Klopp v. Witmoyer and Arentz
| Decision Date | 24 July 1861 |
| Citation | 43 Pa. 219 |
| Court | Pennsylvania Supreme Court |
| Parties | Klopp <I>versus</I> Witmoyer and Arentz. |
The plaintiff in error and defendant below can only succeed by showing that the sheriff's sale, under the execution of the defendant, was absolutely void. If it was only irregular and voidable, he is not in a position to question it. He was neither an execution or a judgment creditor of John H. Witmoyer when the sale was made, nor was his suit commenced until more than seven months afterwards. The contest in the court below, therefore, very properly was, whether the sale was fraudulent in fact, or so conducted that the law pronounced it void. Several assignments of error have been made to the charge of the court. They present, however, but three questions, each of which will be considered.
The property sold was the stock of a lumber and coal yard. The lumber was of various kinds and qualities, consisting of boards, planks, shingles, scantling, lath, palings, &c., and was principally at the yard in the borough of Lebanon. A part of it, however, perhaps a quarter of it in value, and the coal, worth more than $300, anthracite and bituminous, was at the canal, from a third to half a mile distant from the lumber-yard. The defendants in error were the creditors under whose judgments the property was sold, and they became the purchasers at the sale. The entire stock of lumber and coal, as well that at the yard as that at the canal, was put up by the sheriff in the mass, and struck off by him to the defendants for $5700, theirs being the only bid made. There was evidence that the attorney of the defendants directed the sheriff to make the sale in that manner in the lump, and it was proved that it was made at the yard in town, none going to the canal to see the articles there. There was also evidence that before the day of sale one of the defendants had offered to give credit if the lumber was sold by the lump, but that on the day of sale he told the bystanders he had a notion to buy it himself, and that if sold in the lump it must be paid for in cash.
The question of fraudulent intent was submitted to the jury, and in regard to that we have nothing before us. It is complained, however, that the court instructed the jury that "the sale of the property in mass was not in itself void, that the sheriff had a sound discretion so to dispose of it, and if in his honest judgment it would in that way command the best price, the sale cannot be avoided, especially by one who had no interest whatever in the subject-matter at the time of the sale." And again, "if this course (a sale in mass) was adopted without any sinister design, but with an honest conviction that, under all the circumstances, it was most advantageous for all interested, debtor, creditor, and all other creditors, it is not fraud in law, and no evidence of fraud in fact." And again, the learned judge said, "we have already said that there is not such irregularity in this sale as to render it void."
Our Acts of Assembly require that sales of property taken in execution shall be by public auction, and sales in any other way are void. But there is no statutory requirement that property seized must be sold in detail, in parcels, or in the aggregate. The mode of selling, whether in parcels or in mass, has been left unregulated by statute. The practice undoubtedly has been to sell in detail, or in small quantities, and such has been understood to be the duty of the sheriff. To say the least, the sale that was made in the present case was a gross irregularity, if it was not in law a nullity. The policy of the law is to multiply bidders and increase competition. Thus the interests of the debtor are advanced, as well as those of the creditors. It is for this reason that any attempt on the part of a purchaser to dissuade bidding avoids the sale, and leaves the property open to seizure at the suit of another creditor. But selling the entire stock in a lumber-yard, or in a store, in mass, inevitably narrows the circle of bidders, and consequently diminishes competition. Many purchasers might be found for portions of the lumber or of the coal; few would be able to buy the whole stock and pay the purchase-money down. No more effectual mode could be adopted to enable the execution-creditor to obtain the property at his own price.
It may be that here and there a person would give more for a stock of goods if sold together than he would if sold in detail, but he is not likely to be compelled to give more by competition. The sheriff's duty is regulated not by what might be the result in an extraordinary case, but by general rules of policy, and to to those rules the public interests require that he should strictly be held. If he may sell numerous articles at wholesale whenever he thinks they will thus bring a better price, why may he not sell privately if, in his judgment, it would be advantageous? The statute, indeed, demands a public sale, and only legal policy requires a selling at retail; but the object of this policy and the statute is the same. It is to secure the best price for the property levied upon, and to guard against frauds. In Rowley v. Brown, 1 Binn. 61, where it appeared that the sheriff had sold by a lumping sale three pieces of land which might have been sold separately, though they were jointly subject to an entire ground-rent, the sale was set aside, and it was said to be the rule of this court to disallow a lumping sale by the sheriff in every case where, from the distinctness of the items of the property, we can have distinct sales. It was said to be essential to justice, and to the protection of unfortunate debtors, that this should be the general rule; any other would lead to the most shameful sacrifices of property. If such is the rule in regard to sales of real estate, a multo fortiori should it be in respect to sales of personalty. Abuses are more easy in the latter than in the former. Judicial sales of real estate pass directly under the inspection of the court at the acknowledgment of the deed, but over sales of personalty the court has no such immediate supervision. It is to be observed, that the rule of public policy which requires sales of personal property taken in execution to be made in detail, has for its object more than the protection of the debtor, and the interest of the execution-creditor. Its purpose is...
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Westinghouse Credit Corp. v. Giordano
...Corporation, supra, as is a creditor whose claim against defendant has not been reduced to judgment at the time of the sale: Klopp v. Witmoyer, 43 Pa. 219 (1861); O'Hare v. Marateck, 13 D. & C. 516 Packer does not have the requisite interest in either the property or its proceeds to bring t......
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First Nat'l Bank v. Boes
...here sufficiently distinct both in law and fact, and there was no reason for deviating from the common practice." The case of Klopp v. Witmoyer et al., 43 Pa. 219, contains a rather full discussion of this subject, but careful reading discloses that the general rule is recognized as well as......