McElfatrick v. Hicks
| Decision Date | 25 September 1853 |
| Citation | 21 Pa. 402 |
| Parties | McElfatrick <I>versus</I> Hicks. |
| Court | Pennsylvania Supreme Court |
As to the third assignment. The action was against Hicks and Schlote, his tenant, and the appearance was for them alone. There was no application to have Mrs. Hicks made a party to the record, nor any suggestion on the record of title in her, nor leave asked to take defence on account of her interest. Where the sheriff's vendee proves that at the time of the levy and sale the debtor was in peaceable possession of the premises, evidence of a different independent title will not be received: 2 Yeates 443, Culbertson v. Martin. In ejectment by a purchaser at sheriff's sale against the defendant in the judgment, the latter cannot set up an outstanding title or right of possession in another: 3 Watts 223, Young v. Algeo. Also cited 3 Barr 275; 1 Id. 201; 14 Ser. & R. 153.
Kunkel and McCormick, for defendant in error, the Court did not hear.
In their printed argument it was observed that, at the date of the bonds to Metzgar, Hicks was solvent. That Hicks had a right to prefer Metzgar. That the debt to Metzgar was an honest one. That there was no direct proof of a knowledge by Metzgar of a dishonest intention on the part of Hicks, and there was nothing in the position or circumstances of Metzgar, in respect to the transaction, from which a knowledge or participation by him in a fraud ought to have been inferred. Metzgar, and Mrs. Hicks claiming under him, if such fraudulent intent were proven against Hicks, would be protected by the last proviso to the statute 13 Elizabeth, viz.: "That this Act or anything therein contained, shall not extend to any estate or interest in land, &c., had, &c., or thereafter to be had, made, conveyed, or issued, which estate or interest is or shall be, upon good consideration and bonâ fide, lawfully conveyed or assured to any person, &c., not having, at the time of such conveyance and assurance to them made, any manner of notice or knowledge of such covin, fraud, or collusion as is aforesaid:" Roberts' Digest 298. A bonâ fide purchaser is to be protected: 3 Penn. Rep. 166, Mateer v. Hissim.
As to the third assignment. The right of possession is in the sheriff's vendee where the defendant was in possession at the time of the levy in his own right. The opinion of KENNEDY, J., in Young v. Algeo, 3 Watts 223, referred to. If there be no estoppel where the defendant in the execution is in possession under a right acquired by subsequent contract: 3 Watts 223-4, Young v. Algeo, there is none where he is in possession in right of his wife and in consequence of the marriage. Notice of her claim was given at the time of the sale, and the principle of caveat emptor is applicable.
By the Act of 11th April, 1848, the property in dispute was the separate estate of the wife. She was in possession, and her estate in it could not be enjoyed consistently with her duty to her husband, without permitting her to set it up to protect the possession of both.
The opinion of the Court, filed Sept. 25, was delivered by
This was an action of ejectment brought to recover the possession of a house and lot, containing three-fourths of an acre. The plaintiffs claimed under a deed made by the sheriff of Dauphin...
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