Holmes' Appeal , 1885 Pa. LEXIS 290 ( 1885 )

Chief Justice Mekcub,

delivered the opinion of the court January 5th, 1885.

This is a case of the distribution of a fund produced by a Master’s sale of the l’eal estate of C. Ihmsen, Jr. The contention is, as to the time when he acquired an estate in the land, which would be bound by the lien of a judgment entered against him.

The controlling facts are these: He bought the property at a sale, made on the 1st of September, 1877, by the executrix of Wm. Ihmsen, deceased, under an order of the Orphans’ Court, for the payment of debts. The order was returnable on the 15th of the same month and was then duly returned. On or before that day he paid the whole amount of his bid, some $1,324 thereof in cash, and the residue of the purchase money by giving to the executrix his receipt therefor, as a lien creditor, under the Act of 20th April, 1846, Purd. Dig. 655, pi. 104. Exceptions to the confirmation of the sale were filed by. persons interested therein. A decision thereon was delayed until the 5th June, 1880. They were then dismissed, the sale finally confirmed, and the executrix directed to deliver a deed to the purchaser. On the 16th June, the deed was delivered to him, and on the day following he conveyed the property, to the appellant.

After the sale and return thereof, but before the final confirmation and delivery of the deed, to wit, on the 15th July, 1879 and the 12th March,' 1880, respectively, the appellees recovered judgments against the purchaser. The court held them to be liens on the land and decreed accordingly. This appeal is from that decree.

It is well settled that a purchaser at a sheriff’s sale acquires an inceptive title or interest, at the time the property is struck down to him, such an interest as may be bound by the lien of a judgment against him, provided the sheriff’s deed has afterwards been duly acknowledged and delivered: Morrison v. Wurtz, 7 Watts 437; Slater’s Appeal, 4 Casey 169. Although in case of a sheriff’s sale the title of the debtor is not divested, nor can the purchaser maintain ejectment until the deed has been acknowledged and delivered, yet after it has been, it relates back to the time the land was struck down to the purchaser, for all purposes of lien against him. In Bashore v. Whisler, 3 Watts 494, it was said that a sale by an administrator under an order of the Orphans’ Court for the payment of debts, is a judicial sale, and that the principles which govern the one are applicable to the other: Potts v. Wright, 1 Norris 498. It was therefore held in Robb v. Mann, 1 Jones 800, that while such a purchaser could not maintain trespass between the sale and the confirmation thereof because he was not in the actual possession of the premises, yet he might maintain case against a wrongdoer for any injury done to the land during that interval of time. \

A judgment against the equitable estate which a vendee holds under articles of agreement for the sale and purchase of lands, attaches to, and binds the legal estate, the instant it vests in the vendee: Lynch v. Dearth, 2 P. & W. 110; Episcopal Academy v. Frieze, 2 Watts 16; Foster’s Appeal, 3 Barr 80; Lyon v. McGuffey, 4 Id. 128; Waters’Appeal, 11 Casey 523. Conceding this to be so, and the law to be as we have stated in regard to a lien on the inceptive title acquired by a purchaser at sheriff’s sale on the property being struck down to him, yet the appellants contend this rule is not applicable in case of a sale made under an order of the Orphans’ Court. They claim such a sale partakes of the characteristics of a sale made by a Master in chancery. It is true it has been held in a sale made by a Master the purchase is not complete before confirmation of his report, and that a loss by fire after report of sale and before confirmation, must fall on the vendor: Minor Ex parte, 11 Vesey Jr. 559. Admitting that a bidder before the Master has no certain interest in, and is not conclusively fixed with any responsibility with respect to the subject of purchase, yet in foot notes to same case it is said “ it would rather seem from the cases of Davy v. Barber, 2 Atk. 490, and of Blount v. Blount, 3 Id. 638, if the report be ultimately confirmed, it will have relation back to the time of purchase, whatever contingencies may have occurred in the interim, either increasing or diminishing the value.” That such is the effect of the confirmation is declared in Esdaile v. Stephenson, 1 Sim. & Stu. 123; Paine v. Meller, 6 Ves. Jr. 349; Seton v. Slade, 7 Id. 274.

Although there be some want of harmony both in the English and in the Pennsylvania authorities on the question we are considering, yet perhaps it arises principally from a difference in the facts of the several cases. In some of them the time of payment was of the essence of the contract. In others the purchase money was not to be paid, until on or after confirmation.

It is further urged that Demmy’s Appeal, 7 Wright 155, holds that the same rule applies to the purchaser at an Orphans’ Court sale, that does to one buying at the sale of a, Master in Chancery. It is so stated there, in the opinion of Mr. Justice Strong, and he does not assent to some of the remarks of Mr. Justice Rogers in Robb v. Mann, supra. Much that was.said in-Demmy’s Appeal was predicated of the facts of the case. The purchase money had not been paid, except the sum required on the property being struck down. No right of a lien creditor of the vendee was involved. It was solely a question between the purchaser on the one side, and the widow and heirs of the decedent on the other. The confirmation of the sale had been delayed at the instance of the widow and heirs, until after a loss by fire occurred, destroying more than one half of the value of the property. The purchaser had been prevented from taking possession of the property at the time fixed in the order and in the conditions of sale. After the fire they, desired the sale to be confirmed. The court held, under the facts, it would be inequitable to force the purchaser to take the property.

So in Leshey v. Gardner, 3 W. & S. 314, no question arose as to the validity of a lien against the vendee. Although the sale had been confirmed, yet the vendee had not received a deed, nor had he paid the purchase money. A third party in no manner interested in that sale attempted to defeat the legal title of one claiming through the former owner.

Neither of these cases, nor any other cited by the appellant, was decided on facts like those in the case now before us. Here all the purchase money was paid on the return of the order of sale, and presumably according to the order of court and the conditions of sale. Nothing remained to be done .on the part of the purchaser. He had performed all that was required of him. He was in no default.

Farmers Mutual Ins. Co. v. Graybill, 24 P. F. S. 17, was the case of a sale by an administrator of the real estate of a decedent, the buildings thereon being insured, under an order of the Orphans’ Court for the payment of debts. After the sale, but before the return day of the order of sale, the buildings were burned. It was held the action on the policy was rightly brought in the name of the administrator of the former owner to the use of the vendee, and that the latter had sufScient interest to give notice of the loss. The sale was confirmed six weeks after the fire. By the terms of the sale the purchase money was not payable until a certain day, which in fact, was forty days after the confirmation. The deed was made nearly sixty days after the loss. This was a distinct recognition of some interest in the purchaser before any confirmation of the sale, and before the payment of any of the purchase money.

In the present case the purchaser had fully complied with all the terms and conditions of sale prescribed by the court, and announced by the administrator. He had paid all the purchase money required to entitle him to a deed. He had acquired the whole equitable estate. The legal title only remained in the administrator. The latter held that in trust for the purchaser, awaiting the action of the court’s confirmation. When that was obtained it gave the purchaser a right to demand a deed, which should confirm all the equities acquired under his bid, and payment of the purchase money. It follows that when- the appellees obtained their judgments against the purchaser, he held an equitable estate in the land, to which the liens of the judgments attached, and the court decreed correctly.

Decree affirmed and appeal dismissed at the. costs of the appellant.