Crowell v. Meconkey
| Decision Date | 24 April 1847 |
| Citation | 5 Pa. 168 |
| Parties | CROWELL <I>v.</I> MECONKEY. |
| Court | Pennsylvania Supreme Court |
Lewis, for plaintiff in error.—The doctrine of estoppel was not applicable, since there was no obligation in the trustee to require an appraisement, nor can his objection for that defect in the sale of one parcel be construed a waiver as to another, though included in the same writ; for they are as distinct as if sold by several writs. This appraisement is imperatively required by the law, and the stay of all proceedings is directed on the sheriff's return. [BURNSIDE, J. — The want of objection by the parties is a waiver.] The same agreement would apply to the inquisition under the act of 1836, but that can only be by certificate filed, and not by acts in pais. Under that as well as this, there may be an objection to the acknowledgment, but the failure to take this was never held to be a waiver. That, and the act of 1705, are no more imperative than this, but they have been so considered in this court; Thompson v. Phillips, Bald. 270; Wilson v. McVeagh, 2 Yeates, 86; Den v. Wright, Peters' C. C. R. 64; 5 Serg. & Rawle, 332; 2 Binn. 80; and a sale without such inquisition is no sheriff's sale, but a private one, Cash v. Tozer, 5 Watts & Serg. 526, which also decides there is no waiver by not objecting at the time; Seechrist v. Baskin, 7 Watts & Serg. 403. The other ground is untenable: the creditors did not claim under the trust but paramount, and the consequence would be, that a claim of $10 would prejudice other creditors to an indefinite amount. The agreement with the mother had reference to two contingencies; the one a pecuniary profit by the judgments, the other the acquisition of title to the land thereby; the court erroneously treated it as having but the former object.
There was no evidence that George W. Pennock had received his share of his father's personalty, and we claimed to affirm the conversion into land. The proceedings in bankruptcy could not be read in part, and we were entitled to read Mrs. Pennock's deposition.
P. Frazer Smith and Meredith, contrà.—There is no doubt of the sheriff's authority to sell the land on the 16th of July, for he then had the proper writ in his hands. Then came the act of Assembly, which was solely intended for the benefit of the debtor. It requires as a condition precedent payment of interest then accrued to be made by the debtor, which was not done: but the true ground is, that being for his benefit he may waive it; Shultze v. Deal, 2 Penna. Rep. 273: numerous cases illustrate the same rule. It is entirely different from the case of an inquisition; without that the venditioni could not issue, and a sale by the sheriff under a void writ cannot be a judicial sale; but here there was a lawful command, which was executed in ignorance of the law all round, and when the law was known, all parties acquiesced. The act of 1842 was in fact but a part of the stay of execution law under which the conditions are all precedent on the part of the debtor. The other ground is sufficient. An acceptance of the purchase-money is always a confirmation of a sale, as is shown by the cases referred to by the court, and Unangst v. Kraemer, 8 Watts & Serg. 391. Here the land was converted into money, and by reason of his not objecting to the irregularity, $23,000 was paid to those persons whom he represents. The question of a receipt by George, of his share of his father's estate, was not considered raised on the evidence, but it was plainly the fact. He had become indebted to the trustee of the estate, exceeding $26,000, and that trustee had no other property but as a beneficiary for life in the trust property, the very savings of which were trust funds: this amount far exceeded his share. As to the agreement: certainly the rule laid down was but reasonable, viz.: that the profit only was to become George's; in point of fact there was a loss, and to add to that, by carrying off the entire estate which had been paid for out of the trust property, would make the contract an absurd and unreasonable one.
Randall, contrà.—There would be no question if there was an agreement to waive the objection, and Shultze v. Deal only rules that a party is bound by his contract. Here was no agreement, and indeed no opportunity to desire an appraisement, for the sale had passed when the law was known. The law is not like the law for stay of execution, but it prohibits a sale except on conditions; that prevents a sale on compliance with conditions. There was no argument below on the question of the receipt of any share of the personal estate, nor was there evidence to justify the assumption of our indebtedness to the trust estate before settlement of the accounts. The evidence of indebtedness was to the mother, not to the father's estate.
April 24. COULTER, J., (after stating the facts as to the sale and the act of Assembly, and their respective dates).
It was utterly impossible that the existence of the act could have been known in many parts of the state in that time. And its knowledge through the ordinary mode of publication of the laws, could not have been known for months, and it does not appear that there was any extraordinary mode adopted of promulgating this law. It may be presumed that cases exist when sales were made after the passage of the act, and the deeds acknowledged before the existence of the act was known; at least, it seems impossible that the act could have been officially known to the sheriff in this case, or that by any ordinary mode of action he had a chance of knowing its existence at the time of sale. Before stating the construction which the court give to the act of 16th of July, 1842, I beg leave to say, that all persons are presumed...
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