Opinion
04-22-1909
CARPENTER v. SHANLEY.
Merritt Lane, for petitioner. Melosh & Morten, for complainant.
Suit by Sarah E. Carpenter against Sara R. Shanley. On the petition of L. Theodore Everett, the purchaser at a master's sale, for a direction to the master to pay out of the purchase money the amount of an improvement assessment against the property sold. Petition dismissed.
Merritt Lane, for petitioner.
Melosh & Morten, for complainant.
GARRISON, V. C. This is a petition, on behalf of the purchaser at a master's sale, praying that the master be directed to pay out of the purchase money the sum of $350, which is the amount of an assessment for an improvement to the property, which assessment was confirmed against the property on the 9th day of February, 1909.
The property was sold by the master on the 30th day of December, 1908, and the conditions of sale provide that it was sold free and clear of incumbrance. Both parties admit, without argument, that, whatever the law might otherwise be, the conditions of sale control the question involved in this case.
The order confirming the sale was filed on the 7th of January, 1909. The time fixed by the conditions of sale for the delivery of the deed was February 1, 1909; but because the master did not, for some reason, receive the order confirming sale, it was adjourned to the 19th day of February, 1909.
As before stated, the assessment was confirmed on the 9th of February, 1909. Both parties concede that the assessment became a lien and incumbrance from the date of its confirmation. Cadmus v. Fagan, 47 N. J. Law, 549, 4 Atl. 323 (Ct. of Er., 1885).
The petitioner's contention is that, since this assessment became a lien before the deed was delivered to him, he is entitled, under the conditions of sale, to have the amount of the assessment paid out of the purchase price, so that he will, at the time of the delivery of the deed, get a title free and clear of incumbrance. I think that the authorities in this state settle the point against the contention of the petitioner. It has been held by the Court of Errors and Appeals that "the date of the delivery of the sheriff's deed is a circumstance of no importance. A purchaser at a sheriff's sale acquires by the act of purchase a right to a conveyance of the premises in pursuance of the sale. The delivery by the sheriff of a deed is a mere ministerial act, which the officer is required to perform to consummate the sale and vest in the purchaser a title in compliance with the law under which the sale was made. Walker v. Hill's Ex'rs, 22 N. J. Eq. 513, 530. The sheriff's deed, when delivered, has relation back to the time of the sale of which it is the consummation. Jacobus v. Mutual Benefit Life Ins. Co., 27 N. J. Eq. 604, 608." Morse v. Hackensack Savings Bank, 47 N. J. Eq. 279, 281, 20 Atl. 961, 12 L. R. A. 62 (Ct. of Er., 1890). See, also, Wimpfheimer v. Prudential Ins. Co. of America, 56 N. J. Eq. 585, 591, 39 Atl. 916 (Emery, V. C, 1898).
If a confirmation by the court is to be considered as a necessary step in completing the sale, that act took place in the suit at bar before the assessment became a lien upon the premises. It seems entirely clear, therefore, that the sale was completed, and was free of incumbrance at the time of its completion, and that the incumbrance in question arose thereafter.
The petition must be dismissed, with costs.