CROMWELL v. BANK OF PITTSBURG, 6 F. Cas. 852

GRIER, Circuit Justice. Assuming, for the present, the truth of the complainant’s assertion, that the record in evidence does not show a legal judgment as foundation for a writ of levari facias, have the complainants shown themselves entitled to a decree on the other facts of the case? On this assumption, their case stands thus: The mortgagee takes possession of the mortgaged premises, claiming to be the owner of the equity of redemption, and of an indefeasible estate in fee. The mortgagor, not disputing the validity of his claim, delivers the possession.

The mortgagee and his ven-dees remain in possession, claiming the absolute fee for thirty years, rendering no account to the mortgagor, and denying his right to any, or that there is any subsisting trust, or privity with .the mortgagor. Will equity, under such circumstances, decree an account, or interfere with the legal title of the mortgagee? Certainly not.

It is a settled rule of equity, that, “if the mortgagor permits the mortgagee to hold possession for twenty years without accounting, or without admitting that he possessed the mortgage title only, the mortgagor loses his right of redemption. and the title of the mortgagee becomes as absolute in equity as it previously was at law.” 2 Story, Eq. Jur. § 102Sa, etc.

Chancery will not interfere in favour of the mortgagor after twenty years, where the entry of the mortgagee was equivocal, or only under his defeasible legal title, and where no account has been rendered or demanded, or other acknowledgment of privity, trust, or subjection to the claim of the mortgagor; much less, when the mortgagee claimed and the mortgagor admitted the equity of redemption to be foreclosed, and when the purchasers, for a full consideration, from the mortgagee, have been in possession, making valuable improvements, claiming adversely to all the world for more than twenty years.

For if, after such a great length of time, it should be discovered that there was some informality or irregularity in the proceedings intended to foreclose the mortgage, and for which the sale for that purpose might have been avoided; instead of being a reason why equity should interfere in favour of the mortgagor, it is the most conclusive reason to the contrary. It proves the very facts to exist, which equity presumed to exist from length of time alone; to wit, that the mortgagee did not hold in trust, or in privity with, or subjection to, the rights of the mortgagor.

But if length of time and the staleness of the complainant’s claim, were not, of themselves, a conclusive objection to it, does not the case show acts and conduct of Thomas Cromwell, which should operate as an equitable estoppel to the claim now advanced?

Let us suppose a bill filed by the mortgagee to foreclose the mortgage, and that the mortgagor (knowing that the land is not worth the' money secured on it, and his equity of redemption is worthless,) makes no objection to the foreclosure and sale, but instead of filing an answer to the bill, agrees with the mortgagee to expedite the sale and waive all matters of form; that he signs a written acknowledgment to be filed of record, admitting that the whole amount of mortgage money is due, and agreeing that a master may proceed to sell the premises immediately in discharge of the mortgage; that he waives a valuation; that he delivers up possession to the purchaser; that he stands by, without objection, and sees purchasers for large and valuable consideration, expend large sums in improvements, on the faith of the title thus acquired.

Would a court of equity, under such circumstances, entertain a bill for an account, and treat the purchasers as trustees for the mortgagor, on the plea that he has since discovered a flaw or irregularity in the proceedings, and that there was no formal decree of the court foreclosing the mortgage? Surely it would not; and I need not attempt to fortify the assertion, by a reference to the very numerous cases to be found both in law and equity reports, on the subject of estoppel in pais. Yet the hypothetical case I have stated, is the one substantially before us.

Cromwell gave his written assent to the sale, and assisted to expedite it, and thus encouraged purchasers to believe they obtained an indefeasible estate. He cannot now be permitted, in a court of equity, to assert the defect of title. II. Thus far we have considered this case on the assumption, that the allegation of the bill, which is the whole foundation of the complainant’s claim, is true; to wit, that the record of the. proceedings on the scire facias shows no judgment to support the writ of levari facias, and that the sheriff had no legal authority to sell.

