376 Leaming v. Wise, 73 Pa. 173, 517 | McGrew v. Stone, 53 Pa. 436, 508 Leather Manufacturers' Bank v. Morgan, 117 U. S. 96, Lebanon, etc., Co. v. Kepler, 106 Pa. 28, ()'BRIEN v. People, 28 Mich. 264 507 Leister's Appeal, 20 WEEKLY McKnight v. Kreutz, 51 Pa. O'Brien v. Railroad Co., 119 381 480 v. Spangler, 57 39 Miss. 818, 119 Omslaer v. Traction Co., 168 352 242 51 404 284 Michael v. Crescent Pipe Line 20 Lochman v. Brobst, 102 Pa. 481, 81 Mickley's Estate, 4 Pa. Super. 553 77 Patrick v. Bingaman, 2 Pa. Su- 503 508 Lowe v. Fox, L. R. 15, Q. B. 118 12 Paul v. Virginia, 8 Wall. 168, 403 216 Pearce v. Wilson, 111 Pa. 14, 473 Pearsoll v. Chapin, 44 Pa. 9, 517 Pennock v. Hoover, 5 R. 291, 203 People v. Bush, 4 Hill 133, 141 Peterman's Appeal, 76 Pa. 116, 435 Peters v. Horbach, 4 Pa. 134, 569 Philadelphia v. Dyer, 41 Pa. 463, 104 Lowe V. Wartman, 1 Cent. Lowenberg v. People, 27 N. Y. Moers v. City of Reading, 21 36 394 Phila. Brick Co. v. Johnson, 162 Pa. 199, Phillips v. Hall et al., 160 Pa. 60, 81 529 Phillips v. Meily, 106 Pa. 536, 418 Phillips v. Phillips, 48 Pa. 178, 23 42 Phillips v. Traction Co., 183 Pa. 255, 529 536 Pierce v. Post, 6 Phila. 494, 132 Piollet v. Simmers, 106 Pa. 95, 530 Pitkin v. Pitkin, 7 Conn. 307, 242 Pittock v. O'Niell, 63 Pa. 253, 572 Pittsburgh, etc., Ry. Co. v. Taylor, 104 Pa. 306, Plan 166, 143 Pa. 414, 136 Rep. 92, Maul v. Rider, 59 Pa. 167, 503 490 103 NAG JAGLE v. Railroad Co., 88 427 530 103 National Bank's Appeal, 57 Pa. Nottes's Appeal, 45 Pa. 361, 196 Nuding v. Urich, 169 Pa. 293, 357 104 Price v. Price, 91 Iowa 693, 333 Printing Co. v. Rice, 106 Pa. 623, 263 51 24 Q' UINLAN . Pew, 56 Fed. Rep. 111, 525 100, RAILING v. Com'th, 110 Pa. 569 Railroad Company's Appeal, 104 Pa. 399, 422 Rex v. Rogers et al., 3 Burr. Prior v. Craig, 5 S. & R. 44, 44 Rex v. Hickman, 1 Moody 34, 141 Schuylkill Nav. Co. v. Tho- burn, 7 S. & R. 411, Schwab v. Berggren, 143 U. S. 442, 20 76 72 525 141 132 394 76 53, 381 Railroad Co. v. Kerr, 62 Pa. 353, 508 Reynolds v. Cridge, 131 Pa. 502 Seeley v. Traction Co., 179 Pa. 334, Seibert v. Levan, 8 Pa. 383, Seiple v. Seiple, 133 Pa. 460, 76 Selden v. Williams, 9 Watts, 81 12, 196 39 Sellers's Estate, 82 Pa. 153, 435 129 Seyfert et al. v. Lowe, 7 WEEKLY NOTES, 368 23 536 39, Sexton v. Wheaton, 1 Am. Lead. Cases, 17, 502 235 225, 475 Railroad Co. v. Wilcox, 48 Pa. 161, 271 Railroad Tax Cases, 13 Fed. 538 Railway Co. v. Ellis, 165 U. S. 150, 538 20 365 Rauch v. Lloyd, 31 Pa. 358, 235 553 Reck's Appeal, 78 Pa. 432, 9. Reiber v. Boos, 110 Pa. 594, 142 Roberts v. Austin, 5 Wh. 313, 141 548 Smith v. Com'th, 54 Pa. 209, 141 88 39 Reinhard v. Keenbartz, 6 180 Watts 93, 192 Reitenbaugh v. Ludwick, 31 Pa. 131, 394 SAC Reltenbaugh v. Railroad Co., 21 Pa. 100, Respublica v. Dallas, 3 Yeates 300; 4 Dall. 229, ACKETT v. Spencer, 65 Pa. 235 137 Rex t. Brice, 18 E. C. L. 196, 188 School Trustees v. Bennett, 27 Rex v. Cohen et al., 2 E. C. L. 197, Rex r. Derrington, 2 C. & P. 128 23, 418, 250 Schultz v. Asay, 10 WEEKLY Rex r. Ellis, 9 Dow. & Ry. 174, 142| Silva, 125 U. S. 247, 12 State v. Lyon, 39 Iowa, 379, State v. McDowell, Dudley (S. Car.) 346, State v. Oscar, 13 La. An. 297, 264 289 192 525 Stell's Appeal, 10 Pa. 149, Sterrett's Appeal, 2 P. & 422, 81 446 19 State v. Boardman, 64 Me. 525, 264 Thompson v. Stitt, 56 Pa. 156, 432 State v. Bowers, 15 L. R. A. Thorne v. Insurance Co., 80 199, 141 Pa. 15, State v. Brunell, 29 Wis. 435, 264 Thornton v. Insurance Co., 71 State v. Cardwell, 95 N. C. Pa. 234, 643, 77 Tindle's Appeal, 77 Pa. 201, 264 Tisch v. Utz, 142 Pa. 186, Title Company v. Gray, 150 Pa. 255, Tome's Appeal, 50 Pa. 285, 132 76 Toney v. State, 60 Ala. 97, 264 State v. Smith, 29 Minn. 193, 264 Township of Crescent v. AnState v. Smith, 83 N. C. 306, 119 State v. Watkins, 9 Conn. 47, 142 State v. Wentworth, 37 N. H. 218, Stauffer v. Young, 39 Pa. 455, Steamship Co. v. Hill Mfg. Co., 109 U. S. 578, Steckman v. Schell et al., 130 Pa. 1, Stabler v. Com'th, 95 Pa. 318, 141 Thompson v. Chase, 2 Grant, Wegman v. Smith, 16 WEEKLY 41 119 German-American 166 Bank, 73 N. Y. 424, 151 305 483 502 95 234 derson, 114 Pa. 643, 427, 548 W. 446 Stewart's Estate, 147 Pa. 383, 327 UHLER v. Maulfair, 11 Harris, 481, 123 Wilhelm, Sheriff v. Fayette County, 168 Pa. 462, 135 Wilson's Appeal, 115 Pa. 101, 446 Wilson v. Ins. Co., 174 Pa. 557, 540 Wilson v. Ott, 173 Pa. 253, 418 Wilson v. The Tuscarora, 25 Pa. 317, 24, 396 Wilson v. Wilson, 142 Pa. 247, 132 103 Wimmer's Appeal, 1 Whart. 