85 Pa. 158 (Pa. 1877), Mackaness v. Long

Citation:85 Pa. 158
Opinion Judge:PER CURIAM. Mr. Justice MERCUR
Party Name:Mackaness v. Long.
Attorney:Albert N. and W. H. Sutton, for plaintiff in error R. B. Carnahan, for defendant in error
Judge Panel:Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.
Case Date:October 03, 1877
Court:Supreme Court of Pennsylvania
 
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Page 158

85 Pa. 158 (Pa. 1877)

Mackaness

v.

Long.

Supreme Court of Pennsylvania.

October 3, 1877

1. A writ of error will lie in all cases where a court of record has given a final judgment or made an order in the nature of a final judgment, and the setting aside an order of sale is clearly a final order or decree, and therefore reviewable on error.

2. The court has no authority, on the application of the sheriff, made after the return-day of the execution, to set aside a sale of personal property regularly and fairly made.

3. A sale is a contract to pass rights or property for money, which the buyer pays or promises to pay to the seller for the thing bought and sold, and if the sheriff gives possession of the property sold, before obtaining the full payment therefor, and the bid was settled by the purchaser in good faith, which is not denied, the right of property passes.

4. Where the sheriff, on his own authority, distributes money levied under several executions before the return-day of the writ, he does it at his own risk. His misapplication of the proceeds cannot destroy the validity of a sale otherwise good.

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.

On the 17th day of May 1876, R. H. Fife, Esq., sheriff of Allegheny county, by virtue of writs of fieri facias to Nos. 132 and 133 and No. 195, July Term 1876, levied on certain personal property of Henry Long, the defendant named in the writs, and on the 31st day of May 1876, in pursuance of notice, sold the same at public vendue to Frederick Mackaness, the plaintiff in error, for the sum of $371, who entered into immediate possession.

On the 15th of July following, upon the affidavit and motion of the sheriff, a rule was granted to show cause why the sale should not be set aside under the writ to July Term 1876, No. 195, in which Frederick Mackaness was plaintiff and Henry Long defendant. In the other two writs the Allegheny Valley Railroad Company was the plaintiff. The records in the three cases were united in this proceeding. The remaining facts will be found fully stated in the opinion of the court.

The court made the rule absolute and Mackaness took this writ, assigning for error this action of the court. The writ was taken out in the name of Frederick Mackaness, plaintiff in error, and R. H. Fife, sheriff, defendant in error.

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...

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