Overton v. Tozer

The opinion of the Court was delivered by Sergeant, J. The objections to the validity of the judgment and sheriff’s sale in this case seem to be without foundation. The original judgment was entered on a bond and warrant of attorney sealed and delivered by one of three partners in the name of the firm, with the consent and by the directions of the other partners. By the implied authority resulting to each partner in trade from the partnership, one cannot execute a sealed instrument which will be obligatory on the others, unless it be sealed by the one in the presence of the others, and by their directions. Hart v. Withers, 1 Penns. Rep. 285; Fichthorn v. Boyer, 5 Watts 159. But the revival of this judgment was clearly by all the partners; being by the agreement of their attorneys: and if the original judgment were defective, yet the judgment of revival is in force unreversed, and would authorize a sale and conveyance of the title to a purchaser from the sheriff, which would remain good, though the judgment itself should be afterwards set aside or reversed. Hayes v. Shannon, 5 Watts 548; Feger v. Kroh, 6 Watts 294. The act of assembly of the 16th of June 1836, section forty-five, expressly authorizes the sheriff to sell lands on a fieri facias without proceeding to inquisition and condemnation where the party, by writing filed in the proper court, dispenses with and waives an inquisition: and in the present instance the case states that the defendants signed an instrument in writing previous to the advertisement and sale, waiving the right of inquisition, and consenting to a sale of the land on the fieri facias. The difficulty suggested is, that this paper was not filed in the office previous to the advertisement and sale, but was handed to the sheriff, who returned it to the proper office with the fieri facias. The act prescribes no time when the authority shall be filed; and the object seems to be attained if the sheriff is put in possession of the written authority before he proceeds on the fieri facias, and it is returned with his proceedings to the proper office, there to remain as evidence of the regularity of his acts. Judgment affirmed.