Dewart v. Purdy

• Decision Date: 01 January 1858
• Citation: Dewart v. Purdy, 29 Pa. 113 (Pa. 1858)
• Parties: Dewart versus Purdy.
• Court: Pennsylvania Supreme Court

Page 113

29 Pa. 113

DewartversusPurdy.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Northumberland county.

Comly, for plaintiff in error.—The court below was in error, in ruling that the rule to accept or refuse to accept the land at the valuation returnable the 16th June, 1856, continued in operation

and was pending notwithstanding the day theretofore fixed had gone by.The rule was annulled by the writ of error.It was not susceptible of a return.The record was in a higher court.The Common Pleas had no case before them on the 16th June, 1856: 3 Bacon Ab. 354 (ed. 1844), 355;Act 5th May, 1841, § 14;Act 22d April, 1856.The act is remedial.Are the words "at the return of the rule," identical in meaning with the words "at the return day of the rule?"

Packer, for defendant in error.—The Act of April 22d, 1856, was not in operation.Where a writ of error is manifestly for delay, the court will not interfere to prevent execution: Kempland v. McCauley, 4 T. R. 436;Entwistle v. Sheppard, 2 T. R. 78;Evans v. Sweet, 2 Bing. 326;Rauck v. Baker, 12 S. &R. 419.The rule to show cause, &c., was therefore not annulled, but remained to be disposed of whenever the record was restored to the court below.Rule to show cause on a day appointed, if cause be not shown, party obtaining the rule may move to make it absolute.But it frequently stands over by consent or by order of court: 3 ChittyGen. Pr. 587;Tidd's Pr., vol. i. 455 (ed. 1807);2 Arch. Pr. 303;1 Troubat &H. 860;Thurston v. Murray, 3 Binn. 413;The King of Spain v. Oliver, 1 PetersC. C. Rep. 219;Smith v. Davids, 1 Dall. 410;Hershey v. Breneman, 6 S. &R. 3;Ragan's Estate, 7 Watts 440.An election once made, is irrevocable: Barney v. Killner, 1 Barr 35; Wentz's Appeal, 7 Barr 152-3.Liens may be affected by retroactive laws — not so vested rights: Evans v. Montgomery, 4 S. &R. 218; Bolton v. Johns, 5 Barr 145; Neff's Appeal, 9 Harris 246; Becker's Appeal, 3 Casey 55;Muluck v. Souder, 5 W. & S. 199.

The very essence of a new law, is a rule for future cases: Bedford v. Shilling, 4 S. &R. 401;Lamberton v. Hogan, 2 B. 25-26; Lefevre v. Witmer, 10 Barr 505; Hinckle v. Riffert, 6 Barr 197;Eakin v. Raub, 12 S. &R. 316.

The opinion of the court was delivered by WOODWARD, J.

Undue importance was given in the argument to the question, whether the rule of 28th May, 1856, was pending and operative on the 4th of September, 1857, the day when the court adjudged the premises to the plaintiff, Purdy.The 14th section of the Act of 5th May, 1841, relating to partition in the Common Pleas, does indeed enjoin the court to grant a rule on all persons interested to come into court on a day certain, to accept or refuse the estate at the valuation; but if they come without a rule, or in pursuance of a superseded or defunct rule — if in point of fact "all persons interested" are before the court and fully heard, and especially if he elects to take at the valuation who is entitled to priority of choice — the objects and purposes of the Act of Assembly are accomplished, and the want of a rule returnable on the precise day of the hearing, is no defect in the proceedings.Defects in mesne process, the object of which is merely to effect an appearance, are always waived by the appearance of the party.

Now the record shows, that Dewart appeared on the 4th September, 1857, and exhibited his title and claimed the decree of the court on the ground both of priority of title and of his offer in advance of the valuation.This concludes him.If the decree had been in his favour, would he have thought his title defective, or would he have complained of the record, on the ground that a new rule or an enlargement of that of 28th May, 1856, had not been duly entered?Certainly he would not.He would have held the plaintiff concluded by his appearance, and he himself is estopped on the same ground from alleging want of notice.

The only remaining question is, whether the court were right in awarding the premises to the plaintiff.

It is not denied that the plaintiff's title was the oldest; but the defendant offered to take the land at a higher sum than the sheriff's inquest had valued it at, and he claimed that this entitled him under the 10th section of the Act of Assembly of 22d April, 1856, to have the premises allotted to him.

The Act of 1841 made priority of title the rule of allotment; that of 1851 makes the highest price offered in writing above the valuation, the rule; but if there be no advance offered, the old rule prevails.The land here was valued at $84 the acre, and Dewart offered in writing to take it at $110 per acre.In other words, he offered to pay Purdy $5485.05 for his (Purdy's) half; whilst Purdy insisted on having Dewart's moiety for $4167.97½.

There cannot be a word said in favour of the equity of Purdy's claim.If it is supported, it must be by sheer law.

The Act of 1856, by its own limitation, went into...