Anshutz against M'Clelland, 5 Watts 487

The opinion of the Court was delivered by Kennedy, J. The counsel for the plaintiffs in error, who were the defendants below, made several points, upon which they requested the direction of the court to the jury. And they have assigned for error here, that the court erred in their charge to the jury upon each of them. It is not necessary, however, to express or give any opinion excepting on the second; because, we consider the objection, thereby raised insuperable and sufficient to prevent the plaintiff’s proceeding any further in the court below upon his writ of scire facias.

Where there are various liens filed, in conformity to the acts of assembly passed on the subject, by different mechanics and lumber and material men against the same house, for work done and lumber and materials furnished and used in the construction thereof, it is clear that a proceeding and sale of the house upon any one of the liens will release it from the whole of them; and the purchaser at the sheriff’s sale will accordingly hold it entirely discharged therefrom.

This is perfectly manifest from the language of the act of 1806, because it is expressly provided that “ if the house should not sell for a sum of money sufficient to pay all the demands for work and materials, then, and in such case, the same shall be averaged, and each of the creditors paid a sum proportioned to their several demands.” This shows demonstratively, that there can be but one sale, and that that having been once effected by a proceeding in the case of anj*' of such lien-creditors, no proceeding can be carried on afterwards with a view to a second sale.

The proceeding by scire facias in such case, under the act of 1808, is in rem merely, as appears by the act, which provides “ that no judgment rendered in any scire facias shall warrant the issuing an execution, except against the building or buildings upon which the lien existed,-,” and therefore, it is only to be sustained, upon the ground that the claim is a lien upon the house; so that the moment the claim ceases to be a lien, the right of the party to proceed by or maintain a writ of scire facias ceases also.

In this case Abercrombie’s claim was as much a lien upon the house as that of the defendant in error, and embraced precisely the same interest and estate, although in filing his claim, and in suing out his writ of scire facias, he omitted to introduce the name of Anshutz in conjunction with that of M’Culloch.

M’Culloch alone was the person with whom Abercrombie made the contract, out of which his claim arose; and therefore, in filing his claim and stating the contract, upon which it was founded, he could not with truth or propriety introduce the name of Anshutz as his debtor: But if M’Culloch caused the house to be built with the approbation and consent of Anshutz, the interest or estate of the latter in the house or ground, upon which it was erected, was just as liable for the payment of Abercrombie’s claim, as if Anshutz himself had been the contractor with Abercrombie for the materials furnished by him.

The proceeding in the scire facias at the suit of Abercrombie being, as has been shown, not a proceeding against the person named therein as the defendant, but a proceeding against the estate or thing bound for the payment of the claim, the award of the execution by the judgment of the court in the scit'e facias must, therefore, be considered as being co-extensive with the plaintiff’s lien, and as against the whole estate in the house bound by it, whether the owner thereof was made a party to it or not.

It may be, that where the owner of the house is not made a party to the scire facias, he may not thereafter be precluded from setting up any defence in an action of ejectment brought against him by the purchaser at sheriff’s sale, which he might have made in the scire facias, had he been warned by it.

The act of 1808, which authorizes the suing of the writ of scire facias upon a mechanic’s lien “ against the debtor and owner of the building,” to notify them to show cause, if any they have, why the plaintiff should not have execution for the amount of his debt against the building, can only be considered directory, so far as it provides for the scire facias being sued out against the owner: It would be attended with great inconvenience, as well as tend to defeat the purpose of the act, if it were to be held otherwise; for the owner may, or may not, be known to the creditor, and it was certainly not the intention of the legislature, that his security for the payment of his debt, or that his remedy for recovering it, should be lessened or diminished in the least, because he might not know the owner; and if the owner, when not made a party to the writ, be permitted to defend in the ejectment, as he might have done in the scire facias, had he been warned in pursuance of it, no injustice or injury can accrue 1o him from his name being left out of it.

That Anshutz consented to the putting up of the building in this case, is abundantly clear from all the evidence, without the slightest contradiction; and if he were to attempt to recover the possession of the building from the purchaser at sheriff’s sale after his lease to M’CulIoch shall have expired, it would be sufficient to defeat his re'covery, to show the fact that the building had been put up with his consent, unless he could prove that the claim was unfounded or had been actually paid anterior to the award of execution in the scire facias.

It has, however, been insisted on by the counsel for the defendant in error, that he had a right to proceed in his scire facias, notwithstanding the sale of the house at the suit of Abercrombie, for the purpose of ascertaining the amount of his debt: but it is a total misapprehension of the real object of suing out the scire facias, to suppose that such was the design of authorizing either the impetration or the prosecution of it: because, as has been shown, it cannot be sustained, if the claim or debt mentioned in it never was a lien, or that though once a lien, it has ceased to exist.

The only object of the scire facias, is to have execution against the building; but if (hat cannot be had, then the great object of the writ is gone : the ascertainment of the amount of the debt, for which the plaintiff in the scire facias claims to have execution against the building, is only incidental and preliminary to the award of execution, in order that the amount of the money to be levied may be rendered certain and known. But if no execution can be awarded, there is no occasion for ascertaining the amount.

If, however, there should be any controversy as to the amount of the debts, which were liens, coming to any of the mechanics or others who furnished materials for the completion of the building, after it shall ha've been sold, and the money arising therefrom brought into court for appropriation or distribution, the court have the power, if it should be necessary, to have the amount ascertained by a jury, to order a feigned issue for that purpose, when all the parties concerned in the fund, will have notice and an opportunity of being fully heard, which cannot well be in a scire facias at the suit of any one of them without notice to the others, which is never given.

The interest or estate of Doctor Herron as trustee, and that of Mrs Anshutz, the cestui que trust, and wife of George Anshutz, have been referred to in the argument; and an attempt was made to introduce them into the discussion, with a view to obtain from this court a decision of the questions, whether they were not also bound by the liens of the debts incurred in putting up the building; and if so, whether they were not transferred by the sheriff’s sale : but these persons last mentioned, are not before us; nor does this case require us to give any opinion upon these questions.

When they come to be fully investigated and duly considered, they may, perhaps, be thought to be of very grave and serious import; and as the parties whose rights are involved in them are not in court, we think it would-be-improper even to intimate an opinion on the subject, either upon thebne side or the other.

But, w7e think the court erred in their charge to the jury on the second point submitted by the counsel of the defendants below, in advising them that the sale of the house, made by the sheriff under the execution awarded in favour of Abercrombie for his debt, did not discharge the lien of the plaintiff below in this case, and that the scire facias sued out by him was a proceeding instituted under the act of 1808 for the purpose of ascertaining the amount due upon his claim filed. Judgment reversed.