P. L. 91. Interpleader law extended. 10 March 1858 § 1. day of April 1848, (x) and also section first of an act, entitled "An act relative to sheriffs' sales, and to the appointment of trustees in the county of Philadelphia, and to the appointment of trustees; incorporating the First Presbyterian Church of Pottstown, Montgomery county, and changing the venue of a certain suit in Huntingdon county," approved the 10th day of April 1849, (y) be extended to the Power to set aside several counties of this commonwealth. And that the court of common pleas of each county, and the various district courts, shall have the same jurisdiction and powers which the courts of the city and county of Philadelphia have by virtue of said sections: Provided, That when the proper court shall not be in session, a judge thereof shall have power, at chambers, to grant a rule to show cause, returnable to the next session of said court. sales of personal property. VIII. Of the landlord's lien on goods taken in execution. 16 June 1836 § 83. P. L. 777. 70. The goods and chattels being in or upon any messuage, lands or tenements, which are or shall be demised for life or years, or otherwise, taken by virtue of an execution,(z) and liable to the distress of the landlord, (a) shall be liable for the ecution to be liable payment of any sums of money due for rent, (b) at the time of taking such goods for one year's rent. in execution:(c) Provided, That such rent shall not exceed one year's rent.(d) Goods taken in ex bama, under the laws of which state, the case of Hagan v. Lucas was decided, in McLemore v. Benbow, 19 Ala. 76. And in Acker v. White, 25 Wend. 614, Chief Justice NELSON says, that until the claim under the first levy is disposed of, a second levy cannot be made. So also says Judge Clayton, in First National Bank v. Allen, 1 Del. Co. R. 279. In what predicament would the sureties in the claimant's bond be placed, if the law should take the goods out of the hands of their principal, and thus render the performance of his bond impossible? In Hagan v. Lucas, Justice MCLEAN said, "if the property be liable to execution, a levy must always produce a forfeiture of the bond; for a levy takes the property out of the possession of the claimant, and renders a performance of his bond impossible. Can a result so repugnant to equity and propriety be sanctioned? Is the law so inconsistent as to authorize the means by which the discharge of a legal obligation is defeated, and at the same time exact the penalty of the failure? This would, indeed, be a reproach to the law and to justice! Besides, it is not incumbent on the claimant to give bond; he may permit the goods to be sold, and the proceeds paid into court, to await the decision upon his claim. Barnum's Universal Exposition Co. v. O'Brien, 7 W. N. C. 82. And in such case, the fund certainly could not be reached by another execution creditor, though his process might be directed to the same officer. Battersby v. Haubert, cannot, therefore, be good law. The giving of an interpleader bond does not discharge the lien of the execution; on the determination of the issue in favor of the execution-creditor, he may issue a venditioni exponas for the sale of the goods, if they can be found. Bain v. Lyle, 68 P. S. 60. But of this remedy also he would be deprived, if the goods could, in the meantime, be sold under an intermediate writ, and the sureties in the claimant's bond should prove insufficient. It is true, the court might impound the fund; but where is the authority for this? The bond has taken the place of the goods, and the court has no jurisdiction over them, or their proceeds, so far as the first execution-creditor is concerned. See Collins v. Schlichter, 11 Phila. 349. Bank v. Allen, 1 Del. 277. If an issue be framed on a second execution, the first execution will not lose its lien, whilst the proceedings are pending, in the absence of fraud, or a direction to the sheriff not to proceed: it is the duty of the second execution-creditor, in such case, to call on the first, either to take issue on the claim, or relinquish the levy. Howell v. Roberts, 3 Leg. & Ins. R. 9. The plaintiff cannot have an alias fi. fa., while the interpleader is pending. Burns v. Toner, 9 Phila. 