74 Pa. 198 | Pa. | 1873
The opinion of the court was delivered, January 2d 1873, by
If the plaintiff’s title to the land in controversy was divested by the sheriff’s sale, under which the defendants claim the ownership, they were not entitled to recover; and the court below was right in giving a binding direction to the jury to find for the defendants. The execution, on which the sale was made, followed the judgment. It was issued against all the defendants. The court refused to quash the writ, but ordered it to be stayed, so far as regards John B. Breitenbach, “ it appearing to the court that he is an officer in the United States army under a requisition of the government.” Thereupon the sheriff sold the interests of the other defendants in the land levied on, and acknowledged and delivered a deed therefor to the purchaser.
If the plaintiffs in the judgment might have sued out execution against the other defendants upon suggesting the fact that John B. Breitenbach was an officer in the United States army, as doubtless they might, the execution was not void as to them. If it erroneously issued against all the defendants, because one of them was exempt from process, the error was cured by the order staying the writ as to him, and by the acknowledgment of the sheriff’s deed; and the validity of the proceedings cannot be collaterally questioned in this action. The execution, therefore, was not void under the Act of 18th April 1861; nor was it void under the prior Act of 2d April 1822, if this act was not superseded and supplied by the Act of 1861. There is nothing on the record showing that John B. Breitenbach was called into actual service, as an officer or private of the militia, under a requisition of the President of
But it is contended that the execution was void because the defendants had obtained an order staying execution on the judgment under the Act of 21st May 1861 (Pamph. L. 770), and the execution was issued before the expiration of the stay. But there is nothing on the face of the record showing that the defendants had obtained any such order. On the contrary the record shows that the defendants had elected to retain the property levied on at the annual valuation fixed upon it by the inquest, and that the plaintiffs were entitled to execution, when the writ was issued, in default of payment of the half-yearly instalment for more than thirty days after it fell due. It is true that in the case of Waterman, Young & Co. v. Breitenbach, Sheetz & Co., the defendants applied for an order staying sundry executions against them, of which a list is given, and to which is also appended a list of the judgments which were liens on their real estate, including the judgment upon which the land in question was sold; and upon the hearing of the application the court ordered and directed “ that all the writs of fi. fa. issued out of the Common Pleas of Schuylkill county against the said defendants be stayed under the provision of the Act of Assembly of May 21st 1861. * * * And also that execution do stay on the judgments.” Whether the order was intended to embrace all the judgments which were liens on the defendants’ real estate, or only those upon which executions were issued, does not clearly appear. No notice of the application for stay was given to the plaintiffs in the judgment upon which the sale was made, and the defendants did not move the court to set aside the execution on the ground that the judgment was embraced in the order and the stay had not expired. If the order was intended to embrace the judgment, the plaintiffs should have had notice of the application ; and the order should have been made part of the record, or some note or memorandum of it should have been entered on the docket. In the absence of any such entry there was nothing on the record showing that the plaintiffs were
Judgment affirmed.