But the truth is, that this allegation of the bill is unfounded in fact. And the case shows: 1st. That even without the amendment of the docket, made in 1836, there is sufficient record evidence of a judgment. 2nd. That, if it were absolutely necessary to the validity of a judgment that it be recorded in a book or docket, there is sufficient evidence that such a docket record was made, and is now lost or destroyed. 3rd. That the amendment (though not. strictly necessary,) was properly made, and being made, is absolutely conclusive between these parties.

It would lead to absurd and mischievous conclusions, if we should attempt to test the validity of the records of the courts of Pennsylvania, by a comparison with those of the king’s bench and common pleas in England, or those,. perhaps, of several of our own states. In early times, one of the justices of the court had possession of the seal, signed all writs and judgments, took bail, and performed all the functions of the prothonotary. This continued to be the case till the adoption of the new constitution in 1790.

After that time, and till the present constitution was adopted, the prothonotary was appointed by the governor; now he is elected by the people. • The judiciary act of the 13th of April, 1791 [1 Stat. 73], provides that these “prothono-taries shall have the like power to sign all judgments, writs of process, &e., as they had for those purposes, when they were justices of the court.” Since that time the prothonotary has exercised many quasi judicial functions.

Parties appear before him and confess judgment ore tenus, in vacation or at any time; or it is entered upon a precipe, or written order from the party; or on a general power of attorney, or any other acknowledgment or agreement of the party to confess a judgment, whether written in the present or preterite tense. Cook v. Gilbert, 8 Serg. & R. 568; McCalmont v. Peters, 13 Serg. & R. 196; Reed v. Hamet, 4 Watts, 441. But these prothonotaries, notwithstanding they exercised such large powers, were too often appointed or elected without any regard to their capacity to perform the duties of their office.

Wholly ignorant of law and legal forms, they became a law unto themselves. There was no system, rule, form, or precedent adhered to. Judgments were seldom or ever signed by clerk or judge. No judgment roll or record proper is ever engrossed. Minutes of the acts and judgments of the court are made sometimes by the clerk in the minute book of the term, sometimes by the judge on the trial list, or in the rough docket, or indorsed on a case stated, or declaration, or other paper on file.

Generally a large folio docket is kept, into which these minutes, whether found in the rough docket, book of minutes of court, trial fist, or elsewhere, are collected and copied in a fair and legible hand. This duty is usually performed after every term, with more or less attention to accuracy and correctness, but often -with many and important omissions. But all these entries, whether found in this docket or not, are but the minutes from which a formal-record may be made, but in fact never is made.

They are made as brief as possible, and are mére short hand intimations of what the record ought to be when drawn out in form. For the purpose of notice to purchasers, as regards liens, a minute of the judgment must be made in a certain docket called a judgment docket But the want of this registry does not affect the judgment inter partes.

None of these dockets has any title to be called the record of the court Minutes of the acts of the court found in the trial or argument lists, in the handwriting of the judge, or indorsed on a case stated, or any other document or agreement of the parties or their counsel, filed in the suit, furnish as proper materials from which to draw out a proper technical record, as the short minutes copied into the folio docket These minutes, whether made by the judge, the clerk, or an attorney, are always brief and informal; usually, the word “judgment,” connected with the date and amount, or “judgment for sum due,” leaving the clerk to compute it, is all the actual record that is made.

When judge of the state court, I have entered many thousands in that way, and never signed one drawn up in legal form. The “ideo consid-eratum est" of a formal record of judgment,, is nowhere to be found. When a defendant is willing and desirous to confess judgment, he may do it upon the back of the writ or narr., or by any other paper put on file; or he may come in propria persona before the prothonotary.

There is no given form for such writing, or for the mode of recording the fact Usually, when an agreement or acknowledgment, such as is found in this case, has been put on file, the entry made by the clerk on the rough docket would be, “Sept 13, 1820, judgment confessed, see paper filed with writ;” a more careful clerk would transcribe the substance of the agreement; and a very careful one would have written out a copy on the rough docket, and have required the party to sign it And' T have known one prothonotary (a very worthy man, but somewhat eccentric in his orthography) who would have made the following minute only: “Cept. 13 gugt.” Yet with this paper on file to show the amount and terms of the judgment and with the help of. which ■a formal record might have been drawn up, no lawyer acquainted with the practice and records of Pennsylvania, would venture the assertion that there was no judgment In Prine v.

