Pennsylvania v. Kirkpatrick

*203At June term, 1794, the opinion of the court was delivered.

An inquisition of forcible entry and detainer, taken before two justices of the peace, having been removed, by certiorari, into this court, at the last term, the counsel for the parties presented the following case for our opinion.

“Agreed, that a verdict,” &c. ante p. 195.

The question in fact is, whether a sheriff, on a sale of lands taken in execution on a judgment, under the act of assembly is authorised to turn out the defendant possessor by force, and put the purchaser in possession.

There are some circumstances in the present case, different from the mere abstract question. But, in the argument, no stress was laid on them, and, perhaps, it may not be necessary to rely on them in making up our opinion. The abstract question only was considered then: perhaps the abstract question only need be considered now.

The argument for the prosecutor relied strongly on the unalienable quality of lands at common law, and the great hesitation, with which statutes submitted them to debts; and stating, that all statutes, in derogation of the principles of the common law, are liable to a strict construction, concluded, that our acts of assembly, which gave authority to sheriffs to sell lands, enabled them only to convey the right, not to change the possession; and that, to suppose the contrary, would authorise the sheriff, immediately on receiving the fieri facias, to turn the debtor out of possession, and to occupy the land himself, and receive the profits, till the time of the sale. But, as the act of assembly does not authorise the sheriff to do this, before the sale, he cannot do it after, for then his authority ceases; and the purchaser, like every other owner out of possession, must acquire it in a peaceable manner, or compel it by a direct suit, when that and damages will be obtained by an execution for that purpose. It is settled, that a sheriff cannot break open an outer door, to execute a fieri facias: how then can he give possession of a house? Though a term, being a chattel, may be sold on a fieri facias; or a moiety of land delivered on an elegit, yet, in neither case, can the sheriff give possession. The purchaser and the creditor must obtain *204possession, by ejectment. There is great reason, why a defendant should not be concluded by the proceedings in an execution, of which he may not have had notice, nor be turned out of doors without an opportunity of defence. Even if this were a regulation proper to be established, courts cannot take on them the authority of legislation; and they have no precedent or authority, to warrant them in giving sanction to this proceeding. There is no instance of this having ever happened either in England or Pennsylvania. The opinion of justice Buller, in the case of Taylor v. Cole, is on a point not judicially before him, is in the case of a lease not of a fee simple, is expressed cautiously, as on a new subject, and indicates rather what the law ought to be, than what it is. And, in the same case, lord Kenyon, chief justice, says, that on an elegit, the sheriff could not deliver the land.

Against these arguments for the prosecutor, the counsel for the defendants contended, that the unalienable quality of lands, at common law, proceeded from the peculiar nature of feudal tenures, being considered as a benefice for military service. But these principles have gradually given way to the progress of commerce: and our acts of assembly, subjecting lands to execution and sale for debt, completely reduces them to the state of chattels; and, if they may be seized as chattels, it follows, that they may be seized by force. The whole proceeding, the fieri facias, the seizure, the inquisition, the venditioni exponas, the sale, and the deed, are, as in the case of a fine or recovery, to be considered as one transaction; and the sheriff to be considered as in possession from the seizure. The proceedings give sufficient notice, and opportunity of defence, to all parties concerned. It is not material, whether, in England, the sheriff can break open the door of a house, to seize chattels; for, here, he may seize the house itself. And, there, the irregularity of breaking the door does not avoid the execution, it only subjects the sheriff to an action of trespass. The case in Shower, which lays it down, that, on the sale of a term, the sheriff cannot turn out the tenant, but the vendee must bring an ejectment, was cited in the case of Taylor v. Cole, and yet there justice Buller gives it as his opinion, that sheriff might turn out the tenant.

Such seems to me the material substance of the arguments in this case. They were ample and well directed. No decision has been discovered, to justify the power exercised by the sheriff, on this occasion. What then shall we say? Has an attempt been made, in this case, which was never made before? Or has it often been made, and found to palpably justifiable as never to have been called in question? This cannot be, for there is a decision against it. I am inclined to believe, therefore, that the attempt has been seldom made; and is now defended, not by any precedent, but on the authority of justice Butter; on the terms or intent of our acts of assembly, for taking lands in execution for payment of debts; and on the principles of general convenience.

