Opinion
02-13-1903
POLIIEMUS v. PRISCILLA.
Alan H. Strong, for petitioner. Willard P. Voorhees, for respondent.
Petition by Abraham V. d. Polhemus, sheriff, for decree to compel John B. Priscilla to accept deed and complete his purchase at a sheriff's sale. Denied without prejudice.
Alan H. Strong, for petitioner.
Willard P. Voorhees, for respondent.
EMERY, V. C. On this application I reach the following conclusions:
1. The act of February 16, 1891 (P. L. p. 24), directing confirmation of sales by the court in cases like the present, was not repealed by the act of June 14, 1898 (P. L. p. 535), amending the previous acts of 1874 and 1887, relating to publication of notices of sales of lands. The act of 1891 was not an amendment to the sales act, but was intended to apply only to that class of cases in which, by previous statutes or practice of the court, confirmation of the sale by a court was necessary. The only statute requiring this was the statute relating to bonds and mortgages and foreclosure sales of March 12, 1880 (P. L. p. 255; Gen. St. p. 2111, § 4), and perhaps sales in partition in chancery or orphans' court. The statute of 1891 did not at all extend to or cover that large class of public sales upon which no confirmation by court is necessary. This statute was, therefore, one of special application, and did not repeal the previous provisions of the general acts of 1874 and 1887 as to sales of land. Neither was it repealed by the subsequent general act of 1898, changing the publications required. The statute of 1891 can be read in connection with the act of 1898, and both made effective. Thus read together, the statutes still require the sheriff to make advertisement according to the law of 1898, but, if there is a defective advertisement, then, if the sale is one which is subsequently to be confirmed by the court, the court may, under the conditions prescribed by the act of 1891, confirm the sale, notwithstanding the defect in advertisement. The claim that the act of 1891 was repealed by the act of 1898 is, for these reasons, not sustained.
2. The act of 1891 is not a mere validating act, applicable to past sales only. The language of the act plainly refers to future sales. "All sales made by virtue of any order, judgment, or decree of any court of record of this state, shall be confirmed by the court," etc. It is certainly prospective, whether or not it be retrospective. The plain language covers sales that are to be thereafter confirmed, and without limiting the confirmation to sales previously made. The act is not an act to validate sales, but an act concerning defective advertisements. There is nothing in the title or act to indicate that the advertisementsconcerning which the statute legislates were past advertisements. I think, therefore, that the present case is within the act, and the petitioner is entitled to the benefit of it.
3. The only relief I can give the sheriff on this petition is to have the sale confirmed under the act of 1801. The respondent was not bound to accept a deed until a confirmation under this act had been made, and a deed tendered after confirmation. The right of the sheriff to proceed to specific performance is based on the fact, and only on the fact, that he has fully complied with his duty as an officer executing a statutory power, and thereby is entitled to call on the purchaser to complete the sale upon his part. It may be, however, that the parties have raised on this application all the questions intended to be raised, if a deed should be tendered after confirmation under the act of 1801; and, if so, I may, by consent of the purchaser, now order the acceptance of the deed after confirmation, with the same effect as if a tender had been made after confirmation. If he does not consent, the present application will be denied, except as to the confirmation of the sale, but without prejudice to a renewal of the application on tender of the deed after confirmation of sale.