Opinion
March 21, 1944.
April 11, 1944.
Executions — Sheriff's sales — Advertisement — Adequacy of bids — Practice — Scire facias to administrator of deceased defendant — Jurisdiction of court — Regularity of proceedings.
1. Where one of the defendants filed exceptions to a sheriff's sale on the grounds that the sale was not properly advertised, that the bid was grossly inadequate, and that the administrator of another defendant who had died had not been warned by a writ of scire facias, and it appeared that the sale had originally been advertised and in each of the orders of the court subsequently staying the sale at the instance of the then counsel for defendant it was provided that the sale should be stayed without further advertising; that as a result of the dilatory tactics employed by defendant, taxes, water rent and interest had become very substantially in arrears; and that the other defendant was merely a formal defendant, without interest in the property involved, and his administrator had filed a waiver of issuance of scire facias, it was Held that the dismissal of the exceptions was proper. [305-8]
2. Where a judgment debtor filed a petition to set aside a sheriff's sale of real estate, averring that the proceedings under which the sale was had were not within the jurisdiction of the court and that the real estate in question was in the custody and control of the United States courts, and it appeared that various proceedings in the federal courts to have the petitioner declared a bankrupt had been unsuccessfully terminated; that various stays of proceedings had been granted, mostly upon application of the defendant petitioner; that a prior petition by defendant to file exceptions nunc pro tunc to confirmation of the sheriff's deed had been refused, and no appeal had been taken by defendant; and that the petition in question was interposed solely for delay, it was Held that the dismissal of the petition was proper. [309-13]
Argued March 21, 1944.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.
Appeals, Nos. 34 and 70, March T., 1944, from orders of C. P., Allegheny Co., Oct. T., 1941, Fi. Fa. Nos. 200 and 388, and Oct. T., 1941, Sur. Nos. 738 and 925, in cases of George L. Elliott, Admr., to use, v. John McGrew et al. and William P. Simmons v. Edward McGrew. Orders affirmed; reargument refused May 22, 1944.
(1) Exceptions by defendant to sheriff sale and (2) petition by judgment debtor to set aside sheriff sale.
The facts in the two cases are stated in the opinions by ROWAND, P. J., and McDONALD, J., respectively, of the court below, as follows:
Edward McGrew, in propria persona, appellant, Nos. 34 and 70.
William J. Kenney, with him Stewart Lewis, for appellee No. 34.
William J. Kenney, with him James McGill Boyer and Stewart Lewis, for appellee No. 70.
On September 7, 1943, this court, consisting of Judges ROWAND, EGAN and O'TOOLE, sitting as a court en banc, made an order dismissing exceptions of Edward McGrew, one of the defendants, to a Sheriff's sale and directed the Prothonotary to confirm the Sheriff's Deed. This was done after a short argument, but no opinion was filed at that time.
We have received notice that an appeal has been taken by defendant and, in compliance with Supreme Court Rule 58, we file this Memorandum Opinion.
The action in our court is on an execution issued on a judgment had by the plaintiff against John McGrew and Edward McGrew. Sale of the property was made after a number of postponements, which will be recited later. The defendant, Edward McGrew, has filed exceptions averring that advertisement was not properly made; that the bid was grossly inadequate; and that, John McGrew having died, the Administrator was not warned by scire facias in accordance with the Act of 1917.
As brief a history as we can recite of this case, is as follows:
On May 11, 1937, Edward McGrew filed in the District Court of the United States, for the Western District of Pennsylvania, a petition as a farmer bankrupt under section 75 of the Federal Bankruptcy Act; this petition was dismissed, at the instance of plaintiff, on July 10, 1941 for the reason that Edward McGrew was not a bonafide farmer. At that time plaintiff was free to proceed to collect upon his security and instituted the present foreclosure proceedings.
Edward McGrew appealed the decision of the United States District Court to the Circuit Court of Appeals. While this appeal was pending the defendant presented a petition to stay the proceedings in this court and Orders were made on September 3, 1941 and September 17, 1941. These Orders were prepared by McGrew's then attorneys and provided that stay should be made without necessity of further advertisement.
