73 Pa. 116 | Pa. | 1873
The opinion of the court was delivered, February 24th 1873, by
The plaintiff assigns for error the entry of judgment in favor of the defendant upon the case stated.
This depends upon the validity of the right claimed by the defendant to close up a portion of Evans street, in the city of Chester.
The land covered by this street is part of a larger lot bounded westerly by Welch street, which was purchased June 28th 1854, by Cornog & Evans. Upon the same day they executed a mortgage to the vendor to secure the payment of a part of the purchase-money. They purchased the land with a view of dividing it and selling it for building lots. They laid out three streets, to wit, Evans, Crosby and Porter, and fifty lots, and made a plot or draft thereof. October 23d 1854, the plaintiff purchased of them by deed one of the said lots, having a front of 110 feet on Evans street, bounded west by Welch street, and south by Evans street. Upon the same day the mortgagee released this lot, as described in the deed, from the judgment of the mortgage. Judgment having been subsequently entered upon the mortgage, a levari facias issued thereon to November Term 1855, and the remaining lots were sold by the sheriff. In the writ they were described as “ all those 49 several lots.” Fifteen of said lots, “bounded north by Evans street,” and extending along the same 312 feet, were purchased by Campbell; ten of the lots on the northerly side of Evans street, east of and adjoining the plaintiff’s lot aforesaid, with a frontage of 20 feet each on Evans street, were purchased by plaintiff. Prior to this sale, the streets and lots had been designated by marks upon the ground. May 1st 1856, Campbell conveyed his said 15 lots to the defendants bounding them by “ Evans street.”
It appears, however, that upon the 16th of September 1854,
The proceeds of the sale upon the mortgage were insufficient to reach this judgment. A venditioni exponas issued thereon to August Term 1856, by virtue of which the sheriff sold to said Hannum, the lot situate at the north-east corner of Welch and Evans streets, which had been conveyed to plaintiff in October 1854, as aforesaid; and to one George Baker, another lot, part of said mortgaged premises, bounded by Crosby street. Under an alias venditioni exponas, issued on the same judgment to November Term 1857, said Hannum purchased the land covered by each, Evans, Crosby and Porter streets, the former being described as “a lot of land called Evans street,” measuring 45 by 313 feet, and bounding it on the north and on the south by lots previously sold at sheriff’s sale as aforesaid.
By virtue of divers mesne conveyances all the title which Hannum acquired by his purchase of Evans street, for the distance of 110 feet easterly from Welch street, became vested in said defendant. They thereupon closed up the street, putting a fence or gate at each end of the 110 feet, thereby closing the plaintiff’s passage through the street, and he has no other way of access to his said ten remaining lots.
Thus it appears, at each sale, both public and private, made prior to the sale of Evans street, it was distinctly recognised as a street. The lots lying north and south of it were bounded by it. The sale upon the judgment united with the sales upon the mortgage in proclaiming it to be. a street. Every lot which the defendants own, when sold at sheriff’s sale, was bounded upon it. This description is directly in th'e line of their title. Each deed - showed it to be a street dedicated to the public. The fair presumption is that a larger sum was realized from the sale of the property in lots than if it had been sold in one body.
Upon a sheriff’s sale of land the general rule prescribed by public utility is that different lots of ground should he sold separately. The reason is that the competition is thereby much increased ; many persons might desire to purchase one, who would not, or could not purchase several. The primary object of selling at sheriff’s sale is not to transfer the title; but to collect the money. A common encumbrance creates no reason for selling the lots together : 1 Troubat & Haly, part 2d, 1001. Upon an application to the court whence the execution issued, a sale will be ordered by such subdivisions as will be most likely to produce the largest sum. In this case, without an order of court, the sales were made, it is fair to presume, in the manner the court would have ordered, if application had been made thereto. The lots having been thus sold without objection from defendants in the executions, or from
We are of the opinion that the plaintiff was entitled to recover.
Judgment reversed, and judgment is entered in favor of the plaintiff upon the case stated.
