Arna's Appeal

65 Pa. 72 | Pa. | 1870

Sharswood, J.

Whether an order of the Court of Common Pleas controlling an execution under the 9th section of the Act of Assembly of April 22d 1856, Pamph. L. 584, which engrafts a statutory remedy on a common-law proceeding, can be reviewed on appeal is a question which need not be decided on this motion. See Commonwealth v. Beaumont, 4 Rawle 366; Harger v. Commissioners, 2 Jones 251; Hanover Turnpike Co. v. Craighead, 5 Barr 470; Springers. Springer, 7 Wright 518. We are of the opinion that on the face of this record the appellant has no standing in court to remove the case by certiorari or appeal.

The section of the act referred to was evidently intended to secure the legal rights of the plaintiff, in the judgment as well as the equities of the terre-tenants, under a common encumbrance which is a lien on their respective interests. It provides for “ a rule on the plaintiff to show cause why he should not levy upon and make sale of the real estate liable to execution for the payment of said judgment, in the proportion or in the succession in which the properties of the several owners shall in law or equity be liable to contribute towards the discharge of the common encumbrance, otherwise upon the payment of such judgment to assign the same for such uses as the court may direct,” and then “ if the plaintiff shall refuse to accept his debt and make such assignment of his judgment, the executions thereupon in the hands of the plaintiff shall be so controlled and directed by the court as to subserve said rights, and equities.”

Where a remedy is provided by Act of Assembly, the directions of the act must be strictly pursued: Act of 21st March 1806, § 13, 4 Smith’s L. 332. The intention of the Act of 1856 is very clear, it is scarcely open to any possible question. The plaintiff must be presented with the alternative either to levy his execution in the succession prescribed by the court or to accept his debt, so that the terre-tenant claiming the equity may stand in his shoes and be subrogated to his rights. If he refuses, then, and only then, is the terre-tenant in a position to ask the court to control the execution. Until he has placed himself properly on the record by a rule in the alternative, he has no standing in court, consequently no right to appeal. In no other way can the legal rights of the plaintiff be properly protected. He has an unquestionable judgment against all the lands of his debtor, the defendant. He has a right to proceed against any part. He cannot in law or equity be obliged to wait until the terre-tenants have settled their equities between themselves. They have no equity against him. If he makes his money from one, who has a superior equity, that one must indemnify himself by proceeding against the others. The act meant to do equal justice all around, but that cannot be accomplished by giving a terre-tenant an appeal, who has not complied with its provisions.

Appeal quashed and record remitted.