The Circuit Court of Appeals affirmed the decision of the District Court March 23, 1942 and an order was made at that time by this court that the property should be disposed of by sale without further advertisement.
Defendant, Edward McGrew filed a petition for certiorari to the Supreme Court of the United States and being so advised this court, on petition, again granted a stay on April 30, 1942, on order prepared by counsel for defendant, providing therein that this stay should be without necessity of further advertising.
The Supreme Court of the United States denied the petition for certiorari and, on October 12, 1942, this court again ordered that the property be disposed of by sale. Immediately following, or five days after, to wit, on October 17, 1942, the defendant again filed a petition as farmer bankrupt in the District Court of the United States for the Western District of Pennsylvania, and again the defendant, through his counsel, asked this court for an order to stay proceedings, which order was granted.
On March 25, 1943 the District Court again dismissed McGrew's petition as farmer bankrupt for the reason he was not a bonafide farmer, and again this court ordered the property be disposed of by sale, without further advertising. Defendant again appealed the decision of the District Court to the Circuit Court of Appeals and this court, on April 30, 1943, entered an order, as prepared by counsel for defendant, postponing this sale without necessity of further advertising.
The Circuit Court of Appeals refused to grant the petition of defendant for an injunction against the sale. While this matter was pending in the Circuit Court of Appeals the defendant again filed a petition in bankruptcy under Chapter 12 of the Bankruptcy Act for real property arrangement, and on May 7, 1943 the District Court entered an order staying the Sheriff's sale. This order was vacated, however, on May 8, 1943 and thereupon this court entered an order, May 8, 1943, to proceed by sale without further advertising.
The sale was held May 10, 1943 and the plaintiff bid the property in on bid of $667.80 covering costs and taxes, which previously had not been paid; this property was subject to 1942 and 1943 County taxes and 1943 School taxes, aggregating $349.25.
The defendant again, on July 2, 1943, filed a second appeal to the Circuit Court of Appeals from the order of the District Court dismissing his petition as filed under Chapter 12; both appeals were dismissed by the Circuit Court of Appeals, the first on August 13, 1943 and the second on August 18, 1943.
The record shows that defendant, Edward McGrew, had paid no taxes on this property from 1930, and made no payment on the interest or principal of said debt.
As has been recited, the three reasons for setting this sale aside are as follows: First, the sale was not advertised. This position is untenable. On each of the orders of this court, staying the sale at the instance of the then counsel for defendant, it was provided that the sale should be stayed without further advertising. It is undisputed that the first advertising was properly and legally made. We believe under the circumstances, there is no merit to this exception. Each time an order was made, as we have said, it was at the request of counsel for defendant and for the purpose, no doubt, of saving expenses to the defendant. Our records will show that this defendant has been more than fairly treated. He is now his own counsel and has appeared in court different times as his own counsel.
We will say at the outset that defendant had reputable counsel representing him. The reason he is now without counsel is beyond our knowledge.
The second exception is that the bid is grossly inadequate. There is no merit to this exception. The court has a right to exercise its discretionary power in setting aside a Sheriff's sale. We need only recite the case of American State Bank and Trust Company v. Mariades, 328 Pa. 428, at page 431: "The defendant had ample opportunity to save his property from foreclosure. Taxes, water rent, and interest were so far in arrears they almost exceeded the principal debt. He had one stay of execution, was denied a second, and delayed until two weeks after confirmation to move to set the sale aside. He employed dilatory tactics throughout, and cannot complain that the grace of the court below was exhausted."
It is very readily seen that the dilatory tactics resorted to by defendant, Edward McGrew, in the instant case far exceeds the case above quoted. These tactics have caused delay of upwards of six years. McGrew is protected by the statute as against any deficiency judgment arising merely from the bid.
