Robinson v. Narber

The opinion of the court was delivered, March 21st 1870, by Sharswood, J. Whether defendant William Narber was possessed of an estate in fee simple within the county of Tioga worth the amount of the judgment recovered, clear of all encumbrances, so as to entitle him to a stay of execution, under the 3d section of the Act of June 16th 1836, relating to executions (Pamph. L. 762), was a question of fact not reviewable in this court on a writ of error. It depended upon the opinion of the court upon evidence submitted to them, which forms no-part of the record which is brought here. It is contended, however, that such a plea, by one of several defendants, is not a legal ground for allowing a stay of execution, [86] upon the general principle that if a privileged person is joined with those who are unprivileged, he thereby loses his privilege. This is undoubtedly true in the case of arrest upon process, 1 Tidd’s Prac. 84, and was recognised and applied in Fife v. Keating, 2 P. A. Browne 135, where it was held that if a freeholder joins with one who is not exempted from arrest in the commission of a joint trespass, the court will not abate a writ of capias issued against them jointly. But the stay of execution is not on the ground of a mere privilege in the defendant, as is the ease in the exemption of a freeholder from arrest under the Act of March 20th 1728, 1 Smith 164; the value of the freehold there has no relation to the amount demanded. But to secure a stay of execution it must appear that the lien of the judgment, prior to all other encumbrances, is sufficient security for the sum recovered. Where one of the defendants is able to show that he is possessed of an estate in fee simple worth, in the opinion of the court, the amount of the judgment, it is equal if not better than the security provided for ‘ in the 4th section. It cannot be questioned that, if such security be entered, the defendants will be entitled to a stay without regard to the fact that it was entered at the instance of one or all the defendants. In that case, there is nothing but the personal obligation of the bail; here, there is a first lien fastened on the land itself, and which is subject to the execution of the plaintiff as soon as the stay has expired, or if there should be a judicial sale in the mean time, it will give the plaintiff a right to payment from the proceeds in preference to all others. Order affirmed.