ESTATES OF DECEDENTS - CONFIRMATION OF, IS INDISPENSABLE-A sale, by the orphans' court, of the estate of a decedent for the payment of debts does not divest the title of the heirs until after confirmation thereof, and the execution and delivery of a deed by order of the court; and until such deed is delivered, an heir or his vendee may maintain ejectment against the purchaser at such sale, even though the latter has paid the purchase-money and has gone into possession.

EJECTMENT. The only fact not stated, and necessary to an understanding of the opinion, is, that the defendant, Small, as the purchaser at the sale made by the orphans' court, paid the purchase-money and went into possession of the premises sold before the sale thereof was confirmed, and a deed thereto executed and delivered by and under the order of such court.

William A. Sober, for the appellant.

S. P. Wolverton and Charles M. Clement, for the appellee.

CLARK, J. On the 9th of April, 1880, George B. Youngman died intestate, seised, inter alia, of the premises in dispute. The plaintiff's claim is for the undivided interest of one of the heirs at law of the decedent, sold upon execution and purchased by him at sheriff's sale; while the defendant's claim is as a purchaser of the decedent's title at an orphans' court' sale by the administrators for payment of debts. Judgment was entered for the plaintiff. Whether this judgment was properly entered depends upon the decision of a single question, whether or not, after a sale of the decedent's title by the

859

orphans' court, for the payment of debts, not yet confirmed, but contested upon the ground that the personal estate is not insuflicient for payment of the debts, an action of ejectment may be maintained against the purchaser for the interest of one of the heirs of the decedent. The orphans' court sale was made January 16, 1884; the ejectment was brought November 16, 1886, and judgment entered April 26, 1890, at which time the exceptions filed to the confirmation of the orphans' court sale were still undisposed of.

It is well settled that an orphans' court sale does not divest the title of the heirs until after confirmation thereof and conveyance delivered under the order of the court. In ordinary sales under articles of agreement between private parties, the sale, as to the vendor, works a conversion; equity regards that as done which the parties to the agreement have the power to do, and which they have agreed to be done: Richter v. Selin, 8 Serg. & R. 440. But orphans' court sales are made under the authority of the court; indeed, the sale is the act of the court, the administrator being only the hand of the court in making it: Armstrong's Appeal, 68 Pa. St. 409; and it is therefore subject to the approval and confirmation of the court. Such sales are liable to be vacated," says Mr. Justice Strong, in Demmy's Appeal, 43 Pa. St. 168, "by a power superior to the purchaser, and against his will. The sale, even after confirmation, does not divest the title of the heirs of the decedent, for it remains in the power of the court until a deed has been executed and delivered. Until then, the heirs' right to maintain ejectment, even against the purchaser, has not gone: Leshey v. Gardner, 3 Watts & S. 314; 38 Am. Dec. 764. Until then, no conversion takes place, and if the heir of the decedent die, even subsequently to the confirmation of the report of sale, but before the deed, his interest descends as land, and not as money: Erb v. Erb, 9 Watts & S. 147; Biggert's Estate, 20 Pa. St. 17. These cases recognize a clear distinction between sales made under order of an orphans' court and private sales. The latter are exclusively acts of the parties, and are beyond the control of any other power. The former are not the acts of the decedent or his heirs or devisces; they are the acts of the court, and they require no consent of the owners. In substantial fact, the purchaser buys from the court through its agent. The court reserves the power to decline his bid and to disannul the act of its agent, until the sale has been fully consuminated." To the same

effect is Overdeer v. Updegraff, 69 Pa. St. 110; De Haven's Appeal, 106 Pa. St. 612. The bid of the buyer at an orphans' court sale is but an offer to the court, which the court may or may not accept, at its discretion: Hays's Appeal, 51 Pa. St. 58. If accepted, however, the title of the buyer may for some purposes, perhaps, have relation to the date of his purchase. An administrator's sale of land, under an order of the orphans' court for payment of debts, is worthless without confirmation, for the act of 1832 expressly requires it: Morgan's Appeal, 110 Pa. St. 271.

Even in the case of a sheriff's sale, the title of the debtor is not divested, nor can the purchaser maintain ejectment, or grant a lease of the lands, until the deed has been acknowledged and delivered: Hall v. Benner, 1 Penr. & W. 402; 21 Am. Dec. 394. It may be, as we said in Holmes's Appeal, 108 Pa. St. 23, although the title of the heirs is not divested, that the purchaser at an executor's sale, under an order of the orphans' court for payment of the decedent's debts, like a purchaser at a sheriff's sale, acquires an inceptive title or interest in the property at the time of the sale, which, if the sale be subsequently confirmed, and a deed delivered, may support the lien of a judgment; but non constat that this sale will ever be confirmed or a deed delivered. And certainly no one will seriously contend that this inceptive title, whether arising out of a sheriff's sale or an orphans' court sale, is sufficient to support a claim to the possession prior to its consummation by the confirmation of the court and the delivery of a deed. If a purchaser, when the property is struck down to him, may at once enter into the possession pending proceedings for confirmation, great confusion and embarrassment in the settlement of estates would certainly ensue; for, as he could be dispossessed only by ejectment, the heirs or executors would be subject to much delay and useless litigation. It is not every equitable right or interest in lands which entitles the owner of it to possession. In ordinary sales between individuals in their own right, a contract to sell does not, ipso facto, carry a right of possession until conveyance, unless the intention of the parties to that effect is manifest in the contract. "It is very common, it is true," says Mr. Justice Agnew in Weakland v. Hoffman, 50 Pa. St. 517, 88 Am. Dec. 560, "to let the purchaser in upon a sale, but we know of no rule of law by which the possession, so important a security to the rights of the vendor, shall pass from him without his covenant

or consent." See also Smith v. Patton, 1 Serg. & R. 84; Baum v. Dubois, 43 Pa. St. 260; Irvin v. Bleakley, 67 Pa. St. 28; and also the very recent case of McGrew v. Foster, 113 Pa. St. 642. We are of opinion that the learned judge of the court below was right in his instruction to the jury, and that the judgment was properly entered.