The third exception is that John McGrew, brother of Edward McGrew, defendant, having died December 3, 1941, that his Administrator was not warned by the scire facias. We need only refer to the record to show that Richard R. McGrew, Administrator of the Estate of John McGrew, executed and filed a waiver of issuance of scire facias; and it is further to be noted that John McGrew died, as we have said December 3, 1941, several months after the issuance of the writ of execution in the present case; that the record further discloses that John McGrew is merely a formal defendant in the instant case, as the record shows Edward McGrew, in 1918, foreclosed upon and bought the interest of John McGrew he then had in the property here involved.
We therefore are of the opinion that the court en banc was right in dismissing defendant's exceptions to the Sheriff's sale, and directing the Prothonotary to confirm the Sheriff's deed.
While the author hereof was presiding in the Assignment Room of the Court of Common Pleas of this County, we were presented with a petition by Edward McGrew, defendant in the above-entitled action, acting without counsel, by which said petition the defendant sought a rule requiring the plaintiff to show cause why the plaintiff "should not be restrained from selling or exposing for sale any of the defendant's real estate, and particularly the real estate described in the writ at the above number and term, and why sheriff's sale should not be set aside and judgment and fi.fa. declared null and void."
At the time the said petition was presented to us, counsel for William P. Simmons appeared in the Assignment Room and presented to us an answer to the defendant's petition. We made an examination of the petition and of the answer, and of the pleadings and the record in this case and ascertained the facts in so far as they appeared of record in the District Court of the United States for the Western District of Pennsylvania, and having so ascertained the facts, we refused the defendant's petition and noted him an exception.
The defendant has appealed from our order refusing his petition for rule, to the Supreme Court of this Commonwealth, at No. 70 March Term, 1944. We have been served with a notice of such appeal, and in compliance with Rule 58 of the Supreme Court, this opinion is filed. As will appear by the record in this case, the facts are as follows:
At D. S. B. No. 925 October Term, 1941, in this County, the plaintiff caused judgment, by confession, to be entered against the defendant upon a bond accompanying a mortgage which had been given by the defendant to the plaintiff. According to the judgment so confessed, the penal sum of said judgment was $8,800.00, and the real debt was $6,711.60. On November 1, 1930, the defendant signed, executed and delivered a bond and mortgage in the sum of $4,400.00 to the plaintiff. The mortgage accompanying said bond covered certain real estate situate in this County which belonged to the defendant at the time the said bond and mortgage were executed by him. The defendant contends, and has contended, that the real debt secured by said bond and mortgage was $4,000.00, and not $4,400.00, as will appear by the terms of said bond and mortgage, but this question is not material to a disposition of the question now raised in this case.
On May 11, 1937, the defendant filed his petition in the District Court of the United States for the Western District of Pennsylvania, asking that he be declared a voluntary bankrupt. On July 21, 1937, the defendant was declared a bankrupt in the said District Court. These bankruptcy proceedings were terminated in the District Court, and from the order terminating said bankruptcy proceedings, the defendant took an appeal to the Circuit Court of Appeals at Philadelphia, which affirmed the decision of the District Court, and from such order of affirmation by the Circuit Court of Appeals, the defendant filed a petition for review before the Supreme Court of the United States. The said petition for review was refused by the Supreme Court of the United States, and by such action on the part of the Supreme Court, the order of the District Court became final and the bankruptcy proceedings were terminated.
On October 17, 1942, the defendant, Edward McGrew, again petitioned the United States District Court for the Western District of Pennsylvania under Section 75-S of the Bankruptcy Act, and upon said petition, all proceedings were ordered stayed by the District Court, pending the conclusion of such petition. These second proceedings were dismissed by the District Court, and from this order of dismissal, another appeal was taken by the defendant to the Circuit Court of Appeals at Philadelphia, and on August 18, 1943, an order was entered by the said Circuit Court of Appeals quashing the said appeal.
