Mantz v. Kistler , 221 Pa. 142 ( 1908 )

Opinion bt

Mr. Chief Justice Mitchell,

The substantial fact on which this case turns is the identity of the complainant with the Francis Mantz who was a party defendant to the judgment sought to be enjoined. Presumably this is a question of fact for the decision of a jury. The practice, in Pennsylvania is to allow a creditor to sell any title alleged to be in the debtor, and to try the validity of it afterwards in an action of ejectment by the purchaser: Taylor’s Appeal, 93 Pa. 21. It is not the best system, being a ,make shift, in the absence of a court of chancery, for the administration of equitable principles under the forms furnished by the common law. But it is settled as the practice in this state, and in the present case it is not altogether inconvenient, and certainly not inadequate. The remedy in equity as administered in some jurisdictions, notably our neighboring state of New Jersey, is very much superior. There the rights of parties are fought out and, adjusted in advance of a sale, so that every claimant or outside purchaser may bid at the sale with exact knowledge of what title will pass, and what disposition will be made of the proceeds. But the other practice has been long established here, and is only departed from in very clear cases: Hunter’s Appeal, 40 Pa. 194; Winch’s Appeal, 61 Pa. 424; Kreamer v. Fleming, 200 Pa. 414.

In the present case the issue as already said is upon a single question of fact, the identity of the complainant, Francis K. Mantz, with the Francis Mantz, defendant in the judgment. It is an issue, prima facie, for the determination of a jury, and the inconvenience of postponing its decision until an ejectment after the sale is not great enough to bring the case within the exceptions to the general rule.

Decree affirmed.