Wickersham v. Fetrow

• Decision Date: 28 May 1847
• Citation: 5 Pa. 260
• Parties: WICKERSHAM <I>v.</I> FETROW.
• Court: Pennsylvania Supreme Court

5 Pa. 260

WICKERSHAM v. FETROW.

Supreme Court of Pennsylvania.

May 18, 1847.

May 28, 1847.

May 18.

IN error from the Common Pleas of York county.

Cochran and Barnitz, for plaintiff in error.—The remedy is statutory, and the judgment de terris only; act 1705; 2 Troub. and Haly, 326; 6 Serg. & Rawle, 44; 7 Serg. & Rawle, 1 — 8; Roberts v. Williams, 5 Whart. 170. There could be no doubt of the right of the terre-tenant to defend, and there is no remedy for costs but under the statute which merely directs them to be deducted from the surplus proceeds of sale after satisfaction of the debt.

Chapin and Durkee, contrà.—Ex parte Horne, 1 Mad. Rep. 622.

May 28. BURNSIDE, J.

In the action No. 42, of January Term, 1844, of Philip Fetrow v. David Fetrow, which was a scire facias sur mortgage, on the return of the writ, Daniel Hoopes and William Wickersham, executors of William Hoopes, deceased, presented their petition to the court, averring that Hoopes was a purchaser of the land since the date of the mortgage, and they believed the mortgage sued on was paid, and asked leave to appear and take defence, which was allowed. Judgment was given against David Fetrow on the 22d July, 1844, for want of a plea. Hoopes' executors pleaded payment. The cause was referred to arbitrators, who made a report in favour of the defendants; appeal to the Common Pleas, trial and verdict for the defendants; new trial granted, and then verdict and judgment for the plaintiffs for $531 50 debt, with six cents costs; levari facias and premises sold for $315. The costs were taxed at $199 46. On the 17th of April, 1846, the plaintiff, Philip Fetrow, obtained of the court a rule upon William Wickersham and David Hoopes, executors of William Hoopes, deceased, to show cause why they should not pay the plaintiffs costs which accrued after the judgment against David Fetrow, rendered on the 22d of July, 1844. The court, on the 4th of August, 1846, made the rule absolute.

This act of the Common Pleas, the making of the rule absolute on the executors of William Hoopes, deceased, is the error assigned in this court.

The scire facias on the mortgage is a proceeding in rem, against the land mortgaged, and is given by the sixth section of the act of 1705, (1 Smith's Laws, 59; Dunlop, 23,) to enforce the payment of the mortgage debt. The plaintiff obtained a verdict and judgment against the land, which gave him a writ of levari facias to sell the land. The law gives him the proceeds of that...