37. But the goods may be distrained for rent. Gilliam v. Tobias, 11 Phila. 313. The costs of the issue follow the verdict. Black's Appeal, 32 Pitts. L. J. 137. For forms under this act, see 1 T. & H. Pr. 726-8. 3d Ed. (a) These provisions were intended to make amends to the landlord for taking away his power of distress by a judicial sale of the tenant's goods; but the act contemplates an existing tenancy at the sale; if there be no tenancy, there can be no right to distrain, and consequently, no equivalent for it under this act: thus, a surrender of the tenancy, after levy, but before sale on an execution, deprives the landlord of his claim for rent out of the proceeds. Greider's Appeal, 5 P. S. 422. Commonwealth v. Contner, 21 Ibid. 274. Shaw v. Oakley, 7 Phila. 89. So will a sheriff's sale of the landlord's interest in the land. Hoskins v. Houston, 2 Clark 489. Hampton v. Henderson, 4 Phila. 438. Or the death of the tenant before the right of distress accrued. Hoskins v. Houston, 2 Clark 489. McKim's Estate, Ibid. 224. The landlord's right continues to exist so long as he retains the title. Lewis's Appeal, 66 P. S. 312. If the landlord has previously distrained the property, and it has been replevied by the tenant, he can only claim such rent as accrued subsequently to the distress. Gray v. Wilson, 4 W. 39. See Beltzhoover v. Waltman, 1 W. & S. 416. Pierce v. Scott, 4 Ibid. 344. Borland's Appeal, 66 P. S. 470. If a lease so mix the real and personal property together, that it cannot be determined how much of what is called the rent is to be paid for the chattels, and how much is the profit of the land, there can be no distress for non-payment of it. Commonwealth v. Contner, 18 P. S. 447. And where a creditor whose judgment was founded on a debt contracted before the 4 July 1849, levied on and sold the goods of his debtor, exempted from execution for subsequent claims by the act 9 April 1849, and the money was brought into court for distribution, it was held, that a landlord of the debtor whose rent accrued subsequently to 4 July 1849, had no right of distress in respect of the goods, and therefore, no footing in court on the question of distribution. Rowland v. Goldsmith, 2 Gr. 378. A landlord may claim rent payable in advance. Collins's Appeal, 35 P. S. 83. But if the current quarter has been paid, he can only claim an amount proportioned to the part of the quarter which has expired. Purdy's Appeal, 23 P. S. 97. And a landlord having power to distrain, after the determination of the term, is entitled to payment out of the proceeds of a sheriff's sale. Moss's Appeal, 35 P. S. 162. So, rent due to a lessor by his lessee, is payable out of the proceeds of a sheriff's sale of the goods of a sub-tenant, under an execution against him. McComb's Appeal, 43 P. S. 435. See Grant's Appeal, 44 Ibid. 477. The landlord's claim is superior to that of the defendant's assignee in bankruptcy. Barnes's Appeal, 76 P. S. 50. But the wages of laborers are entitled to a preference over the landlord's claim for rent, by act 12 June 1878, P. L. 207. (b) Ground-rent is not within the act. Pattison v. McGregor, 9 W. & S. 180. (c) The rent is to be apportioned to the date of the levy, but the landlord is not entitled to claim to the time of sale. Binns v. Hudson, 5 Binn. 506. West Sink, 2 Y. 274. Morgan v. Moody, 6 W. & S. 335. Parker's Appeal, 5 P. S. 390. Case v. Davis, 15 Ibid. Wager v. Duke, 1 Clark 316. Oram's Estate, 3 Luz. L. Öbs. 393. A feigned issue, under the sheriff's V. 80. EXECUTION. P. L. 777. 