96, 76 533 Winchele v. Edwards, 57 Ill. Strause v. Braunreuter, 4 Pa. 163 Winchester v. Bennett, 54 Pa. 510, 24 335 Strawbridge v. Bradford, 128 W 530 ADLINGER v. Washing- Winsmore v. Greenbank, Willes, 577, 51 284 Wintercast v. Smith, 4 Rawle, 177, 248 284 164 Wise v. Wills, 2 Rawle, 208, 45 Walker v. Tupper, 152 Pa. 1, 242 Woeckner v. Erie Electric Co., Wall V. Wall, 17 WEEKLY NOTES, 218, Wallace v. Jameson, 179 Pa. 98, Warden v. Jones, 2 DeG. & J. v. Ry. Co., 141 Pa. 352 Wolfran v. Eyster, 7 W. 38, 234 Wood v. Boyle, 177 Pa. 620, Woodward v. Heist, 180 Pa. 16 161, Worster v. State, 55 Ala. 217, 264 394 299 180 51 141 137 284 15 Pa. 204 417 Watson v. Blaine, 12 S. & R. 333 352 242 EBLEY v. Storey, 117 Pa. 42 23 WEEKLY NOTES OF CASES. tract of land at sheriff's sale on the third day of VOL. XLII.] FRIDAY, APRIL 1, 1898. [No. 1. said sale was illegal, irregular and unjust for the Supreme Court. Jan. '98, 16. Supreme Court. February 11, 1898, Media Title and Trust Co. v. Kelly. Sheriff's sale-Setting aside-When too late to move for. After the acknowledgment of a sheriff's deed it is too late, when the purchase money has been paid, to move to set aside the sheriff's sale on which it is based, on the ground of irregularity in the sale, or misdescription in the advertisement of the property to be sold. Appeal of the Media Title and Trust Company, plaintiff, from the order of the Common Pleas of Delaware County, setting aside a sheriff's sale of real estate taken in execution under a judgment against Mary Kelly, widow, and Charles W. Kelly and John B. Dougherty. following reasons: "Said sale was not advertised as required by law. "That advertisement, a copy of which is appended hereto, is insufficient and misleading, because it contains no reference to its subdivisions into building lots, or to the existence of the stone quarry thereon, but advertised the sale of said land as a plantation, the whole tract to be sold as one, and exacted the payment of the large sum of five hundred dollars cash upon purchase. "That the price realized at said sale, to wit, the sum of seventy-eight hundred and sixty dollars, is grossly inadequate and insufficient, the real value of said tract being $45,000. "Your deponents are advised and believe that. said land would bring a much greater price at a public sale if the said tract was fairly and properly advertised. "And they will, etc." "Therefore showing that they are and have been greatly injured by said sale, your deponOn May 25, 1896, the Media Title and Trust ents respectfully pray the Court to grant a rule Company obtained judgment on a scire facias on the parties to show cause why said sale should sur judgment against Mary Kelly, widow, and not be set aside. Charles W. Kelly and John B. Dougherty, for $4512.66. A writ of venditioni exponas was isThe Court, CLAYTON, P. J., granted the rule sued and on July 3, 1897, the sheriff sold the asked for, and after depositions had been taken land levied on to the plaintiff for $7967. The and argument heard on November 3, 1897, made price was paid and on July 6, 1897, the sheriff's the rule absolute. The plaintiff, on November deed was acknowledged in open Court. On 8, obtained a rule to revoke the order making July 13, 1897, Mary and Charles W. Kelly filed the rule to set aside the sale absolute. On Janthe following petition: uary 7, 1898, the Court discharged the plaintiff's "The petition of the above-named defendants rule, and filed a modified order vacating the rerespectfully represents, that they are the defend- cord of acknowledgment and delivery of the ants in the above stated execution and owners sheriff's deed, directing the cancellation of the of the land seized and sold thereunder. deed and the refunding of the money paid by the "That said tract of land contains seventy-one plaintiff as purchaser. acres and is of the value of $45,000. That a large The plaintiff took this appeal, and assigned as portion of said land has been laid out and sub-error the setting aside of the sheriff's sale; the divided into streets and building lots, în exact discharge of the plaintiff's rule, and the making contiguity and with geographical reference to a the order of January 7, 1898. certain other