there is such a proceeding commenced, which the act allows' to be finished without reference to its provisions. We think therefore there was error committed by the learned court below in affirming the plaintiff’s fourth point, that the sale of the land in 1838, on the writ of venditioni exponas, was invalid, unless a writ of scire facias was previously to said sale issued against and served upon the widow, heirs at law and devisees of Samuel Moore, deceased.

It is contended, however, that this error cannot avail the plaintiffs here, because it appears on the face of the record that the lien of the debt of Crawford, as against the heirs and devisees of Moore, had expired at the date of the sheriff’s sale in 1838. Samuel Moore died in 1825. The period of limitation of the lien of his debts was then seven years, by the Act of April 4th 1797, sect. 4, 3 Smith 297, “ after the decease of such debtor, unless an action for the recovery thereof be commenced and duly prosecuted against his or her heirs, executors or administrators, within the said period of seven years.” It has been settled that the effect of an action within seven years, duly prosecuted to judgment, was to extend the lien by analogy to the Act of 4th of April 1798, sect. 2, 3 Smith 331, five years longer — that is, for twelve years from the decease of the debtor: Trevor v. Ellenberger, 2 Penna. Rep. 94; Penn v. Hamilton, 2 Watts 53; Fetterman v. Murphy, 4 Id. 429; Steel v. Henry, 9 Id. 523; McLaughlin v. McCumber, 12 Casey 14. As these decisions have been subsequently explained, this court adopted the analogous provisions of the Act of 1798 to determine what w'as an action duly prosecuted within the Act of 1797: Steel v. Henry, 9 Watts 528; Payne v. Craft, 7 W. & S. 465. More than twelve years from the death of Samuel Moore had elapsed when the title of his devisees was attempted to he divested by the sheriff’s sale. Without any question, the general lien of the debt, as against them, was then gone. But the point now to be determined is, whether the levy and condemnation, at a time when the lien of the debt was in full force, and when such seizure and levy was perfectly lawful and regular, was a sufficient due prosecution of the action without a revival of the judgment ? Nothing is better settled than that under the Act of 1798 it was sufficient, and that no revival of the judgment within five years was necessary: Young v. Taylor, 2 Binn. 218; Commonwealth v. McKisson, 13 S. & R. 144. The mischief of such a particular secret lien, when the general lien of the judgment had expired, occasioned the passage of the Act of March 26th 1827, sect. 2, 9 Smith 303; Ebright v. The Bank, 1 Watts 397. Shall the analogy of the Act of 1798 be still further carried out by applying to the Act of 1797 the provision of this supplement of 1827 ? . This was one of the questions which arose in Steel v. Henry. Mr. Justice Kennedy remarked: “ The Acts of 1827 and 1828, relative to the liens of judgments, and prescribing the mode to be observed and pursued with a view to continue such liens in force, have no application to judgments obtained against the personal representatives of deceased debtors, and not being very reasonable in some of their provisions, as regards the continuance of the liens under judgments obtained against the debtors themselves, it is therefore not very probable that courts will ever be disposed to extend their principles to cases not falling within either the letter or spirit of these acts.” Steel v. Henry went off upon another point. The question, however, did arise, and was the very ratio decidendi in Payne v. Craft, 7 W. & S. 465. “ It has been argued,” said Mr. Justice Kennedy, “that the directions of'the Acts of 1798, 1827 and 1828, for continuing the liens of judgments therein mentioned, ought to have been observed and strictly complied with by Mr. Ross, in order to continue the lien of his debt after he had obtained judgment for it. In answer to this, however, it is sufficient to observe that these Acts of Assembly do not embrace judgments originally obtained against the executors or administrators of a deceased debtor, but extend merely to judgments obtained against the debtor himself in his lifetime, whereby liens are created on his real estate for the sums so recovered.” He goes on to say: “ The farthest that this court has gone was to adopt, upon a principle of analogy, the five years mentioned in these acts, and to hold that, where no proceeding had been had or act done on a judgment obtained against the personal representatives of a deceased debtor, negativing the idea of its being paid, within five years after the seven years from the debtor’s death had expired and the judgment had been obtained, the lien of the debt on the real estate, late of the said debtor, should be considered as extinct and gone.” It is true that the late Mr. Chief Justice Thompson, for whose obiter dicta even, no man can have a greater respect than I have, in McLaughlin v. McCumber, expressed the opinion that the Act of 1834 had changed the law as laid down in Steel v. Henry and Payne v. Craft; and he refers to the twenty-fifth section as forbidding by express provision an implication that the lien might be continued by execution on the first judgment, by the express declaration that the lien shall not be continued against the real estate of the decedent unless revived by scire facias every five years. But the twenty-fifth section is confined to judgments which at the time of the death of the decedent shall be a lien on his real estate; and even as to them the provision to which he refers is: “ Such judgments shall not continue a lien on the real estate of such decedent as against a bond fide purchaser, mortgagee or other judgment-creditor of such decedent, unless revived by scire facias or otherwise, according to the laws regulating the revival of judgments.” It is accordingly well established that the lien of a judgment against a decedent at the time of his death, as against his heirs or devisees, is without limit and needs not to be revived every five years, in order to be executed at any time, on lands still held by them: Fetterman v. Murphy, 4 Watts 424; Brobst v. Bright, 8 Id. 124; Wells v. Baird, 3 Barr 351; Konigmaker v. Brown, 2 Harris 269; Aurand’s Appeal, 10 Casey 151; Bindley’s Appeal, 19 P. F. Smith 295. The decision in McLaughlin v. McCumber, that on a judgment against the personal representatives of a decedent, obtained prior to October 1st 1834, a testatum fi. fa. could not be issued and executed on land without calling in the heirs or devisees, was undoubtedly right. In that case there was. no lien, particular or general, at the time when the Act of 183.4 went into operation. On the whole, then, we have arrived at the conclusion that though the general lien of the debt of Thomas H. Crawford against other lands was gone at the time of the sheriff’s sale, yet the particular lien, acquired by the levy and condemnation on these premises, still subsisted, unaffected by the lapse of time; and the sale by the sheriff, under the .venditioni exponas issued upon it, divested the title of the devisees of Samuel Moore, and vested a good title in the purchaser.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Gordon Mr. Justice Sharswood and Mr. Justice Williams

