61 Pa. 96 | Pa. | 1869
The opinion of the court was delivered, March 8th 1869, by
The nineteen assignments of error in this case need not be noticed in detail, they can be classified. The 1st, 2d, 13th, 14th, 15th and 16th, relate to the judgment on which the property was sold. A judgment entered by the prothonotary under a power contained in the instrument, is a judicial act, and by the words of the Act of 1806, has the same force and effect as a judgment confessed by an attorney or given in open court in term time: Hevete v. Rapp, 7 S. & R. 306. By long usage the same effect is attributed to the entry of an amicable action and confession of judgment: Cook v. Gilbert, 8 S. & R. 568; McCalmont v. Peters, 13 Id. 196; Flanigen v. City of Philadelphia, 1 P. F. Smith 491. In Reed v. Hamet, 4 Watts 441, it was held that a defendant can appear in person before the prothonotary and confess a judgment, the reason assigned being that the power of the prothonotary to sign judgment rests on the statutory grant of
The 4th and 5th, first half of the 7th, the 8th, 9th, 10th, 11th and 12th errors, refer to bills of exception to the rejection of offers of evidence. What was the purpose of the offer or the ground of objection appears nowhere. It is said that the purpose was to prove fraud, but it might have been to prove want of authority merely, or if the purpose was to prove fraud the objection might have been that there was no offer to show that the defendant bought with notice of the fraud.
In either case we cannot say there was error, and we might do injustice both to the party and the court by reversing upon grounds not taken below. It is said these offers were but single steps in the evidence of fraud. But this should be made manifest to the mind of the judge. We have said in Davenport v. Wright, 1 P. F. Smith 295, “ While it is true that evidence in a cause, especially in proof of fraud, proceeds step by step, and a party need not state in a single offer everything he intends to prove,' it should appear to the judge that the evidence has some relevancy to the issue trying; and if he is not informed of the connection it has, we cannot say he has committed a clear error in rejecting it.” These errors are therefore not sustained. The 3d, 6th, latter part of the 7th and 17th and 18th errors, relate to the effect of the sale on the fi. fa. The propositions contained in the bill of exception referred to in the 3d, 6th and latter part of the 7th assignments of errors are in substance to prove that the corporation did not authorize the waiver of inquisition and that the paper purporting to be a waiver was fraudulent and void, the seal being placed to it by a person having no right to its custody and no authority to affix it, and the persons signing the paper having no authority to do so. According to the terms of the 45th section of the Act of 16th June 1836, it is the owner only of the estate taken in execution on the fi. fa. who can waive the inquisition, and so the decisions run: Wolf v. Payne, 11 Casey 97; McLaughlin v. Shields, 2 Jones 289; Hudson v. Clark, 2 Grant 110. The evidence offered was to prove that the waiver was a fraud and inoperative, and that the sale was in fact made without a waiver of inquisition and void. That a sale on a fi. fa. without a waiver of inquisition is without authority and void is firmly established
But we do not regard the sale void because it was made on the return-day of the writ and not before. Cash v. Tozer, 1 W. & S. 515, decided that a sale made on a fi. fa. after the return-day was void, but the 2d section of the subsequent Act of 16th April 1845, provides that all sales of real estate by sheriffs and coroners, shall be made on or before the return-day of the writs respectively, or within six days thereafter. Since that act the practice has been to sell on any writ, fi. fa., vend. exp. or levari facias, at any time not later than Saturday of the first week of the term.
It is proper to notice an aspect this case may assume on a retrial, in order to prevent a misconstruction of the extent to which this opinion reaches. There was evidence tending, perhaps, to show that Bishop Wood bought from Mr. Otterson, the purchaser at the sheriff’s sale, with the knowledge of the plaintiffs below, that possession was voluntarily surrendered by them, that a large part of the price paid by the bishop was applied to the payment of debts of the plaintiffs, who lay by until he had completed his purchase, and that he was an innocent purchaser, without notice of any defect in the sale.
In connection with these facts, if established, is the fact also, that the waiver of inquisition filed had the genuine seal of the corporation affixed to it, thus tending to mislead, and to produce the belief that the waiver was a valid act. We do not mean to decide on this state of facts, or how far they will afford protection to the purchaser. The facts are not before us, and indeed were not submitted to the finding of the jury, for this part of the case was never reached, in consequence of excluding the evidence which tended to prove that the waiver of inquisition was a fraud and was invalid. It would be improper now to anticipate the state of the facts as they may be found in another trial, and this part of the case is necessarily left open for the decision of the court below, upon whatever aspect the facts shall assume before him.
Judgment reversed, and venire facias de novo awarded.