Hulett v. Mutual Life Insurance , 114 Pa. 142 ( 1886 )

Mr. Justice Clark

delivered the opinion of the court

A terre tenant, in a general sense, is one who is seised or actually possessed of lauds as the owner thereof. In a scire fadas sur mortgage or judgment, a terre tenant is, in a more restricted sense, one, other than the debtor, who becomes seised or possessed of the debtor’s lands, subject to the lien thereof. Those only are terre tenants therefore, in a technical sense, whose title is subsequent to the incumbrance: Chahoun v. Hollenbach, 16 S. & R., 425.

“ Strictly speaking says Chief Justice Gibson, in Mitchell v. Hamilton, 8 Barr, 491, “only the debtor’s subsequent grantee of the fee simple is a terre tenant.” So in Dengler v. Kiehner, 1 Harris, 41, says the same learned Judge, “ Who is a terre tenant? Not every one who happens to be in possession of the land; there can be no terre tenant who is not a purchaser of the estate, mediately or immediately from the debtor, while it is bound by the judgment.” To the same effect is Fox v. Railroad Co., 29 P. F. S., 66, and many other cases.

In this case the title of Rufus K. Hulett was conveyed to his wife, on the 12th of February, 1878, but the deed was not recorded until the 4th of April, 1881; the possession of the land was unchanged ; it was continued, after the execution of the deed, just as it had been before. The mortgage was executed, on the 21st of January, 1881, and was recorded on the same day, and there is no evidence whatever, of any notice of the conveyance either actual or constructive, on*part of the mortgagee.

As to the mortgagee, therefore, the deed was fraudulent and void, by the express terms of the Act of the 18th of March, 1775; as to him, the deed was, as if it had never been made.

On the 22d of May, 1883, Rufus K. Hulett and his wife joined in a conveyance of the land to their son, Gilbert E. Hulett; the mortgage was then a valid and subsisting lien on the land, and Gilbert E. Hulett took title under this deed subject to the incumbrance.

It is true, that the conveyance, upon its face, was of the title of Effie C. Hulett, but as the husband joined in the assertion and conveyance of the wife’s title, the deed would be effective, as a conveyance of his own.

Prima fade at least, Gilbert E. Hulett was a terre tenant, and the mortgagee had a right to name him as such in the sdre facias. It was competent, of course, for him to defend under the plea that the mortgage was not then, and never was a lien upon his land: Colwell v. Early, 2 Norris, 3. Under that plea he might have shown, that although the deed to his mother was not recorded, the mortgagee either had actual notice Or was somehow affected with notice of it. But there is no such evidence in the case* nor was any offered.

Under the pleadings, the question was, whether or not the mortgage was, or ever had been, a lien upon the lands of Gilbert E. Hulett and Alice J. Patterson, as terre tenants. Prima facie, we 'say, they were terre tenants, but it was competent for them to show that they were not. The judgment on the scire facias is against them; as to the effect of this judgment in a subsequent ejectment for the land, we are not now called upon to decide. By all the cases, the defendants are certainly concluded as to all matters, which as terre tenants, they might have made matters of defence, on the scire facias, such as payment, release, or, efflux of time: Schnepf’s Appeal, 11 Wr. 37; Dengler v. Kiehner, 1 Harris, 37; but whether the judgment is conclusive, that they are terre tenants, is a question not raised upon the record, and it will be time enough to decide that when it arises.

The judgment is affirmed.