71. After the sale by the officer(e) of any goods or chattels, as aforesaid, he shall 16 June 1836 § 84. first pay out of the proceeds of such sale the rent so due,(g) and the surplus thereof, if any, he shall apply towards satisfying the judgment mentioned in such such rent to be execution: Provided, That if the proceeds of the sale shall not be sufficient to pay first paid out of the landlord and the costs of the execution, (h) the landlord shall be entitled to the proceeds. receive the proceeds, after deducting so much for costs as he would be liable to the proceeds are pay in case of a sale under distress. Of the costs where insufficient. Ibid. § 85. be stayed without 72. Whenever any goods or chattels liable to the payment of rent as aforesaid, lord. P. L. 319. month's rent, in 73. The lien of the rent due to the landlord or landlords of any colliery or 30 March 1859 § 3. collieries within the counties of Schuylkill, Northumberland, Somerset, Carbon, Washington and Dauphin, the amount of which said landlord or landlords shall Landlord's lien be entitled to receive out of the proceeds of the sale under a landlord's warrant, limited to one execution or other writ for the sale of the property liable to the distress of the certain counties. landlord, except execution upon judgment obtained for such rent, which shall rank according to priority and be paid as other executions, shall be and the same is hereby restricted to one month's rent due, together with any fraction of a month's rent, accruing immediately prior to the time of taking such property in execution or levy, under such landlord's warrant or other writ. IX. Proceedings on fieri facias levied upon real estate. P. L. 769. 74. If sufficient personal estate cannot be found by such officer, he shall proceed 16 June 1836 § 43. to levy (k) upon the defendant's real estate,(1) or such part thereof as he may deem sufficient (m) to pay the sum to be levied as aforesaid, but not less than a whole How real estate to tract shall be levied on.(n) be levied on. Ibid. § 44. 75. Whenever real estate shall be taken in execution as aforesaid, by any sheriff, it shall be his duty to summon an inquest for the purpose of ascertaining whether of the inquisition. on, to try the title to the goods levied interpleader act, does not extend the period to which the rent is payable out of the proceeds. Horan v. Barrett, 3 Luz. L. And where, by the Obs. 96; s. c. 5 Leg. & Ins. R. 27. terms of the lease, the taxes are to be paid by the tenant, the landlord cannot claim out of the proceeds Binns v. Hudson, any part of the sum due for taxes. 5 Binn. 506. Lichtenthaler v. Thompson, 13 S. & R. Where there is a 158. Case v. Davis, 15 P. S. 80. sale under two levies, made at different times, the But he landlord can claim for rent down to the date of the last levy. Worley v. Meekley, 1 Phila. 398. is only entitled to rent to the date of that execution which exhausts the property. Todd v. Ashton, 4 W. N. C. 347. Leaming's Appeal, 5 Ibid. 221. (d) The landlord is not confined, in his claim for rent, to the current year, so that no more than one year's rent be received. Ege v. Ege, 5 W. 140. Richie Parker's Appeal, 5 Ibid. v. McCauley, 4 P. S. 471. 390. Weltner's Appeal, 63 Ibid. 302. See Wickey v. Eyster, 58 Ibid. 501. (e) The landlord is entitled to a year's rent, if he give notice to the sheriff, at any time before he pays over the money made on the execution. Ege v. Eye, 5 W. 134. And the sheriff is bound to keep the proceeds a reasonable time, to enable the landlord to make his claim; a payment to the execution-creditor on the day after the sale, and ten days before the returnBut the day, is too soon, and will render the sheriff liable to the landlord. Fisher v. Allen, 2 Phila. 115. landlord must give notice of his claim, whilst the property, or its avails, are within the control of the sheriff. The landlord's right is Work's Appeal, 92 P. S. 258. not destroyed by reason of the fact, that by mistake Timme's or accident, he gives notice of a small sum in excess of the amount due at the time of the sale. v. Metz, 156 P. S. 384. (9) The practice is, to take a rule on the sheriff to (h) The preference given to rent over costs, is con- (i) See Borlin v. Gilmore, 16 W. N. C. 499. An execution does (1) All possible titles to real estate, contingent or (m) A levy on and sale of the undivided half of a tract of land will confer title upon the purchaser to no more than that quantity, although the defendant was Carpenter v. the owner of two-thirds of the land. Cameron, 7 W. 51. McCormick v. Harvey, 9 Ibid. 482. And where the debtor's interest is a fee-simple, no less estate can be sold on execution. McLaughlin v. Shields, 12 P. S. 286. (n) Where the defendant has himself subdivided his land for the purpose of sale, it is not improper for the sheriff