Overdeer's Administrator v. Updegraff

The opinion pi the court was delivered, May 27th 1872, by Williams, J. The main question in this case is whether the plaintiff’s lot is subject to an easement appertenant to the lot occupied by the defendant. Both lots were formerly owned by William Hinney, deceased, who died seised of them in 1864. He occupied one of them in his lifetime, and his tenants the other, and he opened an alley between them, on the lot now owned by the plaintiff, for the use of himself and tenants. After his death his administratrix sold, by order of the Orphans’ Court, the lot on which the alley was opened without any notice, either in the petition or order of sale, that it was to be sold subject to the easement or right to the use of the alley by the owners or occupants of the adjoining lot. But it was sold subject to the easement, and in the conditions of sale, signed by the purchaser, a right of way was reserved through the alley between the two houses, and four feet beyond the rear of said houses, for the benefit of the owners onf the adjoining property belonging to the decedent’s estate. By the terms of sale, as fixed by the Orphans’ Court, possession was to be given on the 1st of April 1865, when a deed was to be made. The sale was made on the 15th of October 1864, and confirmed oh the 24th of October; and about the 1st of April 1865, the administratrix executed a deed to the purchaser in which the right of way in the alley was reserved to the owners and occupants of the adjoining property then owned by the administratrix, the only daughter and heir of William Hinney, deceased. Strictly speaking, it may be true that an administratrix has no power to change the terms of sale, as fixed by the order of the Orphans’ Court, without permission of the court. But' if the property, ordered to be sold, is subject to an easement or right of way, I know of no reason why it may not be sold, subject thereto, though no notice be taken of its existence in the petition or order of sale; and if the property is so sold and conveyed, it seems to me that the purchaser takes it subject to the encumbrance. If the easement had been appertenant to the lot, can there be any doubt that it would have passed by the sale and conveyance, if expressly sold and conveyed along with the lot, though it may not have been described in the petition, order or return of sale ? If the purchaser, in the one case, would have taken the easement with the lot, why should he not, in the other, take the lot subject to the easement ? In this case Mrs. Gross, the purchaser at the [118] Orphans’ Court sale had notice of the easement, and, by the express terms of the sale, bought the property subject to it; and therefore she would be estopped from claiming to hold it free and discharged of the servitude. So too the plaintiff, who claims title under her, holds the lot subject to the easement if he had notice of its existence and reservation when he purchased it. It is conceded that he did not have actual notice that Mrs. Gross purchased the property, and that it was conveyed to her expressly subject to a right of way through the alley reserved for the benefit of the owners of the adjoining property. But if he had notice of such facts as should have put him on inquiry, and which, by the exercise of ordinary diligence, would have led to the knowledge of its reservation, then he had constructive notice of it, which the law regards as equivalent to actual notice. The alley was plainly to be seen en the ground, and its use by the occupants of the adjoining lot was indicated by the gate in the partition fence which opened into the alley from the adjoining lot. This was sufficient to put him upon inquiry as to their right to the alley, and, if duly prosecuted, would doubtless have led to the knowledge that they claimed the right to its use because it had been laid out by the former owner for the use of the occupants of both lots, and because the plaintiff’s lot had been sold and conveyed to the purchaser at the Orphans’ Court sale, subject to the reservation of a right of way through the alley, for the benefit of the owners of the adjoining lot. But apart from this, if the deed of the administratrix formed an essential link in the chain of the title, it was his duty to examine it, and if he could have procured it by the exercise of ordinary diligence, he had constructive notice of the reservation. If the title did not pass to the purchaser by the confirmation of the sale, but remained in the decedent’s heir until the execution and delivery of the deed by the administratrix, as has been repeatedly ruled, then her deed lay directly in the chain of title, and it was the plaintiff’s duty to make the proper inquiry to obtain it. A sale by order of the Orphans’ Court for the payment of the debts of a decedent is not absolute and unconditional. It depends for its validity upon the approval and confirmation of the Court. But, as said by Mr. Justice Strong in Demmy’s Appeal, 7 Wright 168, the sale, even after confirmation, does not divest the title of the heirs of the decedent, for it remains in the power of the court until a deed has been executed and delivered. Until then, their right to maintain ejectment, even against the purchaser, is not gone: Leshey v. Gardner, 3 W. & S. 314. Until then, no conversion takes place, and if the heir of the decedent die, even subsequently to the confirmation of the report of sale, but before the deed, his interest descends as land, and not as money : Erb v. Erb, 9 W. & S. 147 ; Biggert’s Appeal, 8 Harris 17. If, then, the plaintiff by the use of rea [119] sonable diligence might have procured the deed, he had constructive notice of the reservation, and took the lot subject to it. Whether the plaintiff had such notice of the existence and use of the alley hy the occupants of the adjoining lot as was sufficient to put him on inquiry, and which, if prosecuted with proper diligence, would have led to the knowledge that they claimed the right to its use under the reservation in the deed of the administratrix to the purchaser of the plaintiff’s lot, was a question which the court helow submitted with great fairness to the jury. But if there had been no express reservation of the right to the use of the alley in the conditions of sale, and in the deed executed and delivered to the purchaser, the latter would have taken it subject to the servitude imposed upon it by the decedent for the use and benefit of the occupants of the adjoining lot. It was a continuous and apparent easement, and the law is well settled that in such a case the purchaser, whether at private or judicial sale, takes the property subject to the easement: Keeffer v. Imhoff, 2 Casey 438; McCarty v. Kitchenman, 11 Wright 239; Phillips v. Phillips, 12 Id. 178; Penna. R. R. Co. v. Jones, 14 Id. 417. The principles on which the doctrine rests are so fully and ably discussed in these cases that we need do no more than refer to them. Whether the plaintiff, then, had constructive notice of the reservation of the easement or not, is wholly immaterial. If it was continuous and apparent, as it unquestionably was, he took the lot subject to it. His complaint that the court took from the jury the question whether the deed of the administratrix contained a reservation of the right to the use of the alley by the owners of the adjoining lot, comes with bad grace if, as intimated in the charge, there was no controversy in regard to the fact- on the trial. The eouft say: “ The facts do not appear to be controverted, and thé counsel of the respective parties have declined addressing you, considering the rights of the parties depending upon questions of law, and both claiming to recover upon the law arising upon the facts of the case.” Neither of the points submitted to the court by the plaintiff was based on the assumption that the deed contained no reservation of the alley, nor was any instruction asked if the jury should find that there was no such reservation. Judging from the points put to the court, it would seem that no question was made in regard to the fact of the alleged reservation. But if the court was mistaken in saying that the facts do not appear to he controverted, the attention of the judge should have been called to the mistake at the time, and doubtless it would have been at once-corrected. But whether it was a mistake or not, it did the plaintiff no harm, if, as we have seen, he took the lot subject to the servitude imposed on it for the use of the owner and occupants of the adjoining lot. What we have said disposes of all the alleged errors with the ex [120] ception of the first. This involves a question of fact, and is not sustained by anything on the record, nor by any evidence dehors the record. It is time that it was understood that all such assignments will be disregarded. They cannot be inquired into on a writ of error, and should not be made. Judgment affirmed.