Cooper v. Wilson ( 1881 )

Mr. Justice Paxson

delivered the opinion of the court, January 24th 1881.

This is an admittedly hard case. The court below found as a fact that the property was worth from $3000 to $3500, and that it was sold -by the sheriff for $766. Upon the petition of the terretenant the court set aside the sheriff’s sale after the deed had been acknowledged and delivered to the purchaser, and the purchase-money paid. The order further directed the purchaser to deliver up his deed to the sheriff to be cancelled, without any direction for the return of the purchase-money until after a re-sale of the premises.

We must be careful that in order to -remedy a case of hardship we do not strain the law. Such cases always make bad precedents, and in the end do more harm than the particular mischief sought to be redressed.

It is a familiar principle that a sheriff s sale will not be set aside for mere inadequacy of price: Weitzell v. Fry, 4 Dallas 218; Carson’s Sale, 6 Watts 140; Swires v. Brotherline, 5 Wright 135. It is true in a clear case of inadequacy of price the court will seize hold of a slight irregularity to set aside" the sale. But mere irregularities are cured by the acknowledgment of the sheriff’s deed: Crowell v. Maconkey, 5 Barr 168; Spragg v. Shriver, 1 Casey 282; Shields v. Miltenberger, 2 Harris 76.

It is perhaps a subject of regret that the same rule does not prevail in regard to sheriff’s sales as has long existed in the Orphans’ Court, w'here inadequacy of price is recognised as a sufficient reason for setting aside a sale. But we must take the law as we find it.

We have looked through this record in vain to find something upon which we could sustain the action of the court below. The property was sold under a valid judgment, and upon legal process. The sale was duly advertised and a bill posted upon the premises. It is true no bill was posted upon the half -of the lot owned by Cooper, the terre-tenant. The writ followed the mortgage and described it as one property. We have no doubt that relief might have been granted for the -misdescription, had an application been made in proper time. But it was too late after acknowledgment and delivery of the deed and payment of the purchase-money. There must be a point of time when such irregularities are cured. The law fixes the acknowledgment of the sheriff’s deed as that time. Were we to relax this rule we might imperil titles.

There was no fraud on the part of the purchaser. The court below concedes that he contemplated no fraud until after the sheriff’s sale. If this be so, and there is nothing in the' case to gainsay it, the mere fact that the purchaser was disposed to hold on to an unexpectedly good bargain does not make out a case of such fraud as the law can recognise. It is a matter that he must settle with his conscience.

Nor can fraud be inferred from the confession of judgment upon the scire facias without the knowledge of the terre-tenant. The latter took the property subject to the mortgage. It was upon record and was a lien on his property. That he did not know of its existence is not to the purpose. He had record notice and that is sufficient. His ignorance upon this point was the result of his own negligence, and is the source of all his trouble. Had he examined his title when he acquired it he would have discovered the mortgage. This would have been notice that his property was liable to a sale by the sheriff at any time. While the law protects the rights of every citizen when arrested at the proper time and in the proper way, it cannot undertake to correct all the evils which are the result of supine negligence.

I have already adverted to the fact that while the order of court directs the purchaser to deliver up his deed for cancellation, there is no provision for a return of the purchase-money until after a resale of the property. In the meantime he is kept out of it as a species of forced loan. There is no authority for this, and yet it is manifest the court below could not have coupled the order for cancelling the deed with an order for the return of the purchase-money, for the reason that the money had been paid to the plaintiff in the writ. Having received it lawfully, and been guilty of no fraud it was beyond the power of the court below to order him to restore it. The effect of the receipt of the money by the plaintiff was to satisfy the writ as well as the judgment upon which it was issued. Both the writ and the judgment were dead, and in this state of the record it is difficult to see how they could be galvanized into life for the purpose of re-selling the property.

The record does, not show that notice of the application to set aside the sale was given to any one but the purchaser. Yet all the parties were entitled to notice. The order of court directs the sheriff to amend his return to the writ, upon a rule to which he was not a party, and of which he had no notice. For the truth of his return the sheriff is responsible upon his official bond. The sheriff may amend his return by leave of court, but I have never known him ordered to do so. We do not reverse, however, by reason of these irregularities; our object is to call attention to them that -they may be avoided in the future.

The order of June 27th 1879, setting aside the sheriff’s sale, is reversed at the costs of the petitioner.