EXECUTION. P. L. 778. and a deed be made and acknowledged by him, in like manner and with like effect 16 June 1886 § 101. Ibid. § 102. 150. Whenever any real estate shall be sold under any execution, as aforesaid, Ibid. § 108. edged by him, in due form of law, the supreme court, or the court in which the cute deed. Ibid. § 104. 152. The several courts aforesaid shall have the like power to compel the sheriff or coroner making sale as aforesaid, to perfect the title of purchasers, in cases of Like power to be defective or informal execution of sheriffs' or coroners' deeds; and they may grant exercised in case relief in the manner and upon the terms and conditions aforesaid, and with like of defective execueffect. tion. P. L. 430. return to execu 153. In all cases where any real estate (o) hath been heretofore sold, or shall 21 April 1846 § 1. hereafter be sold, under any execution issued out of any of the courts of record in this commonwealth, and the sheriff, or other officer making such sale, shall have Proceedings in made, or hereafter may make a defective or informal return of his proceedings case of defective upon such execution, it shall be lawful for the purchaser at such sale, or other per- tion. son or persons interested therein, to apply, by bill or petition, to the court out of which such execution issued, setting forth the facts of the case; and after due notice, to be given in such manner as the court may direct, to such purchaser or defendant in the execution, as whose property the same may have been sold, or to the executors or administrators and heirs of such purchaser or defendant, or devisee of such estate, and to all other persons interested therein, to appear in such court, on a day certain to be fixed by said court, and answer such bill or petition; and thereupon, the said court shall have power to examine into the facts of being to execute a the case, and make such order and decree therein as justice and equity may require, amended, and either by dismissing such bill or petition, or by correcting and amending such sheriff for the time return to the execution, according to the truth of the case, and directing the deed. sheriff, for the time, to execute a deed of such real estate to the purchaser thereof, or to such other person or persons, for the use of such as may be entitled thereto, under such sale, upon such terms and conditions as the said court may determine, and justice and equity require; which deed so executed and acknowledged, as sheriffs' deeds are usually acknowledged, shall be as effectual in law as if the proper return had been made, and the title had been completed according to law.(p) Court may direct P. L. 188. 154. The certificate of the prothonotary of any court in this commonwealth to 4 April 1844 § 1. an acknowledgment of a sheriff's deed, heretofore made, although not under seal dence, although of office, shall be sufficient evidence of such acknowledgment, notwithstanding no Prothonotary's other record was made thereof at the time of such acknowledgment: Provided, certificate to be eviThat the provisions of this section shall not be construed to affect any bonâ fide not under seal. holder or purchaser, who had neither actual or constructive notice of the execution of such sheriff's deed.(q) P. L. 450. validated. 155. No grant, bargain, sale or deed of conveyance of any lands, tenements or 10 April 1848 § 10. hereditaments whatsoever, heretofore made and executed by the sheriff of Allegheny county, (r) upon any judicial proceeding, out of any of the courts of said county, to Certain defective any bona fide purchaser, and acknowledged in open court, shall be deemed, held or acknowledgments adjudged invalid or defective, or insufficient in law, by reason of any informality in setting forth the particulars of such acknowledgment, or by reason of any omission of the proper prothonotary duly to certify the same according to law; but all and every such grant, bargain, sale or deed of conveyance, as heretofore defectively acknowledged and certified, shall be good and valid, and effectual in law to transfer (1) A recital in the deed, that the sale was made by a former sheriff, is not conclusive evidence of the fact; but the party claiming under it may show, by other proof, that it was in fact made by the same sheriff who executed the deed. Leshey v. Gardner, 3 W. & S. 314. (m) Such order must be proved to have been made. Its existence will not be Woods v. Lane, 2 S. & R. 53. presumed. Seechrist v. Baskin, 7 W. & S. 403. (2) If the late sheriff executed a deed, which was defectively acknowledged, his successor cannot make a new deed, but the late sheriff may reacknowledge it, though out of office. Adams v. Thomas, 6 Binn. 254. Woods v. Lane, 2 S. & R. 53. (0) Extended to sales of personal property, in Carbon county, by act 1 March 1861. P. L. 83. (p) See act 26 February 1872, curing certain defects (q) Wilson v. Howser, 12 P. S. 116. in sheriffs' deeds, in Washington county. P. L. 155. (r) Extended to Erie county, by act 11 March 1853, §14. P. L. 167. 