Barrett v. Trainor

Opinion of the Court, Gary, P. J. The defendant in error recovered against the plaintiff in error a judgment in forcible detainer which this writ of error is prosecuted to reverse. The defendant in error claims under a sale by the sheriff on an execution issued upon a judgment against the plaintiff in error and another. A supersedeas is now applied for. The sheriff takes no possession of the premises, on the sale of any interest in realty. Kile v. Giebner, 114 Pa. St. 381. The subject of the sale here was an unexpired term of thirty months. Chattels real are subject to sale on execution (Sec. 40, Ch. 77, R. S.); and, when the unexpired term does not exceed five years, without redemption (Sec. 3). One entitled to possession under a sale upon execution may maintain forcible detainer. Clause 6, Sec. 2, Ch. 57, R. S. An estate for years under which the party is entitled to possession is sufficient. Ball v. Chadwick, 46 Ill. 28; Gazzolo v. Chambers, 73 Ill. 75. The bill of sale by the sheriff to one Baeppler was of all the right, title and interest of the plaintiff in error, and the other defendant in the execution, in and to a certain lease of the first floor of a certain building, and Baeppler, by a bill of sale, transferred all his interest to the defendant in error. There can be no doubt of the intent of these papers; they are not governed by any statute other than the statute of frauds; and an assignment of a leasehold estate need not be under seal. 2 Taylor, L. & T., Sec. 428. There is no apparent error in the record and a supersedeas is denied.