to take in execution one or more of such subdivisions; and where such subdivision has been made in good faith, he ought to sell the parcels separately; and the court may set aside any sale in which several of them were united. Donaldson v. Bank of A creditor has no right to cut Danville, 20 P. S. 245. up an entire lot at his own pleasure; if there be the marks of an actual division on the ground, he should follow that. It is the safest practice, in case of doubt, to notify the defendant or terre-tenant of the subdivision intended to be made, and if they refuse to furnish any other, more satisfactory, it must be a very strong and peculiar case in which the court would interfere to set aside the sale. The subdivisions in which a property is to be sold should appear in the handbills Newman v. Callahan, 1 T. & H. and advertisements. Pr. § 1255. And see Tate v. Carberry, 1 Phila. 133. Hughes Ryerson v. Nicholson, 2 Y. 516. Rowley v. Brown, 1 Binn. 61. Snyder v. Castor, 2 Ibid. 216 n. v. Calvert, 5 W. N. C. 98. Sargent v. Bedford, 6 Ibid. 16 June 1836 § 44. the rents and profits of such estate,(0) beyond all reprises,(p) will be sufficient to P. L. 769. Ibid. Defendant may waive inquisition. In such case, sheriff may sell on fì. fa. 6 March 1820 § 1. 7 Sm. 255. satisfy, within seven years, the judgment upon which such execution was issued, with the interest and costs of suit; and he shall make a return, in due form of law, of the inquisition so taken, to the court, with the writ.(q) 76. Provided, That the defendant in any execution, being at the time of issuing thereof the owner of such real estate, or the person owning such estate by title from him,(r) may, by writing, filed in the proper court,(s) dispense with and waive an inquisition as aforesaid; and in such case, the sheriff may, after giving notice in the manner hereinafter provided, proceed to sell such real estate upon the writ of fieri facias, before(1) the return-day thereof, without any other writ. 77. And all sales made heretofore or which shall hereafter be made, under any writs of venditioni exponas, in such cases, shall be as good and available in law as Or vend. exp. may if such inquest had been held, and the clear profits of such lands and tenements had been adjudged insufficient to pay, within seven years, the debts and damages due thereon, agreeably to the provisions of the act of assembly in such cases made and provided.(u) issue. 10 May 1881 § 1. P. L. 13. of six men. 78. Whenever any real estate shall be taken in execution, under existing laws of this commonwealth, by any sheriff, it shall be his duty to summon an inquest Inquest to consist of six men, for the purpose of ascertaining whether the rents and profits of such estate, beyond all reprises, will be sufficient to satisfy, within seven years, the judgment on which such execution was issued, with the interest and costs of suit; and he shall make a return, in due form of law, of the inquisition so taken, to the court, with the writ: Provided, That the defendant in any execution, being at the time of the issuing thereof the owner of such real estate, or the person owning such real estate by title from him, may, by writing filed in the proper court, dispense with and waive an inquisition as aforesaid, and in such case, the sheriff may, after giving notice in the manner provided by law, proceed to sell such real estate upon the writ of fieri facias, without any other writ. Waiver. 16 June 1836 § 46. P. L. 769. 79. The sheriff shall give at least five days' notice of the time and place of the holding of such inquisition, to the defendant in the execution, or, if he be not Notice of meeting found within the county, to his attorney or agent:(v) and if attorney or agent be not known to him, he shall give such notice by a handbill, to be fixed upon the premises. of inquest to be given. Ibid. § 47. Where to be held. 4 May 1852 § 3. 80. Every such inquisition shall be held on the premises taken in execution, as aforesaid, if required by the defendant or his agent, and notice of such requisition be given to the sheriff or other officer executing such writ. 81. In all cases of real estate mainly valuable as developed mineral lands, levied upon by virtue of a writ of fieri facias, and an inquest shall be held thereon Proceedings where in pursuance of the provisions of the 44th section of the act of the 16th of June 1836, entitled "An act relating to executions," it shall be the duty of the inquest, levy is made on mineral lands. 