Com., 6 Harris [18 Pa. St] 103, the late Chief Justice Gibson complains that the same laxity and disregard of legal forms are to be found in criminal cases. “Our looseness,” says he, “in recording forms of procedure, especially in criminal cases — if we have any forms left — has grown' till the knowledge of the principles of which they were the exponents has been lost to the bench and the bar. More method sometimes appears in the record of a justice’s judgment for a few dollars, than appears in the record of a conviction of murder.” A certified copy of the docket entries, is not legal evidence of a record.

All the papers on file with their indorsements are as much entitled to that name. Leveringe v. Dayton [Case No. 8,288]. A clerk who understands his business and duties, could use these documents and memoranda, whether on the docket or on file, as a frame on which to construct a formal record, with all the verbiage to be found in Saunders’s Reports, or the Appendix to 3d Blackstone’s Commentaries.

If the court in this case had refused to receive (as they might well have done) the docket, mem-oranda, and other papers read without objection as record, and required a formal record certified under the seal of the state court, the prothonotary would have been justified, nay, bound, to certify a judgment in the case as entered on the 13th of September, 1820, by confession or nil dieit, with the “ideo con-sideratum est," and any and all other teims of art to satisfy the formalist.

The confession of judgment on file in this court, is itself the original, and as much a part of the record or minutes, from which a formal record may be made, as any other paper or docket memorandum in the case. The amendment of the docket made in 1S36, was in fact superfluous and unnecessary as between the parties to the judgment. It was an amendment of the docket, not of the record.

The omission of such registry being a palpable oversight or neglect of the clerk who copied the minutes of the record into that docket, it could be remedied at any time by the clerk, even without an especial order of the court to authorize it. 2dly. Assuming that a registry of the minute of judgment in a docket, is absolutely necessary to its legal existence, there is no law which requires it to be made in a large and not in small docket; in a folio bound in Russia leather, and not in a common bound rough docket; or that the original would not be as good record evidence, if it was in existence, as a copy.

The omission of the clerk to copy the entry of judgment into the larger docket, would not invalidate it. The course pursued by the prothonotary, of making the minutes and entries first in the rough docket, which is now lost, leaves it altogether probá-ble, if not certain, that the only omission of duty has been a neglect to afterwards eoDy it into the folio docket. But this presumption is legally conclusive, when connected with the other facts of the case.

The written acknowledgment on file; the recital of the precipe, “scire facias sur mortgage and judgment Issue levari,” etc.; the writ of levari facias, reciting a judgment; the in-dorsement by the defendant Cromwell on the writ; the sale made with the concurrence of the defendant remaining unquestioned by him during his whole life, and for the space of thirty years. These facts can leave no doubt that the lost docket contained a record of the judgment on which the writ of levari facias and sale by the sheriff were founded.

If, after such a length of time, titles could be called in question for want of some writ docket, or other memorandum, no man’s property in Pennsylvania would be safe; and more especially would this be the case in Pittsburg, where process of execution on which valuable titles depend,- is often found among the papers of deceased attorneys and sheriffs, who have sometimes removed to near or to distant places and states, and where the archives of the court are treated as useless lumber. The case of Shaw v. Boyd, 12 Pa.

St. 215, would have been without difficulty, if any paper on.file had shown that a judgment had been entered, as in the present case. There, on the issue of “nul tiel record,” the court presumed that a judgment had been entered in 1820, from lapse' of time and other circumstances. “The probability is,” says the court, “that judgment was entered on the back of the paper containing the case stated, or special verdict. That paper is now lost or mislaid, and cannot be found. Strong presumptions are tolerated and allowed in favour of records irregularly kept, after a great length of time.” 3dly.

