Where there was a mortgage of land in the City of Pittsburgh,
Pennsylvania, the mortgagee caused a writ of
scire facias
to be issued from the court of common pleas, there being no
chancery court in that state. There was no regular judgment entered
upon the docket, but a writ of
levari facias was issued,
under which the mortgaged property was levied upon and sold. The
mortgagee, the Bank of Pittsburgh, became the purchaser.
This took place in 1820.
In 1836, the court ordered the record to be amended by entering
up the judgment regularly, and by altering the date of the
scire facias.
Although the judgment in 1820 was not regularly entered up, yet
it was confessed before a prothonotary, who had power to take the
confession. The docket upon which the judgment should have been
regularly entered, being lost, the entry must be presumed to have
been made.
Moreover, the court had power to amend its record in 1836.
Even if there had been no judgment, the mortgagor or his heirs
could not have availed themselves of the defect in the proceedings,
after the property had been adversely and quietly held for so long
a time.
The facts of the case are stated in the opinion of the
Court.
Page 57 U. S. 576
MR. JUSTICE McLEAN delivered the opinion of the Court.
The complainants represented in their bill that their ancestor,
Thomas Cromwell, was seised of a tract of land, containing one
hundred and seventy acres, situate in the County of Alleghany, at
or nearly adjoining the City of Alleghany, and also a certain lot
of land situate in the City of Pittsburgh, which were mortgaged by
the said Cromwell to secure a debt of twenty-one thousand dollars
which he owed to the Bank of Pittsburgh. That the bank, on the 9th
of June, 1820, caused a writ of
scire facias to issue on
the mortgage in the court of common pleas, which had jurisdiction
of the case, a service of which was accepted by the said Cromwell
in writing, but that said writ was never legally returned. That
without any judgment on the mortgage a writ of
levari
facias was issued, and the lands mortgaged were levied on and
sold, and the bank became the purchaser.
That on the 1st of December, 1835, the bank, by its attorney,
Bradford, moved the court for a rule on Thomas Cromwell, the
defendant, to show cause on the second Monday of December, why the
record of the case should not be amended on the docket, so that the
judgment, which appears among the papers, should be entered as of
September 13, 1820. The rule was granted, and on the 14th of
December, 1835, the same was made absolute, and judgment,
nunc
pro tunc entered in favor of the bank by the prothonotary of
the court.
Page 57 U. S. 577
And on the 16th March, 1836, the said Bradford moved that the
scire facias, which had been issued should be amended, by
inserting the 13th of September, 1820, instead of the 13th of May
of the same year, so as to conform to the judgment, and the motion
was granted and the amendment made.
The judgment entered on the papers was as follows: the Bank of
Pittsburgh
scire facias.
"In my proper person, I this day appeared before the
prothonotary in his office, and confessed judgment to the plaintiff
for $21,740.40, besides costs, with release of all errors without
stay of execution, and that the plaintiff shall have execution by
levari facias to November term, 1820:"
Signed, Thomas Cromwell -- which paper the clerk states was
filed September 13th, 1820. This paper is alleged to be in the
handwriting of the attorney, but the signature is admitted to be
Cromwell's.
This authority, it is alleged, did not authorize the entry of a
judgment, and that it was no part of the record, and cannot show
the judgment, it being no more than parol proof, which cannot be
received to establish a judgment unless it be shown that the book
containing the original entry had been lost.
The bank is alleged to have been in possession, by itself and
tenants, of the property sold, and that there being no judgment,
the proceedings on the
scire facias are void, and that in
equity the bank should only be considered as a mortgagee and
compelled to account for the rents and profits, and be decreed to
release the mortgage on receiving the money and interest on the
debt due to the bank as aforesaid.
The complainants are shown to be the heirs of Thomas
Cromwell.
The bank, in its answer, admits the facts as set forth in the
bill as to the debt, the mortgage, the issuing of the
scire
facias, the judgment, and the sale of the premises &c.,
and alleges their validity, under the laws of Pennsylvania. That
the mortgage having been produced and the property sold, which,
before the year 1829, was sold and conveyed by the bank to
different individuals, and that it has ever since been in the hands
of innocent purchasers, and it alleges there is no right of
redemption under the circumstances, and it prays that the bill may
be dismissed at the cost of the complainants.
From the proceedings in this case it appears that the records of
the court, where the proceedings on the mortgage were had, are kept
loosely, and differently from the judicial records of the courts of
common law in England or in this country. But the usage must
constitute the law, under such circumstances, as a requirement of
the forms observed elsewhere, would affect titles under judicial
sales to a ruinous extent.
Page 57 U. S. 578
By the Judiciary Act of Pennsylvania, of the 13th of April,
1791, it is provided that prothonotaries shall have the power to
sign all judgments, writs, or process &c., as they had for
those purposes when they were justices of the court. Before this
statute it appears that one of the justices of the court, having
possession of the seal, signed all writs and judgments, took bail
&c., and performed the duties of prothonotary. And under the
above statute, the prothonotary still exercises many judicial
functions.
