Mackaness v. Long

Decision Date07 January 1878
Citation85 Pa. 158
PartiesMackaness <I>versus</I> Long.
CourtPennsylvania Supreme Court

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 9.

Albert N. and W. H. Sutton, for plaintiff in error.—The jurisdiction of the Courts of Common Pleas to set aside sales of personal property, is, by virtue of the Act of April 10th 1849, extended to all the counties in the state by Act of 10th of March 1858, Purd. Dig. 645, sects. 49, 50, and expressly defines how such jurisdiction may be acquired, and limits the inquiry to the questions of "the regularity and fairness of the sale," and then only "upon affidavit of the circumstances and before the delivery of the goods," and gives to the said courts power to set such sale aside as "shall appear to have been so irregular or fraudulent," as, in the opinion of the court, "to have produced a sacrifice of the property, to the prejudice of any such party." The proceedings in the court below are entirely wanting in every essential element necessary to give the court jurisdiction. It is at his own risk that the sheriff distributes the proceeds of an execution before the return day: Wortman v. Conyngham, 1 Pet. C. C. R. 241; 1 Tr. & H. Prac., part 2, 920. The delivery of the goods passed the property to the vendee, not only as against all the rest of mankind, but as against the vendor himself: Bowen v. Burk, 1 Harris 148; Backentoss v. Speicher, 7 Casey 326; Smith v. Smith, Murphy & Co., 9 Harris 372; Scott v. Wells, 6 W. & S. 366.

R. B. Carnahan, for defendant in error.—The proceedings of the court below, in making the rule absolute and setting aside the sheriff's sale for non-compliance by the purchaser with his bid, are not reviewable by this court in any form of proceeding. If the decree of the court below be reviewable by this court, it can be brought here only on an appeal, and a writ of error will not lie to such decree. The writ of error in this case cannot bring up the records in the two cases of the Allegheny Valley Railroad Company v. Henry Long, nor of the case of Mackaness v. Henry Long; nor is there any record below that can be brought into this court by this writ. There is no case pending below between Frederick Mackaness and R. H. Fife, and the writ ought to be quashed.

On the 8th of October 1877, the Supreme Court entered the following judgment:—

PER CURIAM.

No writ of error lay in this case against the sheriff. The writ of error is therefore quashed.

On the 17th of October, following, a motion was made on behalf of the plaintiff in error for a re-argument for the following, among other reasons: Fife, the sheriff, was the plaintiff to the issue upon which the judgment assigned for error was rendered, and appears in this court as defendant to the issue so raised, the rule having been granted to No. 195, July Term 1876, in which there was no controversy between the original parties, to wit: Mackaness, plaintiff, and Long, defendant; that the only issue in this case is between Fife, sheriff, plaintiff, as to the rule to show cause, and Mackaness, defendant, as to said rule; that upon bringing the record of said fi. fa., No. 195, to this court, Fife being the only party in interest, was served with notice thereof, that he might appear and defend his action in the court below, and appears as such defendant; that an inspection of the writ and record returned therewith will show that the record and issue presented therein are properly before this court.

Further, that said sale having been upon three writs, and the records of said several writs having been united in the proceeding below by said Fife having addressed his affidavit and rule to the said several records, and alike presenting the same issue between said Fife and Mackaness, the plaintiff in error did not err in presenting them by his said writ.

The motion was allowed and a re-argument had on the 31st of October 1877. The Supreme Court did not adopt the view taken by the counsel for the plaintiff in error, but upon further inspection of the record discovered that the writ of error was directed to the case of Mackaness v. Long, 195, July Term 1876, and were, therefore, of the opinion that Long, and not Fife, was the proper defendant in error, and they accordingly in the subsequent consideration of the case treated it as of Mackaness, plaintiff in error, against Long, defendant in error.

Mr. Justice MERCUR delivered the opinion of the court, January 7th 1878.

All the errors assigned, relate to setting aside the sheriff's sale of personal estate. The sale was made on three writs of fieri facias issued against the defendant in error, returnable on the first Monday of July. One of the writs was in favor of the plaintiff in error, but was received by the sheriff after the two others. The sheriff having failed to return the executions on the return-day, a rule was thereafter granted upon him to show cause why he should not return them and pay into court the money realized thereon. On the return of this rule, July 15th, he put in an answer, under oath, averring substantially, inter alia, that he had levied on a certain leasehold estate with the fixtures and tools, and in pursuance of notice had sold the same to the plaintiff in error on the 31st May for $371. That, on the 7th of June, the purchaser paid $193 and gave a receipt for the residue of his bid; that immediately after he had thus distributed the proceeds of the sale, he ascertained there was a mechanics' lien on the leasehold, which was entitled to be paid, and that the purchaser had since refused to pay the residue of his bid. Upon this return and on motion of the sheriff's attorney, a rule on the purchaser was granted to show cause why the sale should not be set aside for...

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    • United States
    • Pennsylvania Superior Court
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  • Packer v. Owens
    • United States
    • Pennsylvania Supreme Court
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    ...aside an execution: Com. v. Judges, 3 Bin. 273; Cassel v. Duncan, 2 S. & R. 57; Harger v. Commissioners, 2 Jones, 251; Mackaness v. Long, 85 Pa. 158; Pontius v. Nesbit, 40 Pa. 309. The terre tenants had a right to be heard in the court below and here on appeal: Wickersham v. Fetrow, 5 Pa. 2......
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    ... ... Reed, 52 N.H. 136; Leedom v. Phillips, 1 ... Yeates, 527; Bowen v. Burk, 13 Pa. 146; ... Bachantoss v. Speicer, 81 Pa. 324; Mackaness v ... Long, 85 Pa. 158. (4) "The right of reclamation ... after delivery exists only in case of fraud or deceit in the ... purchase or in the ... ...
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    ...-- The payment at the time of sale of the consideration in cash, is not a prerequisite to a valid exercise of a power to sell: Mackaness v. Long, 85 Pa. 158; Huthmacher Harris, 38 Pa. 491; Williamson v. Berry, 49 U.S. 495; Bigley v. Risher, 63 Pa. 152; Perin v. Megibben, 53 Fed. Repr. 86; F......
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