Shields v. Miltenberger

• Decision Date: 01 January 1853
• Parties: Shields versus Miltenberger.
• Court: Pennsylvania Supreme Court

Page 76

14 Pa. 76

Shields versus Miltenberger.

Supreme Court of Pennsylvania.

ERROR to the District Court of Allegheny county.

The case was argued by Williams and Kuhn, for plaintiff in error.

Craft, for defendant in error.

The opinion of the court was delivered by BELL, J.

The second section of the act of October, 1840, gives a venditioni exponas for the sale of extended lands, when the execution creditor, within ten days after inquisition found, signifies his election to permit the defendant to retain the premises levied at the ascertained yearly rental, and the latter neglects or refuses for ten days thereafter to notify his acceptance of the offer. Whether the statute intended to prescribe an imperative observance of the period thus limited for notice, or regards it as simply directory, is the question presented by the first bill of exceptions. Did the case rest upon this alone, some difficulty might, perhaps, be experienced in solving the doubt, although I think much might be said in favor of the latter view, the importance of which is, however, very much lessened, if it be not altogether annulled, by the act of February, 1846, permitting notice at any time before a levari facias. But even in the present case, to which the latter act does not extend, it is scarce worth while to halt upon this inquiry, abstractedly considered, since the facts, subsequently disclosed by the evidence, give to the subject we are to discuss, a broader aspect, or at least, by presenting the first point in combination with other features, subject it to the domination of other and distinct principles. The additional facts are, that, after notice, of which the return made by the sheriff's deputy is competent evidence, unimpaired by the irregular attempt to add to it the sheriff's signature, long after he went out of office, a venditioni exponas issued, under which the premises were sold and conveyed by the proper officer, by deed duly acknowledged in open court.

What, then, is the legal effect properly ascribable to this judicial approval of the sheriff's sale and conveyance? Upon this point, different judges have vacillated between the doctrine declared in Thompson v. Phillips, 1 Baldwin, 246, that the act of a court in receiving the acknowledgment of a sheriff's deed, is a judicial act, which cures all defects in the process and its execution, upon which the court has power to act; and the opposite extreme, maintained by Justice HUSTON, in his dissenting opinion, delivered in Braddee v. Brownfield, 2 W. & S. 271, that no greater respect is due to the court's acceptance of a sheriff's acknowledgment, than may fairly be claimed for the similar act of a judge or justice of the peace, preparatory to the admission of a private deed upon the registry of the proper county. But I think neither of these opposite views finds support in any of the numerous adjudications upon this subject, which have emanated from this court. Most of them recognise the deliberative and judicial character of an acknowledgment taken in open court, founded upon the conceded right of all parties having an interest in the question, to appear and dispute the propriety or regularity of the official sale; and all of them, from Murphy v. McCleary, 3 Yeates 405, to Dale v. Medcalf, 9 Barr 108, distinguish between those objections, that touch the foundation of the proceeding, by impeaching the authority of the officer, or establishing the existence of fraud, and those which simply suggest irregularities in the process or sale. The absence of authority, or the presence of fraud, utterly frustrates the operation of the sale as a means of transmission of title, and avoids it from the beginning. Either may, therefore, be insisted on, even after the formal acknowledgment of the conveyance; but mere irregularities, whether of omission or commission, which do not render the officer powerless, or taint the transaction with turpitude, may be cured by the tacit acquiescence of those who ought to speak in time. This difference of effect, and consequent variance of right, is pointed out in Vastine v. Fury, 2 S. & R. 434, where it is said that "upon exceptions to a sheriff's sale, made on the offer of his deed for acknowledgment, the court will hear every thing that can be urged against the regularity of the proceedings and conduct of the sheriff, the plaintiff in the suit or the purchaser, and receive or refuse the acknowledgment of the deed, according to the proofs made before it. This is the proper period for persons interested in the sale, to take advantage of mere irregularity. But it has been decided more than once, that such persons are not concluded by the acknowledgment, where there is no judgment or execution whereon to ground the sale, or where there has been fraud or unfairness practised by the purchaser." The same doctrine is announced in Murphy v. McCleary, 3 Y. 405, and McCormick v. Meason, 1 S. & R. 101; and illustrated by Dunning v. Washmudt, 2 Y. 86, where an acknowledged deed was held to be worthless, without a prior judgment; Porter v. Neelan, 4 Y. 108, Glancey v. Jones, id. 212, in each of which the want of a venditioni, conferring power to sell, was held to be fatal, even after acknowledgment of deeds; Burd v. Dansdale, 2 Bin....