1 10 April 1848 § 10. the interest of the defendant in such process of, in and to such lands, tenements or hereditaments so sold. P. L. 450. 15 March 1862 § 1. P. L. 125. Prothonotaries to deposit sheriffs' deeds with their successors. 156. It shall be the duty of the prothonotaries of the several courts of this commonwealth, on the expiration of their several terms of office, to deposit in the custody of their successors in office, all sheriffs' deeds that may have been delivered to them during their official terms, and which have not been called for by the parties entitled to the same; which deeds shall be delivered to the purchasers upon To be delivered on payment of the legal fees for entering the same upon the records of the court, when the same have not already been paid; and the failure to comply with this act shall subject the person so offending to a penalty of twenty dollars, to be recovered by action of debt, one-half thereof to be paid to the treasurer of the county for the use of said county, and the other half thereof to be for the use of the person who shall sue for said penalty. payment of fees. Penalty for neglect. 24 May 1893. P. L. 127. Sheriff's' deeds to be recorded in full by prothonotary. Fees. 16 June 1836 § 105. P. L. 780. Purchaser to give notice to defend ant, &c., to surren der possession. Ibid. § 106. 157. From and after the passage of this act all deeds of sheriffs, being duly acknowledged, shall be recorded in full in the office of the prothonotary of the court of common pleas of the county where the lands lie, and the records thereof, or duly certified copies thereof, shall be evidence in all cases where the original deeds would be evidence. And it shall be the duty of the prothonotaries of the several courts of common pleas of the counties aforesaid to record said deeds in books to be by them kept for that purpose, and to index the same both in the name of the grantee and the name of the person as whose property the lands were sold, for which services they shall receive as fees from the grantee one cent for every eight words, or part thereof. XVIII. Of proceedings to obtain possession. 158. Whenever lands or tenements shall be sold by virtue of any execution(s) as aforesaid,(t) the purchaser(u) of such estate may, after the acknowledgment of a deed therefor to him,() by the sheriff, give notice to the defendant, (w) as whose property the same shall have been sold, or to the persons in possession of such estate under him, by title derived from him subsequently to the judgment under which the same were sold, and require him or them to surrender the possession thereof to him, within three months from the date of such notice.(x) 159. If the defendant, or any person in possession under him as aforesaid, shall refuse or neglect to comply with the notice and requisition of the purchaser as On refusal, to ap aforesaid, such purchaser, or his heirs or assigns, may apply by petition to any justice of the peace, alderman or magistrate of the city, town, borough or county where such real estate may be, setting forth :(y) ply by petition, to one justice, &c. Form of petition. Ibid. § 107. Justice to issue his warrant, to summon a jury. And also the defendant. I. That he purchased the premises at a sheriff's or coroner's sale. II. That the person in possession at the time of such application is the defendant, as whose property such real estate was sold, or that he came into possession thereof under him. III. That such person in possession had notice as aforesaid of such sale, and was required to give up such estate, three months previous to such application. 