
    UNION TRANSFER CO vs. LEA.
    Where a judgment by default is taken prematurely, it is not void, but voidable, and a Sheriff’s sale under such judgment passes a good title.
    Error to Common Pleas No. 4 of Philadelphia County. No. 120, July Term, 1884.
    This was a suit brought by Henry C. Lea against the Union Transfer Company, and a case stated was agreed upon as follows :
    It is agreed that an amicable áction in the above form shall be entered as though a summons had been duly issued, and had been duly returned “served,” and that the following case be stated for the opinion and judgment of the court:
    On the 31st day of July, 1874, Albert Schwarz conveyed, in fee, to Sarah Krusen, wife of William Krusen, a lot beginning- at a point on the south side of Arch street, fifty-eight feet seven and a-half inches eastward from the east side of Ninth street, in the City of Philadelphia; thence extending southward on a line parallel with said Ninth street, one hundred and twenty-three feet to a point; thence eastward by an offset three inches; thence southward twenty-four feet to the north side of a ten feet wide alley leading into and from the said Ninth street; thence eastward along the north side of the said ten feet wide alley, twenty-two feet eight and a-quarter inches; thence northward one hundred and forty-seven feet to the south side of said Arch street, and thence westward along the south side of the said Arch street twenty-three feet to the place of beginning.
    On the ioth day of October, 1874, the said Sarah Krusen presented her petition to the Court of Common Pleas, of Philadelphia County, asking for leave to act as a femme sole trader, under the Act of 2d April, 1872, and on the same day it was ordered by the said Court that said petition should be filed and recorded.
    On the 2d day of February, 1877, the said William and Sarah Krusen (both of whom are still alive), delivered to Flenry C. Lea, who had loaned to them twenty-eight thous- and dollars ($28,000), upon the bond of said William Krusen, a mortgage of the said premises, duly executed and acknowledged to secure the payment of said bond, with interest, in three years. Said mortgage was duly recorded at Philadelphia on the 3d day of February, 1877, in Mortgage Book D. H. L., No. 105, page 331, &c.
    On the 3d day of February, 1877, the said William and Sarah Krusen delivered to Henry C. Lea, who had loaned them the additional sum of five thousand dollars ($5,000), upon the bond of the said William Krusen, a mortgage of the said premises duly executed and acknowledged, to secure the pa3'ment of said bond, with interest, in one year. Said mortgage was duly recorded at Philadelphia simultaneously with the above described mortgage, in Mortgage Book D. H. L., No. 105, page 335, &c.
    
      On the 29th day of August, 1878, a writ of scire facias was issued out of Court of Common Pleas No. 2, Philadelphia County, to June Term, 1878, No. 1313, for the purpose of foreclosing the said mortgage to secure said five thousand dollars ($5,000). The docket entries of said proceedings are as follows:
    
      In the Court of Common Pleas No. 2, for the County of Philadelphia.
    
    Appearance Docket of June Term, 1878. No. 1313.
    Henry C. Lea vs. William Krusen and Sarah Krusen.
    
      Sci. fa. sur. mtge., dated Feby. 3d, 1877, reed, same day in M. B., D. H. L., No. 105, p. 335, &c.
    Exit Aug. 29th, 1878. Ret. 1st Mon. Sept., 1878.
    
      Nihil Habent. Sept. 14th, 1878, ais. sci. fa. mtge. Exit ret. 3d Mon. Sept., 1878 (16th).
    
