Fretz v. Heller

The opinion of the Court was delivered by Rogers, J. .After the delivery of the writ of venditioni eocponas to the sheriff, it is his duty to sell the property, at all events, for the best price that can be got for it. And in the strict performance of this duty, the whole interest of the debtor should be sold; and hence it is ruled in Reigle v. Seiger (2 Penn. Rep. 340), that a sheriff is bound to sell the debtor’s whole interest in the land, and can lawfully reserve nothing for him, either in the land or the price of it. Where land which has been taken by a son, at a valuation, in the Orphans’ Court, is sold at sheriff’s sale subject to the payment of the whole third of the valuation at the widow’s death, he can never recover any portion of the third. Pidcock v. Bye, (3 Rawle 183), does not touch this question, as that is the case of a private, not a judicial sale. The necessary implication of law, in the case supposed, is, that the whole interest of the debtor has been sold; but, by the conditions of sale here, the interest of the widow’s dower was to be paid to her, and, after her death, the principal, viz. $1066.66 was to be paid to the legatees of Ralph Stover, under whom the debtor held the estate. The defendant, Heller, who was the purchaser, signed the conditions after the property was struck off by the sheriff, and by this he agrees to pay that amount at the death of the widow, in addition to the sum which he is bound to pay immediately after the sale. It must be taken as part of the purchase money, or price of the land, and amounts, in fact, to an express engagement to pay that [400] amount; and this differs it from Reigle v. Seiger, before cited. Every principle of justice requires that the defendant should be compelled to pay the amount of his bid; and this appears to be conceded by his counsel; but a difficulty is made as to the proper mode of enforcing the claim. This is a proceeding by attachment, under the thirty-fifth section of the Act of the 16th June 1836, and is founded on the presumption that the debt attached is a debt of Andrew Heller to Abraham Stover, the plaintiff’s debtor. By the sheriff’s sale, inasmuch as this was a component part of the purchase money, the money was a substitute for the land sold, and of course, as such, it must regularly go into the hands of the sheriff, to be applied to the payment of the judgments, which were liens on the land, according to their priority. Whether this was the only judgment, we have not been informed; but, admitting that it was, yet it is not such debt as may be attached, under the Act; for money levied in execution by the sheriff upon a fieri facias, and in his hands, cannot be attached. See Sergeant on Attachment 84, and the authorities there cited. Although the money is not entirely in the hands of the sheriff, yet it is potentially so, which is the same thing. It may be recovered by the sheriff. It is his duty to collect it and to apply it to the payment of the judgments. Ross v. Clarke (1 Dall. 355). The case of Reigle v. Seiger is full to the point, that no suit can be sustained in the name of the debtor. The price must go into the hands of the sheriff for the benefit of the lien creditors, and if any thing remains it should be paid to the debtor. It is a matter of the first importance that money which is in course for legal distribution, should not be intercepted by the claim of third persons to the fund, as in that case there would be no end to suits. We cannot omit remarking that the proper course is for the sheriff to sell the interest of the debtor without stipulation or restriction. A different practice leads to uncertainty in the title, and, of course, is prejudicial to the rights of creditors, and the debtor himself. Judgment affirmed.