Assuming it in the last place to be absolutely necessary that the entry of judgment should be copied into the folio docket, in order to give it validity; the omission to do so’ is a clerical error or misprision, which may be amended at any time; and the amendment when made is conclusive, and cannot be denied or questioned in a collateral suit A court may possibly not have the power to alter or vacate its own judgments truly recorded, after the term to which they have been entered.

But that any misprision, omission, or mistake of the clerk may be amended at any time, where the record shows anything to amend by, has never been doubted since the statute of 1 Edw. III. c. 6. It is a power vested in every court, and one' which it is their duty to exercise in a proper case, in order that suitors may not suffer by the carelessness or mistakes of clerks and officers. It is a power committed to the discretion of the court, to be exercised over their own records, and the correct use of that discretion cannot be questioned by another court, even on a writ of error.

The jurisdiction of the court does not depend on the consent or presence of the parties to the suit, out on the power of the court over its own records. A record is received as absolute verity, and it is the duty of the court to see that it speaks the truth and the whole truth. If the amendment made is according to the truth, the parties have no right to complain. If it be alleged that the amendment was ordered on a false suggestion, the party making such allegation should apply to the court to vacate or set aside such order for that reason.

The court of common pleas of Alle-ghany county having decided that a judgment was confessed by Cromwell on the 13th of September, 1820, and that it should have been entered by the clerk on the docket, and having ordered that omission to be amended nunc pro tunc, it is conclusive evidence to this court that such a judgment was rendered or confessed on the 13th of September, 1820. The complainants in this case cannot question its propriety or deny its effects. NOTE [from original report]. The evidence given in tne case presents somewhat vividly the manner in which records are occasionally kept in Pennsylvania.

A witness who had been employed to hunt up all the evidences of judgment entered in the original suit against Cromwell, testified as follows: “At the request of the solicitor for the respondents in this case, I proceeded to the top of the court house, and in a space surrounding the base of the cupola, amidst a quantity of old acts of assembly thrown negligently down into the space, I found a number of old papers, apparently belonging to the prothonotary’s office, and a number of old, rough, appearance dockets. I returned twice afterwards, took a candle, went down into this space, and made a most thorough search.

I handled every paper and docket that was there. Some of these dockets went as far back as 1789. or farther: and some came down as late as 1836. They were in a damaged condition, dirty, and apparently thrown away as useless. The docket of 1820 I could not find. The nearest I came to it was the one of 1821. I also made an examination in the prothonotary’s office, and was unable to find it there. There were entries of judgments, and confessions of judgments, on these dockets.” This carelessness of records is not peculiar to western Pennsylvania.

For many years past, it has been, known to autograph hunters in Philadelphia, that a vast number of ancient, curious and valuable papers were piled carelessly about the loft over the supreme court room of the state, at the south-east corner of Sixth and Chestnut streets. They were in truth the records of the criminal courts and court of common pleas of Philadelphia, and of the supreme court of the state, from the very earliest date until comparatively recent times.

Through the zealous diminutions of them by members of the Historical Society of Pennsylvania and other curious persons, they have now in a large degree passed into public or private collections. The history of their removal to the loft, was not the least interesting part of their history. It appeared that they had been taken from their proper repositories some years since to make room for coming and anticipated records of a later date, and put into one of the cellars of the public buildings.

The cellar being wanted as a place to confine vagrant dogs, the records were carted round to the hall above mentioned, and taken in barrows and baskets up two pair of stairs, where they were pitched down negligently about the loft of the building. Being dry, they were found quite useful for some time in kindling various fires in the court rooms about the building; but the building itself having taken fire one day, the value of them for this purpose, was impaired by the city hose having been allowed to empty the issues of several fire-plugs for some hours upon them.

The case of the complainants, taken as a whole, is therefore without foundation, either in fact or in law. The doctrines which I have just stated are supported to their fullest extent by precedent. I need refer but to few to be found in the reports of Pennsylvania, In Maus v. Maus, 5 Watts, 319, the court say, “It is never too late to amend the record merely for the purpose of correcting a misprision of the clerk.” In Owen v.

