196 A. 18 | Pa. | 1937
Plaintiff, obligee in a bond executed by defendant, entered judgment and issued execution, the levy being made on five parcels of real estate, of which three were covered by the mortgage securing the bond. On January 6, 1936, the five parcels were sold to plaintiff at sheriff's sale for a nominal sum. The sheriff's deed was recorded on January 25. On March 16, plaintiff filed his petition asking for a citation upon defendant to show cause why the latter should not deliver up possession. An answer was filed but subsequently withdrawn by defendant as the result of an agreement of settlement, and judgment for possession was entered for plaintiff. Finding, however, that the agreement had been the result of a misunderstanding, defendant obtained a rule to show cause why this judgment should not be opened. He contended (1) that under section 1 of the Deficiency Judgment Act of July 1, 1935, P. L. 503, there should first have been a sale of the property covered by the mortgage before other parcels of his real estate were levied upon and sold; and (2) that the price obtained at the sale was grossly inadequate. The court discharged the rule, and on January 2, 1937, the sheriff delivered possession to plaintiff. On the present appeal defendant has filed three assignments of error, but the first two refer to proceedings not part of the present case and must be quashed. The third assignment challenges the order discharging defendant's rule.
As to the first ground relied upon by defendant, it is sufficient to say that in Shallcross v. North Branch-SedgwickB. L. Association,
As to the inadequacy of the price realized at the sale, it was held at least as early as in M'Culloch's Case, 1 Yeates 40, and down through an almost continuous succession of cases to the present time,1 that a sheriff's sale would not be set aside after the deed was acknowledged and delivered,2 except for fraud or want of authority to make the sale, in which cases relief might be had through an action in ejectment, or perhaps by a bill in equity,3 or possibly, under the Act of April 20, 1905, P. L. 239, by way of defense in proceedings for possession. The distinction is pointed out in detail in Vanernan v. Cooper, 4 Clark Penna. Law Journal Rep. 371, between irregularities in the proceedings, misdescriptions of the property, the sale of several tracts as an entirety, defect of title, and similar objections, on the one hand, all of which are foreclosed as defenses by delivery of the sheriff's deed, and, on the other, attacks upon the sale on the ground *305
that it was unauthorized, or vitiated by fraud, in which cases the right of redress survives such delivery. Inadequacy of price is an objection that can be raised only by a rule to set aside the sale taken before acknowledgment and delivery of the deed, and it cannot be set up as a defense to a demand by the purchaser for possession: Lyle v. Armstrong (No. 2),
Defendant contends that he was misled by "fraud" into withdrawing his answer to plaintiff's petition for possession. No basis for such a charge is presented, and, in any event, it would not affect the integrity of the sheriff's sale, at which, it may be noted, defendant himself was present. The most that defendant could claim would be that his petition to open the judgment should be regarded as an answer to plaintiff's petition for possession, *306 and we have so considered it. For the reasons stated, however, it furnishes no adequate defense in these proceedings.
The order of the court below refusing to open the judgment is affirmed.