Titusville Novelty Iron Works' Appeal , 77 Pa. 103 ( 1875 )

Mr. Justice Gordon

delivered the opinion of the court,

Had the levy in question been of personal chattels it would have been invalid, for in such case it must be made by actual seizure, or at least in view of the goods.

There is, however, a wide difference between chattels personal and chattels real. The latter grow out of and are attached to the realty, and hence, by reason of their fixed and permanent character, can only be seized and held as realty. Alease of land, during the term, is as fixed as the land itself, for it can only be used upon the land out of which it arises. It is nothing more or less than a right to use the freehold for the term mentioned in the lease. It is therefore an estate in land. These chattels cannot be seized and held as can personal goods, which accompany the person, and are susceptible of transportation from place to place. The officer in levying upon the latter, is supposed to have them in his immediate personal custody, and he must have them present at the place and on the day of sale. Not so, however, a leasehold estate: Sowers v. Vie, 2 Harris 99. The sheriff can have no manual caption thereof; he cannot take it into personal custody, and hence is no more responsible for it than for any other species of real estate. His levy can only be by description of the realty out of which the leasehold issues. We take it, then, that the levy, though not made in view of the premises, was nevertheless good, if it were sufficiently descriptive to indicate the estate levied upon.

The levy is certainly very inaccurate, but, as explained by the oral testimony, which was properly admitted, Hoffman v. Danner, 2 Harris 25, we are left in no doubt but that the leasehold, from which the money was made, was the same as that described in the said levy on the writ of the appellant.

According to this view of the case the auditor erred in not giving precedence to the writ of the Titusville Novelty Iron Works.

The decree of the court is therefore reversed, and it is ordered that the record be remitted for redistribution, and that the appellees pay the costs of this appeal.