# Brobst v. Brock

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United States Supreme Court
77 U.S. 519
Brobst v. Brock
ERROR to the Circuit Court for the Eastern District of Pennsylvania, the suit below being an ejectment for an undivided fourth of a tract of land, and the case being this:
The tract for a fourth of which the ejectment was brought, was the easternmost of twenty-five adjoining tracts in Pennsylvania which were surveyed in 1793, on warrants issued the same year, and for which separate patents were issued on the 9th and 10th of May, in 1816, to one George Grant, who in the same year conveyed the whole, forming a tract of 10,000 acres, to Thomas B. Smith. Smith conveyed the whole in undivided fourths, on the 27th of September, to Michael Brobst and three other persons, one-fourth to each. On the 6th March, 1817, Brobst mortgaged his undivided fourth to Samuel Wood, for $1500, payable on the 1st of April, 1821; the mortgage being properly recorded. The deeds of both Grant and Smith, and the mortgage of Brobst described the land collectively as one tract.
Michael and John Brobst were brothers, and were engaged in partnership in making iron in Berks County, in the eastern part of Pennsylvania. They failed in business, and confessed several judgments, among them one, January 17, 1817, for $1000, to Jacob Kutz and Jacob Levan.
On the 15th May, 1817, Michael Brobst conveyed to his brother, John Brobst, his undivided fourth of the twenty-five tracts and went to Illinois, where he died, in 1820, never having married; news of his death being brought to Pennsylvania about 1823.
John Brobst left the eastern parts of Pennsylvania, where he lived, about the year 1820, went to distant parts of the State for a short time, and in 1824 out of it to Maryland. His place of residence was unknown to his relatives in Pennsylvania. He was supposed to be dead, and about the year 1847, letters of administration on his estate were issued; though in point of fact he did not die till 1861.
The mortgage already mentioned as given in 1817 by Michael Brobst to Wood, having been assigned in the same year by Wood to a certain Dunn, and by him to one Boyer, Boyer on the 3d of November, 1825, proceeded by the mode usual in Pennsylvania, where mortgages are recorded, and considered, in some respects, as records, to foreclose it; that is to say, he issued upon it a writ of scire facias, under an act of 1705.
By this old act the mortgagee is authorized a year and a day after the mortgage is payable, to sue forth, if it remains unpaid, a writ of scire facias from the Court of Common Pleas, of the county where the mortgaged premises lie, directed to the proper officer, requiring him, by honest and lawful men of the neighborhood,
'To make known to the mortgagor, his, her, or their heirs, executors or administrators, that he or they be and appear before the magistrates, judges, or justices of the said court or courts, to show if anything he or they have to say wherefore the said mortgaged premises ought not to be seized or taken in execution for payment of the said mortgage-money, with interest, &c. . . . And if the defendant in such scire facias appears, he or she may plead satisfaction or payment of part or all the mortgage-money, or any other lawful plea; but if such defendants in such scire facias will not appear on the day whereon the writ shall be made returnable, then, if the case be such as damages only are to be recovered, an inquest shall forthwith be charged to inquire thereof, and the definitive judgment therein as well as all other judgments to be given upon such scire facias shall be entered, that the plaintiff in the scire facias shall have execution by levari facias, directed to the proper officer, by virtue whereof the said mortgaged premises shall be taken in execution and sold,' &c.
The writ issued as already mentioned was directed against 'Michael Brobst with notice to terre tenant,' and confessedly was not served in the way the most proper. There was no personal service upon the mortgagor, who in fact was dead, nor any upon his heirs or representatives, nor any upon the true terre tenant, that is to say, upon John Brobst; the holder of the title being the only person regarded in Pennsylvania as falling within that designation. Neither was this want of actual service supplied by a return of two nihils, which in Pennsylvania are commonly regarded as the equivalent of service. The return was thus:
'Served upon Jacob Rodeberger, terre tenant, 21 miles. Sci. fa. sur mortgage, debt $3000. March 29, 1826, judgment lev. fac. July Term, 1826, 46.'
Upon this irregular service, judgment was entered on motion that the mortgaged lands be sold to satisfy the debt. And upon this judgment all the mortgaged property was sold on the 22d March, 1828, to one Charles Frailey, to whom a sheriff's deed was made; Frailey purchasing at the request of Boyer, assignee of the mortgage, and with his money. He subsequently conveyed to John Smull, whose title became vested in Brock and others, defendants in the case.
The body of lands patented to Grant were uninhabited until about 1824, when one Philip Rodeberger erected a small log tavern in what was still a wilderness, upon a tract adjoining the tract whose fourth part was here sued for, and cleared an acre or two of ground.
