WEITZELL'S LESSEE v. FRY, 4 U.S. 218 (1800)

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U.S. Supreme Court

WEITZELL'S LESSEE v. FRY, 4 U.S. 218 (1800)

4 U.S. 218 (Dall.)

The Lessee of Weitzell et al.

Supreme Court of Pennsylvania.

December Term, 1800

EJECTMENT for 306 acres of land in Northumberland county. The case was this: On the 13th of September 1774, John Read, being seised in fee, mortgaged the premises, mentioned in the declaration, to 'The trustees of the general loan office of the province of Pennsylvania,' incorporated under the act of the 26th of February 1773. 1 State Laws, 644. Dall.

Page 4 U.S. 218, 219

edit. After various successive modifications of this trust,1 the powers and duties of the trustees were transferred to, and vested in, the treasurer of the state, by an act of the 1st of April 1790. 2 State Laws, 792. s. [Footnote 2] The sheriff of the county, in his evidence on the trial, stated, 'that he had received a precept, dated in September 1792, for selling the lands, under Reed's mortgage, from the office of Mr. Febeiger, the state treasurer; that the precept, he believed, was signed by Mr. Febeiger, and attested by Mr. Ingersoll, the attorney-general; that he delivered the precept to Mr. Febeiger's clerk (who, it appeared, had left the country) indorsed, he believed, (though he was not positive) with a written return, as it was his practice to make such indorsements; that he thought he had put up printed advertisements of the time and place of sale; and that he made the sale on the premises.' It was proved, however, that, on a strict search of the loan office papers, no precept, in the present case, could be found, except one, which had no date, and which was not signed by Mr. Febeiger. And an advertisement of the sale, to be made on the 11th of December 1792, was read from the Sunbury, and Northumberland, gazettes, dated the 6th of October preceding. At the sale, Thomas Reese became the purchaser, to whom the sheriff made a deed, on the 22d of February 1793, for the consideration of 189l. 7s. 6d. and, on the 20th of March 1793, Reese conveyed to the lessors of the plaintiff, for the consideration of 160l. But, it was alleged by the defendants, and evidence was given tending to show, that Reese had been collusively employed by Richeson, one of the lessors of the plaintiff (the others being totally ignorant of this part of the transaction) to make the purchase for him, while, at the time of the sale, he set up a title to the premises, producing a deed from the county commissioners, dated the 26th of November 1792, when the land had been sold for taxes; menacing any purchaser with a law suit; and, in fact, prevented several persons from bidding, who had attended for that purpose; and some of whom avowed, that they would give 350l. for only 200 acres of the land.

On these facts, the defendant contended, 1st. That the authority of the state treasurer, was a special authority, and ought to be strictly pursued: whereas there was no official precept, as required by the act, to justify the sheriff's sale; nor any proof of advertisements put up at public places. 2d. That the fraud committed by Richeson at the time of sale, vitiated the whole proceedings; particularly, when connected with the inadequacy [4 U.S. 218, 220]

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