
    
      Court of Common Pleas, Dauphin County,
    
    
      November 15th, 1858.
    Smuller et al. v. Wilson et al.
    AVhen property has been levied upon and extended at a fixed rental, this does not prevent a subsequent lien creditor without actual notice from issuing execution; but if the property is not condemned, he must pay the costs; if it is, it can be sold. The fact that the matter was pending in court is not a sufficient notice.
   By the Court.

. This case comes before the court on a motion to confirm an inquisition and condemnation of the defendants’ real estate held under a fieri facias issued by the plaintiff. From the record it appears that numerous judgments existed against the defendants in favor of various plaintiffs, one of whom issued a fi. fa. to April Term, 1858, levied on the same real estate taken in execution on the above stated fi. fa.; the property was extended at a fixed rental, and after notice retained by the defendants under the act of 1840. The plaintiffs’ judgment had previously been entered on the records of this county, and it is assumed by the defendants that no new inquisition can lawfully be held, but that the former extent is conclusive on the plaintiffs, who must proceed to collect their debt by receiving the half yearly rental fixed by the jury, according to the method prescribed by the act of the 26th of April, 1855, which provides in substance, that in all cases of inquisition and extent. of real estate, and acceptance thereof by the defendant under the act of the 13th of October, 1840, said act shall be construed not to permit any second or other inquisition and extent, pending the first, upon any writ issued upon a judgment entered in the court of the proper county at the date of the inquisition; but the plaintiff claiming to have a lien must proceed to collect the same in the manner provided under the fourth section of the former act, to wit: by receiving the half yearly rental at the time entitled, according to the priority of the liens. The case under consideration is not one of inquisition and extent, but a condemnation of the property by the sheriff’s jury; therefore it does not come within the letter of the act. Is it within the spirit and meaning ? As the law stood prior to the act of 1855, each judgment creditor might have an inquisition held on the property of his debtor, although the same had been previously extended, as he might, at his option, take the rental after a decree of distribution on the fi. fa. of another creditor. "Where many judgments existed, and each creditor caused an inquest to be held, and numerous extensions took place, the rentals would be as variant as the opinion of different juries as to the annual value of the properly, consequently great confusion would follow in distributing the proceeds. One would take according to the rental fixed by one jury, and others at a different rate, each being bound by the inquest caused to be held by himself, or in which he had participated. The courts held that no one was bound by a proceeding unless he was a party thereto, as the law had not required notice to be given of the time and place of holding the inquisition to any but the debtor. The legislature in passing the act under consideration doubtless had in view the avoidance of the confusion incident to extensions at different rentals, and probably also desired to prevent the increase of costs; at the same time we can scarcely believe that they designed to bind creditors by the action of others without requiring notice.

The plainest dictates of natural justice forbids that any man should be affected in his interest by any judicial decision without notice, and being authorized to participate therein. We must so construe this law as to do the least possible injury and prevent injustice; and this, in our opinion, is best effected by adhering to the letter — permitting a plaintiff who never participated in the former proceeding to hold a new inquest at his peril. If the property condemns, it does not come within the inhibition of the statute, and the inquisition is lawful. If it extends it is within the letter of the act, is unlawful, and the plaintiff must pay the costs of the experiment. We are aware that this course of reasoning makes the legality of the proceeding dependent on the result of the finding; but such apparent incongruities will sometimes arise in construing imperfectly framed statutes. _ Any other construction would enable a creditor friendly to the interest of his judgment debtor, without notice to other lien creditors, by a dishonest contrivance, to have the property extended at a rental, when it should have been sold for the payment of debts, and thus delay all other creditors then having liens, whose first notice of the proceeding might be in the form of an objection on the part of the debtor, to their holding any new inquisition on his estate. The evil is illustrated by the present case. Here it is conceded that a mortgage of considerable amount was, by neglect or oversight, omitted to be laid before the inquest, which was returned confirmed, and the annual rental ordered to be distributed; and it does not appear that the present plaintiff, or any other judgment creditor had notice of the proceeding, except so far as may be inferred by the principle of Us pendens, which has been held in most cases inapplicable to Pennsylvania, being for the most part constructive notice contrary to the fact.

The law did not, however, require that the lien creditors should be notified, as it presumes that every inquest will fix a fair rental, or if the rate is too high or low the variance from a proper sum must necessarily be small, and the maxim of de minimis will apply; a new “inquest and extent” is in such cases prohibited. But when it .is shown that the property should have been condemned and the creditor entitled to sell it for the realization of his debt, it becomes to him a matter of moment. If the legislature intended to bind him in such a case, we must believe that notice to all the lien creditors of the time and place of holding the inquisition would have been prescribed, and without that they ought not to be bound by the ex parte action of the jury. By the finding of the last inquest it clearly appears that the present plaintiffs were wronged by the action of the former jury, in which they had in no wise participated, and of whose decision they had good ground to complain, if binding on them. We are of the opinion that the inquisition can be lawfully confirmed, it having condemned the estate, and therefore grant the plaintiff’s application.

Alrielcs and Fisher, for plaintiff.

Alrielcs, for defendant.  