Drake v. Brown

| Pa. | Mar 30, 1871

The opinion of the court was delivered,

by Agnew, J.

These cases- were heard together, and may be embraced in one opinion. It is the settled doctrine in this state that all possible titles, vested or contingent, in real estate, may be taken in execution and sold, provided there he a real interest in the defendant in the execution, legal or equitable: Rickert v. Madeira, 1 Rawle 329; Humphreys v. Humphreys, 1 Yeates 427" court="Pa." date_filed="1795-01-15" href="https://app.midpage.ai/document/roe-v-humphreys-6308983?utm_source=webapp" opinion_id="6308983">1 Yeates 427; Hunt v. Lithgow, Id. 24; De Haas v. Bunn, 2 Barr 337. The fact, therefore, that Daniel Y. Drake’s estate was not to take effect until his youngest sister became of age, and that the levy and sale were made a few months before that time, will not render' the sale void. Under his father’s will, Daniel having survived Charles, was clearly entitled to the estate when it fell in to him, both in possession and in remainder. It is immaterial whether his interest in the property was vested or contingent, it was liable to his debts, and by the. sale of it William Brown, the purchaser at the sheriff’s sale, became entitled to it. It is also well settled, that a purchaser at sheriff’s sale is not bound to show more than his deed, and the proceedings under which it was made, to recover the pos session from the defendant in the execution: Green v. Watrous, 17 S. & R. 393, 398; Eisenhart v. Slaymaker, 14 Id. 153, 157; Little v. Delancey, 5 Binn. 270; Act of 16th June 1836,. §§ 106, 109, Purd. 450, pi. 129-132; It is evident, therefore, that Daniel Y. Drake, who was in possession of the land at the time of the levy and sale, and also when the ejectment was brought, had no defence to that action. He must yield up the possession to Brown, the purchaser at sheriff’s sale.

Judgment is therefore affirmed.

The sum of nine hundred dollars, directed to be paid by Daniel and Charles Drake to their sisters Nancy, Sarah and Mary, was evidently intended by the testator to be charged upon the land devised to Daniel and Charles, or the survivor. They were to have the land by paying this sum, and this sum was the share set apart for the girls out of the land, whether all lived or some died. This being the case, the sisters are entitled to receive their legacies out of the proceeds of the sheriff’s sale. Clearly Daniel V. Drake, the appellant, has no right to object to this. His title was extinguished by the sale, and the money necessarily must be applied to the encumbrances. If he had any objection to the sale of his interest in the land, it should have been made before, and not in the distribution of the proceeds.

Decree affirmed, with costs.