Thompson v. Rogers

The opinion of the court was delivered,

by Williams, J.

It was conceded by the court below that the plaintiff was not entitled to maintain this ejectment against the defendants under his parol contract with Zook, the purchaser of the land at the Orphans’ Court sale. But having paid a part of the purchase-money to the administrator, and having received from him a deed conveying the land 'to himself and Zook as tenants in common, the court was of the opinion that he might employ the action of ejectment to recover from the sheriff’s vendees of Zook’s equitable interest, the money which he had paid the administrator upon the Orphans’ Court sale. This would undoubtedly have been the case, if the title to the land had been vested in the administrator, and he had made the sale to Zook in his own right. Then upon his payment of the residue of the purchase-money and the conveyance of the legal title to himself the plaintiff would have been invested with all the rights of the administrator as owner, and might have maintained the ejectment to recover the purchase-money which he paid the administrator. But the administrator had no title to the land — and no authority to sell and convey it except what he derived from the law, and the order of the Orphans’ Court. He did not sell and convey the land by virtue of his title as owner, but as the officer of the law under the direction of the courts. The sale, which he made under its direction, was to Zook, and it was confirmed by an order of the court. Under the order, he was authorized to convey the land to the purchaser on payment of the purchase-money, and he had no right or authority to convey it to the plaintiff, either as sole tenant or tenant in common with Zook, and, consequently, no title passed to the plaintiff by his conveyance. The evidence shows that the conveyance was made without the knowledge or consent of Zook. If it had been made with his consent, in consideration of the payment of the residue of the purchase-money by the plaintiff, then Zook might have been estopped from denying his title. But the sheriff’s vendees of Zook’s interest are not estopped. The judgment, under which the sale was made, was obtained before the payment of any portion of the purchase-money by the plaintiff, and it is clear that, if the plaintiff took no title to the land under the deed of the administrator, he is not entitled to maintain the action to recover back the purchase-money which he paid. If he is not entitled to recover the land under his parol contract with Zook, he is without any remedy. Whether or not he is entitled to the undivided half of the land under his parol- contract is a question which does not arise on the conditional verdict, or under any of the assignments of error, and therefore its discussion would be out of place.

Judgment reversed and a venire facias de novo-awarded.