license: Public Domain

text:
    Bucher versus Dillsburg and Mechanicsburg Railroad Company.
    1. In a suit against a subscriber for stock of a railroad, under the Act of April 4th 1868, the plaintiffs having given in evidence a certified copy of the articles of association, with the name of defendant to them, filed and recorded with the Secretary of the 'Commonwealth, as required by the act: Held, that defendant might give evidence that he signed a blank paper for the stock, under an arrangement with the agent obtaining his subscription that it should be not binding, nor “ the heading,” being the articles of association, be attached to it until it should be presented to him and approved, and that it never was presented to him or approved.
    2. Unless defendant’s subscription was attached to the articles with his assent, he would not be bound by it.
    3. No subscription to stock under the Act of 1868 is valid, whether before or after the incorporation, without the payment of ten per cent, on the amount subscribed. Per Siiarswood and Williams, JJ.
    May 26th 1874.
    Before Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Oumberland county: Of May Term 1874, No. 61.
    This was an action of assumpsit, brought to April Term 1872 of the court below, by The Dillsburg & Mechanicsburg Eailroad Company against Eobert C. Bucher.
    The plaintiffs were incorporated under the Eailroad Law of April 4th 1868, Pamph. L. 62, 2 Br. Purd. 1211.
    The first section of the law authorizes any number of citizens of Pennsylvania, not less than nine, to form a company to construct and operate a railroad, and for that purpose to make and sign articles of association, stating the name of the company, the number of years it is to continue, the places from and to which it is to be constructed, its length, the amount of capital stock (which shall not be less than $10,000 per mile), the number of shares, the names and places of residence of the president and directors, who are to manage the affairs for one year and till others are chosen. The articles of association, after being acknowledged, &c., as provided by the act, may be filed in the office of the Secretary of the Commonwealth, and recorded, &c.; and then the articles of association shall be the charter of the company.
    By subsequent sections the articles shall not be filed and recorded in the office of the Secretary of the Commonwealth until $9000 per mile be subscribed and 10 per cent, paid thereon, in good faith, in cash to the directors. A copy of the articles of association, certified by the Secretary of the Commonwealth, shall be evidence of the incorporation and of the facts therein stated.
    By the 4th section, in case the whole stock is not subscribed when the articles of ’ association are filed and recorded, the directors may keep open books for subscription, “ and shall continue to receive subscriptions until the whole capital stock is subscribed. At the time of subscribing, every subscriber shall pay to the directors 10 per cent, of the amount subscribed by him, in money; and no subscription shall be received or taken without such payment.”
    The plaintiffs’ declaration set out in the first count the articles of association, viz., that the subscribers to them had associated for the purpose of constructing and operating a railroa.d; the length “ contemplated to be now built is about seven miles from the borough of Mechanicsburg in, &c., to Dillsburg in,” &c.; the capital stock to be $350,000, in shares of $50 each. The articles contained the duration of the corporation, the names of the officers, &c., and concluded:—
    “And we have hereunto subscribed our names respectively with the places of our residence, and the number of shares we each agree to take in said company. Witness our hands the 2d day of September, A. D. 1871.
    “Names. Places of Residence. No. of Shares.
    **** #>)*** * *
    Robert 0. Bucher. Mechanicsburg. 5.”
    The narr. then averred that defendant agreed to pay $250 for the stock, and had not.
    The case was tried January 22d 1874, before Junkin, P. J.
    The plaintiffs gave in evidence a copy of the articles of association, filed November 1st 1871, certified by the Secretary of the Commonwealth; also evidence of-due notice of calls for payment of. all the instalments at different times, the last being May 1st 1872. They then rested.
    The defendant testified:—
    “ Brinks called on me sometime in September, and he stated that he wanted me to take a certain amount of stock in the Dills-burg and Mechanicsburg Railroad. He had in his possession a blank paper, without a heading, with some signatures on it; he told me that the proper papers were over at Dillsburg; that they had been sent there, and had not been returned, and stated that the papers with the heading would be returned, and he then wished my signature to the papers; he said it' required my signature to them and payment of ten per cent, in order to bind me to pay the stock. He said they would be returned, and then I would be asked to subscribe them. There was nothing said about annexing the papers to any heading; that this was only intended to find out who would subscribe; that to make it binding the ten per cent, must'be paid down. I knew, that the object desired was a subscription to the road, and there was a column ruled for shares and the number of shares were set out in it, opposite my name. I did sign on the conditions stated by Brinks, that the forwarding men were to sign, and if they did not, I would not go into it, or be bound; and the other forwarding men were to sign, and if they did not, he would not go into it or be bound; and the other forwarding men did not go in and subscribe. I never paid the ten per cent.; saw a notice that it was called on for payment. I never subscribed to nor saw the articles of association.”
    The defendant then offered to prove that after said company was organized, they went on to build a railroad, not from the borough of Mechanicsburg, but from Silver Spring township, a mile outside of the limits of the borough of Mechanicsburg; that when he subscribed, a blank sheet of paper was offered to him, and it was stated to him that if he put his name down it would not have any binding force; that the articles of association would be presented to him, when they returned from Dillsburg, for his signature, and that he would not be bound until he signed them and paid ten per cent, of the subscription-money in good faith, and that the sheet of paper on which he put his name should not be attached to any heading, until he actually saw the heading, consented to it, and subscribed it; and that, he never did see any heading to the paper, and never consented that the paper on which he put his name should be attached to these articles of association.”
    The offer was objected to by the plaintiffs.
