of the husband.

¿

1

The decree is not difficult of construction. It explains, itself. The title received by the wife was as full and ample as though a conveyance from the husband had been made, and she took a title in fee-simple: Gallagher v. Fleury, 36 Ohio St. 590. She took as a purchaser. "There are two modes only, regarded as classes, of acquiring a title to land, namely, descent and purchase; purchase including every mode of acquisition known to the law except that by which an heir, on the death of an ancestor, becomes substituted in his place as owner by the act of the law": 3 Washburn on Real Property, 4. Being thus clothed with the full title to the land, and being by the decree put in immediate and unqualified possession of it, her control over it was absolute. She might allow the crop to remain undisturbed until ripened for the harvest, or she might plow it under for the enrichment of the land, or turn on stock to feed upon the young wheat. Any right in a stranger to interfere with this entire control would be inconsistent with the full title and possession which the decree gave her. Again, if the husband could rightfully sow a portion of the land in wheat after the divorce proceeding was commenced, and thus acquire a right to the crop, nothing would, where circumstances favored, prevent his sowing the entire farm in wheat, and thus delay the wife's possession from October - the date of the decree in this case until the following summer. Nor is this view, as we think, open to the objection that it discourages agriculture. The crop on the land enchances the value of it, and the greater the value of each acre the fewer in number of acres will the court, having due regard, among other things, to the value of the husband's real and personal estate at the time of the divorce, deem reasonable to be allowed to the wife. At all events, in such case, the husband sows with full knowledge that the land is liable to be adjudged to the wife, and that, when the crop ripens, he may have no right of entry to gather it. He is in the situation of a tenant who has by his own act brought his right of occupancy to a termination. He cannot claim profits, for it is by his own folly that he has sowed that which he could not

reap.

We are of opinion that the decree gives the wife title to the land as a purchaser, and that she stands in regard to the crop of wheat in the attitude of a vendee receiving title and

possession from a vendor without reservation as to the growing crop, and hence the husband had no interest in the crop after the decree, and no right to enter upon the land to gather it.

Judgment affirmed.

GROWING CROPS. —A purchaser at a foreclosure sale is entitled to the crops sown by the mortgagor: Hayden v. Burkemper, 101 Mo. 644; 20 Am. St. Rep. 643, and note. Growing crops are part of the realty, and pass to the vendee of the land: Smith v. Leighton, 38 Kan. 544; 5 Am. St. Rep. 778, and note.. As to who is entitled to growing crops at an execution sale of land, see extended note to Crews v. Pendleton, 19 Am. Dec. 752-755; Kesler v. Cornelison, 98 N. C. 383.

CASES

IN THE

SUPREME COURT

GREENOUGH V. SMALL

[137 PENNSYLVANIA STATE, 132.]

ESTATES OF DECEDENTS - CONFIRMATION OF, IS INDISPENSABLE — A sale, by the orphans' court, of the estate of a decedent for the payment of debts does not divest the title of the heirs until after confirmation thereof, and the execution and delivery of a deed by order of the court; and until such deed is delivered, an heir or his vendee may maintain ejectment against the purchaser at such sale, even though the latter has paid the purchase-money and has gone into possession.

EJECTMENT. The only fact not stated, and necessary to an understanding of the opinion, is, that the defendant, Small, as the purchaser at the sale made by the orphans' court, paid the purchase-money and went into possession of the premises sold before the sale thereof was confirmed, and a deed thereto executed and delivered by and under the order of such court.

William A. Sober, for the appellant.

S. P. Wolverton and Charles M. Clement, for the appellee.

CLARK, J. On the 9th of April, 1880, George B. Youngman died intestate, seised, inter alia, of the premises in dispute. The plaintiff's claim is for the undivided interest of one of the heirs at law of the decedent, sold upon execution and purchased by him at sheriff's sale; while the defendant's claim is as a purchaser of the decedent's title at an orphans' court sale by the administrators for payment of debts. Judgment was entered for the plaintiff. Whether this judgment was properly entered depends upon the decision of a single question, whether or not, after a sale of the decedent's title by the

orphans' court, for the payment of debts, not yet confirmed, but contested upon the ground that the personal estate is not insuflicient for payment of the debts, an action of ejectment may be maintained against the purchaser for the interest of one of the heirs of the decedent. The orphans' court sale was made January 16, 1884; the ejectment was brought November 16, 1886, and judgment entered April 26, 1890, at which time the exceptions filed to the confirmation of the orphans' court sale were still undisposed of.

