Greenough v. Small, 137 Pa. 132

137 Pa. 132 | Pa. | 1890

Opinion,

Mr. Justice Clark:

On the 9th of April, 1880, George B. Youngman died intestate, seised, inter alia, of the premises in dispute. The plaintiff’s claim is for the undivided interest of one of the heirs at law of the decedent, sold upon execution and purchased by him at sheriff’s sale ; while the defendant’s claim is as a purchaser of the decedent’s title at an Orphans’ Court sale by the administrators for payment of debts: judgment was entered for the plaintiff. ' Whether this judgment was properly entered depends upon the decision of a single question, whether or not, after a sale of the decedent’s title, by the Orphans’ Court for the payment of debts, not yet confirmed but contested upon the ground that the personal estate is not insufficient for payment of the debts, an action of ejectment may be maintained against the purchaser for the interest of one of the heirs of the decedent. The Orphans’ Court sale was made 16th January, 1884: the ejectment was brought 16th November, 1886, and judgment entered 26th April, 1890, at which time the exceptions filed to the confirmation of the Orphans’ Court sale were still undisposed of.

It is well settled that an Orphans’ Court sale does not divest the title of the heirs, until after confirmation thereof and conveyance delivered under the order of the court. In ordinary sales under articles of agreement between private parties, the sale, as to the vendor, works a conversion; equity regards that as done which the parties to the agreement have the power to do, and which they have agreed to be done: Richter v. Selin, 8 S. & R. 440. But Orphans’ Court sales are made under the authority of the court; indeed, the sale is the act of the court, the administrator being only the hand of the court in making it: Armstrong’s App., 68 Pa. 409; and it is therefore subject to the approval and confirmation of the court. Such sales “ are liable to be vacated,” says Mr. Justice Strong, in Demmy’s App., 43 Pa. 168, “by a power superior to the purchaser, and against his will.. The sale, even after confirmation, does not divest the title of the heirs of the decedent, for it remains in the power of the court until a deed has been executed and delivered. Until then, the heirs’ right to maintain ejectment, even against the purchaser, has not gone: Leshey v. Gardner, 3 W. & S. 314. Until then, no conversion takes place, and if the heir of the decedent die, even subsequently to the'confirmation of the report of sale, but before the deed, his interest descends as land, and not as money: Erb v. Erb, 9 W. & S. 147; Biggert’s Est., 8 Har. 17. These cases recognize a clear distinction between sales made under order of an Orphans’ Court and private sales. The latter are exclusively acts of the parties, and are beyond the control of any other power. The former are not the acts of the decedent or his heirs or devisees; they are the acts of the court, and they require no consent of the owners. In substantial fact, the purchaser buys from the court through its agent. The court reserves the power to decline his bid, and to disannul the act of its agent, until the sale has been fully consummated.” To the same effect is Overdeer v. Updegraff, 69 Pa. 110; De Haven’s App., 106 Pa. 612. The bid of the buyer at an Orphans’ Court sale is but an offer to the court, which the court may or may not accept at its discretion: Hays’s App., 51 Pa. 58; if accepted, however, the title of the buyer may for some purposes, perhaps, have relation to the date of his purchase. An administrator’s sale of land, under an order of the Orphans’ Court for payment of debts, is worthless without confirmation, for the act of 1832 expressly requires it: Morgan’s App., 110 Pa. 271.

Even in the case of a sheriff’s sale, the title of the debtor is not divested, nor can the purchaser maintain ejectment, or grant a lease of the lands, until the deed has been acknowledged and delivered: Hall v. Benner, 1 P. & W. 402. It may be, as we said in Holmes’ App., 108 Pa. 23, although the title of the heirs is not divested, that the purchaser at an executor’s sale, under an order of the Orphans’ Court for payment of the decedent’s debts, like a purchaser at a sheriff’s sale, acquires an inceptive title or interest in the property at the time of the sale, which, if the sale be subsequently confirmed and a deed delivered, may support the lien of a judgment; but non con-stat that this sale will ever be confirmed, or a deed delivered. And certainly no one will seriously contend that this inceptive title, whether arising out of a sheriff’s sale or an Orphans’ Court sale, is sufficient to support a claim to the possession, prior to its consummation by the confirmation of the court and the delivery of a deed. If a purchaser, when the property is struck down to him, may at once enter into the possession pending proceedings for confirmation, great confusion and embarrassment in the settlement of estates would certainly ensue; for, as he could be dispossessed only by ejectment, the heirs or executors would be subject to much delay and useless litigation. It is not every equitable right or interest in lands, which entitles the owner of it to possession. In ordinary sales between individuals in their own right, a contract to sell does not ipso facto carry a right of possession until conveyance, unless the intention of the parties to that effect is manifest in the contract. “ It is very common, it is true,” says Mr. Justice Ag-new, in Weakland v. Hoffman, 50 Pa. 517, “to let tbe purchaser in upon a sale, but we know of no rule of law by which the possession, so important a security to the rights of the vendor, shall pass from him without his covenant or consent.” See, also, Smith v. Patton, 1 S. & R. 84; Baum v. Dubois, 43 Pa. 260; Irvin v. Bleakley, 67 Pa. 28; and also the very recent case of McGrew v. Foster, 113 Pa. 642.

We are of opinion that the learned judge of the court below was right in his instruction to the jury, and that the judgment was properly entered.

Judgment is affirmed.