
    CHRISTIAN VS. MILLS.
    If a terra tenant ram oves a building from land which he knows is bound by the lien of a judgment, he becomes liable to an action by the judgment creditor.
    It is not necessary to bring suit in behalf of all the judgment creditors.
    Error to the Common Pleas of Wyoming County. No. 269, Jan. Term, 1885.
    This was an action of trespass on the case of sur waste, brought by C. C. Mills against W. Ii. Christian. On Sept. 5th, 1877, W. S. Eord owned a lot of land, containing about 1-5 of an acre in Lacey ville. C. C. Mills entered a judgment against Eord, on that day for $262.14. Ou Feb. 13, ’79 W. S.-Eord and wife conveyed to Leonard, who, on- -the 2nd July, ’79, assigned the lot to 'William IL Christian, the plaintiff in error. On July 8, 1879 O. C. Mills issued a fi. fa. on the judgment. The Sheriff returned that he did not find personal property' of defendant, and that on the 11th day of July, ’79, he levied upon the lot above named, with one frame dwelling house, barn, &c., and sold the same on August 11, ’79 to H. P. Carter for $150. About the 14th July, 1879, after levy, and before sale, W. H. Christian, the defendant "below, went upon the lot, with men, to assist him, and removed the house from its foundations, and took it off the lot. The house was not on the lot at the time of the Sheriff’s ’sale; This action, in the nature of waste, was brought by C. C. Mills to recover damages, sustained by him, in consequence of the alleged ■depreciation of the value of property by the removal of the house, on account of which he was unable to obtain satisfaction of his judgment. The charge of the ■ Court was as follows per
    Ingham, P. J.
    Gentlemen oe the- Jury ; — The action which you are now trying, in which C. C. Mills is plaintiff and W. H. Christian defendant, is the very ordinary one of trespass upon the case.
    The action of trespass upon the case is defined in general terms to be an action to recover damages for wrongs not committed with force actual or implied.; or, having been occasioned by force, when the injury is consequential, that is, where the injury to the plaintiff is the consequence or the result of an act of the defendant.
    We are told in our elementary books in reference to this action that the torts or wrongs which it is used to redress are to the absolute or relative rights of persons, or to personal property in possession or reversion; or to real property, corporeal or incorporeal, in possession or in reversion. Those injuries may be either by nonfeasance, or the omission of some act which the defendant ought to perform; or by misfeasance, being the improper, performance of some act which might lawfully be done ; or by malfeasance, the doing of what the defendant ought not to do.
    