Judgment having been entered upon the judgment bond, as hereinbefore referred to, the plaintiff in this case proceeded to issue a writ of fieri facias and the real estate was duly levied upon and was advertised for sale on the second Monday of September, 1941. Upon petition of the defendant, the said sale was stayed, and by the order of court staying the said sheriff's sale, it was provided that no further advertising would be required. This Court granted additional stays of said sale, upon petition of said Edward McGrew, on September 17, 1941, on April 30, 1942, on May 29, 1942, on October 30, 1942, on April 30, 1943, and on May 7, 1943, and the final stay was terminated May 8, 1943, and this Court ordered that the sale proceed, without further advertising, on May 10, 1943.
This Court having ordered the said property to be sold on May 10, 1943, the defendant then filed his petition in the said District Court, and the District Court ordered a further stay of all proceedings in this case until May 8, 1943, and on May 8, 1943, said District Court made the following order of court:
"And now, to-wit, this 8th day of May, 1943, the within matter having come on to be heard in open court all counsel being present. It is ordered, adjudged and decreed that the Petition of Debtor for Order to Restrain Sale of Real Estate in the Common Pleas Court of Allegheny County at No. Fi. Fa. 388 October, 1941, Sur D. S. B. 925 October, 1941, and No. Fi. Fa. 200 October Term, 1941 Sur D. S. B. 732 October Term 1941 is hereby denied and the order of stay entered May 7, 1943, is hereby vacated. PER CURIAM, F. P. SCHOONMAKER, Judge."
The Court and the said District Court having refused to grant any further stay of the sale in this case, and having ordered the property exposed for sale on May 10, 1943, the said real estate was exposed for sale on said date, and it was sold to the plaintiff for the sum of $1,309.96, this being the total amount of costs and delinquent taxes against the said real estate. Said sum of $1,309.96 was paid into the Sheriff's Office on September 15, 1943; the Sheriff's Deed conveying the said real estate to the plaintiff was acknowledged September 18, 1943, and there being no exceptions filed thereto, the same was confirmed in due course on September 27, 1943, and such Sheriff's Deed was delivered to the Recorder's Office of Allegheny County by the Sheriff of Allegheny County, on September 29, 1943, and duly recorded in the Recorder's Office.
At this point we wish to observe that the defendant has actual knowledge of each and every proceeding and of each and every order of court staying the proceedings involved in this case. In fact, most of such stays of proceedings were granted upon the petition of the defendant.
The defendant failed to file any exceptions or objections to the confirmation of the Sheriff's Deed, hereinbefore referred to. However, he did, on September 30, 1943, present a petition to this Court, by which he sought to except to the confirmation of the Sheriff's Deed and asked that he be permitted to file such exceptions nunc pro tunc. On September 30, 1943, this Court refused to grant the said petition of the defendant and entered an order of refusal, and noted an exception to the defendant. No appeal was taken from this order of this Court.
The present petition presented to this Court averred that this Court was without jurisdiction, and that the real estate in question is in the custody and control of the United States Courts, and that the proceedings under which said sale of real estate was had are acts not within the jurisdiction of this Court. The defendant further contends that the acts referred to are in violation of his constitutional rights, and as before stated, the defendant sought by said petition to obtain a rule upon the plaintiff "to show cause why the plaintiff should not be restrained from selling or exposing for sale any of the defendant's real estate, and particularly the real estate described in the writ at the above number and term, and why sheriff's sale should not be set aside and judgment and fi. fa. declared null and void."
The facts being as hereinbefore set forth, and the Court being satisfied that the proceedings were regular, and that we did have jurisdiction, and that the real estate was not within the custody or control of the District Court of the United States for the Western District of Pennsylvania, and being further satisfied that the present petition was interposed by the defendant solely for the purpose of gaining delay, we refused the defendant's petition, and we think properly so.
Since the defendant in this case is now acting in person and does not now have counsel, in order to make certain that there are now no proceedings pending in the District Court of the United States for the Western District of Pennsylvania, we obtained a certificate from that Court which confirms the information we had obtained at the time we refused to grant the defendant's present petition, and which said certificate we are attaching to this opinion for the information of the Supreme Court of Pennsylvania.
Defendant appealed from the final order in each case.
The final orders of the court below are affirmed on the opinions of President Judge ROWAND and Judge McDONALD; costs to be paid by appellant.