160. If the application as aforesaid shall be verified by the oath or affirmation of the petitioner, or if probable cause to believe the facts therein set forth be otherwise shown, the said justice, alderman or magistrate is hereby enjoined or required forthwith to issue his warrant, in the nature of a summons, directed to the sheriff of the county, commanding him(z) to summon a jury of six men of his bailiwick to appear before said justice, alderman or magistrate, at a time and place to be specified, within not less than three nor more than eight days next after the issuing thereof, and also to summon the defendant, or person in possession as aforesaid, at the same time, to appear before him and the said jury, to show cause, if any he has, why delivery of the possession of such lands or tenements should not be forthwith given to the petitioner. (a) (8) An order of sale awarded in an action of partition is not within the act. Fitzgibbons v. Keller, Sup. Court, 31 January 1852. MS. But it embraces the case of a purchaser under a levari facias issued on a judgment obtained on a mechanic's claim. Walbridge's Appeal, 95 P. S. 466. This apparently overrules Fitzgibbons v. Keller. (t) The acts 6 April 1802 (3 Sm. 530), and 14 March 1814 (6 Sm. 132), which do not appear to be fully supplied, extend to sales under any execution whatever, and contain similar provisions to those in the text. And see act 13 May 1871, establishing a special system of proceeding, for Schuylkill county. P. L. 820. (u) By act 9 April 1849, § 16, the like remedy is given to all purchasers of real estate sold under order of the orphans' court; infra 172. (v) Such notice cannot be given before the acknowledgment. Hawk v. Stouch, 5 S. & R. 157. The sheriff's deed is full and conclusive evidence of the purchase. Dean v. Connelly, 6 P. S. 239. (w) Where the defendant is in possession at the time of the levy and sale, he cannot make any defence against the purchaser; by the purchase under regular process, the purchaser acquires a right, at least, to the possession of the debtor, which alone will support ejectment against him. Culbertson v. Martin, 2 Y. 443. Stahle v. Spohn, 8 S. & R. 317. Arnold v. Gorr, 1 R. 223. Young v. Algeo, 3 W. 227. Knox v. Herod, 2 P. S. 27. Snavely v. Wagner, 3 Ibid. 275. Dunlap v. Cook, 18 Ibid. 454. Walker v. Bush, 30 Ibid. 352. Such proceedings will lie against a corporation. Oakland Railway Co. v. Keenan, 56 P. S. 198. (2) Such notice may be proved in any manner the legislature may direct; it is not a matter of right. Wyncoop v. Cooch, 89 P. S. 450. (y) So amended by act 24 May 1878, P. L. 134. (z) No person but the sheriff himself is competent to perform the duty of selecting jurors; it is a judicial act, requiring judgment and discretion, which cannot be deputed to another. Pennsylvania Railroad Co. v. Heister, 8 P. S. 445, 452. (a) So amended by act 24 May 1878, P. L. 134. 161. If, at the time and place appointed for the hearing of the parties, the 16 June 1836 § 108. defendant or person in possession, as aforesaid, shall fail to appear, the said justices P. L. 780. shall require proof, by oath or affirmation, of the due service of such warrant upon of the service, and him, and of the manner of such service: Provided, That such service shall have proof thereof. been made three days before the return. 162. If the defendant or other person in possession under him, as aforesaid, Ibid. § 109. shall be duly summoned as aforesaid, or he shall appear, the said justices and jury Duties of the inshall proceed to inquire: I. Whether the petitioner, or those under whom he claims, has or have become the purchaser of such real estate at a sheriff's or coroner's sale, as aforesaid: and a sheriff's or coroner's deed for the same, duly acknowledged and certified, shall be full and conclusive evidence of that fact before such justices and jury. II. Whether the person in possession of such real estate was the defendant in the execution under which such real estate was sold, or came into the possession thereof under him, as aforesaid. III. Whether the person so in possession has had three months' notice of such sale, previous to such application.(b) quest. Ibid. § 110. 163. Upon the finding of the facts as aforesaid, (c) the justices shall make a record thereof, and thereupon they shall award the possession of such real estate Justice to make to the petitioner. record, and award possession. 164. In case of a finding for the petitioner(d) as aforesaid, the jury shall assess Ibid. § 111. such damages(e) as they shall think right, against such defendant or person in Inquest to assess possession, for the unjust detention of the premises, and thereupon the 'said justices damages and costs. shall enter judgment for the damages assessed, (g) and reasonable costs,() and such judgment shall be final and conclusive to the parties. 165. The said justices shall thereupon issue their warrant, directed to the Ibid. § 112. sheriff, commanding him forthwith to deliver to the petitioner, his heirs or assigns, Justice to issue full possession of such lands or tenements, and to levy the costs taxed by the said warrant of possesjustices, and the damages assessed by the jury, as aforesaid. 