    Per Curiam. — “ The certificate of the secretary of the Commonwealth of the recording of the articles of the association, under the Act of 4th of April 1868, is conclusive, and in this issue cannot be inquired into. The 2d section requires that $9000 per mile be subscribed and 10 per cent, paid in ; but this does not require that if more than $9000 per mile is subscribed the 10 per cent, must be paid on the excess also. We think the spirit of the act is that, there must be $9000 per mile and 10 per cent, paid on that, not at the time of the subscription, but before the articles, &c., are recorded, and that the 10 per centum required to be paid at time of subscription in the 4th section are those made after recording the articles of association, to supply the deficiency in the stock allowed. But whether the defendant subscribed at all or not may be gone into; and as to that part of the offer it is admitted. As to the alleged failure of the association to commence road at bo-, rough of Mechanicsburg we have nothing to do.”
    A bill of exceptions was sealed for defendant.
    The defendant then called A. H. Brinks, and offered to prove that Judge Watts, president of the association, at a public meeting of citizens in reference to the organization, announced, when the citizens were asked to subscribe to the articles of association, that the meeting then held was merely a preliminary meeting, and that whatever they then subscribed would have no binding effect until they were called upon, and actually paid ten per cent, of their subscriptions, and that any of them could withdraw their subscriptions before they paid the ten per cent.; that this meeting was merely intended to see what could be done in the premises; that the witness afterwards called on defendant and presented a paper to him without any heading, and asked him to put his name down for five shares, or $250, assuring him that the paper should not be attached to any heading, without he first saw it, and consented to it, and that it should not bind him unless he first consented to the headings and paid in ten per cent, of 'the subscription; and that he would have to sign the articles of association beford-he was bound.
    The plaintiffs objected to the offer; the court rejected all the offer except what related to the actual subscription by the defendant, and sealed a bill of exceptions.
    The witness testified: “ The paper I took to Bucher was six' sheets of paper eyeleted together; it had no heading; the heading had been taken to Dillshurg, and I waited three days for its return. He objected to putting his name down. I told him the heading was at Dillshurg, and he could see it when it came back; that when it would come back, I would show it to him, and then he could let his name stand or take it off if he was not satisfied. I never showed Bucher the heading of the subscription, for I never saw it since myself. I told Bucher that I wanted him to subscribe to the railroad, that we were now going around and trying to get the names of the people to subscriptions. The number of shares was set out, to wit, five shares. He wanted to put down $250, but I told him to put down the shares.”
    Defendant then proposed to ask the witness whether he told the defendant, at the time and before he subscribed the $250, that Judge Watts said the subscription would not be binding unless he paid his ten per cent, on it.
    Defendant also offered to prove by Judge Watts that, at the time they were about applying for the charter of this railroad, lacking the number of shares and amount necessary to secure the charter, witness subscribed for 193 shares at $50 per share, anticipating that the Cumberland Valley Railroad Company, which was interested in the project, would take it off his hands, and that he, as president of the Cumberland Valley Railroad Company, directed the treasurer of said railroad company to pay $9650, the full amount of the one hundred and ninety-three shares, so as to enable them to secure the charter; and this was done, and the charter thereby secured ; and this was the mode in which the ten per cent', was paid on $9000, a mile of the road.
    Both offers were rejected and several bills of exception sealed.
    The following are points of the defendant with their answers:—
    “1. If the jury believe that R. C. Bucher, the defendant, subscribed his name to a blank paper without any heading to it, and with the express agreement that the paper on which his name was written should not be binding unless he subscribed the original articles of association which were then at Dillshurg, and the original articles were never presented to him for his signature, he is not a subscriber to these articles of association, and the plaintiffs cannot recover.”
    Answer: “We instruct you that if Mr. Bucher signed a paper without a heading, subscribing five shares ($250) to the capital stock of this railroad, knowing and intending when so doing to take that amount of the stock, and that paper was afterwards attached to the articles of association, along with others, he is bound, and you should find for the plaintiff.
    . “We instruct you that all conditions of every kind upon which Mr. Bucher subscribed are void in law and the subscriptions good. The law, wisely, does not recognise conditional subscription to stock, because i'f it were allowed, it would operate as a fraud upon bond fide subscribers. One would subscribe and pay, and another would subscribe and not pay, because he had subscribed conditionally. Thus gross fraud would be practised, and you see the law is wise when it says that no such condition shall be effectual to release the subscriber.”
    “ 2. At the time of giving his signature, as stated on the first point, as there was no company organized, and no natural or artificial person with whom he could contract, Mr. Bucher’s signature was not binding on him for the money now sought to be recovered, and the plaintiffs cannot recover.”
    Answer: “ The Act of 1868, undoubtedly, when it authorizes these associations, must intend that the subscriber should be bound before organization, otherwise the subscribers may play fast and loose and organization would become impossible. If Mr. Bucher subscribed to a paper intended to be a subscription, although without a heading, and that paper was appended to the articles, he is bound; it is a subscription which the law holds good. Stripping it of the. conditions, which the law does for good reasons, there remains but one question, to wit: Did he sign and subscribe for five shares of stock, and was the paper so signed by him appended to the articles of association ? And if he did, he must pay.”
    The verdict was for the plaintiffs for $279.13.
    The defendant took a writ of error, and assigned for error the rejection of his offers of evidence and the answers to his points.

