Appeal of Work

| Pa. | Jan 5, 1880

Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

There is no substantial disagreement as to the facts of this case. The execution under which the levy was made was issued on October 1st 1877, and was made returnable to the second Monday of the same month, which was the eighth. The levy was made on the third. Immediately thereafter the plaintiff in the fieri facias notified the sheriff not to advertise a sale upon said writ, as he deemed it better to allow the defendant in said execution to sell the property levied upon. In consequence of this the sheriff took no further action; the goods were sold by the defendant at a public sale on the 10th of October, and the sheriff received no part of the proceeds except his costs on the writ. On the 13 th of October, five days after the return-day, and three days after the sale, the appellee served a notice upon the sheriff that she claimed $200 arrears of rent out of the proceeds of the sale.

We are of opinion that the notice came too late. The directions of the plaintiff in the execution not to advertise a sale was a stay of the writ as to other execution-creditors: Commonwealth v. Stremback, 3 Rawle 341" court="Pa." date_filed="1832-02-02" href="https://app.midpage.ai/document/commonwealth-ex-rel-reynolds-v-stremback-6314466?utm_source=webapp" opinion_id="6314466">3 Rawle 341; Corlies v. Stanbridge, 5 Id. 286; Freeburger’s Appeal, 4 Wright 247; Pary & Co.’s Appeal, 5 Id. 273; Keyser’s Appeal, 1 Harris 409; Stern’s Appeal, 14 P. F. Smith 447. And the appellee could have issued a landlord’s warrant, and made a distress upon the property. If the levy still remained good as against the defendant it will not help the appellee, as she gave the sheriff no notice of her claim for rent until after the property was sold and beyond the reach of the sheriff. Had she given such notice before the sale it might have been the duty of the sheriff to have resumed the possession of the property under the execution, as the 85th section of the Act of 16th June 1836, provides that where any goods or chattels liable to the payment of rent are seized upon an execution, such writ shall not be stayed by the plaintiff therein without the consent in writing of the person entitled to such rent. Under the statute of 8 Anne, ch. 14, it was made the imperative duty of the sheriff to pay the landlord one year’s rent, if the same was due, before he removed the goods from the demised premises. But in Pennsylvania, as was said in Ege v. Ege, 5 Watts 134" court="Pa." date_filed="1836-05-15" href="https://app.midpage.ai/document/ege-v-ege-6311563?utm_source=webapp" opinion_id="6311563">5 Watts 134, under our statute, the sheriff is not estopped from removing the goods, and he is protected provided he pays over to the landlord one year’s rent, or the landlord neglects to give notice of his claim in proper time. It was said by Ro&ers, J., in the case last cited: “It would jeopard the rights of the landlord to fix any other period than the sale as the limit of his right to give notice. In practice it is usual to sell goods taken in execution after the return-day of the writ. The sheriff is directed by the act to pay over after the sale, one year’s rent to the land-' lord; it would therefore seem that all the purposes of the act are answered if notice is given at any time before the money is paid over.” The sheriff here, as before observed, had no money in his hands or under his control when the notice was given. In the absence of a claim for rent he could not do otherwise than suspend proceedings upon the execution when ordered to do so by the plaintiff. There was no allegation that the action of the sheriff was the result of collusion, and a part of a scheme between the parties to the execution to defraud the appellee out of her rights as landlord. He appears to have acted in entire good faith, and ought not to be punished now to make good the laches of the appellee.

The decree is reversed at the costs of the appellee.