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Langenheim v. Becker

on petition and answer. This operated as an admission by the defendant that the allegations contained in the answer are true, (Thomas Massey & Son v. Dunn, 38 Pa. C. C. 63); because, under our rules of pleading, the answer must be taken as true, until overcome by the testimony of two witnesses or its equivalent: Good, appellant, vs Grit Publishing Co., 214 Pa. 614. The case of German v Conover, appellant, 240 Pa. 11, is one of the last applications of the same general principle, although there it was also embodied in a special rule of the lower court.

With the facts thus determined the rule must be discharged. The premises, which are apparently an unimproved lot of ground, were described in the advertisements of the sale by metes and bounds as "situate, lying and being in Ardmore, Township of Lower Merion, Montgomery County, Pennsylvania". Our attention has not been directed to any law which, as the defendant contends in his first exception, required the sheriff to describe them as "in almost the center of the village of Ardmore, a growing and well populated town" and we know of none such.

The other ground of objection to the sale, inadequacy of price, is also disposed of by the answer and it cannot now avail the defendant to declare that one, Kisterbock, will pay $14,000 at a re-sale of the premises when that gentleman was actually represented at the sale of November 10th, entered into' competitive bidding for the property, and then declined to pay more than $11,000 for it. He has already had his opportunity and to set aside the sale and give him another chance would, under the circumstances, be trifling with the process of the court and without legal warrant.

Furthermore, the property was purchased at the last sale, not by Mr. Langenheim, as the exceptions state, but by one, James F. Schaperkotter, who has compiled with its conditions and demanded his deed. He is not a party to the rule and has not been heard.

The same conclusion is arrived at if we view the application before us as though no answer had been filed and the exceptions had been supported by depositions. The two grounds of exception are, as already stated, insufficiency of description in the advertisements of the sale and inadquacy of price obtained at it. The former, as set forth in the first exception, consists

Langenheim v. Becker

of the sheriff's failure to state in his advertisements that the premises are located almost in the center of a village. To state this contention is to answer it. And the second, as set forth in the exceptions, is a mere conclusion which does not necessarily follow from the facts as stated in them. The latter may show jockeying by the parties at the sale and that the defendant was out-witted, but they threw little, if any, light on the value of the premises or the price they should bring at a sheriff's sale. Neither does the declaration contained in the third exception go far enough.

The whole record in this case well serves as a good example of the delays and vexation to which one seeking to enforce a right may be exposed under the law as it is at present administered. No encouragement should be given to such obstructive tactics, however, unless they are used in good faith and for the legitimate protection of right. We are not convinced that such is the case here.

And now, ninth December, 1920, the exceptions are dismissed, and the rule to set aside the sale is discharged.

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1876, May 1, P. L. 66, Insurance.

1855, April 26, P. L. 309, Limitation of Action.
1856, April 9, P. L. 293, Corporations...
1856, April 22, P. L. 533, Limitation of Actions.
1871, June 29, P. L. 1376, Execution..
1873, April 4, P. L. 26, Insurance....
1876, March 31, P. L. 13, County Officers.

1887, May 14, P. L. 108, Liquors.
1891, June 9, P. L. 257, Liquors.
1897, July 30, P. L. 464, Liquors.
1899, April 28, P. L. 118, Elections.
1901, April 19, P. L. 88, Replevin.
1901, May 1, P. L. 175, Boroughs.
1901, June 4, P. L. 357, Execution.
1905, April 14, P. L. 162, Fences...

50

244

302

130

175-172

307

173

211-165-158-113

164-114

164-114

63

186

345

130

47-44-41

1905, April 20, P. L. 235, Boroughs...

345

1907, May 23, P. L. 227, Desertion and Support.

350

1907, June 7, P. L. 440, Equity....

43

1909, March 11, P. L. 15, Non Alcoholic Drink..
1909, April 27, P. L. 182, Desertion and Support.
1913, May 9, P. L. 192, Common Schools...
1913, July 21, P. L. 867, Marriage....
1915, May 14, P. L. 483, Sec. 8, Practice.

162

350

320

350
337-249

1915, June 2, P. L. 763, Workingmen's Compensation

99-50-150-154-184-312

1915, June 5, P. L. 846, Municipal Corporation..
1917, June 28, P. L. 645, Fictitious Name.
1917, July 11, P. L. 832, Inheritance Taxes.

266

187

89

1919, June 16, P. L. 480, Non Alcoholic Drink...

162

1919. June 26, P. L. 642, Workingmen's Compensation. 184-135
1919, July 17, P. L. 995, District Attorney's...

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370

ACTIONS

MONTGOMERY COUNTY

Parties to,

Employer of plaintiff, under Sec. 319 Workmen's Compensation Act, is not a party to action against defendant for injuries received due to negligence of defendant. 22.

Recovery,

When law requires certain acts to be done recovery cannot be had when there has been a failure to comply with the act. 187.

AFFIDAVIT OF DEFENCE.

Sufficiency of,

Where vendee does all that can be done to comply with
agreement in the way of returning machine by follow-
ing directions of manager of branch office such acts on
vendee's part constitute a sufficient defence. 108.
An affidavit of defense which raises a question whether
contract is several, is for the jury and is sufficient. 195.
Under sales act when goods are found defective and sea-
sonable notice is given of such defect the defendant
has right to rescind contract and affidavit is sufficient.
195.

APPEAL.

Affidavit of defense setting up damages resulting from
plaintiff not fuilling contract as per stipulations follow-
ed by a rescission is sufficient. 202.

Where the Affidavit of defence does not comply with the
Practice Act it is insufficient. 246.

Where affidavit sets up an agreement as to rate of interest
of a mortgage upon which a sci fa was issued such
affidavit is sufficient to carry case to a jury. 322.
Where replevin is issued against one in possession of an
automobile and affidavit denies right of plaintiff then
claimant must establish his right of ownership. 324.
Where defence sets up another owner to fund which is in
nature of an interpleader affidavit is sufficient, and rule
for interpleader made absolute. 336.

Where affidavit raises question of law which cannot be sustained a supplemental affidavit may be filed. 339. Where defense sounds in tort judgment can be sustained as to amount admitted to be due. 354.

Time of Taking,

Appeal from Compensation Board from its decisions must be taken within ten days. 182.

Appeal from,

CHILD

Commonwealth cannot appeal from its own appraisement. 89.

Custody of,

The Court must decide in whose custody the best interest of child are served. 77.

COLLATERAL APPRAISEMENT.

Value of stock,

The value of stock for tax purposes is not its intrinsic value but is market value. 69.

CONSTITUTION.

Amendment of,

The constitution can be amended wherever approved by electors and such amendment is not restricted to once in five years, That only applies upon rejection of any proposed amendment. 253.

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