3 Watts 223 | Pa. | 1834
The opinion of the Court was delivered by
In order to decide correctly upon the first error assigned, it may be proper to examine a little into the nature and effect of a judicial sale of real estate made by the sheriff; and to ascertain what it is that the purchaser requires under it. It may be considered a sale by operation of law, and at least as binding and conclusive upon the defendant in the execution, as if he had made it himself in person, or by his attorney duly authorized. “ The sheriff,” says Judge Washington, in Cooper v. Galbraith, 3 Wash. C. C. Rep. 550, “ is empowered by law to convey by deed to the purchaser, under an execution, all the right, title, interest and estate of
Although the rule seems to be general that the defendant in the execution, and ail those coming into possession under him, are estopped by the judgment from disputing the plaintiff’s right of possession, Eisenhart v. Slaymaker, 14 Serg. & Rawle 153, yet upon the ground of estoppel it must be considered subject to some qualification. It is laid down in Co. Litt. 45, a. that if any interest passes from the party there .shall be no estoppel: and recognized in Com. Dig. tit. Estoppel [E. 8] ; as if lessee for the life of B leases for twenty-one years, and afterwards purchases the fee, and B dies ; he shall avoid his lease for years, though it was by indenture ; because an interest passed by his lease for the life of B; Co. Litt. 47, c; Com. Dig. tit. Estoppel [E. 8]; Moore 20; so, also, where a man leased land for years, and his lessee, after having been in possession a considerable time, made an under lease; the under lessee, upon an ejectment brought by his immediate lessor, was allowed to show that the lease from the original lessor had expired, and thereby nonsuited the plaintiff. England d. Syburn v. Slade, 4 Term Rep. 682.
Now apply the same principles to a purchaser at sheriff’s sale of the interest of the defendant in the execution holding the land, and in possession of it under a lease for an unexpired term of years at the time of sale, who lies by until the lease has expired and the tenant has surrendered the possession to his landlord, and he cannot maintain an action to recover the possession from the landlord. But suppose that the landlord at the expiration of the lease, instead of turning the tenant actually out of the possession, gives him a new lease for another term : is not the tenant by this operation invested with the right of the landlord, so far as regards the possession during the continuance of the next term; and must not his situation, with respect to the purchaser at the sheriff’s sale, be precisely the same with that of the landlord, had he taken and retained the actual possession after the expiration of the first lease, or with that of any other tenant to whom the landlord might have leased it again, upon the surrender of the possession to him at the end of the term of the defendant in the execution. That it would be so according to reason and analogy, I think is clear. There can be no estoppel in such case; for an interest having passed to the purchaser at the sheriff’s sale, the tenant has, therefore, a right to show what it was; that it has expired by its own limitation, and that he is in possession under a right acquired since, by a subsequent contract, which the purchaser at sheriff’s sale cannot even be presumed to have bought or paid for. This doctrine seems to be perfectly consonant to the principles of sound policy as well as that of natural justice, because it tends to avoid circuity of action, and at the same time to secure to all the parties concerned their respective rights, according to the terms of their several contracts. The purchaser at sheriff’s sale has no cause of complaint; for he buys at his own risk, and is bound to
That part of the charge of the court to the jury, which is made the ground of the second error assigned, although I think the court were wrong, could not perhaps, by the verdict found in this case, which is a general one for the plaintiff below, produce any direct injury to the plaintiff in error: because under it he could only be removed from that part of the lot of which he had possession ; and as to the other persons in possession of the residue of the lot, they could not have been dispossessed under the judgment upon the verdict, not having been made parties to the suit.
Judgment reversed, and a venire de novo awarded.