Watt against Scott, 3 Watts 79

The opinion of the Court was delivered by Kennedy, J. Two errors have been assigned. The first is an exception to the opinion of the court, pronouncing the sale invalid, for want of a confirmation of it appearing on the records of the orphan’s court. And the second, that the court erred in not charging the jury that a confirmation, if necessary under the circumstances mentioned, ought to be presumed.

The question, presented in the first error assigned, must be solved by a fair construction of the nineteeth and twentieth sections of the act’of the 19th of April 1794, directing the descent of intestate’s real estate, &c. Purd. Dig. 406 (1831).

By the nineteenth section, the administrators of persons dying intestate, leaving lands, but not sufficient personal estate to pay their debts and maintain their minor children, are authorized “ to sell and convey” such parts of the lands for that purpose, as the orphan’s court of the county, in which the lands are situate, “ shall think fit to allow, order and direct.” And by the twentieth section, the administrators, after making the sales, are “ to bring their proceedings therein to the next orphan’s court after the sale made.” But in no part of this act, nor in that of any other on this subject until the passage of the late act of the 29th of March 1832, is it required that the sale shall be approved or confirmed by the orphan’s court, in order to give it validity.

I admit that it has been the practice, generally, to obtain a confirmation of such sales and to have it so entered upon the records of the court: but it has always been a matter of course to confirm, unless objections were made.

Where objections are made, I think it has been the practice to commit them to writing and to file them with the clerk of the court, or to have them noted on the record; yet I cannot go so far as to condemn a sale for want of its appearing on the record that it was confirmed, after it has been carried fully into effect and consummated by the parties, and possession taken of the estate and held by the purchaser, and those claiming under him, for a space of fifteen years, without any objection having been made or filed in the court, or made in any other form that we hear of, against the sale.

Indeed I am of opinion, that according to the terms of the act it was riot the intention of the legislature, after a return of the sale made by the administrator to the court, in pursuance of a previous order authorizing him to sell and convey, that any action of the court should be expressed on the record in regard to it, unless some objections were made to it; in which case the court would be necessarily called on to act; and having done so, their decision, disposing of the objections, ought to appear on their records, that it may be known what it is.

Then suppose an objection to be made and entered on the record, and, immediately following, an order in these words, “objection overruled by the court.” Could it be said that the sale, after this appearing on the record, ought still to be considered not good and effective ? Certainly not. Then ip what does the case, where an objection lias been made to the sale and overruled by tlie court, differ from the case of a sale made,'to which no valid objection can be made ?

Because, I take it, that after an objection made and overruled, the sale is to'be considered one free from objection ; and so the same conclusion is to be drawn where none appears to have been made. And if none exist, then the necessary consequence would seem to be, that the sale is good and effective. This course of reasoning appears to be sustained by the terms of the act of 1794, which expressly directs the orphan’s court, upon the first application of the administrator, and on his laying the proper ground before the court, to make an order authorizing him to sell and convey the land.

And having sold and conveyed, as the order of the court directed, he is to bring his proceedings therein to the next orphan's court after the sale made. It is reasonable then to conclude, that, as the administrator has sold and conveyed the land under an order of the orphan’s court, which the court was fully competent to make, expressly authorizing him to do so, it ought to be considered .not only good but effective, until it is actually set aside by some action of the court upon it.

It has been asked why should the act require the administrator to bring his proceedings to the next court, unless it be to have them approved and confirmed by the court? I answer, that to me it appears that the legislature intended by this to have the proceedings put on record; and required also, that this should be done at the next court after the sale, so that all concerned might know, not only what was done, but likewise when to appear and make their objections to the sale, if they had any.

But if none were made within the proper time, the natural consequence would be, that the sale was fair and freefrom all exception. This construction of the act of 1794 receives support, I think, from the circumstance of the legislature having introduced a new and different clause into the act of the 29th of March 1832 on this subject, from any that is contained in any prior act. .

In the thirty-second section, after requiring a return of the sale to be made to the orphan’s court, is added “ when, if the same be approved by the court, it shall be confirmed.” Now this clause was clearly unnecessary, if requiring a return of the sale to the court necessarily implied it.

By this last act every purchaser at such sale is apprized in terms which cannot be misapprehended, that to make the sale perfect, it must be approved and confirmed by the court; but to supply the same requisition by mere construction of the act of 1794, under which the sale in question was made, would seem to be bringing the rights of a purchaser to a test not contained in the act itself; and of which he, therefore, may never have had the least intimation.

This I feel unwilling to do, because it might bring into dispute the titles of some, perhaps many who have not only bought fairly, and paid the full value of the land, but have made large and expensive improvements upon it. Being of opinion then, that the right or title of the defendants in error to the lot of ground in dispute, was divested by the sale made of it under the order of the orphan’s court, and that they therefore have no title or claim to it, it becomes unnecessary to say any thing of the second error.

Indeed, having decided the question raised in the first error against the defendants in error, the question involved in the second error does not arise in the case. Judgment reversed.