Robinson v. Glancy

The opinion of the court was delivered, October 9th 1871, by Thompson, C. J. The only question on this record prescribed by the case stated in the court below, is whether the title of the defendants in error ought in this ejectment to have been regarded as null by the court, because it was acquired on a sale upon an order of the Orphans’ Court, based upon a preceding decree of sale by the .court in partition, while an appeal from the order was pending in the Supreme Court. There had been an appeal from the decree of sale by the plaintiff in error and it had been affirmed by this court. There were after that two successive orders of sale, both of which were appealed from and dismissed in this court. During the proceedings of the last appeal the sale was made, and an appeal taken to the confirmation of the sale. This was also affirmed in this court: Robinson’s Appeal, 12 P. E. Smith 213. In that case my brother Agnew disposes of the question of the case in hand very satisfactorily, even if we here pass by the effect of the confirmation of the sale under which the defendants hold [93] title. He shows that the order of sale granted by the Orphans’ Court is not a definitive decree, from which an appeal lies. It only lies to the decree confirming the sale upon the order. This is obvious, otherwise there might be two appeals on every order. One on its being granted, and the other on confirmation of the sale. This would never do. Indeed a sale might be altogether prevented, simply by appealing from orders as often as one should be granted, and holding that nothing could be done until the appeal should be heard and determined, at which time it would generally have ceased to be effectual by lapse of time. Such an appeal does not lie, however, as decided in the above-mentioned case; and although taken, it was not error to. regard it as a nullity, as the learned judge did below in his decision. He decided rightly, when he held that the pendency of the appeal taken from the order of sale, did not invalidate the sale made in the meantime, and regularly confirmed by the Orphans’ Court. Judgment affirmed.