Miller ex rel. Moore v. Lash

4 Pa. Super. 292, 1897 Pa. Super. LEXIS 120

• Court: Superior Court of Pennsylvania
• Decided: April 12, 1897
• Docket: Appeal, No. 34
• Status: Published

Opinion

Opinion by

Beaver, J.,

This purports to be “ an appeal of John J. Kutz, executor of Samuel H. Kutz, deceased, for himself and other mortgagees of Isaac R. Lash, from the several orders of the court of common pleas of Lebanon county; the first refusing to set aside writ of fi. fa. issued to No. 1, September term, 1895, on judgment 215 December term, 1893, for the reasons set forth in appellant’s petition; the second refusing to set aside the sheriff’s sale of the lands sold under the said writ and making absolute the rule on the plaintiff in the execution to dismiss the exceptions to the said sale nunc pro tune.” The order or decree refusing to set aside the writ of fieri facias above referred to was made June 20, 1895. This appeal was taken November 17, 1896. If the order referred to was a definitive decree, the appeal is too late, having been taken more than three months after it was made. If- it was not a definitive decree, no appeal lies therefrom. We are called upon, therefore, to consider only the order of the court refusing to set aside the sheriff’s sale of the land sold under the writ of fieri facias and making absolute the rule on the plaintiff in the execution to dismiss the exceptions to the said sale nunc pro tunc.

The appellant’s testator held in his lifetime a mortgage upon a tract of land which was situate partly in Berks and partly in Lebanon counties. His mortgage was recorded in Berks and not in Lebanon county. He began proceedings to foreclose the mortgage in Berks county in May, 1894. After making sale of the entire tract in Berks county, the sale was, upon exceptions filed thereto by William G. Moore, a judgment creditor of the mortgagor, set aside on the ground that it was subject to the provisions of the Act of June 13, 1840, P. L. 692, and that no inquisition had been held thereon in accordance with the provisions of that act. Inquisition was subsequently held and a resale made on the 13th of July, 1895. In the meantime Moore, who was the assignee of a judgment of Rebecca E. Miller v. Lash and who was also the assignee of Lash, issued execution upon the said judgment May 21,1895; notice of inquest under the act of 1840 was accepted by Lash and Moore, his assignee, on the same day. The next day inquest was held by the sheriff of Lebanon county which found that the part of the land lying in Lebanon county, showing eleven acres and one hundred and seven and one half perches in Berks, could not be sold without prejudice, etc. On the 23d of May this inquest was approved by the court. A sale was advertised for June 14, 1895, on which day the mortgage of Kutz et al. was entered for record in Lebanon county. On the same day Kutz et al. petitioned the court to set aside the fi. fa. issued on the Miller judgment, upon which a rule to show cause was granted, which was discharged June 20, following, and on the 22d of June the sheriff of Lebanon county sold the land to William G. Moore, subject to the Kutz mortgage. On the 8th of July exceptions were filed by Samuel PI. Kutz to the sheriff’s sale and on the 29th of the same month the sheriff’s deed was acknowledged to the -purchaser, notwithstanding the pendency of exceptions. August 12, on motion of the attorney of Kutz et al., rule was granted to recall deed and cancel the acknowledgment, and on the same day the purchaser at sheriff’s sale presented a petition, praying that the exceptions to the sheriff’s sale be dismissed nunc pro tunc, as of a day prior to the acknowledgment of the sheriff’s deed. Upon a hearing, the rule to dismiss exceptions to sheriff’s sale nunc pro tunc was made absolute. Hence this appeal. In Laird’s Appeal, 2 Pa. Superior Ct. 300, the effect of the Act of May 9, 1889, P. L. 158, as to appeals of this character was fully discussed and the authorities as to the interference of an appellate court with the discretionary power of the court below in cases of this character carefully collected and fully discussed. It is not necessary to repeat what was there said. The term “ abuse of discretion,” so often employed in cases like this, is, of course, used in its legal sense, which means simply a use of discretion contrary to established usage ; and, if we were satisfied that the court below had by its final decree sanctioned the violation of the provisions of the act of June 13,1840, supra, we would not hesitate to interfere. A careful examination of this act, however, and of the proceedings in Lebanon county thereunder, fails to reveal any such departure from its requirements as would warrant us in interfering with the final order of the court confirming the sale in said county. There is no provision in the act which we are considering for notice of inquest to anyone. Admitting as reasonable what is said by Judge Shars"WOOD, when he was upon the bench of the district court of Philadelphia in Worthington v. Worthington, 3 Clark, 208, that notice to the defendant in such case is proper, as under the act of 1836 in the case of an inquest as to extension or condemnation proceedings, we have here a distinct waiver of such notice by the defendant which is, of course, equivalent to service of notice by the sheriff. The approval of the inquest by the court and the agreement on the part of the defendant to sell upon the fi. fa. constitute a substantial compliance with the provisions of the act in those respects.

The appellant suffers no wrong. The sale in Lebanon county was made subject to the mortgage which he held. He made a sale subsequently in Berks county and, therefore, has the title to which such sale entitles him. It would be grossly inequitable to set aside the sale made in Lebanon county and allow the appellant to claim the lands lying in both counties under a subsequent sale at which it may fairly be presumed buyers were prevented from bidding, upon the supposition that the sale previously made in Lebanon county was good. There is nothing in the act of 1840, supra, which prevents or seems to hint at preventing parties from proceeding in both counties concurrently. There would doubtless be less confusion and less expense if the court which first assumes jurisdiction in pursuance of the provisions of the act of 1840 and whose mesne or final process has made the first actual seizure of the land, in order to make sale thereof, were allowed to continue exclusive control thereof, until sale and the distribution of the fund arising therefrom; but it is easy to see that the creditor who has his lien in another county might be subjected to great delay and inconvenience if such a rule were established and enforced. In the absence of legislation upon the subject, we cannot see that we can judicially establish rules governing the subject, without imposing conditions which could not be enforced.

If the allegation as to the fraudulent character of the judgment of Mrs. Miller assigned to Moore had been made in the original exceptions, or if after it was alleged in the appellant’s answer, any serious effort had been made, by depositions or otherwise, to make the allegation good, it is probable, although the facts in that case are entirely different, that, under the late ruling in Tigue v. Banta, 176 Pa. 414, it should have been considered. Admitting, as it might be urged, that appellant made the allegation upon his first knowledge of the facts, it is, nevertheless, true that it was distinctly denied by Moore in his replication, and appellant’s answer having been filed September 14, 1895, and the argument upon the rule not heard until October 28, there was abundant time to make the allegation good, if there were facts to support it. Having made no effort in this direction, he should not complain that the allegation was disregarded by the court below.

Upon a careful review of all the facts in the ease, we are convinced that no serious error was committed by the court below, and that greater injustice would be done by allowing this appeal to prevail than by affirming the decree of the court. The decree of the court below is therefore affirmed, and the appeal dismissed at the costs of the appellant.