Ramsay v. Hersker

Opinion by

Mr. Chief Justice Paxson,

The appellant is the assignee of Jonas Hein in trust for the benefit of the creditors of the latter. In pursuance of an order of the court of common pleas, he proceeded to sell at public sale, on the terms and conditions set forth in said order, the real estate of his assignor for the payment of debts. The property designated as No. 2, in said petition, was sold to John Hersker, the appellee, for the sum of $2,155, subject to the claim of the Philadelphia & Reading Coal and Iron Company for unpaid purchase money, amounting to $245.33. The appellee failed to comply with the terms of sale, and refused to accept the property struck down to him at his bid. Whereupon the appellant obtained an order of court to resell the same. At the second sale the property brought less than the bid of the appellee at the first sale, and this suit was brought by the appellant against him to recover the difference.

The appellee was not obliged to take the property at his bid unless he got a good marketable title. We think there were irregularities in regard to the first sale which justified the appellee in declining to take the title. One was, that the notice given of the sale did not comply with the law. The statute requires that the notice of sale must be given for twenty days, whereas in this case only fifteen days notice was given. There were other irregularities referred to by the court below which we need not pass upon, for the reason that, conceding the first sale to be regular, the plaintiff is not entitled to recover. In the first place, the sale to the appellee was not reported to and confirmed by the court. Until this is done the sale by the assignee under the order of court is not complete. In this it is unlike a purchase at a sheriff’s sale which requires no confirmation. A sale by an assignee is substantially subject to the same control of the court as one made by an administrator. Carver’s Ap., 89 Pa. 276; Tomlinson’s Ap., 90 Id. 224; Herbst’s Ap., Id. 353; Burkholder’s Ap., 94 Id. 522; Appeal of the Brownsville’s Deposit and Discount Bank, 96 Id. 347.

Aside from this, the variance between the nature and character of the title sold at the first sale, and that sold at the last sale, and also in the description of the buildings and improvements as advertised and sold at the two sales, is fatal to the plaintiff’s right to recover in this case.

At the first sale the assignee advertised and sold a complete and absolute legal title. At the second sale he sold only the right, title and interest of the assignor in the same. The fact that the title was thus described at the second sale was calculated to cast a cloud upon it. At the first sale the property was advertised as having two slaughter houses upon it; at the last sale it was sold as having only one. Where the resale is not on the terms of the first the basis is shifted and the first purchaser cannot be held liable: Weast, Assignee, v. Derrick, 100 Pa. 509. The second sale must not be clogged with any terms likely to lower the price, as by requiring the purchaser to give a judgment bond instead of the plain bond before required: Paul, Executor, v. Shallcross, 2 Rawle, 332. Or where the first sale was half cash and half in one year, and the second sale was for all cash: Banes v. Gordon, 9 Pa. 426. “ It is very clear that a defaulting purchaser at sheriff’s sale is not liable to respond in damages for loss on resale of the property, if it appears that under the first sale he would have acquired a more valuable title than that which passed to the purchaser at the last sale, or that the terms of the first sale were more advantageous to the purchaser than those of the resale. The obvious reason of this is, that the inferior quality of the title, or the less advantageous terms of sale would naturally effect a reduction of price, and we would be left without any reliable standard bjr which to measure the loss sustained by the refusal of the purchaser at the first sale to make good his bid.” Hare v. Bedell, 98 Pa. 485. We need not multiply authorities.

Judgment affirmed.