Myers v. White

• Decision Date: 03 June 1829
• Citation: 1 Rawle 353
• Parties: MYERS and another, Assignees of Myers, v. WHITE
• Court: Pennsylvania Supreme Court

1 Rawle 353

MYERS and another, Assignees of Myers, v. WHITE

Supreme Court of Pennsylvania.

June 3, 1829

IN ERROR.

The sheriff is not justified in selling, under a Levari Facias, grain growing on the mortgaged premises. And if he does so, the party to whom the grain belongs, may maintain an action of trespass quare clausum fregit against the sheriff, though not in actual possession of the land.

Such party is not estopped from contesting the validity of the sale, in consequence of having received from the sheriff the balance in his hands, after payment of the mortgage.

WRIT of error to the District Court for the city and county of Lancaster, in which the plaintiffs in error David Myers and Henry Myers, assignees of Peter Myers, brought an action of trespass, vi et armis quare clausum fregit, against the defendant in error, William White, Esq., high sheriff of the county of Lancaster.

From the record it appeared, that Peter Myers, the assignor, on the 1st of April, 1822, executed a mortgage to Jacob Graybill and Jacob Johns, to secure the payment of 4,500 dollars, which was recorded on the tenth of the same month. No proceeding was had upon it until the 8th of January, 1825, when a Scire Facias was issued, to which defence was taken; and on the 21st of March, 1825, an award of arbitrators was entered in favour of the plaintiffs. No appeal having been entered, a Scire Facias issued on the 19th of April, 1825, returnable to August Term, by virtue of which, the mortgaged premises were sold on the 18th of May, 1825. In the mean time, viz. on the 15th of January, 1825, Peter Myers assigned all his property, real, personal, and mixed, for the benefit of all his creditors, except Graybill and Johns, the mortgagees. The trust was accepted by the assignees, and the assignment recorded on the day of its date. Upon the Levari Facias, issued by the mortgagees, their counsel endorsed a direction to the sheriff " to levy and sell the mortgaged premises, together with the grain growing thereon." Upon the day of sale, the assignees were present on the premises, and gave public written notice of the assignment; in which they stated, that they had let the plantation, & c. assigned to them for the term of one year from the 1st of April, then last past, for rent taken in advance, and claimed to hold the said rent, and also, the grain in the ground, as personal estate, agreeably to the true intent and meaning of the said deed. Notwithstanding this notice, the sheriff, who was indemnified, sold the grain with the mortgaged premises, and for this injury the present action was brought. One of the plaintiffs, as assignee of Peter Myers, received the balance which remained in the sheriff's hands, after payment of the mortgage.

On the trial, seven legal propositions were submitted to the court for their opinion, by the counsel for the plaintiffs, and nine by the counsel for the defendant, all of which, however may be resolved into three questions.

1. Whether or not, the sheriff was justified by his writ, in selling the grain growing on the mortgaged premises?

2. Whether or not, the plaintiffs were estopped from contesting the validity of the sale, in consequence of one of them having received from the sheriff the balance of the money in his hands?

3. Whether or not, an action of trespass quare clausum fregit, could be maintained by the plaintiffs against the sheriff, upon the facts proved in this case?

Under the direction of the court, the jury returned a verdict for the defendant, and judgment having been rendered upon it, the plaintiffs removed the record by writ of error.

Montgomery and Jenkins, for the plaintiffs in error, cited Ruston v. Ruston, 2 Yeates, 67. Wharf v. Howell, 5 Binn. 504. M'Call v. Lenox, 9 Serg. & Rawle, 309. North v. Turner, 9 Serg. & Rawle, 244.

W. Hopkins, contra, cited, 1 Chitty Pl. 174. Vanhorne v. Frick, 6 Serg. & Rawle, 90. Willing v. Brown, 7 Serg. & Rawle, 467. M'Call v. Lenox, 9 Serg. & Rawle, 311, 314. 2 Johns. Ch. Rep. 442. Patterson v. Swan, 9 Serg. & Rawle, 16. Floyd v. Browne, 1 Rawle 121. Powel on Mort Ch. 4, page 80. 17 Mass. 299. 15 Mass Rep. 280. 13 Mass. 229. 11 Mass. 125. Id. 30. 1 Doug. 81, 82. Lyle v. Ducomb, 5 Binn. 592. Smith v. Shuler, 12 Serg. & Rawle, 242. 3 Mass. 138.

OPINION

ROGERS J.

Peter Myers, on the 1st day of April, 1822, mortgaged a tract of land to Johns and Graybill, who, on the 8th of January, 1825, sued out a Scire Facias on the mortgage. On the 15th of January, 1825, Myers and wife assigned the mortgaged premises to David and Henry Myers, the plaintiffs. At the time of the assignment, there was a crop in the ground, which passed to the assignees. The assignees leased the property to Peter Myers, reserving, as I understand, the crop which was levied on by the sheriff. The mortgagees having obtained judgment on the Scire Facias, issued a Levari Facias to the August Term, 1825, on which was this endorsement: " Sheriff will levy the mortgaged premises, together with the grain growing thereon." The principal point in the cause is, Whether the sheriff be justified by his writ, for the levy and sale of the grain growing on the mortgaged premises. It is contended, by the counsel for the defendant in error, that all leases, or other interests in lands, made or conveyed by the mortgagor subsequent to the mortgage, though before forfeiture, are void against the mortgagee: That as to him, the tenants under such leases, or...