71 Pa. 465 | Pa. | 1872
The opinion of the court was delivered, by
When this case was here on a former appeal the question of specific performance was not directly before us. It was then a bill in equity in the Common Pleas for specific performance of a sale of real estate made by the executor of Samuel Mussleman’s will, under a power to sell real estate given by the will to no person by name or description. The executor had made the sale without any previous order or direction of the Orphans’ Court, and we held that the supervisory jurisdiction of the Orphans’ Court, under the 12th section of the Act of 24th February 1834, extended to the approval or ratification of the sale, and that the 57th section of the Act .of 29th March 1832 supplied the means of calling the parties before the court for this purpose. It was therefore decided that the jurisdiction over the question of ratification being exclusively in the Orphans’ Court, the Common Pleas had no jurisdiction to enforce the specific performance of the sale, which was inchoate without the approval of the Orphans’ Court. That bill having been dismissed without prejudice, the executor presented his petition to the Orphans’ Court, setting forth the sale, and praying for its approval and also for its specific execution, and obtained a decree from which the defendant has appealed.
As the question of specific performance was not directly decided before, it is proper we should now say that the Orphans’ Court has jurisdiction of it. The 12th section of the Act of 1834 conferring the power of sale on the executor, declares that it shall not be exercised or carried into effect except under the control and direction of the Orphans’ Court having jurisdiction of his accounts. This power to control and direct carries with it the power to affirm or disaffirm the sale, to set it aside or to enforce it, in the sound discretion of the court to serve the best interests of the estate. There are many reasons why that court should not only superintend the exercise of the power of sale in the first instance, but should also retain its jurisdiction to carry it into final effect. It is the proper court having general jurisdiction over the settlement of the accounts of the executors and the distribution of the proceeds of sale. It has also not only the special jurisdiction
On the merits we discover no reason to disagree with the opinion of the Orphans’ Court. The auditor evidently mistook the force and effect of the evidence on the question of possession. Under the terms of sale, actual possession was not to be delivered to the purchaser. He bought subject to the tenant’s lease, which was not to expire until April 1st 1870, a year after the time when the sale was to be consummated. The evidence shows clearly that Bell, under his purchase, took the contract of the tenant and the farm, and, acting upon this right, he cut timber largely for himself, directed the tenant where and what firewood to cut, relieved the tenant from liming the farm extensively as he was bound to do under the lease; that the want of ability in the executor to make title by the day appointed, was a mere mistake of his authority as to the mode of executing the power of sale; that the defendant when he discovered this, suddenly notified the executor that he rescinded on the same day, without allowing any reasonable opportunity to correct the error, without paying or tendering payment for the damages he had done to the premises; and, in short, without evidencing any fair intention to repair the mischief he had done, or to place the executor in statu quo, as he was before the sale. He had paid also $2859.67 on the purchase-money. On the whole, we perceive no ground on which the defendant should be relieved from his purchase; and the decree of the Orphans’ Court is
Affirmed with costs.