      W. H. Miller (with whom was H. JSfewsham), for plaintiff in error.
    The company not having constructed the railroad to Mechaniesburg, subscriptions made on condition that the road should .go there are not binding : Manheim, P. & L. Turnp. Co. v. Arndt, 7 Casey 317; Com. v. Pittsburg, 5 Wright 282. The subscription being made on the assurance by Judge Watts and the agent taking it that the subscribers would not be bound until the 10 per cent, were paid, they would not be bound if it was not paid: Custar v. Titusville Gas & W. Co., 13 P. F. Smith 385 ; Crossman v. Penrose Ferry Bridge Co., 2 Casey 69; Campbell v. Mc-Clenachan, 46 S. & R. 171; Miller v. Henderson, 10 Id. 290 ; Stubbs v. King, 14 Id. 207; Renshaw v. Gans, 7 Barr 117; Ayer’s Appeal, 4 Casey 179. The 10 per cent, should have been first paid to make the subscription binding : Hibernia Turnpike v. Henderson, 8 S. & R. 219; Erie & Waterford Plank Road v. Brown, 1 Casey 156. Parol evidence was admissible to show that the heading was not to be attached to the blank paper signed by defendant till he had seen and assented to it: Rearich v. Swinehart, 1 Jones 238; Hurst v. Kirkbride (cited in Wallace v. Baker), 1 Binn. 616; Hain v. Kalbach, 14 S. & R. 159.