1. If accuracy of judgment, and knowledge of the subject, can give weight to an opinion, there are few, if any, whose opinions are entitled to more respect, than those of justice Buller. The case, in which his opinion was given, differs essentially from the case before us.—I speak of the case of Taylor v. Cole, as it appears in Term Reports, and in H. Blackstone’s Reports. That was an action of trespass against a sheriff. In that case, the entry of the sheriff was lawful and peaceable, and there was no expulsion by the sheriff. His entry was lawful, by virtue of a fieri facias, to be executed on the house; and the jury acquitted him of both the force and the expulsion. This is an entry and expulsion made with force. That case was a civil action. This case is a criminal proceeding. Though the case of Taylor and Cole, arose on a sheriff's sale; yet there is nothing in the manner in which the court examine it, to justify an idea, that a forcible expulsion, by virtue of a sheriff's sale, is not within the statutes of forcible entry and detainer; but rather that it is within those statutes. The chief justice, without distinguishing in favour of sheriff’s sales, states generally, that the case then before the court, was an action of trespass, in which a person having a right and having peaceably exerted it, may plead, that the land on which he entered was his own; but if he assert that right by force, it becomes the subject of a criminal prosecution, which was the case in Shower, a proceeding under the statute for a forcible entry. If this case in Shower, which lays it down, that the sheriff, having sold *206a term fieri facias, cannot, and must not, put the person out of possession, and the vendee in; but the vendee must bring his ejectment, had not been considered, by the chief justice, as applicable to a tenant in possession defendant, and as good law; why should he have given himself the trouble of distinguishing that case from the case before him, in these points, that the entry in the one case was peaceable, in the other forcible, and that the one was a civil action, the other a criminal prosecution. Buller, after expressing the inclination of his thought, on a mere speculative point, not within the case before him, declares, that he gives no opinion.-Kenyon, at the same time, seems to recognize the case in Shower, and that case is contrary to the inclination of Buller’s thoughts. The case in Shower seems to be recognized by the general current of English law authorities; and, supposing a term and a fee, in this respect, similar, is the case before us. Whether, therefore, are we to take for law the solitary, extra-judicial, unpremeditated, and unrelied on, opinion of a single, though highly respectable, judge; or a decided case, countenanced by the general weight of authority, and introduced into all the subsequent systems, as an established point of law? No doubt, the defendants, coming with the sheriff at his request, are exactly in his situation, and, if he be justifiable, they are. If a sheriff has authority to give possession, he must have authority to do it by force. The case in Shower says, he has no such authority.

If the suggestion of justice Buller can be reconciled with the case in Shower, it will be a more respectful attempt to reconcile them, than to set them in opposition. Both the case in Shower, and the case before us, are of a sheriff's giving possession after a sale. Justice Buller says, that the sheriff, having sold is functus officio: can this mean any thing, but that his authority over the premises is expired ? I should pay but a poor compliment to the judgment of justice Buller, to consider him as saying, that a sheriff has authority to act, after he has said, that his authority is expired. He does not say, that a sheriff functus officio can turn out a tenant by force, nor that a purchaser at sheriff’s sale can turn out a tenant by force (I suppose always the tenant to be the de*207fendant in the judgment); and unless he says one or other of these, he comes not up to the case before us. He certainly would appear more consistent with himself, if we consider the authority he attributes to the sheriff, of turning out the tenant, as exerted, at the time of the seisure under the fieri facias, than as exerted after the sale. Let us see whether there be not something in the method of proceeding in England to the sale of a term, that will render this construction of justice Buller’s opinion more probable, than it would be, if it were to be applied to the method of proceeding to the sale of a fee simple estate under our act of assembly. In England, a term is fold, because it is a chattel. Immediately after receiving the fieri facias, the sheriff may seize the term, and, without delay, proceed to fell it, as he would proceed to fell goods. The distance of time, between the seizure and sale, may be so inconsiderable, that it is almost the same thing to the tenant, whether he is turned out at the seisure, or at the sale. In Pennsylvania, the sheriff, having received a fieri facias, and seized lands, must summon an inquest, and return the whole proceedings to the next court; and cannot proceed to fell, till, after this return, he has received a venditioni exponas; and, instead of several days, several months, must intervene between the seisure and the sale. It might be probable, therefore, that justice Buller would say, turn out the tenant, at the seisure; when, if between that and the sale, such time intervened, as in Pennsylvania intervenes, he would not have said so: when perhaps the seisure might be just before harvest, and the crop to be then severed might go far to pay the debt.

