Hower's Appeal

The opinion of the court was delivered, July 3d 1867, by Thompson, J. — The proceedings in this case were instituted in the Court below, under the provisions of the Act of 18th April 1853, an Act “relating to the sale and conveyance of real estate.” The object of the proceedings, as áppears by the appellant’s petition to the Orphans’ Court, was for the purpose of obtaining a decree of confirmation of a private sale made by the heirs of [340] Samuel Hower, deceased, with one exception of certain real estate alleged to have been the property of the decedent. The petition of the appellant, the administrator of the estate of Samuel Hower, sets forth sufficient grounds for a decree of sale, if there is nothing else in the way. In this petition Glosser the purchaser joins. The petition prays a rule on Henry Slaybaugh and wife, to come into court and show cause why a deed of confirmation of the sale made, should not pass. They make answer and deny title in Samuel Hower, deceased, to the property and of course of his, heirs, and Henry Slaybaugh asserts and claims title in himself. On testimony taken and after hearing the court below refused the decree on the ground of a dispute about title between the parties, not as heirs, but as owners. The refusal of the court to confirm the sale left the parties free to pursue the usual remedies for the determination of such a contest. The court was not satisfied that a sale under the circumstances was proper, and for this reason refused the decree. It is very doubtful whether such a determination is not so much a matter of discretion in the court below as not to be reviewable at all. I incline to think it is; hut that is not now decided. We are clearly of opinion, however, that, circumstanced as this controversy was, the court did right in refusing the decree while the title was in dispute. The object of the Act of 1853 was not to settle questions of title to real estate, but to transmit title unencumbered by contingent or other interests. If there be no title in a decedent or other person whose estate is proposed to be sold, or it be doubtful, and the sale is opposed by a claimant, the court cannot, and ought not, as a general rule, to interfere. We think the action of the court in this case was proper, and is approved. The decree of the court below is affirmed at the costs of the appellants.