Walbridge's Appeal ( 1880 )

Mr. Justice Mercur

delivered the opinion of the court,

This case presents the question whether a purchaser under a levari facias on a judgment obtained on a mechanic’s lien may obtain possession in like manner as if he had purchased at a sale made on a venditioni exponas ? The necessity of giving a purchaser at sheriff’s sale some more expeditious method of getting possession than by action of ejectment, was recognised at an early day. Hence, the preamble to the Act of 6th April 1802, 3 Sm. Laws 530, declares, “ Whereas, great inconveniences have been experienced from the unjust detention of lands and tenements sold by sheriffs under executions from the several courts of this Commonwealth, the purchasers whereof have been obliged to bring ejectments and to subject themselves to all the delays and expenses incident to law proceedings, to recover the possession from the person as whose property the same was originally sold, the desperate circumstances of whom usually preclude the possibility of obtaining damages or any other compensation whatever for such unjust detention; for remedy whereof,” it proceeded to enact “ that where any lands or tenements shall hereafter be sold by the sheriff or coroner of any county, by virtue of any execution issued out of any court of recórd of this Commonwealth, it shall be lawful for the purchaser thereof” to give notice to the defendant as whose property the same was sold or to any one in possession under him of said sale, and to require the possession thereof to be delivered to the purchaser within three months after the date of such notice. In case of neglect or refusal so to do, the act proceeded to declare, that complaint might be made to two justices of the peace, who should summon a jury and the case might proceed to judgment and a writ of possession. Thus this act applied to every purchase of real estate made at sheriff’s sale on every execution that might be issued out of any court of record. It made no distinction whether the judgment was on a mortgage, mechanic’s lien or other claim. It wholly disregarded the form of the execution on which the sale might be made.

On the 1st April 1803, an act was passed giving a mechanic’s lien for labor and materials in erecting any building “ within the city of Philadelphia, the district of Southwark and the township of the Northern Liberties.” This was repealed by the Act of 17th March 1806, 4 Sm. Laws 300, which gave a preferred lien for work done and materials furnished in the construction of any building within the city and county of Philadelphia, provided an action for the recovery thereof was brought or claim therefor filed within six months after the same was done or furnished. A purchaser at sheriff’s sale under this act undoubtedly had all the remedies whereby to obtain possession given by the Act of 6th April 1802.

It is alleged that inasmuch as the Act of 16th June 1836, Pamph. L. 695, prescribes that execution on judgments recovered on mechanic’s liens shall be by levari facias, and the act of same date, page 761, relating to executions, does not specifically refer to that form of execution, its language is insufficient to give to one buying at a sale made on a levari facias the remedy given by section 105 of the act. That section declares, Purd. Dig. 660, Pamph. L. 134: “ Whenever any lands or tenements shall be sold by virtue of any execution as aforesaid, the purchaser of such estate may, after the acknowledgment of a deed therefor to him by the sheriff, give notice to the defendant as whose property the same shall have been sold,” requiring him to surrender the possession thereof within three months from the date of such notice. On failure to comply, the act authorizes application to be made to two justices of the peace or aldermen, who shall proceed in the manner therein directed.

It is claimed the language “ any execution as aforesaid ” applies only to a writ of fieri facias or venditioni exponas. It is true, much of the act does relate to executions of those forms, yet it has a much wider scope. The words “ as aforesaid ” appear in many sections where the manifest intention is to apply to sheriff’s sales on all forms of execution. The following may be cited as illustrations : in case of dispute concerning the distribution of the money arising in all cases of sale on execution as aforesaid, the act gives the court power to hear and determine the same; if any fact connected with such distribution be in dispute, the court may direct an issue to try the same, and the judgment thereon is subject to writ of error; any one aggrieved by the decree of the court in case of distribution made without the intervention of a jury, may appeal therefrom to this court; whenever the proceeds of a sale upon execution as aforesaid shall be more than sufficient to satisfy the liens on the property sold, the officer making such sale may pay over the surplus to the debtor; if the officer by whom any real estate shall have been taken in execution shall die, resign, be removed from office or his term of office shall expire before sale thereof, or if, after sale and before any deed shall have been executed and acknowledged by him, the sale may be made and the deed be executed and acknowledged by a succeeding officer; it also prescribes the manner and length of time real estate shall be advertised before a sale thereof; it directs as to the manner in which, and the time when, the deed shall be acknowledged; it further authorizes the purchaser of “ any real estate at a sheriff’s sale ” to cause the judgment and all the process issued thereon to be fully set forth in the deed to be executed to him therefor.

In regard to all steps covered by these provisions, the act of the same date relating to mechanic’s liens is silent. It proceeds no further than to direct the form of writ on which sale shall be made. No words therein indicate an intention to withhold from a purchaser at sheriff’s sale the summary method of acquiring possession given in case of sale on other judgments. This act is the basis of all existing laws relating to mechanic’s liens. None of the many supplements thereto gives any substitute for the provisions to which we have referred nor takes them away. To ascertain what action shall be taken after execution issued in regard to advertising, executing and acknowledging deeds and the remedy given to a purchaser, we must look elsewhere. Section 105 of the other act of the same date, entitled, “ An act relating to executions,” furnishes the information and gives the remedy. The two acts must be construed together. They so far deal with one general subject as to be in fari materia. Having been passed on the same day, the reason for so considering them is strengthened. What is wanting in one is supplied by the other in so far as they are not in conflict.

No authority is cited which holds, since the Acts of 16th June 1836, that a purchaser at a sale made on a levari facias, whether issued on a judgment recovered on a mechanic’s lien or on judgment obtained on a mortgage, was denied any remedy to obtain possession given to a purchaser on a writ of venditioni exponas. In Pentland v. Kelly, 6 W. & S. 483, it was held that a levari facias on a judgment in case of a mechanic’s lien was a substitute for a fi. fa. inquisition and venditioni, and, therefore, was an execution within the provisions of the 6th section of the Act of 13th October 1840, relating to the appointment of a sequestrator. We think the true intent and just construction of section 105 applies it to a purchaser at sheriff’s sale under a levari facias. This construction is best calculated to effectuate the intention of the legislature and give just symmetry to the acts defining the rights of purchasers at sheriffs’ sales.

The Act of 24th May 1878, gives to one justice of the peace or alderman all the power which the Act of 1836 gave to two. It is not necessary to consider the other question in the case. The learned judge erred in granting and in continuing the injunction.

Decree reversed and bill dismissed at the costs of the appellee.