Barnes v. Skiles
| Decision Date | 12 March 1906 |
| Docket Number | 226-1905 |
| Citation | 30 Pa.Super. 418 |
| Parties | Barnes v. Skiles |
| Court | Pennsylvania Superior Court |
Argued December 14, 1905
Appeal by Albert E. Barnes, from order of C.P. No. 2, Phila. Co.-1905, No. 3,740, making absolute rule to set aside sheriff's sale in case of Annie E. Barnes v. Charles E Skiles.
Rule to set aside sheriff's sale.
The facts are stated in the opinion of the Superior Court.
Error assigned was the order making absolute rule to set aside sheriff's sale.
Affirmed.
Henry Spalding, of Fell & Spalding, for appellant, cited Lawrence v. Gallagher, 2 W.N.C. 261; Lex v Potter, 16 Pa. 295; Weitzell v. Fry, 4 Dallas, 218; Media Title & Trust Co. v. Kelly, 185 Pa. 131; McMichael v. McDermott, 17 Pa. 353; Laird's App., 2 Pa.Super. 300; Stroup v. Raymond, 183 Pa. 279; Swires v. Brotherline, 41 Pa. 135.
A. L. Wanamaker, for appellee, cited: Gibbs v. Neely, 7 Watts, 305.
Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
This is an appeal from an order, made upon the application of the defendant in the execution, setting aside a sheriff's sale of 49,174 shares of the capital stock of Thunder Mountain Gold Company, owned by and standing in the name of the defendant. On the day of the sale the deputy sheriff delivered to the purchaser a paper, the material part of which is as follows:
The first question presented by the appellant, the purchaser, is as to the power of the court. The Act of April 10, 1849, P. L. 597, extended throughout the state by Act of March 10, 1858, P. L. 91, authorizes the court from which any execution or order of sale shall issue for the sale of personal property " to inquire into the regularity and fairness of the sale at the instance of any party interested by execution, foreign or domestic attachment, or under a general assignment upon affidavit of the circumstances before delivery of the goods; and if it appear that the sale shall 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, it shall be competent for the court to set aside such sale, and the same property may be again exposed to sale, as if no such previous sale had been made." Whether or not this act applies strictly to an application made by the defendant in the execution we regard as immaterial so far as a disposition of the present case is concerned. The principles embodied in the act are those which ought to control the disposition of the case.
It is argued that the court had no power to set aside the sale because the application was not made until after delivery of the above quoted paper, which, it is contended, was a constructive delivery of the stock, and the only delivery the sheriff could make. But this paper was not a transfer of the stock, nor was it, in and of itself, complete evidence that the title had passed to the purchaser. It is quite different from a sheriff's deed of real estate, and the principle, upon which it has been repeatedly held that after deed duly acknowledged in court and delivered it is too late to set aside the sale summarily, does not apply. Its words do not clearly import more than a receipt for the amount of the purchaser's bid, and in determining whether the application to set aside the sale was made in time we think it cannot be regarded as having any other effect, standing by itself. We base this conclusion not alone upon the ground that the words " delivery of the goods" do not literally describe the act or event which is set up here as a bar to the application, but upon that and the additional ground that the reason of the limitation does not require that the delivery of such a paper be given the same effect as manual delivery of tangible property. The application having been made before the return day of the writ and within fifteen days after the sale, and neither transfer of the stock on the books of the company nor delivery of the certificate having taken place, and there being nothing in the special circumstances of the case which made the omission to move earlier prejudicial to the rights of any of ...
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