McCullough v. Thornton

2 Foster 349

Opinion

Opinion delivered 30 Nov., 1874, by

Walker, J.

A rule to set aside this is asked on the ground that no inquisition was held in the present case. The Sheriff’s return shows that the defendant’s real estate was levied on and condemned, as per inquisition annexed to Fi. Fa., No. 104, June Term, 1874, and this is a matter in pais. (18 P. F. S., 9.)

Under the 44th section of the act of 16 June, 1836, relative to executions, (Pur. Dig. 646, PI. 55), the sale of real estate, as a general rule of law, without inquisition, or waiver of inquisition, is wholly unauthorized and such sale is void. Gardner v. Sisk, 4 P. F. S., 506; St. Bartholomew’s Church v. Wood, 11 P. F. S., 96.

But when an inquisition has been held and land condemned on other'executions, a judgment creditor who has levied upon the same land under a Fi. Fa. may issue his Ven. Ex., and sell the land without holding another inquisition. There is no occasion to go to the expense of several executions. McCormick v. Meason, 1 S. & R., 98-100, per Tilghman, C. J., and Yeates and Breckenridge, J. J., 1 Troubat and Haliy, Frac. p, 992; Wray v. Miller, 8. H., 115, per Woodward, J.

The rule is therefore discharged.