66

It is well settled that an orphans' court sale does not divest the title of the heirs until after confirmation thereof and conveyance delivered under the order of the court. In ordinary sales under articles of agreement between private parties, the sale, as to the vendor, works a conversion; equity regards that as done which the parties to the agreement have the power to do, and which they have agreed to be done: Richter v. Selin, 8 Serg. & R. 440. But orphans' court sales are made under the authority of the court; indeed, the sale is the act of the court, the administrator being only the hand of the court in making it: Armstrong's Appeal, 68 Pa. St. 409; and it is therefore subject to the approval and confirmation of the court. Such sales are liable to be vacated," says Mr. Justice Strong, in Demmy's Appeal, 43 Pa. St. 168, "by a power superior to the purchaser, and against his will. The sale, even after confirmation, does not divest the title of the heirs of the decedent, for it remains in the power of the court until a deed has been executed and delivered. Until then, the heirs' right to maintain ejectment, even against the purchaser, has not gone: Leshey v. Gardner, 3 Watts & S. 314; 38 Am. Dec. 764. Until then, no conversion takes place, and if the heir of the decedent die, even subsequently to the confirmation of the report of sale, but before the deed, his interest descends as land, and not as money: Erb v. Erb, 9 Watts & S. 147; Biggert's Estate, 20 Pa. St. 17. These cases recognize a clear distinction between sales made under order of an orphans' court and private sales. The latter are exclusively acts of the parties, and are beyond the control of any other power. The former are not the acts of the decedent or his heirs or devisces; they are the acts of the court, and they require no consent of the owners. In substantial fact, the purchaser buys from the court through its agent. The court reserves the power to decline his bid and to disannul the act of its agent, until the sale has been fully consuminated." To the same

3.

effect is Overdeer v. Updegraff, 69 Pa. St. 110; De Haven's Appeal, 106 Pa. St. 612. The bid of the buyer at an orphans' court sale is but an offer to the court, which the court may or may not accept, at its discretion: Hays's Appeal, 51 Pa. St. 58. If accepted, however, the title of the buyer may for some purposes, perhaps, have relation to the date of his purchase. An administrator's sale of land; under an order of the orphans' court for payment of debts, is worthless without confirmation, for the act of 1832 expressly requires it: Morgan's Appeal, 110 Pa. St. 271.

"

Even in the case of a sheriff's sale, the title of the debtor is not divested, nor can the purchaser maintain ejectment, or grant a lease of the lands, until the deed has been acknowledged and delivered: Hall v. Benner, 1 Penr. & W. 402; 21 Am. Dec. 394. It may be, as we said in Holmes's Appeal, 108 Pa. St. 23, although the title of the heirs is not divested, that the purchaser at an executor's sale, under an order of the orphans' court for payment of the decedent's debts, like a purchaser at a sheriff's sale, acquires an inceptive title or interest in the property at the time of the sale, which, if the sale be subsequently confirmed, and a deed delivered, may support the lien of a judgment; but non constat that this sale will ever be confirmed or a deed delivered. And certainly no one will seriously contend that this inceptive title, whether arising out of a sheriff's sale or an orphans' court sale, is sufficient to support a claim to the possession prior to its consummation by the confirmation of the court and the delivery of a deed. If a purchaser, when the property is struck down to him, may at once enter into the possession pending proceedings for confirmation, great confusion and embarrassment in the settlement of estates would certainly ensue; for, as he could be dispossessed only by ejectment, the heirs or executors would be subject to much delay and useless litigation. It is not every equitable right or interest in lands which entitles the owner of it to possession. In ordinary sales between individuals in their own right, a contract to sell does not, ipso facto, carry a right of possession until conveyance, unless the intention of the parties to that effect is manifest in the contract. "It is very common, it is true," says Mr. Justice Agnew in Weakland v. Hoffman, 50 Pa. St. 517, 88 Am. Dec. 560, “to let the purchaser in upon a sale, but we know of no rule of law by which the possession, so important a security to the rights of the vendor, shall pass from him without his covenant