Shelly's Appeal

Supreme Court of Pennsylvania

Shelly's Appeal

38 Pa. 210, 1861 Pa. LEXIS 89

DecidedFebruary 11, 1861

StatusPublished

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Bluebook

Shelly's Appeal, 38 Pa. 210, 1861 Pa. LEXIS 89 (Pa. 1861).

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Opinion

The opinion of the court was delivered,

by Lowrie, C. J.

— The decision of the court below was that where there are several liens against a defendant’s land, and a sheriff’s sale is had on a junior one, which does not produce money enough to pay off the senior ones, the sheriff’s costs on the fi. fa. and vend, exp., on which the money was raised, are payable out of the proceeds; and this is entirely in accordance with our experience of the practice. And it seems to us a very just practice. Even the senior lien could not have been enforced without the same costs, and it has no right to expect a junior one to await its enforcement. They have a right to insist upon a sale in order to learn whether the net proceeds of the sale will reach them, and then to seek satisfaction otherwise, if it does not. On the same principle, the expense of an audit in distributing the fund is always paid out of the fund, whether the lien on which the sale was had is reached by the proceeds or not.

Decree affirmed at the costs of the appellant.

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The opinion of the court was delivered,

by Lowrie, C. J.

— The decision of the court below was that where there are several liens against a defendant’s land, and a sheriff’s sale is had on a junior one, which does not produce money enough to pay off the senior ones, the sheriff’s costs on the fi. fa. and vend, exp., on which the money was raised, are payable out of the proceeds; and this is entirely in accordance with our experience of the practice. And it seems to us a very just practice. Even the senior lien could not have been enforced without the same costs, and it has no right to expect a junior one to await its enforcement. They have a right to insist upon a sale in order to learn whether the net proceeds of the sale will reach them, and then to seek satisfaction otherwise, if it does not. On the same principle, the expense of an audit in distributing the fund is always paid out of the fund, whether the lien on which the sale was had is reached by the proceeds or not.

Decree affirmed at the costs of the appellant.

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Bluebook (online)

38 Pa. 210, 1861 Pa. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shellys-appeal-pa-1861.