Davis v. Michener.
| Decision Date | 26 May 1884 |
| Citation | 106 Pa. 395 |
| Parties | Davis <I>versus</I> Michener. |
| Court | Pennsylvania Supreme Court |
Before GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ. MERCUR, C. J., did not sit
ERROR to the Court of Common Pleas of Montgomery county: Of January Term, 1884, No. 367 G. R. Fox, for plaintiff in error, cited Neel v. Lewistown Bank, 1 Jones, 17; Stewart v. Coder, 1 Jones, 90; Jarrett v. Tomlinson, 3 W. & S., 114; Hunter's Appeal, 4 Wr., 196.
N. H. Larzelere and Charles T. Miller, for defendant in error, cited Loomis v. Lane, 5 Casey, 246; and Hunter's Appeal, supra.
Charles Michener, residing in Montgomery county, by his deed dated December 20, 1881, made a general assignment to George Hand for the benefit of creditors. The assignee, on the 8th February, 1882, presented his petition to the Court of Common Pleas of that county for an order to sell the assigned real estate for the payment of debts, under the Act of 17th February, 1876; on due proof of notice to the lien creditors of the intended application, the court, on the 6th March, 1882, directed a public sale of the said real estate, to be made on the premises, on the 18th May, 1882, discharged of all liens, except the lien of a first mortgage thereon, and upon certain terms in the order specified. The plaintiff in error, W. H. H. Davis, was one of the judgment creditors, the lien of his judgment having attached on the day preceding the date of the assignment; notice was accepted on his behalf by Mr. Larzelere, who assumed to act as his attorney. On the 18th May, 1882, the real estate was exposed to sale under the said order by the assignee, and his return sets forth that at a public sale on that day, after due public notice, he sold the property to George H. Burns for $2,400, less the amount of the said mortgage; the sale was subsequently confirmed by the court, and a deed delivered to the purchaser.
The plaintiff in error alleges that the acceptance of notice of the application by Mr. Larzelere was without authority from him, and that he, in fact, had no knowledge of the order, or of the subsequent sale, or of the confirmation thereof, or of the trustee's account of the proceeds, until the fund arising from the sale was in process of distribution. He further alleges that the assignee's return of sale is false, that no such sale was in fact made, as would discharge the lien of his judgment against the assigned estate, under the Act of 17th February, 1876; that, on the contrary, the property having been exposed to sale, on the premises, on the 18th May, 1882, was withdrawn; that the sale was not adjourned, was not again advertised, or offered at public sale, and no sale was effected; that the sale to George H. Burns was a private sale, made at the assignee's office, at Holboro', on the 27th May, 1882, and that the lien of his judgment was not discharged thereby. These several allegations, made by the plaintiff in error, are, in substance, admitted by the assignee in his testimony taken before the auditor.
Pending the distribution a writ of fieri facias was issued upon the Davis judgment, the assigned realty levied upon, and a...
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Trullinger v. Charles
...Pa. 455; Big Mountain Imp. Co.'s App., 54 Pa. 361; Given's App., 121 Pa. 260; but distinguishing Reeser v. Johnson, 76 Pa. 313; Davis v. Michener, 106 Pa. 395. (3) That the defendant by in the deed of reconveyance discharged the land from the judgment: Funk v. Voneida, 11 S. & R. 109; Chamb......
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Artman v. Giles
... ... Gilder v. Merwin, 6 Whart. 522; Riley v ... Ellmaker, 6 Whart. 545; Reeser v. Johnson, 76 ... Pa. 313; Taylor's Appeal, 93 Pa. 21; Davis v ... Michener, 106 Pa. 395; and Walker's Appeal, 112 Pa ... 579. The only exception so far recognized is in the case of a ... levy upon a ... ...
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Trullinger v. Charles
...Pa. 455; Big Mountain Imp. Co.'s App., 54 Pa. 361; Given's App., 121 Pa. 260; but distinguishing Reeser v. Johnson, 76 Pa. 313; Davis v. Michener, 106 Pa. 395. (3) That the defendant by joining in the deed of reconveyance discharged the land from the judgment: Funk v. Voneida, 11 S. & R. 10......
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Barrell v. Adams
...of a court of equity cannot be doubted: Coal Co. v. Ryon, 188 Pa. 138; Hunter's App., 40 Pa. 194; Artman v. Giles, 155 Pa. 409; Davis v. Michener, 106 Pa. 395; Winch's App., Pa. 424; Taylor's App., 93 Pa. 21. Where, at the time of the issuing of a scire facias to revive a judgment, a deed i......