      J. Says (with whom was S. M. Senderson), for defendants in error.
    Where a company is incorporated, a condition annexed to a subscription to its stock may be enforced : Crossman v. Penrose Ferry Bridge Co., 2 Casey 69; Coil v. Pittsburg College, 4 Wright 439; McConahy v. Turnpike Co., 1 Penna. R. 426; Custar v. Titusville Gas & Water Company, 13 P. F. Smith 381. The subscriptions in these cases were made before the company was incorporated. The Act of 1868 provides for the associators receiving the subscriptions. The principles governing in the one case apply to the other. They are the same. The stock must be subscribed before the Commonwealth will part with the franchise : Pittsburg & Steubenville Railroad Co. v. Biggar, 10 Casey 455; Pittsburg &Connellsville Railroad Co. v. Stewart, 5 Wright 58; Bedford Railroad Co. v. Bowser, 12 Id. 34. It matters not that the papers signed by the parties were or were not without headings. They intended to subscribe to the stock of the Dillsburg and Mechanicsburg Railroad Co. The jury found that they did subscribe. A verbal subscription is binding: Ryerss v. The Congregation of Blossburg, 9 Casey 114. If the charter required the company to fix one of its termini in the borough of Meehaniesburg, and if it failed so to do, it would be a violation of the corporate franchise. Individuals cannot complain of this. The right to do so is confined to the Commonwealth: Buck Mountain Coal Co. v. Lehigh Coal & Nav. Co., 14 Wright 91; Sparhawk v. Union Passenger Railway Co., 4 P. F. Smith 401; Cumberland Valley Railroad Co.’s Appeal, 12 Idt. 227. So with reference to the non-payment of the 10 per cent, at the time of subscription: Cochran v. Arnold, 8 P. F. Smith 405.
   Mr. Justice Gordon

delivered the opinion of the court, June 4th 1874.

The proposition made by the defendant to prove that his subscription to the stock of the proposed railroad was made upon a blank sheet of paper, with the distinct arrangement with Brinks, who acted as agent in taking up the subscriptions, that it should not have any binding force, or be attached to the “ heading,” until he had an opportunity of inspecting and approving that instrument, was material, and the court should have admitted it.

The Act of April 4th 1868, sect. 1, under which this railroad company was organized, reads as follows: “ Any number of citizens of Pennsylvania, not less than nine, may form a company for the purpose of constructing, maintaining and operating a railroad for public use * * *; and for that purpose may make and sign articles of association, in which shall be stated the name of the company; the number of years the same is to continue; the places from and to which the road is to be constructed, or maintained and operated; the length of such road as near as may be, and the name of each county in the state through or into which it is made or intended to be made; the amount of capital stock of the company, which shall not be less than $10,000 for every mile constructed or proposed to be constructed, and the number of shares of which said capital stock shall consist; and the names and places of residence of a president, and not less than six nor more than twelve directors of the company, who shall manage its affairs for the first year and until others are chosen in their places. Each subscriber to such articles of association shall subscribe thereto his name, place of residence, and the number of shares of stock he agrees to take in said company,” &c.

It will thus be seen that the “heading,” about which Brinks and the defendant spoke, was nothing less than the articles of association required by the above-recited act. It was therefore a matter of grave import to the subscriber that he should know to what his name was to be appended. Moreover, it was doubtless the intention of the legislature that such subscriber should know and carefully consider the paper thus presented for his signature. Eor these matters involve not merely private rights, but also affect the public weal, and hence the parties to them are required to act with due circumspection and within prescribed lines.

It is therefore certain that, unless Bucher’s subscription was attached to the articles of association, with his assent for that purpose first had and obtained, it was of no force whatever, and could not bind him.

The judgment of the court below is therefore reversed, and a new venire awarded.

Mr. Justice Sharswood and Mr. Justice Williams

delivered the following concurring opinion :—

We concur in the reversal of the judgment for the reasons given in the foregoing opinion, and we also think that there can be no valid subscription to the stock of a company incorporated under the Act of 4th of April 1868, Pamph. L. 62, without the payment by each subscriber of 10 per cent, on the amount subscribed, whether the subscription is made before or after .the incorporation-of the company.


