Simons v. Kern

Mr. Justice Sterrett delivered the opinion of the court, January 26th 1880. The question in this case is, whether the sheriff’s sale, on which the defendant in error bases his claim to the lot in controversy, was valid or void. The plaintiff in error contends that it was void, for want of authority, and consequently his title was not divested thereby. If this be so, there was error in entering judgment against him on the question of law reserved. It appears that in June 1870, immediately after he acquired title to the lot, his deed was duly registered in the registry bureau of the survey department of the city, and, on the following day, recorded in the office of the recorder of deeds. He had thus complied strictly with the requirements of the law, and had a right to rely on such statutory provisions as were intended for the benefit and protection of property owners who were not in default, in returning their property for registration. The supplement to the registry law, approved March 26th 1867, Pamph. L. 600, makes it the duty of purchasers, devisees and persons to whom allotments in partition are made, to present their deeds or title papers at the registry bureau, so that they may be endorsed in accordance with the act, and imposes a penalty for neglect to do so. It then provides that “no property so returned shall be subject to sale for taxes or other municipal claims thereafter to accrue as a lien of record thereon, except in the name of the owner as returned, and after recovery by suit and service of the writ on him as in the case of a summons.” The lien was filed and proceedings thereon conducted in the name of the plaintiff in error as owner of the lot, [459] and in this particular the provisions of the act were complied with ; but neither the writ of scire facias nor any other writ vm served “on him as in the case of a summons,” or in any other form. The sheriff's return to the writ of scire facias was “made known by posting a true and attested copy of the within writ on the premises within described, September 11th 1875, and by advertising twice a week, for two weeks, in the ‘ Evening Bulletin,’ a daily paper published in this city, agreeably to the Act of Assembly in such case made and provided. Nihil habet as to Samuel Simons.” Even if the plaintiff in error had not brought himself within the provisions of the registry act, above quoted, this return would have been defective, as was shown in Wistar v. The City of Philadelphia, 5 Norris 215. The Act of March 23d 1866, Pamph. L. 303, was intended to remedy the then existing grievances, fully recited in its preamble, among which were the oppressive costs and expenses to which property owners were subjected, and especially the sale of their property without notice to them; but the provisions of this act were deemed an inadequate remedy, and the following year the supplement above cited was passed. It provides, as we have seen, that no registered real estate shall be subject to sale except after service of the writ on the owner as in the case of a summons. The obvious purpose of this and previous legislation on the subject was to secure a complete record of real estate in the registry bureau of the city, so that it might be more readily subjected to taxes and other municipal burdens, and at the same time to render registered owners more secure in their titles by prohibiting sales for taxes or other municipal claims without the prescribed form of notice. It cannot be doubted that a sale made in direct violation of this statutory prohibition is void. It is not a mere irregularity that would be cured by the acknowledgment of the sheriff’s deed. The omission to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time or improper manner, and the like, may properly be regarded as irregularities which do not strike at the foundation of authority for the proceedings in which they occur, and will, therefore, be cured by subsequent judicial approval. As is said in Shields v. Miltenberger, 2 Harris 76, all the cases “ distinguish between those objections that touch the foundation of the proceeding, by impeaching the authority of the officer or establishing the existence of fraud, and those which simply suggest irregularities in the process or sale. The absence of authority or the presence of fraud utterly frustrates the operation of the sale as a means of transmission of title, and avoids it from the beginning. Either may be insisted on, even after the formal acknowledgment of the conveyance; but mere irregularities, whether of omission or commission, which do not render the officer powerless, or taint the [460] transaction with turpitude, may be cured by the tacit acquiescence of those who ought to speak in time.” Prior legislation as to the mode of service on registered owners, so far as it is inconsistent with the supplement of 1867, was in effect repealed thereby, and where it appears of record, as it does in this case, that the writ was not served “as in the case of a summons,” there is clearly a want of authority either to issue or execute the writ. The purchaser at such unauthorized sale cannot claim protection. The maxim, caveat emptor, is applicable to him. It is his duty to see that authority to sell exists. In this case an examination of the registry bureau would have informed the purchaser that the plaintiff in error had registered his lot, and the record of the proceeding, on which he bases his title, admonished him that there was n'o such service of the writ as the law required, and without which the sale was expressly forbidden. He was, therefore, visited with notice that the sale was unauthorized and void, and has no reason to complain that he took nothing by his purchase. In Soullier v. Kern, 19 P. F. Smith 16, construction was given to the tenth section of the Act of April 16th 1840, Pamph. L. 314, which enacts, inter alia, that “no property owned by minors shall be sold under the provisions of this act, until the expiration of two years from the time said minors shall come of age.” A municipal claim for paving was filed against a lot owned by tenants in common, one of whom was a minor. After service of the scire facias, by posting and publication, judgment was obtained, and at a sale thereunder, the premises were purchased by the defendant, Kern, against whom an action of ejectment was brought by the owners. It was held, that while the sheriff’s sale transferred the title of the adult owners, who were not within the protection of the statute, it did not divest the interest of the minor. Mr. Justice Williams, delivering the opinion of the court, said, “ The object of the legislature in passing the act was to protect the estates of minors and prevent their sacrifice at judicial sales. * * * There was evidence tending to show that one of the plaintiffs was a minor; and if so, under the provisions of the act, his interest was not divested by the sale; and the court should have submitted the ease to the jury with instructions that if they found he was a minor, at the time of the sale, then the sale, as respects his interest, was void, and he was entitled to recover.” In Sheetz et al. v. Wynkoop et al., 24 P. F. Smith 198; Kuntz v. Long, 6 Casey 501; Burd v. Dansdale, 2 Binn. 80; Allison v. Rheam, 3 S. &. R. 139, and Berry v. Hamill, 12 Id. 211, principles somewhat analogous to that involved in the present case were recognised. It has been repeatedly held also, that a sheriff’s sale, under a writ of fieri facias, without inquisition or waiver thereof, is simply void and passes no title to the purchaser: Baird [461] v. Lent, 8 Watts 422; McLaughlin v. Shields, 2 Jones 283; Shoemaker v. Ballard, 3 Harris 92; Wolf et al. v. Payne, 11 Casey 97 ; Gardner v. Sisk, 4 P. F. Smith 506, and St. Bartholomew’s Church v. Wood, 11 Id. 96. The main ground of these decisions is, that the law requiring an inquisition to be held was intended for the benefit of the debtor. It has been suggested that great inconvenience and loss must result from inability to obtain service of the writ on non-resident owners, if it is required to be served as a summons. This may be so; but, if a remedy be needed, the power to provide it belongs to the legislature and not to the courts. Arguments from inconvenience should not be permitted to prevail against the positive prohibition of the statute. Judgment reversed, and judgment on the question of law reserved, is now entered here in favor of the defendant below, non obstante veredicto.