58 Pa. 86 | Pa. | 1868
The opinion of the court was delivered, February 10th 1868, by
A brief statement of this case will make it clear that this was not a proceeding under the Act of 20th of April 1846, Purd. Dig. 446, and that the court had no power to order a distribution of the proceeds of the several sheriff’s sales without a return of the writs of execution and the money being brought into court. The real estate of John Burnish and others was sold under a levari facias upon a mortgage assigned to Joseph Paxton. Paxton’s administrators by their attorney, Mr. Bannan, received $18,103.59, in full of the debt and interest of that writ. The remainder of the bid, to wit, $37,466.87, was paid to C. M. Atkins, the purchaser at sheriff’s sale, upon a second mortgage held by him under an assignment from the Bloomsburg Iron Company, and Fox & Brother. Had the sheriff made a special return of Atkins’ receipt, together with the certified list of liens, showing that he was entitled to the money, and the court thereupon had, at the instance of the creditors, under their agreement, appointed an auditor to make distribution, the case would have fsillen within the provision of the law, and the objection to the want of the money paid into court would not avail. But such was not the case. C. M. Atkins, Stiehler and Thompson, Allen, Fisher and. the Bloomsburg Iron Company had issued four several writs of fi. fa., upon which the sheriff had levied and sold the personal estate of John Burnish & Co., which produced a fund of $18,663.68. The agreement, under which the auditor, whose report is before us in this appeal, was appointed, was entered into by these four execution creditors, reciting specially their respective writs of fi. fa., by names of parties, number, term and amount of debts. The writ of levari facias, under which the real estate was sold, was neither recited nor referred to, nor were Paxton’s administrators, or Bennett the alleged assignee of the balance of the mortgage, or C. M. Atkins, as owner of the second mortgage or as purchaser, named or referred to in the agreement. The agreement itself proceeds to say that “ the parties in the above cases (to wit, the writs of fi. fa.) agree