Cushwa v. Cushwa

Eccleston, J., delivered the opinion of this court. In November 1847, the appellants obtained a judgment against Benjamin Cushwa for $4689.86', debt, with interest thereon from' the 5th of April 1839. Shortly after the judgment Benjamin Cushwa died, and in 1848 a writ of scire facias was issued and served upon the appellees, as heirs and terre-tenants of the original defendant. On that scire facias nfat was entered in March 1849, and upon it a fieri facias issued in April 1851.

Under this writ the land, formerly held by Benjamin Cushwa, was sold t-o the appellants, and Elizabeth, the wife of David Brewer, for $2000. On motion this sale was set aside, and a new fieri facias issued, under which the same land was sold to John S. Cushwa and David Brewer, for $50. In November 1852, at the instance of the appellees, a rule to show cause why this second sale should not be set aside was laid. The reasons assigned for setting.aside the sale are: 1st.

That the lands were sold at a grossly inadequate price. 2nd. That due and legal notice had not been given. 3rd. That there was no competition at the sale, there being, no other bidders than the purchasers, who purchased at their first bid. An answer to the rule was put in by the appellants denying the reasons assigned.- ⁵⁷ It is admitted that the personal estate of Benjamin Cushwa had been fully administered,- and the proportion thereof applicable to this judgment had been paid, and that Benjamin had no other real estate than that sold under the execution.

The lands included in the sale had been previously conveyed by Benjamin to John. And there being no personal or real estate, other than the lands in controversy, to which the plaintiffs in the judgment could look for payment of the large amount conceded to be unpaid, although the sale was