author: Mr. Justice Mercur

text:
    Reeser versus Johnson.
    1. Johnson made an assignment for creditors, after which Reeser recovered a judgment against him adversely. Afterwards Johnson was adjudged bankrupt and the United States court decreed the assignment null and void, ordered it to be delivered up, to be cancelled and all the estate passed to the assignee in bankruptcy; the previous acts of the voluntary assignees being validated. The assignee in bankruptcy sold Johnson’s real estate to Coover. Reeser not having proved his debt in bankruptcy issued execution on his judgment, levied on Coover’s purchase and issued a venditioni. The court below restrained Reeser from proceeding on his executions; the order was reversed, the invalidity of Reeser’s lien not being so clear as to justify it.
    2. Under the proceedings in bankruptcy alone the bankruptcy assignee would not be entitled to the order, the judgment having been recovered before the bankruptcy proceedings commenced.
    3. It is a general rule to permit a sheriff’s sale of an alleged interest of the defendant in land; the question of title to be determined in an ejectment.
    May 26th 1874.
    Before Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Cumberland county: No. 93, to May Term 1874.
    The proceedings in this ease were under the following circumstances :—
    On the 2d of February 1869, an action of debt was commenced by John B. Reeser against David Sponsler and William Y. Johnson. On the 17th of February 1869, William Y. Johnson and Samuel P. Johnson, who were partners, made a voluntary assignment of all their property, individual and partnership, to R. H. Thomas and William J. Stees, for the benefit of their creditors. On the 5th of March there was an award of arbitrators for $231.33 in the action of debt against Sponsler and William Y. Johnson. On the 19th of March 1869, proceedings in bankruptcy were commenced against the Johnsons, the voluntary assignment being one of the alleged acts of bankruptcy. During the pendency of these proceedings, the voluntary assignees sold some of the assigned property, real and personal. The Johnsons were adjudged bankrupts as of the 19th of March; and on the 22d of May, the register in bankruptcy assigned all the estate of the Johnsons to George Bitner, who had been chosen assignee in bankruptcy. Bills were filed in the Circuit Court of the United States by the petitioning creditor and the assignee in bankruptcy, to require the assignees, under the voluntary deed, to surrender the property conveyed to them, and deliver up their deed to be cancelled.
    On the 16th of June the Circuit Court decreed:—
    “ That the assignment for the benefit of creditors in the proceedings mentioned, made by the bankrupts therein named to the said Stees and Thomas, is null and void, and that the same be can-celled and delivered up to the assignee in bankruptcy; so, however, and provided that all acts heretofore duly performed by them in execution of the trust, purporting to be vested in them under the said assignment, be deemed valid and effectual, on their duly accounting as hereinafter directed; and it is ordered that they desist, from and after this decree, from acting therein save as hereinafter directed. It is further ordered that they forthwith account to the assignee in bankruptcy for all proceeds of sales heretofore made by them, including the sale of real estate to Urich, and that they be allowed their reasonable expenses and charges. The account to be taken before a master to be appointed by this court, if either party so request, and that they surrender and deliver all the remaining assigned estate and effects, to the said assignee in bankruptcy. And that all costs be paid out of the assigned estate.”
    The assignees in the voluntary deed, under the decree of the Circuit Court, delivered all the remaining property, &e., of the bankrupts to the assignee in bankruptcy, who sold the personal estate of the bankrupts. He also sold two lots in the borough of Mechanicsburg, the individual property of William Y. Johnson, to Jacob Coover for $1300. On his judgment against Sponsler and Johnson, Reeser issued a fi. fa. on the 26th of September 1871; and on the 13th of November a levy was made on William Y. Johnson’s interest in several lots of land, two of which were those sold by the assignee in bankruptcy to Coover. On December 18th 1871, No. 19, to January Term 1872, Reeser issued a venditioni, and the sheriff advertised the real estate levied on for sale on the 5th of January 1872.
    The assignee in bankruptcy then presented a petition to the Court of Common Pleas of Cumberland county, setting forth the foregoing facts, and averring “ that the said W. Y. Johnson, by the deed of assignment to the said Thomas and Stees, parted with all his interest in said real estate on Eeb. 17th 1869, that the same became vested in your petitioner under the deed to'‘him and by-the decrees of the United States Circuit Court; that the judgment of the said Reeser is not a lien thereon, or upon any part thereof, because not obtained until March 5th 1869, after- the said Johnson ceased to own any title thereto, and that a sheriff’s sale thereof, as contemplated, will not divest the title, but will subject the estate of said William Y. Johnson to much and troublesome litigation in the hands of your petitioner, and impair the value of the title to that remaining unsold by your petitioner, to such an extent in view of several claimants therefor, growing out of said intended sheriff’s sale, that it will be very difficult, as your petitioner believes and is informed, to make a sale thereof; and will further cause litigation, as your petitioner believes and is informed, relative to that portion of said real estate sold by him to said Jacob Coover.
    “ Your petitioner therefore prays your Honors to grant him an order directing that the said sales by the sheriff of Cumberland county, adyertised of said property, to take place on Jan. 5th 1872, may be stayed, and all further proceedings on said writ of venditioni exponas, No. 19, January Term 1872, may be stayed until your petitioner can come into court, at its next session, and ask for a rule to show cause why the said writ should not be stricken off, and why the said levy and condemnation on fi. fa. No. 17, November Term 1871, should not be set aside, and for such further relief as the case may require.”
    On the 2d of January 1872, the court ordered that all proceedings under the venditioni be stayed until the 8th of January, “ to afford defendant an opportunity to obtain the necessary rules, &c., the levy to continue in the meantime.”
    On the 8th of January, the court granted a rule to show cause as prayed for, returnable the first Monday in March 1872.
    Reeser filed an answer to the rule, admitting substantially the facts set out in the bill, and further saying, that he was informed and believed that the decree of the Circuit Court “ adjudged the original deed of voluntary assignment made to Stees and Thomas on the 17th February 1869, to be null and void, and ordered it to be delivered up and cancelled, and that the property should go into the hands of the assignees in bankruptcy, which was accordingly done on or about the 16th day of June 1869, and that at that time his judgment was a lien; that he is further informed, and believes, that the original assignment being null and void as to creditors, and cancelled upon that account by the Circuit Court, did not interfere with his proceedings in the abovp-cited case, and that the assignees in bankruptcy took the property, subject to all the existing liens, and to the right of such creditors as had vigilantly pursued their remedies in the state courts and secured judgments ; that he has not at any time taken part in the proceedings before the register in bankruptcy, nor has he proven and presented his claim to him for adjudication, but has preserved the lien of his judgment throughout, and in this proceeding now seeks by the process of law (the assignee refusing and failing to pay him), to make his money out of the land of one of the defendants, W. Y. Johnson; * * * that the lots of ground upon which your respondent claims his judgment to be a lien, were not disposed of by the original assignees under the deed of voluntary assignment, but remained unsold at the time the said assignment was declared null and void, and was cancelled. * * *
    He prayed “ that the order staying his writ of venditioni ex-ponas may be removed at the cost of the defendant, and that he may be allowed to proceed to secure and' recover his judgment in full, from the real estate owned by the said W. Y. Johnson individually, at the time he brought this suit and recovered his judgment.”