166. No certiorari, which may be issued to remove such proceedings, shall be a supersedeas, or have any effect to prevent or delay the execution aforesaid, or the delivery of the possession, agreeably thereto.(i) 167. If the person in possession(k) of the premises shall make oath or affirmation before the justice: I. That he has not come into possession, and does not claim to hold the same, e, (1) under the defendant in the execution, but in his own right: or, sion. Ibid. § 113. Certiorari not to be fendant, by title II. That he has (not) (m) come into possession under the title derived to him own right. from the said defendant, before the judgment (n) under which the execution and Or, under the desale took place, and shall become bound in recognizance, with one or more suffi- prior to the judgcient sureties, in the manner hereinafter provided, the said justices shall forbear inent. to give the judgment aforesaid.(0) Ibid. § 115. 168. If the person in possession of the premises shall make oath or affirmation, before the justices, that he does not hold the same under said defendant, but under Or under a third some other person, whom he shall name, the said justices shall forthwith issue a Claimant to be summons (p) to such person, requiring him to appear before them, at a certain time summoned. (b) It is sufficient, if the inquest find that the purchaser gave "due and legal notice to the defendants. Cooke v. Reinhart, 1 R. 317. The finding of the jury is conclusive on the question of notice. Oakland Railway Co. v. Keenan, 56 P. S. 198. (c) If the inquest cannot agree, they may be discharged, and a new jury summoned. Cunningham v. Gardner, 4 W. & S. 120. (d) In analogous proceedings, under the landlord and tenant law, the landlords are not concluded by the finding of the jury, although the tenants are; they may renew their complaint before other justices. Ayres v. Novinger, 8 P. S. 414. (e) It is the duty of the jury to assess the damages; and it is error for the justices to do so. Hull v. Russell, 4 Clark 453. (7) Such judgment cannot be certified to the common pleas, under the act of 1810, in order to create a lien on real estate. Gault v. McKinney, Com. Pleas, Phila., 4 February 1854. MS. Amos v. Stiles, 1 W. N. C. 414. Bodkin v. McDonald, 2 Ibid. 478. Nor can an action of debt be maintained upon it. Moyer v. Kirby, 14 S. & R. 162. McDonald v. Bodkin, 2 W. N. C. 586. But see Gault v. McKinney, 2 Phila. 71, contrà. (h) The practice is, for the justices to give judgment for a gross sum for costs; and the court, on certiorari, will presume that they were duly taxed. Brown v. Gray, 5 W. 17. (i) A writ of error is the proper remedy for the revision of the judgment of the common pleas on a certiorari. Cooke v. Reinhart, 1 R. 317. But the certiorari brings into the common pleas nothing but person. the record of the proceedings of the justices and jury; and on error, nothing else is before the supreme court. Oakland Railway Co. v. Keenan, 56 P. S. 198. (k) The defendant in the execution cannot stay proceedings, under this section, by making affidavit that he is in possession under a contract with the purchaser at sheriff's sale. on which he has paid a part of the consideration-money. Cress v. Righter, Sup. Court, 7 April 1853. MS. He must show either a conveyance, or such an equitable right to one, as would sustain a decree for specific performance. Debozear v. Butler, 2 Gr. 417. See Brown v. Gray, 5 W. 17. (7) An affidavit, that he does not hold possession of the whole of the premises under the defendant, is insufficient; he should explain what part he so held. Hawk v. Stouch, 5 S. & R. 157. (m) "Not," supposed to be erroneously inserted. (n) As to what is a sufficient averment of title derived from the defendant before the judgment, see Lenox v. McCall, 3 S. & R. 95; Brown v. Gray, 5 W. 17. And see Commonwealth v. McClintock, 13 Phila. 26. (0) It is sufficient, if the oath and recognizance be tendered, at any time before judgment. Lenox v. McCall, 3 S. & R. 95. The affidavit must strictly conform to the statute. Bank of Carbondale v. Cowperthwaite, 10 W. N. C. 532. An affidavit in the words of the statute is sufficient; the party need not set forth his title. Elton v. Stokes, 12 W. N. C. 240. See Gerber v. Hartwig, 11 Ibid. 197. Worman v. McClosky, 1 Chest. Co. R. 32. (p) Such summons is indispensable to sustain a P. L. 780. 