Strange v. Austin

Per Curiam: This was an appeal from the refusal of the court below to open a judgment entered by a warrant of attorney contained in a lease. The premises demised were sold at an Orphans’ Court sale for the payment of debts. The sale was confirmed November 17, 1887; subsequent to this, on February 1, 1888, the last instalment of rent became due, and the appellant paid the same to the purchaser; the deed was not delivered, and the balance of the purchase money paid, until March 1, 1888. The tenant now sets up this payment of rent as a defence to the judgment. The sixteenth section of the act of April 9, 1849, P. L. 527, provides that “ purchasers of real estate sold under orders of the Orphans’ Court shall, after the confirmation of the sale and the execution and acknowledgment of the deed, have a right to proceed to obtain possession of the purchased premises, in the same manner as is now provided in relation to purchasers at sheriffs’ sales.” In Leshey v. Gardner, 3 W. & S. 314, it was said by Mr. Justice Rogers : “ Although the sale made by the executor, in pursuance of an order of the court, was confirmed, yet the title of the owner was not divested until a deed was made to the purchaser. That a deed is required, appears pretty plain from the act of 1834; and besides, the purchaser is not bound to pay his money until the executor is in a condition to tender a deed. There is nothing in the act which gives even color to the idea that the confirmation of the sale transfers the title.” The farm out of which this rent issued was the property of William B. Strange. Upon his death the widow, for herself and the heirs, leased the farm for one year to the appellant. She was entitled to the rent until the title of the decedent had [102] been divested by tbe Orphans’ Court sale. Such divestiture did not take place upon the confirmation of the sale •, it was only completed by the payment of the purchase money, and the delivery of the deed. The appellant paid the rent to the wrong person, and such payment forms no defence to the judgment of the appellee. The order refusing to open the judgment is affirmed, and the appeal dismissed, at the costs of the appellant.