25 A.2d 612 | Pa. Super. Ct. | 1941
Argued November 19, 1941. This is an appeal from an order refusing to set aside a sheriff's sale of real estate. The premises sold were levied upon as the property of defendant, Fanny Meray, being a farm of five contiguous tracts, comprising forty-six acres of land. She had acquired title to the land from her mother, Fanny Meray, one of the appellants, by deed dated August 16, 1929, absolute on its face, purporting to convey a fee simple estate. Her deed was duly recorded and the record title to the entire farm remained in her to the time of the sale. She, with her brother, Eugene Meray, had given a note for $200 to the plaintiff on December 9, 1929, and the sale *286 of her land by the sheriff was upon an execution issued on the judgment entered thereon. At the sale plaintiff bid $421.57, being the amount of the debt with interest, costs and unpaid taxes. Thereupon, John Strand a stranger to the proceeding, bid $422 and the land was struck down to him, that being the highest and best bid. The sheriff's deed to him was acknowledged before the prothonotary, whereupon Wilma Miller, a sister of defendants, filed exceptions to the confirmation of the deed and, later, petitioned to set aside the sale, in which her mother the other appellant joined, alleging in effect: That the deed to Fanny Meray, though absolute in its terms, was upon an oral trust, for the maintenance of her mother for life with remainder to her children; that prior to the conveyance of the whole farm to Fanny Meray, her mother had conveyed a part of the land known as tract number 5 to Wilma Miller, the exceptant, in fee simple "but the deed for the same which had been prepared, executed and acknowledged . . . . . . was lost or mislaid and not recorded." It is also contended that the purchase price of $422 was grossly inadequate; Wilma Miller offered to produce a bidder able and willing to pay $500 for the land exclusive of tract number 5 and subject "to the equities of the mother."
The issues were before the lower court on the petition of appellants and the answers of the purchaser and the plaintiff in the execution. The order will be affirmed. Appellants were strangers to the judgment and the writ and they have no standing to question the validity of the sale.
It is a fundamental principle that, on the sale of land upon execution, strangers to the record may not attack the sale except for collusion amounting to fraud. "It has long been settled that, though a judgment may be set aside or be reversed on error, for irregularity, it cannot be impeached collaterally, except upon proof of fraud; Heister v. Fortner, 2 Binn. 40; Lewis v. Smith, *287
2 Serg. Rawle, 142; Anderson v. Neff, 11 Serg. Rawle, 208;Stewart v. Stocker, 13 Serg. Rawle, 204; and were this otherwise, it is certain that third persons, though they be judgment-creditors, cannot take advantage of such irregularities:Meason's Estate, 4 Watts, 341; Hauers's Appeal, 5 Watts Serg. 473; Lowber Wilmer's Appeal, 8 Watts Serg. 389; Dougherty'sEstate, 9 Watts Serg. 197": Dickerson and Haven's Appeal,
There is no merit in appellants' contention that the Act of April 22, 1905, P.L. 265, 12 PS 2536, supplies a new remedy for the adjudication of a disputed title in a summary proceeding on exceptions and rule to set aside a sheriff's sale. The Act is procedural and merely extends the time within which one interested may file exceptions or move to set aside the sale.Warren Pearl Works v. Rappaport et ux.,
The order is affirmed. *289