      Nihil Habent. Sept. 24th, 1878. Judgt. for want of an appearance on two rets, of Nihil Habent. Eo. die. dams, assd. @ $4,274. Sept. 24th, 1878, Lev. fa. Exit ret. 1st Mon. Oct., 1878. Sold to Henry C. Lea for $31,000.
    The alias writ of scire facias was issued on said mortgage ■on the 14th day of September, 1878, returnable to the third Monday of September, 1878 (16th September, 1878). It was returned as had been prior writ "nihil habent¡’ and on the 24th day of September, 1878, judgment was entered for want of an appearance on two returns of "nihil habent” and the damages were assessed on the same day at $4,274.
    On the 24th day of September, 1878, a writ of levari facias against the said premises upon the said judgment, was duly issued, returnable to the first Monday of October, 1878, and ■on said return day the said premises were sold by the Sheriff to the said Henry C. Lea, who was the highest bidder, for the price or sum of $31,000.
    Said purchase money was paid by a receipt on account of said two mortgages, then owned by said Lea, and on the 19th day of October, 1878, the High Sheriff executed his deed poll for said premises, to said Lea, which was duly acknowledged in open Court of Common Pleas No. 2, on the same day, and was duly recorded. Said deed was duly delivered to said Lea, who obtained possession of the premises from said Sarah Krusen, after notice to quit duly served, through the instrumentality of a Sheriff’s jury.
    The possession of said premises for upwards of five years has been continued by the said Lea, who is now in the possession thereof.
    No steps have ever been taken, by the writ of error or otherwise, to procure a reversal of said judgment, and the same still stands upon the record of said Court of Common Pleas No. 2, unappealed from and unreversed.
    On the day of July, A. D. 1884, the plaintiff and defendants entered into articles of agreement for the purchase and sale of said premises, for the price or sum of $37,000, upon the condition that the title of the said Lea was good and marketable.
    The said defendants have refused to accept a conveyance of said premises by the said Lea, under and by, virtue of said contract or agreement, although anxious, willing and ready to comply with and perform their part of said contract or agreement, because they have been advised that the judgment entered in the above case is voidable, if not absolutely void, and that by¡ reason thereof a good and marketable title did not pass to and vest in the plaintiff under the proceedings thereto and thereon.
    If the Court shall be of the opinion that there is no error in the said judgment, and proceedings of foreclosure which renders the title of said Lea not good and marketable, then judgment is to be entered in his favor against the said defendants for the sum of thirty-seven thousand dollars, conditioned upon a delivery by him, of a good and sufficient deed and marketable title to said premises, clear of all liens; but if the Court shall be of the opinion that; there is such an error in said proceedings as renders the title of the said Lea not good and marketable, then judgment is to be entered in favor of the defendant
    
      Either party shall be at liberty to sue out a writ of error to the judgment of the Court.
    The Court entered judgment in favor of the plaintiff, and the Union Transfer Company then took this writ of error.
    
      I. N. Brown, Esq., for plaintiff in error,
    argued that the judgment was void, and the Sheriff’s sale passed no title, and cited Act June 13, 1836, P. Laws 578; Chambers vs. Carson, 2 Wh. 9, 372; Magaw vs. Stevenson, 1 Gr., 402; Faunce vs. Subers, 10 Phila., 411; Haven vs. Campbell, 4 W. N. C., 216; Martin vs. Gernandt, 19 Pa., 129; Taylor vs. Young, 71 Pa., 81; Cadmus vs. Jackson, 52 Pa., 306; Wood vs. Colwell, 34 Pa., 92; Diese vs. Fackler, 58 Pa., 112.
    J. G. Johnson, Esq., contra,
    
    argued that the judgment was-irregular, but not void; Glover vs. Holman, 3 Heisk, 519;. Lyons vs. Coledge, 89 Ill., 529; Hendrick vs. Whittenmore,, 105 Mass., 23; Pigman vs. Denney, 12 Iowa, 396; DeFar vs. Boone Co., 34 Iowa, 488; Whitwell vs. Barbier, 7 Cal., 54; Sims vs. Gray, 66 Mo., 616; Sterret vs. Howarth, 76 Pa., 438; Stewart vs. Stocker, 13 S. & R., 203; Lowber’s Appeal, 8 W. & S., 387; Miltimore vs. Miltimore, 40 Pa., 155; Wilkinson’s Appeal, 65 Pa., 190; Welty vs. Ruffner, 9 Pa., 224; Warder vs. Tainter, 4 Watts, 270; Cooper vs. Reynolds, 10 Wallace, 308; Hersch vs. Groff, 2 W. & S., 449; Harres vs. Commonwealth, 35 Pa., 416. A Sheriff’s sale on a judgment which-is afterwards reversed passes a good title; Act of - 1705, Section 9; 1 Sm. L. 61.
   The Supreme Court affirmed the judgment of the Commoii Pleas on February 9th, 1885, in the following opinion:

Per Curiam.

While the case stated shows an irregularity in the entry of-the judgment against the Krusens, yet it was not void. No‘step was taken by the writ of error or otherwise to revise it. and it stands unappealed from and unreversed. The subse-1 cpient proceedings thereon, including the sale by the Sheriff, were all regular. Under the Act of-, 17o5> Section 9; 1 Sm. L. 61. The sale of lands made on execution,, although the judgment be afterwards reversed, is not invalidated. Nor can a judgment, although irregular, be impeached in a collateral proceeding. There was no error in entering judgment in favor of the plaintiff below.

Judgment affirmed.  