Judgment is affirmed.

SALES OF DECEDENT'S REALTY-CONFIRMATION. — The right of the heirs to the land is as absolute as that of the ancestor, until divested by a valid sale to pay debts made under an order of the orphans' court: McCoy v. Scott, 2 Rawle, 222; 19 Am. Dec. 640, and note; and such a sale is not valid, and regarded as consummated, until confirmed by the court: Rea v. McEachron, 13 Wend. 465; 28 Am. Dec. 471, and note. Confirmation by the court is essential to the consummation of a judicial sale of realty: Virginia etc. Ins. Co. v. Cottrell, 85 Va. 857; 17 Am. St. Rep. 108, and note. Compare State Nat. Bank v. Neel, 53 Ark. 110; 22 Am. St. Rep. 000, and note.

OGDEN V. BEATTY.

[137 PENNSYLVANIA STATE, 197.]

SALE OF GOODS BY SAMPLE MEASURE OF DAMAGES FOR BREACH OF WARRANTY. Where goods are sold by sample, with a warranty of quality, and are retained by the purchaser, the measure of damages for a breach of the warranty is the difference between the market value of the goods contracted for and of the goods delivered; and in an action for the price of the goods, the purchaser may interpose this difference as a defense pro tanto.

SALE OF GOODS BY SAMPLE - · SUFFICIENCY OF AFFIDAVIT OF DEFENSE IN ACTION FOR PRICE. — An affidavit of defense, setting up a breach of warranty in a sale of goods by sample, in an action for their price, must contain a clear and concise statement of the facts which constitute a basis for the assessment of damages under the rule by which they are measured. All the elements of the defense must appear with reasonable certainty in the affidavit, and if any fact essential to complete such defense is omitted, the affidavit is insufficient.

SALE OF GOODS BY SAMPLE - SUFFICIENCY OF AFFIDAVIT OF DEFENSE IN
ACTION FOR PRICE. – An affidavit of defense, setting up a breach of
warranty in a sale of goods by sample, in an action for their price, al-
leging great loss by reason of claims made by customers, and their can-
cellation of contracts because of the low grade and inferior quality of
goods furnished, is insufficient, as failing to state the essential facts upon
which to constitute a basis for the assessment of damages. Such affida.
vit should at least state the quantity, market price, and difference in
quality of the goods purchased, and of the goods delivered.
SALE OF GOODS BY SAMPLE PRESUMPTION AGAINST PURCHASER. - In an
action for the price of goods sold by sample, it will be presumed, in the
absence of averment and proof to the contrary, that the goods were in-
spected by the purchaser when he received them, and that he knew
their grade and quality, and made no complaint as to either.

E

ASSUMPSIT on book-account for goods sold and delivered. A request to enter judgment for plaintiffs, for want of a sufficient affidavit of defense, was refused by the court, and plaintiff's appealed.

George H. Earle, Jr., and Richard P. White, for the appellants.

Josiah R. Adams, for the appellee.

MCCOLLUM J. It is averred in the affidavit of defense that the notes and account in suit represent the price of yarn purchased by the defendant of the plaintiffs, by sample, which he exhibited to them; that the yarn delivered by the plaintiffs to the defendant was inferior in grade and quality to the sample shown, and that, in consequence thereof, he has sustained damage to the amount of many thousand dollars in excess of the sum demanded by the plaintiffs. It is to be noted that neither the quantity, market price, or quality of the yarn purchased, or of the yarn delivered, is stated in the affidavit. It contains, in general terms, a suggestion of a loss of custom and a cancellation of contracts as a result of a breach of warranty, but it is clearly deficient in the statement of specific facts on which to rest the legal conclusions invoked. It does not allege that the plaintiffs were manufacturers of yarn, that the defendant was a manufacturer of cloth, or that the former knew for what purpose the yarn was purchased by the latter. Its inferences and conclusions are not authorized by its facts. There is nothing in it on which to ground a claim for damages, embracing loss of custom or a cancellation of contracts.

Where goods are sold with a warranty of quality, and are retained by the purchaser, the measure of damages for a breach of the warranty is the difference between the market value of the goods contracted for and of the goods delivered. In an action for the price of the goods, the purchaser may interpose this difference as a defense pro tanto. If an affidavit of defense is required, it should contain a clear and concise statement of the facts which constitute a basis for an assessment of the damages under the legal rule by which they are measured. All the elements of a defense should appear with reasonable certainty in the affidavit, and if any fact essential to complete the defense is omitted, the affidavit is insufficient. In the present action, the defendant alleges that he has sustained great loss by reason of claims made