Sensinger v. Boyer

• Decision Date: 27 March 1893
• Docket Number: 260
• Citation: 26 A. 222,153 Pa. 628
• Parties: Sensinger, Appellant, v. Boyer
• Court: Pennsylvania Supreme Court

26 A. 222

153 Pa. 628

Sensinger, Appellant, v. Boyer

No. 260

Supreme Court of Pennsylvania

March 27, 1893

Argued February 15, 1893

Appeal, No. 260, Jan. T., 1893, by plaintiff, Howard Sensinger, from judgment of C.P. Lehigh Co., Nov. T., 1890 No. 13, in favor of defendant, on case tried by the court without a jury.

Trespass for wrongful levy and sale, tried by the court without jury.

The facts appear by the opinion of the Supreme Court.

The am sci. fa. agreed "that judgment be entered in favor of plaintiff and against defendant above named; that the above stated judgment be revived, and continue a lien on defendant's real estate for another period of five years," etc. Sensinger was named as terre-tenant. The court found that Sensinger owed the debt, as part of the purchase money.

Plaintiff's points were as follows:

1. Request for binding instructions. Refused. [1]

"2. There was no personal judgment held by the defendant against the plaintiff, and consequently the goods and chattels of the plaintiff could not have been levied upon under the judgment in evidence. As the defendant caused a general fi. fa. to be issued on his judgment, and caused the goods and chattels of the plaintiff to be sold by the sheriff, he is a trespasser, and liable to damages in this action." Refused. [2]

The court, ALBRIGHT, P.J., found in part as follows:

"I think the plaintiff is estopped from asserting that his goods were wrongfully sold by the defendant. He assented to a sale of his goods in part satisfaction of a debt he owed, and which he ought to have paid before the execution was issued. Repudiation of this action would result in serious injury to Boyer." [3]

Judgment was entered for defendant. Plaintiff appealed.

Errors assigned were (1, 2) instructions; (3) above finding; quoting them; (4) in not entering judgment for plaintiff.

Edward Harvey, E. J. Lichtenwalner with him, for appellant. -- Plaintiff took the land subject to the judgment, but that did not make it his personal debt: Edward's Ap., 66 Pa. 89; 1 Trickett on Liens, p. 273; Haskins v. Low, 17 Pa. 66; Judson v. Lyle, 8 Phila. 98.

All who participated in the alleged act of ordering, directing and executing the process were trespassers: 2 Waterman on Trespass, 24, 25; Ross v. Fuller, 12 Vt. 265; Coats v. Darby, 2 N.Y. 517; Allison v. Rheam, 3 S. & R. 139; Deal v. Bogue, 20 Pa. 228; McMurtrie v. Stewart, 21 Pa. 322; 4 Coke's Inst. 317.

A mutual mistake as to the law, which is equally open to both parties, cannot raise an estoppel: Plumer's Ap., 11 W.N. 144. One party is not estopped by declarations by which the other party was misled and upon which he did not rely: McKnight v. Bell, 135 Pa. 358; Heller's Ap., 116 Pa. 534; Linnard's Ap., 21 W.N. 40; Herman on Estoppel, 341; Wright's Ap., 99 Pa. 432; Eldred v. Hazlett, 33 Pa. 307; Ormsby v. Ihmsen, 34 Pa. 462; Water's Ap., 35 Pa. 523; Washabaugh v. Entriken, 36 Pa. 513; Ream v. Harnish, 45 Pa. 376; Sunderlin v. Struthers, 47 Pa. 411; Helser v. McGrath, 52 Pa. 531; McKerrahan v. Crawford, 59 Pa. 390; Reel v. Elder, 62 Pa. 308; Rhodes v. Childs, 64 Pa. 18.

The acts of a party, done in ignorance of his rights, will not operate as an estoppel, unless others have acquired rights on the faith of them: Newman v. Edwards, 34 Pa. 32; Duncan's Ap., 43 Pa. 67; Harlan v. Harlan, 15 Pa. 507; Edelman v. Yeakel, 27 Pa. 26; Burt v. Smith, 3 Phila. 363.

Where the representation was not meant to bring about the sale, it cannot be said that the sale was the result of the representation: Herman on Estoppel, 247; Freeman v. Cooke, 2 Exch. 653; Heane v. Rogers, 9 B. &. C. 576; Bigelow on Estoppel, 437; McLaughlin v. Shield, 12 Pa. 283: Ingram v. Hartz, 48 Pa. 380. When the writ is void and confers no power whatever upon the officer, there is no estoppel: Herman on Execution, 370: Bennett v. Gamble, 1 Tex. 124; Howe v. Blanden, 21 Vt. 315: Geoghegan v. Ditto, 2 Metc. (Ky.) 433.

