
    Jashenosky v. Volrath. Wolf & Son v. Volrath.
    
      Deed by office7■ of court — Dates from day of sale.
    
    A deed for real estate executed by an officer of a court pursuant to its order confirming a judicial sale previously made takes effect by relation on the day of the sale and vests in the purchaser the right to intermediate rents.
    (Decided January 31, 1899.)
    Error to the Circuit Court of Franklin county.
    The plaintiffs in error were tenants from month to month of one William Volrath, occupying several storerooms on Fourth street in the city of Columbus. Mrs. Volrath brought her separate actions against them for rent for the months of March, April and May, 1894, alleging that William Volrath had assigned to her his claim for the rents for said months. In their answers Jashenosky and Wolf & Son, not denying that they had entered said premises as tenants of William Volrath, alleged that on March 10, 1894, said premises had been sold at judicial sale to the Commercial National Bank of Columbus and that the rents for which the plaintiff had brought her action had been paid by said tenants to the bank as such purchaser. They also denied the validity of the assignment of the claim to Mrs. Volrath. The cases present the same issues and were submitted on the same evidence. As to the liability of the plaintiffs to William Volrath there was an agreed statement of the facts which is in the record submitted to us. As to the validity of the assignment to Mrs. Volrath parol evidence was submitted to the jury. The trial in the common pleas resulted in special verdicts finding that there was not a valid assignment of the claims to Mrs. Volrath, and general verdicts for the defendants. Motions to set aside the verdicts were overruled and the defendants took judgment.
    On petition in error in the circuit court with a bill of exceptions setting out all of the evidence submitted in the court of common pleas, the circuit court, finding that the court of common pleas had erred in the admission of evidence, and that the verdict was not sustained by the evidence, reversed the judgment of the common pleas; and further, regarding the agreed statement of facts as containing all the evidence necessary to a final determination of the rights of the parties, the circuit court rendered final judgments in favor of Mrs. Volrath for the amounts claimed in her petitions.
    The facts agreed upon are that during the tenancy of Jashenosky and Wolf & Son the bank brought suit against William Volrath to bring the premises to sale for the satisfaction of liens thereon; that pursuant to an order of the court made in said cause the premises were sold by the sheriff to the bank March 10, 1894, and the sale being reported on the same day was confirmed May 30, 1894, and deed executed pursuant to the order of confirmation; and that the rent accruing between the dates of the sale and the confirmation thereof had not been paid to the plaintiff or to William Volrath.
    
      F. F. D. Albert/, for plaintiffs in error.
    We claim that the sale was completed so far as passing title to the real estate is concerned on the tenth day of March, and that the subsequent act of the court in confirming: the sale and ordering the sheriff to make a deed relates back to the date of the sale and payment of the money by the purchaser, and that the purchaser is therefore entitled to the rents. Rorer on Judicial Sales, 2d edition, page 55, section 106 and page 57, sections 108 and 109. Boyd v. Longworth, 11 Ohio, 235; Oviatt v. Brown et al., 14 Ohio, 285.
    We have not been able to find any Ohio cases in which these decisions have been overruled and it would seem as though they were the only cases in which the question at bar had been passed upon by the court. Other cases out of which the principle for which we contend might be deduced by. comparison. Albin v. Riegel, 40 Ohio St., 339; Black v. George, 26 Ohio St., 629.
    Two cases in Missouri seem to throw some light on the point. Winfrey v. Works, 75 Mo., 55; Stevenson v. Hancock, 72 Mo., 612; Williams & Whann Co. v. Cochran et al., 8 Huston Del. Re ports, 420; Taylor v. Cooper, 10 Leigh (Va.), 317; Anderson v. Towgood, 1 Jac. & Walk., 617; Wagner & Marshall v. Cohen, 6 Gill. (Md.), 102; Lannay's Lessee v. Wilson et al., 30 Md., 536.
    A purchaser under a decree in equity becomes the substantial owner of the property from the moment of final ratification of the sale, and he is ■entitled to and can recover the rents and profits of the estate.
    By such sale the dry legal title and the right of possession often become completely severed, at least for a time, the legal title remaining in some of the parties to the cause, while the equitable estate and right of possession become vested in the purchaser. After the decree and before sale the possession of and title to the property are vested in the court. 3 Bland, 60; 6 Gill, 103.
    This must be so for the sale of a trustee is a sale by the court to the purchaser, the trustee being but the agent of the court to make the sale. 6 Gill, 228; 1 Md. Ch. Dec., 241; 11 G. & J., 8; 19 Md., 391; Lathrop v. Nelson, 4 Dill. (U. S.), 194.
    The English doctrine on this subject seems to be supported by the weight of American authority - (Taylor v. Cooper, 10 Leigh, 317; Wagner v. Cohen, 6 Gill. Md., 102), but the decisions are conflicting. Armstrong v. McClure, 4 Heisk. Tenn., 80; re Bledsoe, 12 Bankr. Reg., 402.
    
