Greenwood's Appeal , 1875 Pa. LEXIS 201 ( 1875 )

Mr. Justice Mercur

delivered the opinion of the court, November 26th 1875.

This contention is between claimants for the money raised by a sheriff’s sale of the personal property of one. Hardman: When levied on and sold, it was on lands of the appellant, but in possession of Hardman. The appellant claimed as landlord for rent in arrear, and the appellee as the plaintiff in the execution. The auditor appointed to distribute the fund awarded it to the appellant. On exceptions filed, the court sustained them, and decreed the money to the appellee. From that decree this appeal was taken.

The assignments of error are to the court having sustained those exceptions. The third relates to the sufficiency of the notice given to the sheriff. Having been accepted and acted on by him, it was clearly too late for objection to its sufficiency thereafter. The other assignments raise the question whether the evidence proves the rent to have been due and in arrear on an existing tenancy.

The auditor, not very distinctly, but impliedly, found these facts in the affirmative. An examination of the evidence returned with his report, discloses these facts, to wit: At the time of the levy and of the sale, Hardman was undoubtedly in possession of the premises, under a written lease from the appellant. It bore date April 1st 1874, and was for one year. The annual rental was $1008.20, or $88.60 payable monthly in advance. On one portion of the premises the rent was to commence at the date of the lease, on the other, not till the 12th of June 1874. The levy and sale were made in February 1875.

There is no evidence of the payment of this rent. The fund in court for distribution was insufficient to pay the rent which accrued prior to the levy. It appears, however, that the_lease was not, in fact, signed by Hardman until a short time before the levy. If the claim of the appellant rested on this written lease, signed at that late day, without any antecedent agreement to support it, the objection of the appellee would be unanswerable.

A further examination of the testimony shows the appellant testified “ the contract was made on or before April 1st 1874; the contract was completed, but not put in writing at that time.” He further testified, “ the lease referred to was reduced to writing— being the same lease offered in evidence.”

The wife of the appellant testified: “ Mr. Hardman has been in possession since April 1st 1874.” Appellant further swore: “I signed the lease in evidence some time in June, and took it down for him to sign.” It also appears that the appellant again took the lease, to Hardman to sign in October of the same year. At one time he alleged he had not time to sign it — was going out; at another time refused to sign on account of having no witness.

Thus it appears, without the aid of the written lease, the appellant proves a parol lease, entry under it and continued occupation. None of these facts are contradicted by any evidence in the case. It follows, then, the auditor was correct in his conclusions and his report should have been confirmed. The learned judge therefore erred in decreeing the money to the appellee, and it must be reversed.

Decree reversed, with' costs to be paid by the appellee, and it is ordered that the record be remitted to the court below, that a decree may there be made conformably with this opinion.