      These respective torts are commonly the performance or omission of some act'contrary to the general obligation of the law or to the particular rights or dutiés of a party.
    These definitions and elementary principles have come down to us from that great fountainhead of wisdom, the common law, and we think that upon the principles here laid downalj the legal points involved in this case might be decided;-
    The counsel on both sides, with that industry which counsel should exercise, have examined with care our 'reports, and find cases which bear upon this case and have cited several which very clearly cover matters closely connected and very much in analogy with the present ease. But I think all the cases which have been cited are only exemplifications of the old principles of common law which govern the action of trespass upon the case. It is a principle which lies at the foundation of common law, that where there is a wrong the law provides a suitable remedy.
    In this case the plaintiff, C. C. Mills, charges that W. IT. Christian has committed a wrong tending and intended to injure him, and for which he claims damages. "W. IT. Christian, the defendant, pleads not guilty, and this makes up an issue between the plaintiff and defendant which it becomes your duty under the evidence to decide in accordance with justice and right. Eirst, then, bearing in mind the principles upon which this action we are trying is founded and the issue as made up by the parties, you are to find out whether W. H. Christian is guilty of the wrongs complained of. Does the evidence prove that, he committed any wrongful act ? . Evidence has been given to show among other things that Christian became the purchaser of a house and lot in Laceyville. The evidence of the purchase is contained in a deed under which he claimed his title to the house and lot. It is recited in that deed (after describing the land which was conveyed first to John G-. Leonard and afterwards to W. II. Christian,) that said conveyance is subject to the following judgments, which said property herein conveyed shall be holden to pay, namely : Entered in "Wyoming County aforesaid, Delilah A. Eord against W. S.' Eord, number 68 of November Term, 1877. Debt, $112.63. Costs, $1.26. C. C. Mills against W. S. Eord, number 62, November Term, 1877. Debt, $268.14. The last judgment is reduced by payment, June 12,, 1878 of $53.69. Also subject to all costsand interest on said judgment. The deed containing these stipulations was on the second day of July, 1879, transferred to W. II. Christian. For value received, I hereby assign, transfer and set over to W. H. Christian all my right, title and interest to the within named and bound property, without recourse to myself, my heirs, administrators, etc. Signed, John G-. Leonard.
    Evidence has been given to show that this was delivered by John G-. Leonard to W. H. Christian on the day of the date. The testimony is that it was delivered into his hands, and under this he claims title to this property. It also appears- by the records of this Court that these judgments stood upon the records of the county as they are cited in the deed, and that therefore they were liens upon this property precisely as the deed relates. It also appears by the records that there was issued from the Court of Common Pleas of 'Wyoming County fi. fa., on which there was a levy entered, attached to it, in which the Sheriff, Ceorge L. Kennard, returned that he levied upon the real estate situated in the village of Laceyville, bounded and described as follows: describing this ' same property which Leonard had assigned, in the deed we have just referred to, to W. H. Christian, and he recites therein that the property contained one-fifth of an .acre, with one frame dwelling house, one barn, some fruit trees and so on. He also returned that he had sold this property and states what he did with the funds.
    It appears then that a levy was made by the Sheriff and a sale of the property ; also that within a very short time after the levy was made by the Sheriff upon this house and lot, that this defendant went there and removed the building from the lot, so that when the Sheriff came to sell the property there was no house there. The lot with the boundaries as he had levied upon it and as it was described in the fi. fa. was there but the house was gone. This having been taken away by Mr. Christian of ■course depreciated the value of the property, because no person would want to buy that lot and pay as much for it without as with the house. There is evidence of that fact in this case, so you do not have to take it upon supposition or reasoning merely.
    
      • This is an outline of the history' of this ease’. You are to» determine as jurors the truth of all the facts presented to you in the testimony. So you are to determine from this evidence,, first: ■ Has the defendant committed a tort or a wrong in taking; that house off of that lot? And to determine whether or not he 'has done so, you have to consider the facts as they are detailed tp you and determine ■ according to the rules of right and wrong whether he had a right to take that property off. If he did no* one any injury, if he was simply handling his own property and doing no injury to the rights of another, then it could not be said he was doing wrong.
    [You have before you then this question, did he know that the liens existed. If he knew that a lien existed against that property in favor of C. C. Mills, then he knew that Mills had acquired a right to have that house as part of his security for his debt, and if the- defendant took it away knowing that Mills had a, lawful .right to hold it as security for his debt, then he committed a wrong.]
    The facts as to whether he knew this or not are contained, first, in this deed upon which he relies for all of his rights, it is-under that he claims his title, and it must be presumed that he .knew the contents of the deed which conveyed to him the title upon which he now relies. You have also, in addition to that, the evidence of Mrs. Ford. She, as you remember testifies that her husband told Mr. Christian about this lien and told him that Mills had this judgment against it, and he had the same obligation upon him that every man has who buys real estate, to examine the records, the records were open to him for examination. So all those points of evidence are to be considered in determining whether he committed this wrong of taking off the building-when he knew there were liens against it.
    Then again did he know or did he have the means of knowing that the Sheriff had' made a levy upon the property including the house ? And here again by referring to the testimony of Mrs. Ford, you find that she states 'that her husband told the defendants, not only that these judgments were against it but that the Sheriff had levied upon it and if you credit what she says, he was not only told of it, but said to them they liad better-keep still and that they would all be better off, that he only wanted to stop the sale. If you credit her testimony there is evidence out of his own mouth that he knew the Sheriff was about to make a sale. Then again an additional inquiry is : Did he know he was impairing the security and preventing the collection of the whole of those judgments which were against it. This is also one point for you to consider in determining whether or not he was committing a wrong. • In this point of view you will consider the question, how far the removal of the house depreciated the value of the whole property, and whether or not it left sufficient so that the lot alone could be sold for enough to cover these debts.
    You have the evidence of the Sheriff’s return that it did not sell for enough, and that after the property was sold and distribution made upon these judgments that there Was only $91.67 that could be applied to the payment of that debt, leaving the balance yet unpaid. If you should find that he had knowledge of these various facts, then you would necessarily find that he committed a wrong to the injury of the rights of C. C. Mills.
    Then again there is this additional element of uncertainty, does the evidence show that the wrongful act he committed was injurious to the plaintiff ? That question is included largely in what I have already stated. It would be wrong in itself for him to risk impairing the security by taking the house off, but if it had turned out that the property had finally sold for enough so that C. C. Mills had received his payment out of the sale, the wrongful act would not have been injurious to his rights whoever else it might have injured, and therefore he could not recover damages and the action could not be maintained. But the records, as I have stated before, show that it failed to pay the judgments and left a considerable balance unpaid, and if the taking off of the house was the means of that being reduced in value, it follows certainly that there was an injury to the rights of this plaintiff.
    The counsel on the part of the defendant has asked us to charge, first: That under the whole of the plaintiff’s evidence he is not entitled to recover. This we do not affirm, leaving it to the jury under the evidence.
    
