King v. Gunnison , 1846 Pa. LEXIS 204 ( 1846 )

Coulter, J.,

after stating the case.—It has been decided by this court that a sale made by an administrator, in pursuance of an order of the Orphans’ Court, is a judicial sale, and that the rule of caveat emptor applies. Bashore v. Whisler, 3 Watts, 490; Fox v. Mensch, 3 Watts & Serg. 444. The same principle has been applied to sheriffs’ sales. Weidler v. Farmers’ Bank, 11 Serg. & Rawle, 134; Auwerter v. Mathiot, 9 Serg. & Rawle, 399; Friedly v. Scheetz, 9 Serg. and Rawle, 159. The defendant below was not without remedy, if he had sought it by an application to the Orphans’ Court before the sale was confirmed. In this action the decree of the Orphans’ Court must be considered as conclusive.

It has been the custom in Pennsylvania, from a very early period, to make sales of this kind without a contract in writing, signed by the administrator and purchaser, and without any other evidence of the sale in writing than the return of the administrator to the order of sale, and the confirmation by the court. A written contract between the administrator and the purchaser would be without value before the sale was confirmed, and totally useless when it was confirmed. The statute was not designed to operate on judicial sales, but upon contracts in the current of business, and sales between individuals.

In the analogous case of a sale by a sheriff this court has decided that it is not within the provisions of the statute. Cash v. Tozer, 1 Watts & Serg. 519.

When the sale is confirmed by the court, the amount bid becomes due from the bidder; and the proper measure of damages in this action was the amount bid at the sale, with interest from the time of payment prescribed in the order of&ale. In case of a resale, the purchaser would be liable to make [ good the deficiency. But why complicate the machinery of the transaction, when the more simple remedy does no injury to the purchaser, and only compels him to perform his contract.

Actions for the purchase money have often been sustained when brought by sheriffs. And the reason for sustaining an action for the amount bid at a sale, like the one in the present case, are as strong as those which apply to the sheriff’s sale.

Judgment affirmed.