Helfrich v. Freck

[362] OPINION by Mr. Justice Trunkey: This action is brought to recover damages for breach of covenant arising upon contract for sale and purchase of land sold by order of court, under a special act of assembly. The defendant failed to pay the purchase money, and by order of court the land was again sold for a less price. By leave of court an additional count was filed; the first count in the declaration seems to be for the difference between the bids, and the second is for the purchase money which the defendant covenanted to pay. After the jury were sworn, on the same day, the defendant withdrew his plea and demurred. ITis demurrer was overruled, and thereupon the defendant put in pleas, and immediately the trial was begun. From the record it appears that the defendant was dissatisfied with the ruling of the court on the demurrer; but the plaintiff made no request for judgment quod recuperet, and without objection proceeded to trial of the issue raised by the pleadings. For this reason, if no other, the first assignment should not be sustained. It is unnecessary to remark that if the property was sold again, an action cannot be maintained on the covenant for recovery of the purchase money. Nor is any question raised whether covenant is the proper form of action for recovery of the difference between the bids. The record shows that the sale to Freck was duly confirmed, and the deed made and acknowledged. The order and decree, namely: that the sale to '‘Freck be confirmed, and that the premises so sold be and remain to the said Joseph M. Freck, his heirs and assigns, forever,” still stands; and, if revoked at all, it is because of the subsequent decrees and orders relative to another sale of the same land. No doubt the title of the last purchaser is valid, if he has complied with the terms of sale; but the ruling of the court below was, by reason of the cloud on the title, calculated to deter bidders. The confirmation of the sale to Freck was on the 12th of November, 18IT, and the sale to John H. Sell-was not made until in February, 1880. The second sale was not ordered till in May, 1819. For the reasons given by the learned judge of the common pleas, the nonsv’t was rightly ordered. Judgment affirmed.