      Second: That the undisputed evidence in the case shows that Ford is still liable to Mills for the balance due upon the judgment of Mills against Ford, and as long as that personal security exists and is held by Mills the law will not permit him to'recover the amount of the judgment or any part thereof in this action. This we do not affirm.
    Third: That by the evidence given by the plaintiff, John Q-. Leonard is liable to the plaintiff and as long and as that liability exists-the plaintiff cannot recover of the defendant in this action. This we do not affirm.
    Fourth : That the terre tenant (Christian) is entitled to set off ■ against plaintiff’s claim for damages the value of improvements put on the property by him. or Leonard or Ford, under whom he claims, after the entry of the judgment, and the undisputed evidence being that the building removed was put on the premises after the lien of the judgment attached, the plaintiff cannot recover. That we do not affirm.
    Fifth: That damage done to this property, if any, by Christian, after it was levied upon by .the Sheriff and before the Sheriff’s sale, can only be recovered in an action in which the Sheriff is plaintiff who sues for all parties in interest, so that the same when recovered can be legally distributed, after due notice to the parties entitled, and applied upon the judgments in the ■order of their priority so that the defendants shall not be harrassed by different suits in the names of different parties for the same acts. This point is not affirmed.
    We submit to you gentlemen, upon the general principles that we have already laid down to you in our general charge, if you should find that the defendant has committed a wrongfiil act intentionally, and if that wrongful act is to the injury of the plaintiff, you will come to the conclusion of the next point: What is the extent of the injury done to the rights of the plaintiff? How much loss did he suffer by means of the taking off of that house at that time ? If there had been immediate means of collecting that judgment from Ford, who was the actual defendant in the judgment, then Mills might have escaped without serious injury; perhaps no more injury than delay. This brings to your consideration another point in the case, that is: [Was Ford solvent or insolvent? Was that all the property upon which C. C Mills relied for his security, or had Ford other property ? We are inclined to think there is no other evidence in the case that Ford has any other property that Mills could look to except that particular property, there was nothing else he could go upon. Mills had a right then to rely upon that for security. He had a right to have that house left upon the property in order that he might realize from it at that time the amount that was due him upon that judgment.]
    Then you will consider the evidence as to whether the property was depreciated in value, and if so, how much? Was the depreciation in the value of the real estate as much as would be the difference between the amount which the creditor actually received upon his judgment. The amount you see which he actually received was $91.67. The total amount of this judgment was originally $267. According to a statement which' has been here presented there was $158.74 wJtiich he did not receive at. that time. You will also bear in mind that there was another judgment of the same date and entitled to a distribution in equal proportions of whatever funds there were. Therefore when you come to consider the amount of the actual depreciation of the value and how far it affects this plaintiff injuriously, you will consider whether the depreciation of the property was enough to prevent the collection of the whole of both judgments, if the property without the house failed to pay both judgments. [If with the house on it would have .sold for enough to pay both judgments, then you can see that Mr. Mills has suffered a damage which would be exactly equivalent to the amount of his judgment which he did not receive, with interest since that time. If the depreciation of the property was less than enough to have covered the whole then there would be that much less damage, because if it wouldn’t have sold for enough with the house on it to pay both judgments then they could not suffer as much damage as the difference between what they received and what they did not receive.
    