In England, nothing but chattels can be seised on a fieri facias. It has been held, that a bargain of sale of chattels is incomplete, without delivery. Any assignment of chattels, unless possession accompany it, is, as against third persons interested, held fraudulent and void; because possession remaining in the assignor, gives him a false credit, and enables him to impose upon others.— This is not the case with respect to land; for possession of it is not considered as evidence of right or title in it: this depends on the deeds, by which it is transferred from one to another. But as leases of land are considered as chattels, they have, in this respect, been subjected to the *208regulations of other chattels; and a conveyance of a lease for years, unattended with possession; has been held fraudulent. Considering a seisure in execution, as but a form of assignment, the same principles, for the prevention of fraud, have been applied to chattels taken in execution, and left in the possession of the owner: for these have been considered as subject to a second execution, at the suit of another person. It appears, therefore, that it must be usual in England, for sheriffs to take possession of the chattels, which they seise in execution, or to leave some person in possession of them, in their name.

To me these circumstances appear to add considerable weight to the construction, which I have suggested, of the inclination of justice Buller’s thoughts on the power of a sheriff, to turn out the tenant of a lease. But neither these circumstances, nor this construction will justify the defendants in the present case. If the meaning of justice Buller was, that the sheriff, who could turn out a tenant, must be one not functus officio, the sheriff must turn out the tenant at the time of the seisure, or before the sale. If the turning out of the tenant be necessary, to prevent his possession from being evidence of fraud, in the case of a lease; that is not necessary in the case of a fee-simple. And, although this manner of turning out a tenant of a lease, which could be sold with all the summary diligence of a chattel, might be little or no inconvenience; yet this manner of turning out a tenant in fee-simple, the sale of whose interest must proceed with all the flow solemnity of our act of assembly, might be a great inconvenience.

2. If, therefore, the weight of justice Buller’s opinion will not justify the present defendants, they must resort to the second point; the terms and intent of our acts of assembly, for seizing in execution, and selling real estates.

The first act provides, to the end that no creditors be defrauded of the just debts, due to them by persons who have sufficient real estates, if not personal, to satisfy the same; that all lands and houses shall be liable to sale on judgment and execution, under certain regulations; and the sheriff shall fell and convey the same, under his hand and seal. After which, such lands and houses shall be and remain a free and clear estate to the purchaser, *209his heirs and assigns, as fully as they were to the debtor. The second act, with the same end in view, provides, that lands shall be liable to be seized and sold, upon judgment and execution obtained. The sheriff is directed to give the buyer a deed duly acknowledged in court. If the profits of the lands will, in seven years, pay the debt, the lands shall be delivered to the creditor, until the debt be levied by a reasonable extent, in the same manner, as lands are delivered on writs of elegit in England. If the profits be not sufficient, in seven years, to pay the debt, a venditioni exponas issues, empowering the sheriff to sell. And all other lands are to be seized and taken by a writ of levari facias, and fold, either with or without a venditioni exponas: or, if no buyer appear, are to be delivered, on a liberari facias, at the valuation of twelve men, to the creditor, as his free tenement.— The persons, to whom the lands are thus fold or delivered, their heirs and assigns, shall hold them, as fully, and for such estate, as the debtor did or might do, before the taking thereof in execution.

In this, I can fee nothing provided for, but the sale of lands for the payment of debts. And, as it is compulsory, the sheriff is made the organ of conveyance, instead of the owner. His whole proceeding is a legal conveyance, and, like any other legal conveyance, transfers, to the purchaser, all the estate of him, for whose debt it was sold. But there is nothing in this act, which says, that the purchaser from the sheriff is to obtain possession in any other way, than a purchaser from the owner, peaceably or by consent.

It may be said, that the direction to the sheriff to seize, and, in some cases, to deliver, implies an authority to turn out the possession, and put the purchaser in possession. But let it be remembered, that this seizure, if it mean a turning out of the owner, is when the execution is laid on the land, and before the sale; and that, even when the sheriff has seized, he is to deliver to the creditor, in the same manner as lands are delivered on writs of elegit in England; which seems to be little more, than a sheriff’s deed fub modo, or an authority to enter; and, on this delivery, the creditor must bring an ejectment.