In 1834 a partition of some sort, valid or invalid, was made of the four undivided fourths of the whole twenty-five tracts, and the parties who had been originally co-owners with the Brobsts took what they considered their own purparts in severalty.
No further improvements than Rodeberger's were made on any of the purparts until 1847, when the owners of some of the purparts (not derived through the Brobsts) laid out towns, began building railroads, opening coal mines, and making extensive and costly improvements, which had been continued to the present time, when not less than ten thousand people live in the various towns laid out on the land-with their churches, halls, manufactories, stores, school-houses, dwellings, cemeteries, &c., &c.
About the year 1848, possession was taken of the purpart allotted to the Brobst alienees, by the present defendants, and those from whom they derived title, who had paid taxes from that time to the present; and on these purparts, also, similar improvements had been made and hundreds of houses and other buildings erected, and inhabited by a large population, and more than half a million of dollars expended in mining improvements.
In this state of things the heirs and devisees of John Brobst brought the present ejectment, A.D. 1865, against Brock and others to recover, as already stated, an undivided fourth of one of the tracts; one warranted in the name of Deborah Grant.
In addition to the title made, as already stated, under the mortgage, the defendants asserted that they were possessed of a title under the partition made in 1834; also by virtue of a sheriff's sale of the property under the judgment of Kutz and Levan, already mentioned as entered against the Brobsts, also under a tax sale, as the property of John Brobst, of the particular lot sued for.
Every one of the titles set up by defendants, including all the last-mentioned titles, were disputed by the plaintiff, as irregular, null, and void.
The court below (GRIER, J.) charged that the title set up under the partition was good enough, as also that set up under the judgments of Kutz and Levan. In regard to the title set up under the mortgage, he said that it was not necessary to decide whether those proceedings were regular and sufficient to extinguish the equity of redemption and vest a title in the purchaser; but that admitting that they might have been set aside or could be, it was first necessary to show that the mortgage debt was paid or offered to be paid, which was not shown; that as to redemption now, more than thirty years had elapsed, during which time John Brobst, the owner of the equitable title, had taken no step to assert or establish his right to redeem. That in such case the presumption of law was that he had released his equitable right, and equity would give him no remedy after his sleep of thirty years. 'He must now,' said the court, 'as plaintiff in this case, show a legal title. He has shown no valid title, either legal or equitable.'
Judgment having gone for the defendant, the plaintiff brought the case here.
It was fully and ably argued on all the points decided below; Messrs. G. W. Woodward, Brent, and Crittenden, for the plaintiff, contending that the partition of 1834, the sale under the judgment of Kutz and Levan and the purchase at the tax sale were severally void; Messrs. George W. Biddle and J. P. Brock, on the other side, supporting their case under those titles. The ground, however, upon which this court rests the case, avoiding, as it does, any decision on those points, report of this argument would be useless. On the other point, the title derived under the mortgage, the ground taken was thus:
For the plaintiffs:
I. The defendant sets up title through a purchase under a statutory foreclosure of a mortgage. The proceeding under the Pennsylvania act is one in rem and strictissimi juris. For every reason, therefore, the party settting up the foreclosure must show a compliance with the statute. Now, here the writ was issued against the mortgagor. But he, confessedly, was dead at the time, and of course was not served. His 'heirs, executors, and administrators,' the parties mentioned in the act, are nowhere referred to in writ, service, judgment, or other part of the record. These are not irregularities but fatal defects.
Is the matter helped by the service upon Rodeberger, terre tenant? The act does not speak of terre tenants, not does it authorize any such service; though by the Pennsylvania practice, besides service upon the mortgagor, notice is sometimes given to the terre tenant. But service upon Rodeberger amounted to nothing; because—
1. He was not tenant of anything, but of one tract, and that tract was not the one sued for, but a tract at best adjoining it. It is impossible to consider the possession of a person thus putting himself down on one tract, surveyed specifically, and patented by a patent defining its dimensions, as working a possession of twenty-four other tracts. He occupied but a spot even on the tract where he was. It is difficult to regard such possession as extending even to its boundaries. The case of Ellicott v. Pearl, in this court, sustains our views.
2. He was not terre tenant of even the spot where he was. A terre tenant is the holder of the title to the ground; and the reason why notice is given (when it is given) to him, is in order that if he has any title, other than that derived through the mortgagor, he may come in and set it up in defence to the scire facias, when the mortgagee is about to take possession as owner under his mortgage.
Everything was void, therefore, in form, without the least alleviation in substance.
II. After such a lapse of time as exists here, the debt of Brobst must be presumed to be paid. And, if all were regular in form, instead of being fatally defective, the defendants stand in the position of parties claiming under a mortgage actually satisfied.
