| Pa. | Oct 1, 1883
delivered the opinion of the court, October 1st 1883.
As the record does not show that any motion was made to strike off the judgment, we cannot consider the second specification of error. W e will consider the first assignment only.
The intestate died in possession under a lease for a term of three years which has not yet expired. After the death of the intestate and with full knowledge thereof, the appellee accepted pay,cent from the appellant, the widow and administratrix of the tenant, for a month’s rent in advance. Before the expiration of this month and when no rent was due him, on an unfounded rumor that the appellant had assigned the lease, the appellee entered a judgment against the dead man, and issued a writ of liab. facias possessionem, and a fi. fa. for costs.
The controlling facts in the case are scarcely controverted by the evidence. The appellee testified that he knew of the death of the tenant on the day he died, and that he left a widow and children, and that the rent was afterwards paid in advance; that no rent was due even at the time he testified on the rule taken by the appellant to open the judgment. There is considerable evidence that the appellee assented to a transfer of the lease to one Mausmann, and under that assent the appellant did arrange with him to take possession. Before any written transfer of the lease was made, and before full possession was to be given, the appellee objected to Mausmann as a tenant, and the proposed sale to the latter by the appellant fell through. It was not consummated if the evidence be believed. As we under
The express and positive evidence is so strong and preponderating that there was no breach of any condition imposed on the tenant, we think the learned judge erred in not opening the judgment.
Without previous notice of the judgment or execution the appellant was dispossessed at the early hour, of eight o’clock in the morning in February. At the opening of court at ten o’clock on the same morning, the appellant promptly moved for the rule to open the judgment. She did not sleep on her rights. On the evidence the court should have stayed all further proceedings on the execution and opened the judgment. As the writ of hab. fac. poss. had been executed we cannot say that it should then have been set aside. After the trial on the issue as to the validity of the judgment and the forfeiture of the lease, the force and effect of the writ of possession can be determined.
Decree reversed at the costs of the appellee : rule made absolute so far as to open the judgment and the appellant be permitted to defend, and all proceeding on the execution be stayed in the meantime, and a procedendo be awarded.