53 Pa. 158 | Pa. | 1866
The opinion of the court was delivered, by
The 1st assignment of error in this case is, i£ that the court erred in refusing to stay proceedings on the fieri facias.” The supposed proof of this error, is the petition and affidavit of the plaintiff, alleging an interest in the property levied on under the ££ fi. fa.,” which was deemed insufficient by the court as a reason for interfering with the execution. But how do the petition and affidavit get before us ? They are no part of the record. This is too manifest for argument; nor is there any bill of exception that will bring them up. They are, therefore, things we cannot consider, and for this reason we have nothing to impeach the execution. Beside this, we think no writ of error lies to a refusal of the court to stay an execution in a case like this. Error might lie to the execution in a proper case, but that is not this case.
2. The 2d assignment is ££ in refusing to grant a rule on the executor of Foster to make application to the Orphans’ Court.” This error, in the way the point is presented to us, is subject to like objection with the foregoing. The grounds for making the motion is the affidavit of the plaintiff in error and nothing more. That is not on our record. But aside from this, the affidavit shows that the Orphans’ Court had ordered a sale of these premises, and that the executor failed to sell for want of a sufficient bid. His return, referred to in the affidavit of the plaintiff in error, shows that the sale was not consummated for want of a sufficient bid, because of an easement granted by the vendee of Woods upon the house; and 1m recommended a sale on that judgment, which would he a sale clear of that interest or encumbrance, and thus a full price obtained for the premises. The court agreeing with this, refused to stay proceedings on the execution. It would have been a most unsound discretion — nay, an act of folly — to have done otherwise than the court did under the circumstances. The order of the Orphans’ Court had been tried, and failed to produce what ought to have been realized for the property, for a very sufficient reason. Why send it again to the same authority to sell, that reason remaining, instead of letting it be sold clear of that impeding difficulty by execution ? If it be supposed that no sale by execution can ever be made on a judgment against an estate, after the death of the ancestor, it is a mistake. It can always be made if there be no application to prevent it, and the title will be good.
If such application he needed to prevent a sale on execution, it must be for sufficient reasons and by a proper party, and this shows that the court has a discretion in the matter, which, unless greatly abused, is not re viewable. This we understand to be the rule of the 36th section of the Act of 24th February 1834. That the course taken resulted unfavorably to the estate, was not the fault of the
8 and 4. These errors, like the first, are not sustained by -the record; and the affidavit of which they are predicated is not before us. Nor do I think the substance of them is re viewable here, at all events, in the form in which they are presented.
There is nothing to correct in the record, and the proceedings are affirmed.
