7 Pa. 255 | Pa. | 1847
The five latter exceptions taken by the appellant to the action of the court below, in awarding the money paid into court to Price, for whose use the original judgment against Conrad was prosecuted to execution, may be reduced to one, namely, that the scire facias which was issued on the 21st of March, 1844, to revive the lien of the judgment, was not served upon the proper parties. It appears by the report of the auditor, appointed by the Court of Common Pleas to collect and report the facts, that the land, which was the subject of the lien, passed, by sue
But it is further objected against the validity of the judgment of revival, that Huber, who was the trustee of Elizabeth Gebler, was not invested with power, by the instrument creating the trust, to confess such a judgment. There are two answers to this objection. The first is, that none but the cestui que trust could set it up for the protection of her estate; and the second, that Huber, as well as the other alienees of the land, took it by the express terms of the deeds made to them, subject to this judgment. The legal estate being in Huber, he was the proper party to the scire facias, and the beneficial interest being thus expressly encumbered, the cestui que trust could, with no show of reason, object to the action of the trustee: much less can a stranger who is in nowise injured by it.
The remaining exception is to the refusal of the court to direct an issue to try the facts stated in the petition of the appellant. Unquestionably, under the act of 1836, relating to executions, if any fact connected with the distribution of the proceeds of sheriff’s sales be disputed, it is the imperative duty of the court of Common Pleas, on the application of any person in writing having an interest, to direct an issue.to try the same: Bichel v. Rank, 5 Watts, 140; Trimble’s Appeal, 6 Watts, 133; Reigart’s Appeal, 7 Watts & Serg. 267. But then the specific facts should be set out, and it must appear that they may be made the subject of controversy, as facts in pais, proper to be passed upon by a jury. The act of Assembly was not formed to enable a litigious party to demand an issue, under all circumstances, and thus take his chance before a jury, when there is nothing in the case to call for its intervention. Now we look in vain to the petition or application of the
But there is another decisive reason why this exception ought to be overruled, not appearing on the paper books, though shown by the record. The petition of the appellant prayed the court to direct an issue, or appoint auditors to investigate the facts, thus leaving it optional with the court to do either, and they chose to do the latter, to which no exception appears to have been taken. Surely, after this, it is not for, the party to complain of the court for adopting one of his suggestions, being the very thing he prayed for.
Decree affirmed.