575. Norris v. Adams, 36 L. I. 136. Erb's Estate, 2 Pears. 160. (0) A lease for years may be sold on a fi. fa., without inquisition or condemnation. Dalzell v. Lynch, 4 W. & S. 255. Williams v. Downing, 18 P. S. 60. Macalester v. Wister, 2 M. 156. And where the defendant's estate in the land is uncertain as to duration, no inquisition is necessary. Howell v. Woolfort, 2 Dall. 75. Humphreys v. Humphreys, 1 Y. 427. Hurst v. Lithgrow, 2 Ibid. 24. Grant v. Eddy, Ibid. 150. Duncan v. Robeson, Ibid. 454. Burd v. Dansdale, 2 Binn. 80. Stewart v. Kenower, 7 W. & S. 288. Dennison's Appeal, 1 P. S. 201. Parget v. Stambaugh, 2 Ibid. 485. McLaughlin v. Shields, 12 Ibid. 289. Erick v. Het rick, 13 Ibid. 488. But a vendee by articles of agreement, without payment of the purchase-money, has such an interest as cannot be sold without an inquisition. Baird v. Lent, 8 W. 422. The want of an inquisition and condemnation, or waiver thereof, is not cured by the acknowledgment of the sheriff's deed, Shoemaker v. Ballard, 15 P. S. 92; the sale is absolutely void, Baird v. Lent, 8 W. 422; Gardner v. Sisk, 54 P. S. 506; Zuver v. Clark, 104 Ibid. 222. The consent of the defendant, however, may validate it, or circumstances may estop him from alleging the want of an inquisition. Wray v. Miller, 20 P. S. 111. See Wolf v. Payne, 35 Ibid. 97. No one but the defendant can take advantage of the want of an inquisition or waiver of it. Crawford v. Boyer, 14 P. S. 384. (p) The unpaid purchase-money due on articles of agreement for the sale of the land, is not a lien on the equitable estate of the vendee, or payable out of the proceeds of a sheriff's sale of his interest, unless made on the vendee's judgment. Springer v. Walters, 34 P. S. 328. (q) An inquisition cannot be supported, unless there has been notice in fact to the defendant, either of the levy, or of the time and place of holding the inquest. Heydrick v. Eaton, 2 Binn. 215. And see Huddy v. Jones, 5 W. N. C. 491. The holding of an inquisition is a judicial act which cannot be performed by deputy. Haberstroh v. Toby, 9 Phila. 614. Klopp v. Breitenback, 6 Leg. Gaz. 87. (r) The rightful owner, whether in or out of possession, is the only person who can dispense with the inquisition. McLaughlin v. Shields, 12 P. S. 283. Crawford v. Boyer, 14 Ibid. 380. Wolf v. Payne, 35 Ibid. 97. St. Bartholomew's Church v. Wood, 61 Ibid. 96. An administrator may waive the condemnation of the real estate of his intestate. Hunt v. Devling, 8 W. 403. But an insolvent assignor, after a voluntary assignment, cannot waive an inquisition on his lands. Pepper . Copeland, 2 M. 419. And an attorney, by virtue of his general retainer, has no such power. Hadden v. Clark, 2 Gr. 107. A waiver of inquisition in a judgment-note, constitutes no part of the judgment entered on it. Hope v. Everhart, 70 P. S. 231. (8) The waiver may be filed, before or after the sale. Overton v. Tozer, 7 W. 331. And it is sufficient, if it be contained in a warrant of attorney to confess judgment, if a memorandum thereof be made upon the record, though the warrant itself be not filed. Kimball v. Kelsey, 1 P. S. 173. See Gist v. Wilson, 2 W. 30. Mitchell v. Freedley, 10 P. S. 209. In practice, it is usually handed to the sheriff, and returned with the fi. fa. Overton v. Tozer, 7 W. 353. (t) A sale on a fi. fa., after the return-day, is void, and vests no title. Cash v. Tozer, 1 W. & S. 519. So of a sale without inquisition or waiver. Zuver v. Clark, 104 P. S. 222. (u) The remainder of this section is supplied by act 16 June 1836, § 45, supra 76. () Notice need not be given to the defendant's assignee in bankruptcy. Fuller v. Sheridan, 2 Luz. L. Reg. 207. in ascertaining the yearly rents and profits of such real estate, to take into consideration the amount of rent or mineral-leave paid, and which said real estate may produce from the iron-ore, coal or other minerals mined from such estate, and which its capacity, as developed mineral land, may or shall produce, and said inquest shall estimate the rent or mineral-leave aforesaid, with the other rents and profits of the same, for the next succeeding seven years, and in case such rent, mineral-leave and profits shall be sufficient to satisfy the judgment upon which said execution was issued, with interest and costs of suit beyond all reprises, within said seven years, it shall be the duty of the inquest to extend said real estate, and determine the amount of rental to be paid in each of the next succeeding seven years respectively. 