*210Let us bear in mind, that our act of assembly was about to make a very material change in the principles of common law, and to declare, that lands should be sold for the payment of debts. The assembly knew, that, by the principles then governing real estates, lands could not be sold; and they knew that leases could be sold; yet they did not declare, that lands should be sold in the same manner as leases. The assembly knew, that on a fieri facias against a tenant of a lease, a sheriff could not turn this tenant out of possession, and put the vendee in; or, at least, they did not know, that he could; for no instance of the kind had ever been known to have happened, or if it happened, it had been judicially condemned; and yet they did not declare, that he should have this power, nor prescribe the manner in which it should be exercised. Can we suppose, that they would not have done so, if they had intended to do it? It is said, that, by subjecting lands to be sold for debts, they made them chattels. This is a loose way of speaking. It is plain, that they did not make them saleable as chattels; for they have prescribed a particular manner of proceeding. And though this manner is prescribed at considerable length, and with sufficient minuteness, not a word is said of the sheriff’s giving possession. If, independent of giving possession, there was a new object of sufficient importance provided for by this legislative act; I cannot, from any thing, which they have said, infer a new authority of giving possession: nor do I think myself warranted to supply their silence. Without supposing a new power of giving possession, of which nothing is said, there was a new object, of sufficient importance, provided for by this legislative act, an assignment or conveyance, under certain qualifications, of the right of the whole lands of a debtor. As, before this act of assembly, a creditor had a right to the enjoyment of half the lands of a debtor, until, out of this enjoyment, he should be paid. So, in the manner pointed out by the act of assembly, he could acquire a right to the enjoyment of the whole of his debtor’s land forever. But to enter on this enjoyment, and unite possession to his right, no new method is pointed out. What then is a court of law to infer, but that he must pursue that method, for this enlarged remedy, which, before, he could *211pursue for an inferior one, and prosecuting this, like any other, right of land, bring an ejectment.

3. Of the principles of English law, I know nothing so favourable to the present defendants, as the inclination of justice Buller’s opinion, so much relied on. But if, oil the principles of English law, and on the construction of our acts of assembly, the defendants are not justiciable, I know not to what principles we shall resort, on the ground of general convenience. On the subject of the present discussion, all the relaxations of common law severity have been made by the legislature. The legislature of this state have applied their attention to this subject, and, greatly to their honour, extended it beyond the narrow limits, to which it had been confined. We find nothing in the solemn act of this extension, which can inform us, that they intended to go farther than a transference of a right. Shall we, on a subject on which they have expressed their mind, take upon us to declare, that they intended to go farther, than their expression bears?

That an honest man, who, for a full price, purchases, at public sale, a tract of land, should, afterwards, find himself involved in a law-suit, to obtain the benefit of his purchase, is indeed an evil, which requires redress. But the legislature, with this evil under their contemplation, did not redress it. Will it be presumed, that, because they did not, we must? As the evil was known to exist in Pennsylvania, unremedied, either by the legislature, or by courts of justice, it is to be presumed, that purchasers at sheriff’s sales reckoned upon it in their bargain, and diminished their price, in proportion to the trouble they expected to meet with, in obtaining possession. Where this is the case, the real loss generally falls, where it ought to fall, on the obstinate owner, who continues in possession, after his right has ceased. Whether this has been the case, in the present instance, or not, is no reason for us to assume an authority, which is not given to us, and authorize a sheriff to do that, which law has not authorized him to do. It is better that an individual suffer, than that a general line of duty be broken through. It is better, that the evil exist, for some little time (I hope it will be but a little time) *212longer, than that its correction should come from as improper source. Great inconvenience would ensue, if the tenant were turned out at the seizure, under the fieri facias: and, to turn him out after the sale, appears to me to want the solemnity of judicial authority. The owner of chattels may seize them at any time: but has law has restricted the owner of land to a peaceable seizure. Great inconvenience might follow from a loose unguarded authority of turning out by force, perhaps instantaneously. Some precautions must be adopted for the due exercise of this power. None have yet been laid down by courts; for the exercise of it was never, that I have heard of, within their contemplation. To sanction it, without previous precaution, appears dangerous. When the legislature shall take the subject into consideration, they can lay down rules for proceeding in it. Until then, we believe, the evil must be suffered to exist, or find its remedy in the prudence of the parties. This is not an action of trespass, where right would justify the entry, and the taking and detaining of the possession. It is an indictment for a forcible entry into lands, and expulsion of the tenant, when there was no direct legal warrant for making the expulsion. This is an offence punishable by indictment. There must therefore be judgment for the Commonwealth; and restitution must be awarded.