      When you come to consider the testimony in reference to the difference between the value of the house and lot. and the lot alone, you will observe a variation in the witnesses as to that difference, the lowest putting it at $450 and the highest, I think, at $650. The amounts of both of these judgments, as you perceive, would have been covered if had sold for $440 more than it did. There is no evidence in the case that would indicate that any of the funds would have to have gone first to any judgment but these, therefore if it had sold for $450 more than it did sell for both of these judgments would have been paid. If you find these to be the facts, then you will have no difficulty in finding that the damages suffered by the plaintiff in this case were equal to the difference between the amount which he did receive upon his judgment when the Sheriff distributed -the fund and the total amount that he ought to have received to have paid him up in full.
    Your verdict, therefore, if you find for the plaintiff, will not exceed what would have been sufficient to have paid him at that time out of the proceeds of the Sheriff’s sale, however much the value of the whole might have been depreciated.
    We are considering the rights of one plaintiff at this time, without any notice beyond these two judgments of any claims to it. These are the liens that had a right to be paid, and this plaintiff is now claiming to recover damages for the injury that he suffered in consequence os the wrongful act of W. H. Christian in taking off the house from that lot in Laceyville.
    A statement has been made up, taken from the records, which will be sent out with you, showing what the amount of the judgment was, and from the return of the Sheriff, showing the amount that he applied to this judgment and the difference which would be required to pay C. C. Mills for the whole amount due upon the judgment at that time to him. If you. find for the plaintiff, interest would bo added to the present date to that damage. Yon will verify all these matters according to the evidence. If you find for the plaintiff, you will find the amount he was damaged in. accordance with the evidence. If you find for the defendant, you have only to say we find for the defendant..
    On the 22nd Nov., 1883, the jury rendered a verdict in favor of the plaintiff for $199.54. Christian then took a writ of error, complaining of the charge of the Court, and answers to the points' in brackets.
    
      Messrs. Harding & Frear
    
    argued, that Mills never had title to» the lot; and that further an action could not be maintained by one creditor alone, but suit must be brought in behalf of all.
    
      A. H. McCollum and W. E. & H. C. Little, Esqs., contra;
    argued, that Mills had an interest in the land; Witmer’s Appeal, 45 Pa. 455. The removal by the defendant of the major value of the real estate was fraud in the law ; Hoskin vs. Woodward, 45 Penna. 42; Weed vs. Hall, 5 Out. 592: Yeates vs. Joyce, 11 Johnson 136.
   The Supreme Court affirmed the judgment of the Common Pleas on March 30, 1885 in the following opinion:

Per Curiam.

While a judgment creditor has no estate in the land of his debtor, yet he has a claim upon it which may be injured. That the defendant in error had a lien on the property in question is undisputed. It is clear that he was injured by the removal of the house from the land on which he had the lien. With knowledge of this lien, which he knew had also attached to the-house, the plaintiff in error removed it. This was a fraud on the lien creditors injured thereby; Witmer’s Appeal, 9 Wright. 455 ; Weed vs. Hall, 5 Out. 592; Yeates vs. Joyce, 11 Johns 136. As the defendant in error is the person injured he may sustain an action in his own name, without seeking to unite with him any others who may have been injured. It is sufficient that he was defrauded and injured by the intentional wrong of the plaintiff in error. We see no error in the admission or rejection of evidence.

Judgment affirmed.  