4 May 1852 § 8. P. L. 569. P. L. 611. 82. All executions issued in the city and county of Philadelphia, levied upon 20 April 1858 § 9. real estate acquired subsequently to a judgment against the owner thereof, may, on application of the execution-creditor, be certified by the officer making such Executions levied levy, to the office of the court from which such execution issued; it shall be then on after-acquired real estate, in docketed on the judgment-index, and thenceforth bind such real estate for five Philadelphia, to be years, like any other judgment, and unless such levy be so certified and indexed, docketed. it shall be no lien on such real estate. (w) X. Proceedings where lands are extended. P. L. 769. 83. If the clear profits of the real estate of any such defendant will, in the 16 June 1836 § 48. opinion of the inquest, be sufficient to pay the debt or damages to be levied as aforesaid, together with the costs, the sheriff or other officer shall proceed, by the Where lands will inquest as aforesaid, to assess (x) the value of the yearly rents or profits of such pay in seven years, land beyond all reprises, and make return thereof to the court, with his writ as to be assessed. aforesaid.(y) the annual profits Ibid. § 49. 84. Upon the return of such writ, with the inquisition assessing the value of the yearly rents or profits as aforesaid, the plaintiff may have a writ of liberari facias, Liberari facias to to deliver the said real estate, with the appurtenances, to him, at the valuation issue. and appraisement aforesaid, to be holden by him, his executors, administrators and assigns, until such debt or damages, with lawful interest thereon, from the day of the judgment rendered, be fully levied thereout, and make return thereof, under his hand and seal, to the court. Ibid. § 50. 85. On the execution of a writ of liberari facias as aforesaid, where the defendant, or any person claiming under him by demise or title subsequent to the judg- Sheriff to deliver ment,(z) is in possession of premises to be extended, the sheriff shall deliver the actual possession. actual possession thereof to the plaintiff or his agent.(a) 86. Lands or tenements shall be extended as aforesaid, upon execution, accord- Ibid. § 51. ing to the priority of the judgments, in all cases where two or more writs of libe- Writs of liberari rari facias issued thereon shall be in the hands of the sheriff or other officer at the facias to be exesame time for execution; but whenever any real estate shall be extended in satis- cuted according to faction of any judgment as aforesaid, such extent shall not be disturbed or priority of judgdischarged by virtue of any writ of liberari facias, issued upon any other judgment, whether previously or subsequently obtained.(b) ments. under extent. 87. If before the expiration of an extent made as aforesaid, any other debt or Ibid. § 58. damages shall be recovered against the same defendant, his heirs, executors or When venditioni administrators, which, with what remains due upon such extent, cannot all be exponas to issue satisfied out of the yearly profits of the real estate so extended within seven years against lands from such recovery, and execution to be issued therefor, the sheriff or other officer shall certify the same, by inquisition as aforesaid, upon the return of such writ, and thereupon the court may award a writ of venditioni exponas to sell such real estate.