      Samuel Bambleton, for defendant in error.
    The denial of ownership in Mrs. Volrath is embodied in the answer of the defendant.
    The denial therein is a negative pregnant. It don’t deny that an assignment of the claim was made, but denies only its validity, and fails to deny the fact of the assignment, and was therefore, insufficient to put Mrs. Volrath upon proof of ownership. Bliss on Code Plead., section 332. Rumbarger v. Stiver, 6 Ohio, 99; Caldwell v. Caldwell,, 45 Ohio St., 512; Maple v. Redwood, 40 Ohio St., 313; Moser v. Jenkins, 5 Ohio, 447.
    The contract of sale is only executed so as to pass the title by payment of the money, and the execution and delivery of the deed, duly approved or confirmed by the court, as the practice may be. Section 128 Revised Statutes.
    From the several provisions of the statute regulating- judicial sales, the rents accruing- between the date of sale and the date of confirmation and delivery of the deed must belong to the judgment debtor.
    After the return of sale is made by the sheriff, the further duties of the officers, and the rights of the parties, are fixed and controlled by the following sections 5398, 5401 and 5402. Curtis v. Norton, 1 Ohio, 278.
    It is also an established law in Ohio, that “where lands subject to a mortgag-e, are sold under a decree of foreclosure, the emblements of a lessee are protected, and do not pass to a purchaser under the decree.” Cassilly v. Rhodes, 12 Ohio, 88; Houts v. Showalter, 10 Ohio St., 124; Gorrell v. Kelsey, 40 Ohio St., 117; Reed v. Radigan, 42 Ohio St., 292; Trust Co. v. Gibbon, 10 Ohio St., 566.
    In states where confirmation is required, the purchaser obtains no vested rights until after the sale is confirmed, and if the confirmation (which depends upon the sound discretion of the court), is refused, the rights of the purchaser fall to the ground. Taylor v. Gilpin, 3 Met. (Ky.), 544; Hunting v. Walter, 33 Md., 60 ; Rorer on Judicial Sales, section 10; Sowards v. Pritchett, 37 Ill., 517; Fiedeldey v. Diserens, 26 Ohio St., 312.
    In general, it may be stated, as an established proposition of law, that a purchaser at a judicial sale is not entitled to the rents between the date of sale and the date of confirmation and delivery of the deed. 8 Am. & Eng. Ency. of Law, 273, 274, and cases there cited; Glason v. Corley, 5 Sandf. (N. Y.), 447 ; Astor v. Turner, 11 Paige (N. Y.), 436; 43 Am. Enc., 766 and notes; Beckman v. Sikes, 45 Kan., 120; Taliaferro v. Gay, 78 Ky., 496.
   By the Court:

The parol evidence submitted upon the trial is not before us and we must presume that the circuit court correctly held that it afforded no support to the verdict. It follows that the circuit court rightly held that since all material facts were agreed upon, and nothing remained to be done but to apply the law to those facts, such final judgments as those facts required should be rendered by it. The general doctrine relating to the effect of the confirmation of a judicial sale is that it relates .back to the day of sale and passes a title as of that day. The deed executed pursuant to the order of confirmation by relation takes effect as of the day of sale. This is the established doctrine in Ohio. Lessee of Boyd v. Longworth, 11 Ohio, 236; Oviatt v. Brown, 14 Ohio, 286. It was not applied in Black v. George, 26 Ohio St., 629, because by the terms of the sale there considered the purchaser’s right to possession was deferred until the expiration of a current lease. The equity of the rule is manifest because the purchaser cannot escape from the sale because he may think it disadvantageous to him, and he is required to pay interest from the day of sale on so much of the purchase price as he has not actually paid. That the right to the intermediate rents passes to the purchaser as one of the results of confirmation has been held in numerous cases. Winfrey v. Work et al., 75 Mo., 55; Stevenson v. Hancock, 72 Mo., 612; Taylor v. Cooper, 10 Leigh, 317; Wagner et al. v. Cohen, 6 Gill, 97; Lathrop v. Nelson, 4 Dillon, 194.

Judgments of the circuit court reversed and those of the common pleas affirmed.  