Kreimendahl v. Neuhauser

Opinion by

Beaver, J.,

The only assigned error is the refusal of the defendant’s point, “That the deed of W. L. Bird, guardian, to Anna Neuhauser, defendant, dated October 12, 1891, recorded in deed book, vol. 763, page 381, vested a good and valid title to the premises in dispute, and, under all the evidence in the case, the verdict should be for the defendant.” The pleadings raise the issue, the facts being undisputed. The plaintiff filed his abstract of title, claiming under his father and a deceased, unmarried sister the undivided one-sixth part of land in the possession of defendant, for which the ejectment was brought. Defendant filed her abstract of ,title, claiming the said undivided one-sixth part of the premises in her possession, by virtue of the petition of the guardian of the plaintiff, asking for, and the orphans’ court decreeing, a private sale of the same as follows: “ Order of court made, authorizing said sale at said prices ($850) to Anna Neuhauser, and directing said W. L. Bird to execute a good and sufficient deed for same to purchaser. Bond in $1,700, with sureties, to be given by guardian, condition for faithful execution of his trust and application of proceeds of sale.” Plaintiff, in his replication, among other things denied “ that the said alleged sale and deed referred to by defendant’s abstract of title .... passed to or vested in the said defendant, Anna Neuhauser, any interest or title to the premises in dispute.”

The defendant meets this by invoking the rule as to the conclusiveness, in a collateral proceeding, of the# judgment of a court of competent jurisdiction. The rule is well and firmly established. One of our earlier cases declares that to it there is no exception. The orphans’ court undoubtedly had jurisdiction of the subject-matter and properly decreed the sale subject to the conditions set forth in the decree. But where is the judgment upon which the defendant relies? If she can point to a final, judgment of the orphans’ court it would at once settle her title and the plaintiff’s case. The decree of sale was not a final judgment. It was merely a step in the proceedings, and in a sense interlocutory. It left something to be done. It is incumbent upon the defendant to show that the terms of the decree were complied with. This she could have done in either of two ways. The sale and the deed being shown, she could have shown that a bond was in fact given in accordance with the terms of the decree, or she could have shown a final decree of confirmation which would have raised the legal presumption — conclusive so far as this case was concerned — that every step essential to the regularity and legality of the sale had been duly taken. We do not say that, in a proper case, where every condition upon which a private sale by a guardian has been decreed by the orphans’ court has been complied with, such sale would not be held valid, but it is, for obvious reasons, much safer for the intending purchaser to see that the return of sale is properly made, so that the court ordering the same may judge of the manner in which the conditions of its decree have been complied with, and, by a judgment of final confirmation, furnish the evidence upon which a purchaser can rely, and for which the defendant - here has looked in vain, to her hurt. The court below, in an opinion overruling the motion for a new trial printed in appellant’s paper-book, fully comments upon the provisions of the several acts of assembly involved, and with the conclusions reached we are entirely satisfied. Upon the practically undisputed evidence in the case we think the judgment should be sustained.

Judgment affirmed.