      After argument, the court (Junkin, P. J.), after an elaborate examination of the authorities and discussion of the case, concluded his opinion, saying:—
    * * * “ The conclusion we reach is that the plaintiff has no lien.
    “ But how can we restrain ? We cannot set aside the levy, and the right of the creditor to sell any interest which he believes his debtor has in land, is admitted. The only exception seems to be where such sale would be contrary to law, and up to this time the only clear exposition of this exception is found in Hunter’s Appeal, 4 Wright 194; Winch’s Appeal, 11 P. E. Smith 424, and Lyon’s Appeal, Id. 15; and these are all cases of attempts to sell a wife’s realty to pay her husband’s debts, which the Act of 1848 expressly forbids. Even then a clear and indisputable title in the wife must be established. The reason given for interference is that it is contrary to law. But to sell A.’s property to pay B.’s debts is no less so. Both are against law and equity, and in Stock-dale v. Ullery, 1 Wright 486, the power to restrain acts contrary to either equity or law, is admitted. In Winch’s Appeal, the Supreme Court determine that under disputed facts as to title, there can be no interference; trial by jury is the remedy. Then the test must be this, that under a state of admitted facts the law draws its conclusions, and where it can assure, acts promptly by forbidding the thing to be done. No jury is needed; the facts are found and the law concludes. Now we have in this case all the facts admitted, and the only question of law arising is, has the plaintiff a lien on the land ? We hold that he has not. There is no need of a jury when this plaintiff proposes to sell Coover’s land to pay Johnson’s debt; it can only be by reason of a lien thereon; without a lien he has no right. To sell without a lien is contrary to law; the purchaser will get no title; the process of the court will be used for deceitful and illusory purposes. Bidders will be misled, the real owner of the land vexed and harassed to his hurt. Under these circumstances, we believe the ends of justice will be met by arresting the execution at this point, and we will do so.”
    The court made the following order:—
    “And now, 21st October 1873, it is hereby ordered, that John B. Reeser, plaintiff in judgment No. 98, April Term 1869, Common Pleas of Cumberland county, and also in the writs of execution issued thereon, refrain from selling the real estate levied upon under said writs of execution, so far as said real estate owned by Jacob Coover is concerned, being the same real estate conveyed to said Coover by George Bitner, as assignee in bankruptcy of W. Y. Johnson, the defendant.”
    Reeser took out a writ of error, and assigned the various orders of the court for error.

