Opinion
Argued January 3, 1950.
March 20, 1950.
Sheriff's sales — Setting aside — Inadequacy of price — Time of defense — Ejectment — Judgment — Damages for detention.
In an action of ejectment by the purchaser of real property sold on execution as the property of defendant, in which it appeared that defendant averred that the fair market value of the property was a sum substantially higher than that for which it was sold, and that he was able and willing to repay to plaintiff all sums that he might have paid in connection with the property, and it also appeared that defendant had taken no steps to attack the validity of the sheriff's sale until his defense in this action, it was Held that the court below properly entered a judgment in ejectment for possession of the premises, and directed a trial upon the issue of plaintiff's claim for damages for detention of the premises.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 25, Jan. T., 1950, from judgment of Court of Common Pleas of Montgomery County, Sept. T., 1948, No. 69, in case of George M. Gross v. Anton Simsack. Judgment affirmed.
Ejectment.
The facts are stated in the opinion, by CORSON, J., of the court below, as follows:
In this case the plaintiff is a purchaser of a certain property sold on execution on December 31, 1947, as the property of the defendant, Simsack. The property was sold upon a certain mortgage and bond and warrant, in the amount of $15,000, conditioned for the payment of $7500. This mortgage was given by the defendant to the Norristown-Penn Trust Company on or about November 19, 1946, and covered the property here in question.
On November 3rd, 1947, the mortgage being admittedly in default, the mortgagee entered judgment on the Bond and issued a writ of fieri facias upon which the property was sold on December 31, 1947, to George M. Gross, the present plaintiff, for the sum of $9100.
On January 22, 1948, the Sheriff's deed was acknowledged before the prothonotary of Montgomery County in open court, and on February 3, 1948, the deed was delivered by the Sheriff and the same day recorded in Deed Book 1895, page 465, in the Office for the Recording of Deeds, etc., in and for the County of Montgomery, Pennsylvania.
On September 28, 1948, the plaintiff purchaser filed his complaint in ejectment, seeking to recover possession of the property from the defendant mortgagor.
The defendant filed an answer admitting the defendant's prior ownership of the property; the execution of the bond and mortgage; the default; and the Sheriff's sale — all as set forth in the first seven paragraphs of the complaint.
As to paragraphs Nos. 8, 9, and 10, setting forth payment of the purchase price and the acknowledgment and recording of the deed, the defendant merely avers that he has no knowledge of these facts. Since they are a matter of record the reply is obviously insufficient and these paragraphs must be taken as admitted.
Defendant does not deny that he is in possession but denies that he is unjustly in possession which, up to the present point in the pleading, is certainly an unwarranted conclusion. In support of his claim that he is justly occupying the property, the defendant sets forth eighteen paragraphs of new matter.
The first four paragraphs merely again refer to his ownership of his property, the execution of the bond and warrant, his default in payments of principal and interest, and the fact that he was notified by the Trust Company that the bond and warrant had been delivered to its solicitor for legal action and that any arrangements made with the solicitor would be satisfactory to the mortgagee.
The later paragraphs merely refer to the defendant's efforts to refinance the mortgage and to raise sufficient money to obtain a stay of the sale. While the defendant varies in the amounts which he said were required by the Trust Company's solicitor to obtain such a stay, he does admit that no amount of money was produced by him to the Trust Company or its solicitor at any time before the Sheriff's sale on December 31, 1947. Defendant states that he was advised by the solicitor for the Trust Company to retain a lawyer and that in accordance with such advice he did retain a Mr. Simons, in Philadelphia; that on the day of the sale he had $1200 which he took to Mr. Simons and asked him to notify the Trust Company solicitor that such money was in his (Simon's) possession for the purpose of having the sale stayed.
According to the defendant, Simons said he would not so do unless the $1200, which the defendant had produced in the form of two checks, was turned over to him in the form of cash, rather than checks. The defendant states that he was unable to cash the checks before the time of sale. The defendant then alleges that the fair market value of the premises sold on December 31, 1947, was $35,000, and that the defendant is ready, able, and willing to repay to the plaintiff all sums that he may have paid in connection with the property, such as purchase price, costs, etc. The plaintiff filed a reply to defendant's new matter and then moved for judgment upon pleadings.
