John Berg & Co. v. McClafferty , 1 Sadler 286 ( 1886 )

Opinion bt

Mr. J ustice Green :

We certainly did decide, both in Wray v. Miller, 20 Pa. 111, and Spragg v. Shriver, 25 Pa. 282, 64 Am. Dec. 698, that a valid sale of a defendant’s real estate might be made upon a writ of vend. ex. against him without á previous inquisition and condemnation, or waiver of inquisition.

It was held in both of those oases that, where a sale was had upon a vend. ex. without waiver or condemnation, it was the duty of the defendant to appear and object within a reasonable time; and also that, even where he did appear and object, he might be estopped by circumstances from either impeaching the regularity of the proceedings, or subsequently attacking the title of the purchaser at sheriff’s sale under the vend. ex. The circumstances which were held to amo-unt to an estoppel were the assent of the defendant to the sale, his surrender of possession of the lands sold, the appropriation of the proceeds- of sale to the payment of his debts. In Spragg v. Shriver, there was the additional fact that the defendant had induced the purchaser to buy the land sold under the writ. In both cases it was conceded that a sale upon a fi. fa. without a waiver or condemnation, is void; but that is because the act of 1836, which allows a sale upon a fi. fa., expressly requires the waiver to- be in writing.

In the present case the sale was upon a vend, ex., and the evidence of a written waiver is not sufficient to establish that fact. But there was an abundance of facts proved, and offered to be proved, to raise the question of estoppel, if believed by the jury; and it was, therefore, error in the learned court below to give a binding instruction to the jury to find for the plaintiffs.

There was evidence that Daniel MeClafferty, one of the plaintiffs, was present at the sale and assented to- it.

There was also evidence that an auditor was appointed to distribute the proceeds of sale, and that the money was applied to the payment of judgments of James MeClafferty, the defendant in the execution and the ancestor of the plaintiffs in this action.

A part of the money was also awarded to counsel for the administrator of the deceased ancestor and, therefore, in ease of the plaintiffs. It was also in evidence that no objection was made to the sale under the vend. ex. by any of the plaintiffs; that they, or some of them, knew of the payment of the purchase money by the purchasers, who are the defendants in this case; and that the possession of the land was voluntarily surrendered to Berg & Company, the purchasers, and acquiesced in for about eighteen months before suit was brought

We think these facte should have been submitted to the jury as tending to show an estoppel; and we therefore reverse the judgment on the third and fourth assignments.

Judgment reversed and venire de novo awarded.