16 June 1836 § 115. therein named, not exceeding thirty days thence following; and if, at such time, the said person shall appear and make oath or affirmation, that he verily believes that he is legally entitled to the premises in dispute, and that he does not claim under the said defendant, but by a different title, or that he claims under the said defendant by title derived before the judgment aforesaid, and shall enter into a recognizance, with sureties, as aforesaid, in such case also, the justices shall forbear to give judgment. Ibid. § 116. Oath of claimant. Ibid. § 117. Form of recogni zance. Ibid. § 118. 169. The oath or affirmation which shall be administered to such claimant shall be in the following form, to wit: I do [swear or affirm] that I verily believe that I am legally entitled to hold the premises in dispute, against the petitioner — that I do not claim the same by, from or under the defendant, as whose property the same were sold (or) [as the case may be] - that I do not claim the same by, from or under the defendant, as whose property the same were sold, by title derived to me subsequently to the rendition of the judgment under which the same were sold, but by a different title, &c. 170. The recognizance aforesaid shall be taken in a sum fully sufficient to cover and secure, as well the value of the rents and mesne profits of such lands or tenements, which may have accrued, and which may be expected to accrue, before the final decision of the said claim, as all costs and damages, with condition that he shall appear at the next court of common pleas [or district court] (q) having jurisdiction, and then and there plead to any declaration in ejectment which may be held against him (r) and thereupon proceed to trial, in due course of practice, and in case he shall fail therein, (s) that he will deliver up the said premises to the purchaser, and to pay him the full value of the rents or mesne profits of the premises, secured (accrued) from the time of the purchase. 171. If such recognizance shall be forfeited, the justices aforesaid shall proceed On forfeiture, pos- to give judgment, and cause such real estate to be delivered up to the petitioner, in the manner hereinbefore enjoined and directed. session to be awarded. 9 April 1849 § 16. P. L. 527. Purchasers at orphans' court sales, to have the same remedy. 16 June 1836 § 119. P. L. 783. Purchaser to be deemed the landlord of the tenant, under the defendant. To be entitled to rent subsequently to the acknowledg ment. 172. Purchasers of real estate sold under orders of the orphans' court(t) shall, after the confirmation of the sale and the execution and acknowledgment of the deed, have a right to proceed to obtain possession of the purchased premises, in the same manner as is now provided in relation to purchasers at sheriffs' sales. XIX. Of the rights of purchasers as landlords. 173. If any lands or tenements shall be sold upon execution, as aforesaid, which, at the time of such sale, or afterwards, shall be held or possessed by a tenant, or lessee, or person holding, or claiming to hold the same under the defendant in such execution, the purchaser of such lands or tenements shall, upon receiving a deed for the same, as aforesaid, be deemed the landlord(u) of such tenant, lessee, or other person; (v) and shall have the like remedies to recover any rents or sums accruing(w) subsequently to the acknowledgment of a deed(x) to him, as aforesaid, whether such accruing rent may have been paid in advance (y) or not, if paid after the rendition of judgment on which sale was made, as such defendant might have had, if no such sale had been made.(z) judgment for possession. Bauer v. Angeny, 100 P. S. (r) If a cause be certified into court under this section, it is equivalent to a removal by certiorari to a higher court for trial, and all the proceedings thereafter are part of the same case that was begun before the justices, and not a new cause; and damages for wrongful detention are properly included in the verdict, even though notice of such a claim be not given. Walker v. Bush, 30 P. S. 352. (8) On the trial, the defendant cannot give evidence of title inconsistent with the affidavit and claim before the justices. Kimball v. Kelsey, 1 P. S. 183. Hale v. Henrie, 2 W. 143. He is bound to show that he has a title to the possession which he did not obtain under the defendant in the execution; or which he obtained under him before judgment on which the execution issued. Walker v. Bush, 30 P. S. 352. He may show a title derived from a sheriff's sale of the land to him, as the property of the plaintiff, after the commencement of the proceedings before the justices, and whilst the cause is pending in court, and thus defeat the plaintiff's recovery. Brownfield