(c) 88. If before the expiration of an extent, as aforesaid, the estate extended Ibid. § 59. should be sold by virtue of any other execution, the plaintiff to whom such real Effect of sale on the rights of plaintiff estate shall be delivered, shall justify and equitably account for the rents, issues in the extent. (2) The act 22 April 1856, § 2, provides that the lien of an execution levied on real estate in the same or any other county, shall not commence or be continued as against any purchaser or mortgagee, unless the same be indexed in the county where the real estate is situated, in a book to be called the judgmentindex. See tit. "Judgment." The mere docketing of the fi. fa, and indexing the issuance of the writ is not sufficient to constitute such lien. Ross's Appeal, 106 P. S. 82. (2) The assessment is primâ facie, but not conclusive evidence of the annual value, as against the creditor to whom the lands are delivered under an extent. McKelvy v. De Wolfe, 20 P. S. 374. And see Wall v. Lloyd's Executors, 1 S. & R. 323. Slater's Appeal, 28 P. S. 171. The defendant, on affidavit, showing a primâ facie case of satisfaction, may have a scire facias ad computandum et rehabendum terram. Scofield v. Harbeson, 9 Phila. 38. (y) The inquisition is no satisfaction of the judgment. Lyons v. Ott, 6 Wh. 165. (z) If the lien of the judgment has expired, and third parties have acquired title to the land, the court will set aside the extent. Pray v. Brock, 1 Clark 354. (a) The sheriff is bound to deliver actual possession: and therefore, where he returns "extended as within commanded," the plaintiff cannot have an alias writ, on proof that actual possession had not been delivered. Sawyer v. Curtis, 2 Ash. 127. If the sheriff deliver possession, subject to a lease for years, he should return the fact specially should he return that he had given possession, without more, he becomes liable for a false return. McMichael v. McKeon, 10 P. S. 143. (b) See Near v. Watts, 8 W. 319. 16 June 1836 § 59. and profits actually received by him during his occupancy, (d) and the residue of his judgment, with the interest and costs, shall be paid out of the proceeds of the P. L. 769. Ibid. § 60. Remedy in case of eviction. 13 Oct. 1840 § 2. P. L. 2. to demise the premises to defendant at appraised value. To give notice of his election to sheriff. Who shall notify defendant. Defendant to willingness to re sale as in other cases. 89. If any real estate delivered to any person by virtue of any liberari facias as aforesaid shall, upon any lawful title or cause, and without any fraud, collusion or other default, be recovered or lawfully taken from the possession of such person, his executors, administrators or assigns, before he or they shall have levied and recovered the whole debt or damages for which (such) real estate was delivered in execution as aforesaid, it shall be lawful for him, his executors or administrators, to have a writ of scire facias upon such judgment, against the defendant therein, his executors or administrators, to show cause why the plaintiff should not have execution for the residue of the judgment and costs. 90. Upon the return of a writ of fieri facias levied upon the real estate of the defendant, with the inquisition assessing the value of the yearly rents or profits Plaintiff may elect thereof, the plaintiff may, at his election, instead of suing out a writ of liberari facias for the purpose of having the said real estate delivered to him at the valuation and appraisement, permit the defendant or defendants, or any other person or persons, claiming under him or them, by demise or title subsequent to the judgment upon which the said fieri facias issued, to retain the possession of the said real estate at the annual valuation and appraisement, so as aforesaid made by the inquest; and the said plaintiff or his attorney shall signify his election so to permit the said defendants, or other person so claiming, to the sheriff who may have the said writ of fieri facias in his hands for execution, [within ten days](e) after holding of the inquisition; and it shall be the duty of the said sheriff to notify the said defendant, or other person so claiming thereof, within ten days after said notice shall be given to him by the plaintiff. (9) And it shall be the duty notify sheriff of his of the said defendant, or other person so claiming, within [ten](h) days thereafter, tain the premises. to notify the said sheriff of his willingness to retain the said real estate at the annual valuation and appraisement so as aforesaid made, in pursuance of the act, entitled "An act relating to executions," passed the 16th day of June 1836; and upon his neglect or refusal so to do, the plaintiff may have a writ of venditioni exponas to sell the said real estate for the payment of his debt.