9 Pa. 108 | Pa. | 1848
There are two questions arising on the errors assigned, which dispose of this case. The first is, whether the sheriff’s sale on the fieri facias, after the return-day of the writ, divested the title of the defendant, and passed any title to
1st. The act of the 16th of June, 1836, Dunlop, 727, changed the law, and prescribes the proceedings on a fieri facias. In the 43d section the sheriff is directed to levy on the defendant’s real estate, where there is-not sufficient personal property; and the 44th section directs the inquisition to inquire whether the rents and profits will pay beyond all reprizes in seven years; and then the 45th section, which is a proviso to the sections recited, that the defendant in any execution, being at the time of issuing thereof the owner of such real estate, &c., may, by writing filed in the proper court, dispense with and waive an inquisition; and the sheriff, after due notice, is authorized to sell on the writ of fieri facias, before the return-day thereof. (I give no opinion whether the waiver in this case was sufficient, as, on that question, there is some division in the court. For the consideration of the questions arising on the record, I assume it to be good.) The case of Cash v. Tozer, 1W. & S. 519, was decided in Sunbury, in 1841, was well considered, and it was then solemnly settled that a sale of real estate upon a fieri facias, after the return-day thereof, although continued by adjournment from day to day, is contrary to the act of Assembly, and void, and vested no title in the purchaser. That case was reported in 1842, nearly three years before the passage of the act of 1845. The Chief Justice delivered the opinion of the court in his usual able manner; and the conclusion was, that the legislative enactment of 1836 left nothing to interpretation. It was peremptory that the sheriff shall sell before the return-day of the writ. A sale after it was of no more force than if it were made without judgment or execution. The sale under which the defendant claimed was made; and the whole proceeding to affect it was under the act of 1836. The provisions of the act were disregarded ; the saie was void. When made by the sheriff, his writ was spent. It was exhausted, and was of no more virtue for the purpose to which it was applied, than if it had never existed. The estate of the defendant, by that sale, was not divested, because the sale was not made as the legislature had required.
2d. As the sale was void, and the sheriff’s deed passed no title, was it cured, and did the title pass by the act of the 16th April, 1845 ? (Dunlop, 950.) The words of the act are, “ All sales of real property within this commonwealth, made since the passage of the act to which this is a supplement, by sheriffs or coroners after the return-day of their several writs of levari facias, fieri facias, ven
Judgment reversed, and a venire de novo awarded.