The confession of judgment with release of errors, and the
agreement that execution should issue returnable to November term
ensuing, evinced a desire on the part of the mortgagor, to remove
every obstruction to a speedy recovery of the demand by the bank.
The
scire facias was returned to August term, 1820. This
mode of procedure on a mortgage was authorized by a statute, and
was intended as a substitute for a bill in chancery, there being no
such court in Pennsylvania.
The objection to this judgment is that it was not entered upon
the minutes kept by the prothonotary. It is in proof that these
minutes or dockets were not carefully preserved by the
prothonotary, and that the one in which this entry should have been
made is lost, but there is no positive proof that any such entry
was made.
The prothonotary took the confession of the judgment in writing,
and there can be no doubt he had power to do so. By the practice of
the common pleas, it seems the judgment is entered sometimes on the
declaration, at others on a paper filed in the cause. From the
entry of judgment the prothonotary is enabled to make out the
record in form when called for, but unless required, the
proceedings are never made out at length. For this purpose it would
seem that the paper filed, containing the confession of a judgment
by the defendant, would afford more certainty than the abbreviated
manner, in which it was usually entered.
In
Reed v. Hamet, 4 Watts 441, the court say that
judgments by confession, on the appearance of the party in the
office, taken by the prothonotary, though not universal, have, from
time immemorial, been frequent, and their validity has never been
questioned.
Confession of judgment is a part of the record when made out,
and it may be copied from the papers in the case.
Cooper v.
Gillett, 8 Serg. & R. 568;
McCalmont v. Peters,
13 Serg. & R. 196;
Lewis v. Smith, 2 Serg. & R.
142;
Shaw v. Boyd, 12 Pa.St. 216; 7 Serg. & R.
206.
The docket being lost, under the circumstances the court would,
if necessary, presume the entry of the judgment was
Page 57 U. S. 579
made on it. This presumption would rest upon the fact, that
judgment was confessed with the release of all errors, and an
agreement that execution should issue by the mortgagor, which
execution did issue and on which the land was sold, shortly after
which the mortgagor surrendered the possession and an acquiescence
by him and his heirs for thirty years, would afford ample ground to
presume that the prothonotary had performed the clerical duty of
entering the judgment on the docket.
But the court had the power to make the amendment, which they
did make, and which removed the objection, by causing the judgment
to be entered
nunc pro tunc. This was a duty discharged by
the court, in the exercise of a discretion, which no court can
revise.
Clymer v. Thomas, 7 Serg. & R. 178, 180;
Chirac v.
Reimcker, 11 Wheat. 302;
Latshaw v.
Stainman, 11 Serg. & R. 357-8;
Walden v.
Craig, 9 Wheat. 576.
If there had been no judgment, under the circumstances, the
complainants could have no right to redeem the premises.
The complainants file their bill to redeem the land, as
mortgagors, which, by the improvements and the general increase of
the value of real estate where the property is situated, has become
of great value. Thirty years have elapsed since it was sold, under
the appearance, at least, of judicial authority. The property was
purchased by the bank for less than the amount of the debt. By the
confession of judgment, with a release of all errors, and an
agreement that execution should be issued, the mortgagor did all he
could to facilitate the proceedings and to secure a speedy sale of
the premises. The bank, it seems, in the course of some six or nine
years, sold the property in lots to different purchasers for
something more, perhaps, than its original debt and interest. For
nearly twenty-five years the purchasers have been in possession of
the property, improving it and enjoying it as their own.
No dissatisfaction was expressed by the mortgagor, who
voluntarily relinquished the possession, and none appears to have
been expressed by his heirs until the commencement of this suit.
For thirty years, the mortgagee and its grantees have been in
possession of the property, no claim of right being set up for the
equity of redemption, or on any other account. Under such
circumstances, a court of equity could give no relief had there
been no legal judgment.
"Twenty years undisturbed possession, without any admission of
holding under the mortgage, or treating it as a mortgage during
that period, is a bar to a bill to redeem. But if within that
period there be any account, or solemn acknowledgment of the
mortgage as subsisting, it is otherwise.
Dextor v. Arnold,
1 Sumn.C.C. 109. "
Page 57 U. S. 580
A mortgagor cannot redeem after a lapse of twenty years, after
forfeiture and possession, no interest having been paid in the
meantime, and no circumstances appearing to account for the
neglect.
Hughes v.
Edwards, 9 Wheat. 489. Where the mortgagee brings
his bill of foreclosure, the mortgage will, after the same length
of time, be presumed to have been discharged unless there be
circumstances to repel the presumption, as payment of interest, a
promise to pay, an acknowledgment by the mortgagor that the
mortgage is still existing, and the like.
Id.
In every point of view in which the case may be considered, it
is clear that there is no ground of equity, on which the
complainants can have relief.
The decree of the circuit court is
Affirmed with costs.
Order
This cause came on to be heard on the transcript of the record,
from the Circuit Court of the United States for the Western
District of Pennsylvania, and was argued by counsel. On
consideration whereof, it is now here ordered, adjudged, and
decreed by this Court, that the decree of the said circuit court in
this cause, be, and the same is hereby affirmed, with costs.