(i) All which notices required by this act shall be in writing, signed by the parties or their attorneys, and shall be served by delivering a copy to the party plaintiff or defendant, or to the person in possession of the real estate, or leaving the same at his Sheriff's mileage. residence with an adult member of his family; and of all which the said sheriff shall make return according to law, and be entitled to mileage as in other cases. 91. So much of the act entitled An act relating to orphans' courts, and for other purposes," passed the 13th October 1840, as requires the plaintiff in any Within what time writ of fieri facias, or his attorney, to give notice to the sheriff, signifying his plaintiff may give election, to permit the defendant or defendants, or persons claiming under him or them, to retain the possession of real estate, at its valuation and appraisement, within ten days after holding inquisition, be and the same is hereby repealed; and it shall be lawful for any plaintiff or his attorney, to give the notice to the sheriff as is required by said act, at any time after holding inquisition: * * *(k) Provided, That this act shall not be construed to authorize a notice in any case wherein a writ of liberari facias has been or may be executed. In case of neglect, vend. exp. to issue. How notices to be served. 10 Feb. 1846 § 1. P. L. 37. notice. Ibid. § $ 2. Time allowed to defendant. 18 Oct. 1840 § 8. P. L. 2. fendant to be lia tiff the annual 92. The notice required to be given by the provisions of the act referred to in the 1st section of this act, from the defendant or defendants, or other person or persons claiming under him or them, to the sheriff, of his or their willingness to retain possession under the valuation of the inquest, may be given at any time within thirty days from the time of the reception by him or them, of the notice of plaintiff's election to allow him so to retain the same. 93. If the said defendant or defendants, or other person, claiming the said real estate, as aforesaid, shall signify his or their willingness to retain the same at the On acceptance, de- valuation and appraisement, in pursuance of the 1st section of this act, he or they shall thereby become liable to pay to the plaintiff (1) the amount of the said annual ble to pay to plain- valuations and appraisement, in half-yearly instalments, until the debt, interest and cost of the said fieri facias be fully paid; the first of said instalments to be paid in six months from the day the defendant, or person claiming as aforesaid, shall deliver notice to the sheriff declaring his or their willingness to retain said real estate, which date the sheriff is hereby required to indorse on said notice, and on failure to make payment for a period of thirty days after any half-yearly valuation in half yearly instalments. (d) See Wall v. Lloyd's Executors, 1 S. & R. 320. McKelvy v. De Wolfe, 20 P. S. 374. Slater's Appeal, 28 Ibid. 169. (e) At any time before execution of the lib. fa., by act 10 February 1846, § 1; infra 91. See Shields v. Miltenberger, 14 P. S. 76. (g) After an inquisition and extent, a vend. exp. is irregular, until after a notice to the defendant to accept the premises at the appraisement. Black v. Aber, 2 Gr. 206. (h) Time extended to thirty days; infra 80. (i) The plaintiff can only issue a vend. exp., whilst the judgment remains a lien; the statute does not continue the lien. Reynolds's Appeal, 10 W. N. C. 424. (k) The omitted portions of this section refer to existing extents. (1) A payment to the sheriff is only effectual where the fund is awarded to another than the plaintiff, and such person, his agent or attorney, do not reside in the county. McMurtrie v. Frazer, 26 P. S. 391. See infra 94. |