Simpson, 3 Watts, 87, it is decided, “That not only has every court the power, but it is its duty to amend a clerical error which stands in the way of justice, and when it is evident the defect was produced by the blunder of the prothonotary. To suffer the imprision of a clerk to destroy the title of a purchaser, with such materials for amendment, would be inconsistent with the liberality which is so conspicuous a feature of the day.” In Murray v.

Cooper, 6 Serg. & R. 126, a judgment given in 1808, was neglected to be recorded; and in 1816, the court amended the record by ordering a judgment to be entered as of August term, 1808. On error brought to reverse this amendment, the supreme court decided that it was not the subject of review on a writ of error, and say, “The court has power, in order to do justice, to enter judgment at their discretion as of a past term when it ought to have been entered. They exercised that discretion; they had a right to do so, and we cannot say they have abused it.” In Wilkins v. Anderson, 11 Pa.

St. 399, a memorandum found on an old trial list, in the handwriting of the judge,’ was considered sufficient record evidence that a person was substituted as defendant, where the docket entry of the verdict and judgment and the other papers in the cause, showed another person as the defendant. And the court say, “This entiy on the trial list being among the archives or monuments from which a record may be made at any distance of time, the record might be amended.” In De Haas v. Bunn, 2 Barr [2 Pa.

St.] 339, the court say, “It is only by patching up errors in matters of mere form arising from inexperience consequent on the popular principle of rotation in office, that we can hope to preserve the substance of justice.” In Rhoads v. Com., 3 Harris [15 Pa. St.] 272, the court state it as “a plain legal truth, which ought not to have been brought in question, that the court having the power to amend, the regularity of the amendment cannot be inquired into collaterally.” So also in Sickler v. Overton, 3 Barr [3 Pa. St.] 325, and see 7 Serg. & R. 180.

These are but a few of the cases on this subject; and an examination of them will show amendments of clerical omissions and misprisions, “reconstructions of the whole fabric of writs,” presumptions of records, far beyond any charity which need be invoked to hide the omission in this case, so easily corrected, and afterwards actually and conclusively amended. Much of the most valuable property in Pennsylvania has' gone through the hands of the sheriff, and nearly all through the orphans’ court more than once.

In most of these cases the titles now depend on the preservation of loose papers and other documents by officers selected too often with little regard to any principle save that of rotation; whereby skill and experience are often superseded by ignorance and incompetently. Bill dismissed with costs. More recent times have probably not improved the matter. An acquaintance suggests to me a case well remembered at the bar of Philadelphia, which had been several times taken to the supreme court in banc, on various points, all charged or chargeable to the loss of an original record.

The case got so bad at last, and, from the loss of the papers, was such a stated source of intemperate vexation and dispute, that it was becoming the plague of every body who had any thing to do with the court. One day, in 1S50, when matters had got to a pass which defied all possibility of any settlement, and the thing was expected to make fine matter for a summer’s morning, the record was found—inside of the stove. Mr.

Ingraham, as amicus curiae, informing the court, that the inside of the stove was a place where it was well known that many records were put in winter: but that, until the recent discovery, it was generally supposed that a different disposition was made of them in summer. Lest our English brethren should suppose that this carelessness of judicial records is confined to America, let me mention for their benefit, that the same negligence prevails among themselves.

In a summer ramble in 1850, through the interior of England, I accompanied a relative, eminent for his taste and pursuits in architecture, through the upper parts of the Sheldon Theatre, at Oxford. On our way through its lofts to examine the joints and beams of its curious cupola, my eye was caught by baskets of records placed about the floor; which, I ascertained from our guide, were records of some kind from the English courts.

The city library at Philadelphia, contains two huge volumes of original papers, communications from the privy council and warrants from the king himself to the lord lieutenant of Ireland—many of these last apparently connected, not remotely, with the titles of landed estates in Ireland; and I am, myself, the owner of an original record of the English chancery, sold,.with a great number of similar things, at auction in Philadelphia, for a few cents; and valued only as containing a noble illustration alike of Lord Hardwicke’s well known autograph and of his intelligence and decision in chancery decrees.