Contra, for the defendants:
The judgment on the mortgage was but erroneous, not void. The proceeding was not upon an original cause of action, but upon that which was the equivalent of a record of the court, namely, a mortgage acknowledged and recorded and already a lien on the defendant's property. The judgment was not that the plaintiff should recover a sum of money, &c., from the defendant, as in ordinary cases, but in the language of the act of 1705, that the defendant, the mortgagor, &c., should show, if he could, wherefore the said mortgaged premises ought not be seized and taken in execution for the said mortgage debt. The writ of scire facias was therefore substantially mesne process, and required no personal service; for, by the well-known practice, the sheriff was only bound to make reasonable efforts to find out the mortgagor (he not being entitled of right to personal notice), and these reasonable efforts being made, he was considered to have had notice of the intended taking in execution of the mortgaged premises. It is only under this theory that two returns of nihil habet are regarded as the equivalent of the return of service. In such a proceeding, therefore, the personal knowledge of the defendant of the writ was not necessary, and its absence did not vitiate the proceeding. It has been decided in Allison v. Rankin that one return of nihil was enough to prevent the judgment being void or impeachable collaterally; but there is no difference in reality between a return, that the defendant cannot be found, and an omission to state this fact in the return by the sheriff. In Warder v. Tainter, the court say:
'But is it necessary that the court should have jurisdiction of the person in a proceeding by scire facias upon a mortgage? If it be, then, I apprehend that many judgments and sales of mortgaged land, made under them, that have hitherto been considered valid, are void.'
We have in this case, as in Allison v. Rankin, a judgment in a court of record having jurisdiction of the subject-matter, in full existence when the levari issued. We have also the additional fact apparent, that before this judgment was entered, the sheriff had gone upon the land to look for the mortgagor, for the purpose of serving the writ upon him. This is plain, from the return of service upon the only person then in possession of this undivided portion of twenty-five tracts. No partition had then been made, and, of course, Michael or John Brobst's interest was, as to his undivided fourth, commensurate with the extent of all the tracts. The judgment was, therefore, valid to sustain a sale made under it. But suppose, for the sake of argument, that the judgment in question did not authorize the issuing of a writ of levari upon it, what then is the case? We have a mortgagee solemnly asserting, by the process of the law, that the mortgage debt was unpaid, and that he was entitled to take the mortgaged lands in execution. We have a writ of execution issued upon a judgment containing this assertion; also a sheriff's sale, and a deed under it, carrying into consummation this assertion, so far as the mortgagee is concerned. In the face of this assertion, published to the whole world in the form of a judicial proceeding, we find no counter assertion by the mortgagor for nearly forty years. No attempt is made by him, or his heirs, or by his alienee, in all this period, either to review the proceeding or to impeach it in any way, or to enter upon the mortgaged land, or to pay the taxes upon it, or to exercise any act of dominion or ownership over it. The sheriff's vendee was the mortgagee claiming to be in possession under a foreclosure of a mortgage. He stood ready, in all this time, to contest the right of the mortgagor, or those claiming under him to redeem. At the end of twenty years, the right of a mortgagor, to redeem, or against a mortgagee claiming to be in possession, is barred. Their right, therefore, to redeem, now is gone.
In Slicer v. Bank of Pittsburg, on a question of the right of mortgagors to redeem land, which, by improvements and the general increase of the value of real estate, had become of great value, the court dwell with emphasis upon this state of things. They say:
'Thirty years have elapsed since it was sold, under the appearance, at least, of judicial authority.'
And cases are cited to show that 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.
Reply: The case and argument of the other side assume that John Brobst, finding himself insolvent, left the State years ago, and after these lands had been applied to the payment of his debts and taxes, bought by honest purchasers, and coal veins opened, towns and railroads built, and expensive improvements erected, that he is aroused from his sleep of years, and comes to reclaim his abandoned property. But that is not the true case. The true case is that of an unfortunate man who, believing that his fourth part of inaccessible, untaxed, mountain land, was worthless, left his native State to seek a home among strangers, and was overtaken by death; then a rush of speculators to these immense fields; hunters of void executions and worthless papers, and the seizure of the lands of the absentee upon less than twenty years' possession, to bar the true owner. If the defendants are even now ejected, they will retire enriched by nearly twenty years of lucrative trespass.
Mr. Justice STRONG delivered the opinion of the court.

## Notes

* ↑ 10 Peters, 412.
* ↑ 7th Sergeant & Rawle, 269, and see Feger v. Keefer, 6 Watts, 297.
* ↑ 4 Watts, 277.
* ↑ 16 Howard, 571.
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