R. E. Wright, C. J. Erdman with him, for appellee. -- It is by no means clear that the so-called "revival" of May 31, 1888, did not create a personal judgment against Sensinger. It is agreed that "judgment" shall be entered in favor of the plaintiff and against the "defendant" or "defendants."

The levy and sale having taken place without objection by appellant, but by his acquiescence, if not by his request, being encouraged and participated in by him, he having used the proceeding as the vehicle to perfect in himself the title to $300 worth of property claimed by him under the exemption laws, he is estopped: Duff v. Wynkoop, 74 Pa. 300; Smith & Wife v. Warden & Alexander, 19 Pa. 424; Woodward v. Tudor, 81* Pa. 382: Decker v. Eisenhauer, 1 P. & W. 476; Wilkins v. Anderson, 11 Pa. 399. One who assists as appraiser in the sale of property by another, standing by and seeing the price paid and possession taken, is estopped from subsequently asserting any title to the same: Steffee v. Kerr, 2 Woodward, 175.

One who accepts goods at an appraisement, with acknowledgment of the misconduct of the appraiser, is estopped from afterwards alleging such misconduct as a defence to a suit for the price of goods: Garis v. Hopkins, 2 L. V. Reptr. 279.

If the plaintiff in an execution represents to the purchaser, at the time of sale, that certain land is included in the levy, he will be estopped from subsequently contesting it: Buchanan v. Moore, 13 S. & R. 304.

A party will be estopped from taking advantage of action in which he has acquiesced for his own benefit: McCully v. Pittsburgh & Connellsville R.R., 32 Pa. 25. And see Guiterman v. Landis, 1 W.N. 622.

If land be sold by the sheriff as the property of A, and the person in possession stands by, knowing that he is represented as the tenant of A, and does not contradict it, he is estopped from contesting the title of A with the purchaser: Covert v. Irwin, 3 S. & R. 283; Keeler v. Vanfuyle, 6 Pa. 250.

If a defendant permit a sheriff's sale to proceed, knowing that the judgment has been paid, he will be estopped from contesting the title of an innocent purchaser in a proceeding to obtain possession: Dean v. Connelly, 6 Pa. 239.

If a lien creditor assent to the sale of fixtures, as personalty, he is estopped from contesting the title of the purchaser. Harlan v. Harlan, 20 Pa. 303.

One who stands by, and encourages a sale of land, in which he has an equitable interest, will be estopped from setting it up against the purchaser: Workman v. Guthrie, 29 Pa. 495.

Before PAXSON, C.J., STERRETT, GREEN, WILLIAMS and MITCHELL, JJ.

OPINION

MR. WILLIAMS, JUSTICE

The question raised on this record is one of estoppel. Is the plaintiff in the action estopped from alleging his own title to the goods seized and sold by the sheriff? The learned trial judge held that he was, and the correctness of his ruling on this subject presents the only point for consideration. There is no doubt about the general principle on which the doctrine of estoppel rests. Having induced action by another on a belief in a given state of facts, it is unjust to permit him who induced the action to deny the facts and strip the action of the protection which they would have afforded. But one who has not been misled cannot invoke this doctrine in his behalf. The rule is stated in McKnight v. Bell, 135 Pa. 358. If the party who seeks protection by setting up an estoppel has not been misled he is not entitled to the benefit of the doctrine. The rule is that one shall be estopped from alleging the truth, only when his falsehood or his silence has induced action by the other party that would lead to loss except for the estoppel: Musser v. Oliver, 21 Pa. 362; Ayres v. Watson, 57 Pa. 360; Reed v. Elder, 62 Pa. 308. It remains to apply this rule to the facts of this case.

The case was tried without the aid of a jury and the facts are distinctly, and we have no doubt correctly, found by the learned trial judge, and are easily stated. Boyer was a judgment creditor of Snyder. The judgment was a lien upon a farm sold by Snyder to Sensinger. Before the lien expired the parties came together and revived it by an amicable scire facias signed by the plaintiff Boyer, the defendant Snyder and the terre tenant Sensinger. The judgment thus revived continued to be a personal judgment against the defendant, capable of enforcement against all his property, real and personal. Against Sensinger, however, it was a judgment de...