Snyder v. Boring , 4 Pa. Super. 196 ( 1897 )

Opinion by

Rice, P. J.,

Before a landlord can lawfully sell goods distrained for rent he must “cause the goods and chattels so distrained to be appraised by two reputable freeholders.” An appraisement by three persons was irregular. Besides that, it affirmatively appears that two of the appraisers were not freeholders, in any sense of the term, and that one of those was a minor. There was, therefore, no such appraisement as the law prescribes as a condition precedent to a lawful sale of the tenant’s goods or of goods of a third person found upon the demised premises. “ As the proceeding is statutory, the direction of the statute must be foR (owed or its protection will be lost. If the seizure is irregular, it is a trespass. If the seizure is regular, but the subsequent steps are not in accordance with' the statute, the landlord becomes a trespasser ab initio by his departure from the directions of the law under which he must justify, and may be sued in the same manner as any other trespasser : ” Esterly Machine Co. v. Spencer, 147 Pa. 466. The curative provisions of the 19th section of the act of parliament of the 11 Geo. II. Ch. 19, were not extended to Pennsylvania, and the law is imperative that before a sale can be lawfully made the wholesome provisions of the act of 1772 must be strictly complied with: Kerr v. Sharp, 14 S. & R. 399; Brisben v. Wilson, 60 Pa. 452; Richards v. McGrath, 100 Pa. 389, 399; Murphy v. Chase, 103 Pa. 260; Davis v. Davis, 128 Pa. 100; Wyke v. Wilson, 173 Pa. 12.

Before an appraisement can be lawfully made five clear days must intervene after the “ distress taken and notice thereof, with the cause of taking, left at the mansion house, or other most notorious place on the premises charged with the rent distrained for” etc. We are of opinion that this notice should be in writing (Wilson v. Nightingale, 8 Ad. & El.; 55 E. C. L. Rep. 1034), and be sufficient to inform the tenant or the owner what are the goods taken and the amount of rent in arrear: Kerby v. Harding, 6 Exch. 234. A mere schedule of the goods levied on, which does not contain notice of “ the cause of taking ” is not a compliance with the statute. It is not claimed that any other written notice was given until May 25th. The wording of this notice proves eoncffisively that it was intended as the notice prescribed by the statute, and the plaintiffs were entitled to five full days from the service thereof within which to replevy the goods. It follows that in any view of the case an appraisement on May 30th was premature: Brisben v. Wilson, 60 Pa. 452; Davis v. Davis, 128 Pa. 100.

Even if it was competent for the defendant to prove in defense to an action of trespass that the sheriff’s sale by virtue of which the plaintiffs got title to the goods subsequently distrained was fraudulent as to creditors, the court was right in holding that there was not sufficient evidence of fraud to warrant the submission of the question to the jury. The legal presumption that a judicial sale was fair continues until overcome by sufficient proof that it was collusive or fraudulent. Leaving the property with the former owner is not, of itself, sufficient evidence of collusion, “ nor does it warrant an inference that the purchaser made an absolute gift or sale of it to him. In absence of affirmative evidence to the contrary the inference is that such leaving was an act of benevolence: ” Maynes v. Atwater, 88 Pa. 496. Moreover, as the goods were left on the premises and were liable to seizure for the rent due to Boring (the landlord, and the defendant in the present case) we fail to see how the sale could have been fraudulent as to him.

Judgment affirmed.