Media Title & Trust Co. v. Kelly , 185 Pa. 131 ( 1898 )

Opinion by

Mb. Justice Gbeen,

This is an appeal from an order of the court below setting aside a sheriff’s sale of lands of the defendants. The sale was made on July 3,1897. On July 6,1897, the sheriff’s deed was duly acknowledged in open court and was delivered to the purchaser. The whole of the purchase money was paid by the purchaser prior to the acknowledgment of the deed, partly in cash and partly by the proper receipt of the purchaser as first lien creditor on the sheriff’s docket. On July 13, 1897, the defendants in the execution presented a petition to the court below to have the sale set aside, and November 3, following, the rule to set aside the sale was made absolute. On November 8, the plaintiff presented a petition to have the order setting aside the sale revoked, and on January 7, the court filed a modified order vacating the record of the acknowledgement and delivery of the deed, and directing the deed to be delivered up for cancelation, the refunding of the hand money paid by the plaintiff as purchaser, and discharging the rule for the revocation of the decree made November 3, 1897.

The exceptions to the sheriff’s sale were that a large portion of the land in question, a tract of seventy-one acres, had been subdivided into streets and building lots; that the part not subdivided contained a valuable stone quarry, and that neither the subdivision into lots nor the stone quarry was mentioned in the advertisement of the sale. It was also objected that the sale was not advertised as required by law, and that the price realized at the sale was grossly inadequate, but no offer of any higher price was made. The court below' without filing any opinion made absolute the rule to set aside the sale and the question is whether there was error in this ruling. The appellant contends that it was too late to set aside the sale for irregularities or inadequacy of price after the acknowledgment and delivery of the sheriff’s deed. The rule upon this subject seems to be very well settled. Thus in Cooper v. Wilson, 96 Pa. 409, which we regarded as an extremely hard case, and would have relieved if it were possible to do so, we said, “ It is a familiar principle that a sheriff’s sale will not be set aside for mere inadequacy of price: Weitzell v. Fry, 4 Dall. 218; Carson’s Sale, 6 Watts, 140; Swires v. Brotherline, 41 Pa. 135. It is true in a clear case of inadequacy of price the court will seize hold of a slight irregularity to set aside the sale. But mere irregularities are cured by the acknowledgment of the sheriff’s deed: Crowell v. McConkey, 5 Pa. 168; Spragg v. Shriver, 25 Pa. 282; Shields v. Miltenberger, 14 Pa. 76. . . . We have no doubt that relief might have been granted for the misdescription, had an application been made in proper time. But it was too late after acknowledgment and delivery of the deed and payment of the purchase money. There must be a point of time when such irregularities are cured. The law fixes the acknowledgment of the sheriff’s deed as that time. Were we to relax this rule we might imperil titles.”

In Evans v. Maury, 112 Pa. 300, which was a case of alleged fraud upon the defendant in the execution, we held that, after a sheriff’s sale has been confirmed, the purchase money paid, the deed acknowledged, recorded and delivered to the purchaser) and possession of the premises taken by him, the ■ court has no power, upon a rule to show cause, to set aside the sale and compel the purchaser to deliver up the deed to be canceled. The delivery of the deed by the sheriff, after it has been properly acknowledged, the sale confirmed and the purchase money paid, vests the title in the purchaser. It is a good title until it is proved that he procured it by fraud upon the defendant in the execution. This must be done either in an action of ejectment or by bill in equity.

In both the foregoing cases the sale was set aside by the court below, but the orders were reversed by this Court.

It is contended by the appellees that the record does not disclose any special order of the court fixing July 6, 1897, as a day for the acknowledgment of deeds, and hence the acknowledgment in this case was void. It is not claimed that there was no such order, but only that the record does not disclose it. It is only necessary to say that this contention entirely ignores the rule, omnia prsesumuntur esse rite acta, and hence is entitled to no consideration. Certainly it must be presumed in the absence of evidence to the contrary that, in so important a matter as the acknowledgment of sheriff’s deeds, to be done formally in open court, and upon which the titles to all lands sold by the sheriff depend, the court acted rightly and strictly in accordance with its own rules. This point does not appear to have been made in the court below, and hence the necessity of being prepared with proof on this subject was not apparent to the appellant. But as no proof is required to show that the court obeyed its own rules, the proposition that it did not do so would require much more proof than the mere assertion of counsel that the record did not disclose it affirmatively. However, the counsel for the appellant has furnished us with the official certificate of the prothonotary of the court below, by which it appears that on Juno 21, 1897, the court did make a formal order for the holding of a court on July 6, following, for the acknowledgment of sheriff’s deeds, the confirmation of accounts and the transaction of miscellaneous business. The certificate further shows that on July 6, named in the order, the sheriff appeared in open court and acknowledged fifteen deeds for as many different properties, among which was the deed in question in this case. It would be useless therefore to entertain the suggestion made by counsel for the appellees that the record does not disclose the fact, when in truth it does make that disclosure. We cannot discover any sufficient reason for setting aside the sale in this case and, therefore, sustain the assignments of error.

The order of November 8, 1897, making absolute the rule to set aside the sheriff’s sale, and the order of January 7, 1898, vacating the record of the acknowledgment and delivery of the sheriff’s deed, and directing that the same should be surrendered for cancelation, are reversed and set aside at the cost of the appellees.