Drake v. Brown
| Decision Date | 30 March 1871 |
| Citation | 68 Pa. 223 |
| Parties | Drake <I>versus</I> Brown. Drake's Appeal. |
| Court | Pennsylvania Supreme Court |
Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ. WILLIAMS, J., at Nisi Prius
Appeal from the decree of the Court of Common Pleas of Pike county, No. 418, to January Term 1870, distributing the proceeds of the sheriff's sale of the real estate of Daniel V. Drake.
Error to the Court of Common Pleas of same county, No. 117, to January Term 117, to the judgment of that court in an action of ejectment, commenced September 2d 1869, by William Brown, against Daniel V. Drake and Rachel Drake.
S. E. Dimmick (with whom was G. G. Waller), for plaintiff in error and appellant, cited Baker's Appeal, 9 P. F. Smith 316; McLanahan v. McLanahan, 1 Penna. R. 96.
G. R. Fox, for defendant in error and appellee.—"The lien of a legacy charged upon land is discharged by a judicial sale of the land, though the legacy is payable by instalments, some of which are not due at the time of the sale: Hellman v. Hellman, 4 Rawle 440; Nichols v. Postlethwaite, 2 Dallas 131; Tower's Appropriation, 9 W. & S. 104; Barnet v. Washebaugh, 16 S. & R. 410; Randolph's Appeal, 5 Barr 245; McLanahan v. Wyant, 1 Penna. R. 112; Lobach's Appeal, 6 Watts 167. The purchaser takes the land with the charge for the widow: Hamilton v. Overseers, 2 Jones 147.
Daniel took the remainder in fee: Lapsley v. Lapsley, 9 Barr 130; De Haas v. Bunn, 2 Barr 335.
The opinion of the court was delivered, March 30th 1871, by AGNEW, J.
These cases were heard together, and may be embraced in one opinion. It is the settled doctrine in this state that all possible titles, vested or contingent, in real estate, may be taken in execution and sold, provided there be a real interest in the defendant in the execution, legal or equitable: Rickert v. Madeira, 1 Rawle 329; Humphreys v. Humphreys, 1 Yeates 427; Hunt v. Lithgow, Id. 24; De Haas v. Bunn, 2 Barr 337. The fact, therefore, that Daniel V. Drake's estate was not to take effect until his youngest sister became of age, and that the levy and sale were made a few months before that time, will not render the sale void. Under his father's will, Daniel having survived Charles, was clearly entitled to the estate when it fell in to him, both in possession and in remainder. It is immaterial whether his interest in the property was vested or contingent, it was liable to his debts, and by the sale of it William Brown, the purchaser at the sheriff's sale, became entitled to it. It is also well settled, that a purchaser at sheriff's sale is not bound to show more than his deed, and the proceedings under which it was made, to recover the possession from the defendant in the execution: Green v. Watrous, 17 S. & R. 393, 398; Eisenhart v. Slaymaker, 14 Id. 153, 157; Little v. Delancey, 5 Binn. 270; Act of 16th June 1836, §§ 106, 109, Purd. 450, pl. 129-132. It is...
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