In re the Assigned Estate of Scott

Opinion by Smith, J., This proceeding was instituted under the third section of the act of February 17, 1876, for the purpose of enabling the purchaser of real estate from an assignee for the benefit of creditors to obtain possession. The sale of the property by the [569] assignee under an order of the court of common pleas and its due confirmation are admitted. The purchaser having fully complied with the terms of the sale and received his deed, demanded possession of the premises which the appellant refused to surrender, whereupon this action was begun and, after hearing, the court ordered that possession be given to the purchaser. The appellant, who secured possession under a sale by a former assignee, which was afterward set aside by the court because the terms had not been complied with, resists this proceeding on the. ground that having paid part of the purchase money before his purchase was annulled, and which has not been refunded, he thereby acquired an equitable right to the property, and therefore contends that under the circumstances the proceeding under the statute cannot be maintained, and that the appellee should be remitted to his action of ejectment. In view of the fact that the decrees of the court below setting aside the sale to the appellant and directing a resale of the property, were both affirmed by the Supreme Court (Scott’s Appeal, 176 Pa. 49), it would seem idle to argue that the statutory remedy does not apply here. The appellant’s possession, so far as disclosed by the record, was based on an inchoate title and upon its annulment his right of occupancy ceased. Nothing further was offered in support of his claim or to defeat the purchaser’s right to secure possession through this proceeding. The third section of the act of 1876, is designed to enable purchasers of real estate from assignees to get possession without undue delay. Its purpose is to give effect to deeds of assignment by empowering the courts to order that possession be given to purchasers who have complied with the terms of sale; but the proceeding under it does not involve or affect the title to the land: Lutz v. Kegerreis, 176 Pa. 164. The appellant’s claim to possession being based on a proceeding founded upon the same deed of assignment under which the appellee acquired title, the court below correctly held that such possession was within the purview of the enactment. The assignments are overruled and the decree is affirmed, the costs to be paid by the appellant.