v. Braddee, 9 W. 149. (t) This extends to sales in partition. Simpson v. Thornton, 54 P. S. 391. the lease, or to affirm it, and avail himself of the rights of the former owner to recover the rent. Menough's Appeal, 5 W. & S. 432. But the lessee does not become the tenant at will of the purchaser, until after notice of the latter's election to determine the tenancy. Adams v. McKesson's Executrix, 53 P. S. 81. If he choose to disaffirm it, which he does by giving the defendant notice to quit, he cannot claim anything under the terms of the lease. Farmers' and Mechanics' Bank v. Ege, 9 W. 436. And in such case, the relation of landlord and tenant cannot be renewed by the tenant's remaining in possession, or any act short of a mutual contract for a new lease. Hemphill v. Tevis, 4 W. & S. 535. The purchaser, however, may recover for use and occupation, during the time the tenant holds over. Stockton's Appeal, 64 P. S. 58. Mozart Building Association v. Friedjen, 12 Phila. 518. (w) See Bank of Pennsylvania v. Wise, 3 W. 401. Braddee v. Wiley, 10 Ibid. 362. Borrell v. Dewart, 37 P. S. 134. Heyden v. Patterson, 51 Ibid. 261. (x) The purchaser is not entitled to rent accruing between the day of sale, and the acknowledgment of the sheriff's deed. Garrett v. Dewart, 43 P. S. 342. (y) If, by the terms of the lease, the rent was payable in advance, at the beginning of the year, a purchaser at sheriff's sale in the middle of the year, is not entitled to it. Farmers' and Mechanics' Bank v. Ege, 9 W. 436. Fullerton v. Shauffer, 12 P. S. 220. (2) Where a lease contains a stipulation for a rent in kind, without specification of the day of payment, it is payable at the expiration of the year; and an (v) It is at the purchaser's option, either to disaffirm assignment of the rent, by an order on the tenant, (u) The lessee becomes a tenant at will of the sheriff's vendee, and is entitled to the way-going crop. Bittinger v. Baker, 29 P. S. 66. And see Borrell v. Dewart, 37 Ibid. 134. 174. If, after notice shall be given of such sale, as aforesaid, such tenant, lessee 16 June 1836 § 120. or other person, shall pay any rent or sum accruing subsequently to the acknowledgment of such deed (and) notice given him as aforesaid, to such defendant, such notwithstanding tenant, lessee or other person, to (so) paying, shall nevertheless be liable to pay payment to defendthe purchaser. P. L. 7-8. Tenant to be liable ant after notice of sale. 1. Corporations may be formed, in the manner herein mentioned, by the vol- 14 June 1887 § 1. untary association of five or more persons, or as otherwise hereinafter provided, P. L. 853. for the purpose of educating the public by exhibiting artistic, mechanical, agri- How formed. cultural and horticultural products and providing public instruction in the arts Purposes. and sciences: Provided, however, That no such company shall be organized for Not to be for profit. profit, but all contributions thereto by members or others, and all proceeds realized from the business of such company, shall be applied to the purpose declared in its charter. 2. When so formed, such company, by virtue of its existence, shall have the following powers: First. To have perpetual succession by its corporate name, subject to the power of the general assembly and the constitution of the commonwealth. Second. To maintain and defend judicial proceedings. Third. To make and use a common seal and alter the same at pleasure, and to accept and use such contributions and loans, from its members or others, of money or property, real or personal, as may be advantageous to the purpose of its organization. Fourth. To hold, purchase, maintain, lease, mortgage, sell and transfer real and personal property as the purposes of the corporation may require, and the right also to enter upon, take and occupy such public lands, easements and other property, as may be required, from time to time, for the purposes of its corporation. Fifth. To appoint and remove and suitably compensate such officers and agents as the business of the company requires. Sixth. To make by-laws, not inconsistent with law, regulating its membership and the election of its officers and directors, and the management of its property and business affairs. accepted by him, will not pass the right to it, as against a purchaser at sheriff's sale, under a judgment prior to the lease. Boyd v. McCombs, 4 P. S. 146. Menough's Appeal, 5 W. & S. 432. Bank of Ibid. Corporate powers. Pennsylvania v. Wise, 3 W. 400. The purchaser is entitled to such rent, whether payable in money or grain. Long v. Seavers, 103 P. §. 517. |