We feel that the plaintiff is entitled to judgment for possession. There is no fraud alleged and we have a serious doubt whether the Sheriff's sale could be set aside in ejectment proceedings. The defendant, according to his reply, knew at 1:15 P. M., on December 31, 1947, that the property had been sold. From that time up to the present the defendant has taken no measures to attack the validity of the Sheriff's sale or to have it set aside. While it does not appear in the pleadings, both counsel at the argument seem to agree that there was competitive bidding and that a second bid was registered at the time of the Sheriff's sale.
In paragraph 18 the defendant avers that upon certain payments being made by him to the plaintiff, the property should be conveyed by the plaintiff to the defendant. This action is not in equity and it is difficult to see how any such order for such relief could be made by this Court.
The Act of April 22, 1905, P. L. 265, section 4, 12 PS sec. 2536 provides, inter alia, as to proceedings after a Sheriff's sale, that: "No deed shall be acknowledged before the return day of the writ under which the sale was had, or pending a motion to set aside the sale, or exceptions made to its confirmation; nor shall a deed be delivered while such a motion or exceptions are pending, whether made before or after acknowledgment, and until the expiration of such further time, if any, as the court may direct by rule, or special or standing order." In spite of defendant's immediate knowledge of the sale, he did nothing prior to the recording of the deed on February 3, 1948, to question the proceedings in any way.
As already noted, we doubt the power of the defendant to set up inadequacy of price at this time in ejectment proceedings, yet we feel that even assuming such right, the sale could not be set aside. Our appellate courts have repeatedly held that inadequacy in price alone is not sufficient to set aside a Sheriff's sale. Schekter v. Katler, 95 Pa. Super. 226, 227 (1929); Knox v. Noggle, 328 Pa. 302 (1938); Plummer et al. v. Wilson, 322 Pa. 118, 124 (1936).
This was not a case where the property was bought in for a nominal consideration. While not in the pleadings, in reply to a question at the argument counsel stated that the property was assessed for tax purposes at $7500. Certainly $9100 does not seem to be an inadequate price.
Counsel for the plaintiff stated, and counsel for the defendant did not deny, that the defendant had purchased this property during the war years for $8000. Certainly the bald statement in the defendant's reply that this property, on December 31, 1947, was worth $35,000, is not sufficient in these proceedings to prevent judgment. After delivery of the Sheriff's deed, the general rule is that the sale will not be set aside, with certain exceptions, none of which are applicable to the present case. See H. O. L. C. v. Edwards et ux., 329 Pa. 529 (1938).
In this latter case the court held that motions to set aside or exceptions to the confirmation of the sale, under the Act of 1905, supra, are in due course, if presented "prior to delivery of the sheriff's deed even though after acknowledgment thereof. See also Warren Pearl Works v. Rappaport, 303 Pa. 235; Vanernan v. Cooper, 4 Clark 371; Jackson, to use, v. Morter, 82 Pa. 291. After delivery of the deed a petition to set aside a sheriff's sale cannot be considered: Media Title Trust Co. v. Kelly, 185 Pa. 131; Tonge v. Radford, 103 Pa. Super. 131. As stated in Knox v. Noggle, supra, 'A weakening of the rule . . . would seriously impair the stability of titles acquired through sheriff's sales.' "
We feel that the plaintiff, upon the pleadings, must have a judgment for possession. However, in paragraph 12 the plaintiff claims $5000 damages for the defendant's detention of the premises. Apparently such damages are unliquidated and would have to be subject to proof, by the plaintiff.
For the reasons given we therefore enter the following order:
And now, this 21st day of February, 1949, judgment in ejectment for possession of the premises described in the plaintiff's complaint is directed to be entered in favor of the plaintiff, against the defendant. The case shall proceed to trial, however, for the sole purpose of allowing the plaintiff to prove the damages alleged in paragraph 12 of the complaint. An exception is allowed to the defendant.
Defendant appealed.
William Langton Rubin, for appellant.
A. Benjamin Scirica, Walton Coates and Smillie, Bean Scirica, for appellee, were not heard.
The judgment of the court below is affirmed on the opinion of Judge CORSON.