tract of land, belonging to the V. Gilpin Robinson (Horace P. Green with him), plaintiff and by it laid out and subdivided as for appellant. above set forth and described. After a sheriff's deed has been duly acknowl"That said land has its greatest value and edged, executed and delivered, it is too late to worth in its character as building lots and as set aside a sheriff's sale, except for fraud. There was no allegation of fraud in this case. Misdescription, or inadequacy of price are not sufficient grounds. such it would bring its greatest price at a public sale. "That the portion of said tract, which is not subdivided as aforesaid, contains a large and val Cooper v. Wilson, 96 Pa. 409. Mere inadequacy of price, without more, is recting the deed to be delivered up for cancelnot sufficient ground to set aside a sheriff's sale.|lation, the refunding of the hand money paid by Cake v. Cake, 156 Pa. 47. Hollister v. Vanderlin, 165 Id. 249. Long v. Miller, 10 Pa. C. C. 586. The setting aside of the sale was a matter within the discretion of the Court below, and if properly exercised the discretion will not be interfered with. Fidelity Co. v. Byrnes, 166 Pa. 498. the plaintiff as purchaser, and discharging the rule for the revocation of the decree made November 3rd, 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, and 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. A lumping sale of real estate will be set aside, The Court below without filing any opinion unless it forms a clear exception to the general made absolute the rule to set aside the sale and rule, which in Pennsylvania is, that lots of the question is whether there was error in this ground, houses, etc., should be sold separately. ruling. The appellant contends that it was too The mis-description was sufficient ground to move the Court below to exercise its discretion as it did. Vastine v. Fury, 2 S. & R 426. Ryerson v. Nicholson, 2 Yeates, 516. Tate v. Carberry, 1 Phila. 133. Thomas v. Curren, 6 WEEKLY NOTES, 432. Notice must be given of the intended subdivision of the land. Newman v. Callaghan, I ro. & Haley, 1256. The price was inadequate. sale. Germer v Ensign, 155 Pa. 464. Ritter v. Getz, su ra. Whittaker v. Birkey, supra. Twells Conrad, 2 WEEKLY NOTES, 30. 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, 5 Wright, 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. Meconkey, 5 Barr, 168; Spragg v. Shriver, 1 Cas. 282; Shields v. Miltenberger, 2 Harris, 76. . . . . . We have no March 21, 1898. GREEN, J. This is an appeal doubt, that relief might have been granted for from an order of the Court below setting aside the mis-description, had an application been a sheriff's sale of lands of the defendants. The made in proper time. But it was too late after sale was made on July 3, 1897. On the sixth of acknowledgment and delivery of the deed and July, 1897, the sheriff's deed was duly acknowl- payment of the purchase money. There must edged in open Court and was delivered to the be a point of time when such irregularities are purchaser. The whole of the purchase money cured. The law fixes the acknowledgment of was paid by the purchaser prior to the acknowl- the sheriff's deed as that time. Were we to relax edgment of the deed partly in cash and partly this rule we might imperil titles." by the proper receipt of the purchaser as first In Evans v. Maury, 112 Pa. 300, which was a lien creditor on the sheriff's docket. On the case of alleged fraud upon the defendant in the 13th of July, 1897, the defendants in the execu- execution, we held that after a sheriff's sale has tion presented a petition to the Court below to been confirmed, the purchase money paid, the have the sale set aside and November 3 following deed acknowledged, recorded and delivered to the rule to set aside the sale was made absolute. the purchaser, and possession of the premises On November 8th, the plaintiff presented a peti- taken by him, the Court has no power, upon a tion to have the order setting aside the sale re- rule to show cause, to set aside the sale and voked, and on January 7th, the Court filed a compel the purchaser to deliver up the deed to modified order vacating the record of the ac- be cancelled. The delivery of the deed by the knowledgment and delivery of the deed, and di- sheriff, after it has been properly acknowledged, |