Stoever v. Rice

• Decision Date: 02 January 1838
• Parties: STOEVER v. RICE.
• Court: Pennsylvania Supreme Court

3 Whart. 21

31 Am.Dec. 495

STOEVER v. RICE.

Supreme Court of Pennsylvania.

January 2, 1838

IN ERROR.

1. A mortgagee purchased the mortgaged premises at a sheriff's sale, by virtue of a levari facias, issued upon a judgment obtained upon the mortgage. He paid no money to the sheriff, but by an agreement with the latter, his receipt for the amount was treated as equivalent to payment of the purchase-money. The sheriff executed a deed, but never acknowledged it, the costs not having been paid to him, but the purchaser went into possesion, and continued in possession several years, when a sale of the premises was made by virtue of an execution upon a judgment younger in date than the mortgage. Held, that the purchaser at this sale acquired no title, the proceedings under the mortgage having vested the equitable estate in the first purchaser, and leaving nothing for a second execution to act upon.

2. It seems that a court is not bound on the application of a junior incumbrancer, to require a purchaser at a sheriff's sale of real estate, to pay the purchase-money into court, where it sufficiently appears that such purchaser holds the first incumbrance, and that the purchase-money is not more than adequate to the payment of that incumbrance.

THIS was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment, brought by Frederick Stoever against Robert Rice to recover a certain messuage and lot of ground, situate in the City of Philadelphia.

On the trial of the case before BARNES, President, on the 10th of January, 1834, the circumstances appeared to be as follows:

The defendant was tenant of the premises in question, under one Robert Fleming, who claimed to be owner of the same in fee simple, by virtue of a sheriff's sale upon an execution.

On the 1st of July, 1811, John Cook, being then the owner of the premises, mortgaged them to Robert Fleming, for the sum of $3000; which mortgage Fleming assigned on the 31st of May 1813, to John Dickson and Robert Fleming (himself) executors of Robert Gordon, deceased.

A judgment was obtained in the District Court of Philadelphia on the 11th of June, 1812, by Daniel Mann against John Cook which judgment was renewed from time to time. It became a lien on the premises on the 19th of September, 1821.

In 1822, Fleming agreed with Cook to take the premises off his hands, and that a title should be made to him under the mortgage.

Accordingly a scire facias was sued out by Robert Fleming, who survived John Dickson, and who, with the said John Dickson were surviving executors of the last will and testament of Robert Gordon, deceased, assignee of Robert Fleming, against John Cook to December Term, 1822, of the District Court of Philadelphia. And on the 30th of November, 1822, under a judgment confessed in that suit, the premises were sold by the sheriff to Fleming, who purchased them through his counsel and agent, Mr. Peters. The sheriff agreed with Mr. Peters, that the mortgagee's receipt for the purchase-money should be accepted in lieu of the purchase-money; and Mr. Peters directed the sheriff to have a deed of the premises drawn to Fleming the purchaser, which was accordingly done, and notice given to Fleming by Mr. Peters, that the deed was lying in the sheriff's office. Some weeks or months after the sale, the premises were taken possession of by Fleming, but without the sheriff being in any way privy to that act; and were held by Fleming, by himself, or his tenants, down to the time of the trial. He never offered the sheriff the receipt for the purchase-money, nor did he call for the deed which was drawn for him, or pay the costs of the action, or take any other step towards perfecting his title; on the contrary, when the sheriff's officer called on him for the costs, he was unable to get them from him; nor had they been paid or offered to be paid, down to the time of the trial; nor had a receipt been tendered for the purchase-money.

Between two and three years after the sale to Fleming, and after the sheriff who made the sale had died and been succeeded by another, viz. on the 23d of May, 1825, Fleming obtained from the District Court, a rule upon the new sheriff to show cause why he should not acknowledge to him a deed of the premises sold him by the former sheriff. That rule then was made absolute. After obtaining it, Mr. Thomas Mitchell, as the agent of Fleming, prepared a deed from the new sheriff to Fleming, which he placed in the sheriff's office, to be executed and acknowledged, Mitchell being assured by the said sheriff, that the acknowledgment would be made.

These steps being taken, nothing further was done by Fleming for two or three years more, and until the second of the sheriffs aforementioned, had got out of office, and a third sheriff had come in, when application being made at the sheriff's, prothonotary's, and other offices, the deed drawn by Mitchell, and the other papers belonging to it could not be found, though diligent search is said to have been made for them.

A venditioni exponas issued to March Term, 1829, under the judgment mentioned above to have been obtained by Daniel Mann, against John Cook, and the premises were sold under it to the plaintiff, Frederick Stoever, jun. on the 24th of March, 1828, to whom the sheriff acknowledged a deed, and who thereupon brought this action to recover possession of the property.

Beside the foregoing facts, showing, as was contended, the unreal character of the sale of the premises to Fleming, under the mortgage, it was contended on the part of the plaintiff, that circumstances appeared on the face of the papers exhibited by the defendant, which made the reality of the mortgage itself questionable.

The plaintiff contended,

1. That the mortgage itself was unreal.

2. That the sale to Fleming under the mortgage was a mere cover for the mortgagor's (Cook's) property. That there never was any design on the part of Fleming, to take a deed from the sheriff, until alarmed into it by the levy made under Mann's judgment in 1828.

3. That Fleming could not lawfully purchase the premises at a sale held by himself as executor, it being the case of an executor purchasing at his own sale.

4. That though the mortgage and the sale under it were bona fide and legal too, the defendant had forfeited by his laches all the equity upon which he otherwise might rely to resist the plaintiff's claim, by long and extravagant delay to take a deed and perfect his title.

5. In answer to the suggestion, that Fleming, apart from his right as a purchaser, stood in the position of a mortgagee in actual possession of the mortgaged premises, and could not be expelled from them, but upon payment of the mortgage-money due him, the plaintiff replied...