Levan v. Millholland

| Pa. | Oct 4, 1886

Mr. Justice Sterrett

delivered the opinion of the court,

Both parties to this action of ejectment claim under Andrew F. Miller, who, in 1868, devised the land in controversy to his wife and sister for their joint lives and the life of the survivor, with remainder in fee to the children of Albert Miller, who were then minors, but are now adult plaintiffs, claiming as devisees in remainder. The defendants claim through a sheriff’s sale on a judgment against the administrator de bonis non, etc., of Andrew F. Miller, the devisor, with the notice to his devisees for life and in remainder.

In the suit against the administrator, the summons was returned b} the sheriff, served on the administrator, de bonis non, etc., the life tenants, and “ Francis Bright, guardian of the minor children of Albert Miller.” Arbitrators, chosen after due notice, awarded in favor of plaintiff and against the defendants in that suit. The award, unappealed from, had all the effect of a formal judgment de terris. A writ of fieri facias was issued, and in due .course a writ of venditioni exponas was issued, on which the property was sold to Benjamin Tyson for $7,800. The purchase-money having been paid to the sheriff, part of it was applied to judgments obtained against Andrew F. Miller, the devisor, in his lifetime, and the residue was ordered paid to the administrator de bonis non, etc., upon giving bond, as required by Act of Assembly.

Under the devise to them in remainder, plaintiffs, of course, have a prima facie case; but defendants, having acquired title by mesne eonvej-anees from the purchaser at sheriff’s sale, contend that they are invested with such title as the devisor bad-at and immediately preceding his decease, and consequently the title, which otherwise would have been complete under the devise, was divested by the sheriff’s sale. This position is undoubtedly correct, unless there is some radical defect in the judgment itself, or in the proceedings thereunder, that rendered the sheriff’s sale not merely irregular and voidable, but absolutely void.

It is claimed by plaintiffs, in the first place, that thejr were improperly joined as defendants in the original suit against the administrator, de bonis non, and for this they rely mainly on what was said in Atherton v. Atherton, 2 Pa. St., 112, as to the proper practice in such cases. The Act of 1834 provides that, “in all actions against the executors or administrators of a decedent, who shall have left real estate, where the plaintiff intends to charge such real estate with the payment of his debts, the widow and heirs or devisees, or the guardian of such as are minors, shall be made parties thereto,” etc. The course for such in the case at bar would appear to be strictly conformable to the Act; but, assuming the correct practice to be as stated in the case above cited, making the devisees defendants with the administrator de bonis non, was at most an error in practice which might have been corrected, but which, passing unnoticed, did not affect the validity of the judgment. The court undoubtedly had jurisdiction of all the parties as well as of the subject matter; and conceding, for the sake of argument, that there were irregularities, or even errors, that might have been corrected if they had been complained of in time, it does not follow that either the judgment or the proceeding thereunder was void. That question has been so often considered and uniformly decided against the contention of plaintiffs, that it is useless further to discuss the matter.

Another ground of objection to the judgment, not apparent on the face of the record, is that the devisees in remainder— the present plaintiffs — had no guardian at the time the summons, according to the return of the sheriff, purports to have been served on “Francis Bright,guardian,” etc.,and they proposed to prove in direct contradiction of the sheriff's return, that such was the fact. It is scarcely necessary to say that the conclusive effect of the sheriff’s return cannot be evaded in that way. If it could, what security would there be in titles based on sheriff’s and other judicial sales? The most that can possibly be said of the judgment, on which the property was sold, is that it might have been reversed, if its regularity had been called in question; but, even the reversal of the judgment after the sale could not affect the title of defendants as purchasers at the sheriff’s sale. The Act of 1705, provides, “That, if any of the said judgments which do or shall warrant the awarding of the said writs of execution, whereupon any lands, tenements or hereditaments have been or shall be sold, shall at any times hereafter be reversed for any error or errors, then and in every such case, none of the said lands, tenements or hereditaments, so as aforesaid taken or sold, or to be taken or sold upon executions, nor any part thereof, shall be restored, nor the sheriff’s deed or delivery thereof awarded; but, restitution in such cases only of the money or price for which such lands were or shall be sold.”

The record of the judgment in question discloses nothing that was clearly erroneous, certainly nothing that rendered the judgment void, or insufficient to sustain the execution. Being thus regular on its face, the purchaser was not bound to inquire as to the truth of what is there averred. He had a right to accept all the essential averments as -verity. In Spear v. Sample, 4 Watts,376, it was adjudged that “an execution issued upon a judgment after the death of the defendant, is not absolutely void, but only voidable, and a sale of land upon such execution vests in the purchaser a good title.” In the interest of debtors and on grounds of public policy, courts have alwajs inclined to sustain judicial sales, especially when made under the judgments or decrees of courts possessing general jurisdiction of the subject and after being fairly carried into execution. After acknowledgment of a sheriff’s deed in open court the title of the sheriff’s vendee cannot be affected b}'- mere irregularities however gross: McAfee v. Harris, 25 Pa. St., 102. The same principle is reiterated in many cases, among which are, Wilkinson’s Appeal, 65 Pa. St., 189; Atkinson v. Jawlinson, 91 Id., 284; Henisly v. Chambers, 103 Id., 172. In Wilkinson’s Appeal supra, an execution had been issued on award of arbitrators immediately after filing the award and before the time for appeal had elapsed, and the court in sustaining the sheriff’s sale made by virtue of the execution said, “ it is settled if anything can be, that an erroneous judgment or an irregular execution — not void — can be set aside only by direct and appropriate action by parties having an interest in the same and not by a collateral attack under care of any other proceeding.

A return of nulla bona to the writ of fieri facias was not a prerequisite to the issuing of the venditioni exponas.

It is unnecessary to notice the remaining specifications of error. There is no merit in either of them.

Judgment affirmed.