      J. Bitner and A. B. Sharpe, for plaintiff in error.
    A judgment obtained after an assignment for tbe benefit of creditors, but before tbe bankrupt’s petition is filed, is a lien on the bankrupt’s estate: McLean v. Meline, 3 McLean 200. No consideration of probable sacrifice for enforcing a debt in a state court will induce a United States court to restain the creditor for enforcing it: Ex parte Donaldson, .8 American L. R. N S. 213; Biddle’s Appeal, 18 P. F. Smith 13; Keller v. Denmead, Id. 449 ; In re Schnepf, 7 American L. R. N. S. 204; Parker v. Muggridge, 2 Story’s R. 243; Wallace v. Conrad, 7 Phila. R. 114. If the lien be good, the plaintiff has a right to execution: Rohrer’s Appeal, 12 P. F. Smith 498. A good title would pass under a sale on the execution : Fehley v. Barr, 16 P. F. Smith 196.

      J. Hays (with whom was B. M. Henderson), for defendants in error,
    cited Buchanan v. Smith, Legal Intel., October 24th 1873.
   Mr. Justice Mercur

delivered the opinion of the court, July 2d 1874.

The validity of the judgment against the defendant is unquestioned. It was regularly obtained by adverse proceedings, before any proceedings in bankruptcy were commenced against the defendant. The plaintiff claims it to be a lien on certain real estate, formerly owned by the defendant, and seeks to sell the same by virtue of execution issued on this judgment.

The assignee in bankruptcy of the defendant denies the existence of the lien. On application of the assignee, the court enjoined the plaintiff against selling the real estate conveyed by said assignee to Jacob Coo ver.

The general rule unquestionably is, to permit a sale of any alleged interest in land of the defendant in the judgment. If the defendant has no interest in the land, no title passes. The question of title is usually left to be determined in an action of ejectment: Hunter’s Appeal, 4 Wright 194. It is true this case recognises the right of the court to enjoin against a sale of the real estate of the wife on an execution against her husband. It was supported on the express language of the statute absolutely prohibiting the property of a married woman from levy and sale for the debts and liabilities of her husband, and the unquestioned fact that the land was the exclusive property of the wife. It was there said, a clear case of title in the wife must be shown, “ otherwise a court of equity will not interfere, but leave the creditor to pursue his process, and the purchaser at the sale to establish his title in ejectment.”

It must be conceded, if the assignee in bankruptcy rests his right on the proceedings in bankruptcy alone, he is not entitled to the order he has procured. The award. in favor of the plaintiff was obtained several days before proceedings in bankruptcy were commenced against the defendant: Rohrer’s Appeal, 12 P. F. Smith 498; Fehley v. Barr, 16 Id. 196; Keller v. Denmead et al., 18 Id. 449. He therefore seeks to fortify his position by invoking the aid of the voluntary assignment previously made by the defendant in the judgment, for the benefit of his creditors, under the laws of this state. It appears, however, that one of the acts of bankruptcy charged in the petition filed against the defendant, was the execution of that very assignment, and he was declared a bankrupt by a general adjudication.

Upon bill in equity subsequently filed in the Circuit Court of the United States, by the petitioning creditor, and by the assignee in bankruptcy, against the assignees under state law, it was adjudged and decreed that said voluntary assignment was null and void; it provided, however, that all acts theretofore duly performed by the assignees under the assignment, for the benefit of the creditors, be deemed valid and effectual, on their duly accounting to the assignee in bankruptcy for what they had received, and that they surrender and deliver over to him all the remaining estate and effects. It was further ordered, that from and after said decree they desist from acting therein further than directed thereby.

This decree of the Circuit Court may be held sufficient to ratify the previous acts of the assignees under the laws of this state, and to prohibit their further action. Its binding force may extend to all persons and things brought within the jurisdiction of that court. The plaintiff in this case, however, was not a party to those proceedings. No question was there considered as to the lien of his judgment, nor as to his rights as a creditor of the bankrupt. He never presented or proved his claim before the register in bankruptcy. He in no manner took part in any of the proceedings in bankruptcy. He rested upon his judgment and relied upon the lien which he claims to have thereby acquired.

Without giving any binding opinion as to the validity of the lien claimed by the plaintiff, wTe feel constrained to say that its invalidity .is not so clear as to justify the order made by the court below. The plaintiff should be at liberty to proceed and sell, and the purchaser to try his title by ejectment.

Order reversed.