13 Pa. 292 | Pa. | 1850
The party has three years to make his appeal to this court. The appeal was perfected in that time. The only question is, whether the recognizance, signed by the surety in blank, and delivered to the officer to fill up according to law> and fix the sum at discretion, and which was afterwards, within the three years, duly filled up by the officer, is in fact the deed of the surety. Of this there seems to be no reasonable doubt. Clerks of the Orphans’ Court, not only in this city but in many other parts of the commonwealth, are so much hurried and pressed by business, that they cannot, at the moment when the affidavit required by law is made by the party or his agent, (the court being then perhaps in session,) fill up and perfect the bond or recognizance; and it has grown into a custom to fill them up afterwards, upon distinct authority to do so being given to them by the obligor.
It is a slovenly and loose practice, I admit, and one which I do not desire to approve. But the question is, whether the bond, under such circumstances, is valid. The following case is very much in point. A. being in custody under an execution, applied to a judge of the common pleas, under the act of 1820, to give a bond and receive a discharge, and for that purpose he and B, his surety, wrote their names on a blank paper, and affixed their seals,’ and left it with the judge, desiring him to fill it up. The judge gave the discharge and took away the paper, and afterwards filled it up. Held, that the bond was valid and binding. 17 S. & R. 419. Stahl vs. Berger, 10 S. & R. 170; Sigfried vs. Levan, 6 S. & R. 308, go to establish that a bond, signed and sealed in blank, and afterwards filled up by the authority of the obligor, is valid and binding. This does not conflict with the authorities cited by the appellee, that a bond altered after execution, without the consent of the obligor, is void, as to him. The bond or recognizance is good, and the appeal taken intime. The motion to quash is refused.
The power of attorney from Robert Reed to Erancis Pomeroy, under all the circumstances, is considered as sufficiently proved; indeed, after the great lapse of time, its existence might perhaps be presumed. The deed, in pursuance of this power, and reciting it, was executed in 1812, and in 1840 first disputed. During nineteen years of that time the alienee of Robert Reed was in the actual adverse possession of the estate under the deed. The deed being acknowledged before two justices of the peace in the county of Jefferson, in the state of Kentucky, who were ex officio judges of the county court, and the fact of their being such duly certified by the clerk of the county court, and a certificate of the presiding judge of the county accompanying the same. The power of attorney was, in 1812, recorded in the recorder’s office
In early times, the emigration from the interior and western parts of the state, to descry and appropriate new lands in the valley of the Ohio, was prodigious, considering -that Pennsylvania was but a fresh eountry. Thirty years ago a vast many conveyances or deeds were made in Ohio and Indiana, for the lands which the emigrants had left behind them, and the proof and acknowledgments were made according to the condition of the country, chiefly before justices of the peace, rough hewn, but honest,' and certificates given by the clerls of the county courts, all of whom acted from the best lights they had, or could' acquire. If we should hold the probate insufficient in this case, we would unsettle hundreds of estates, where the occupants have honestly paid their money for them, improved them, and on which they have long set their feet with firmness, as their homes and -abiding places. We cannot break up the repose of society upon • technical niceties and quillets of the law. If we did, the time would soon come when men would shudder as they met a lawyer on the streets. The age of substantial reason has come, in the application of principles of law to particular cases, and we must be faithful to it.
The front aspect of-the case is, whether any interest, passed by virtue of the deed made in pursuance of this power of attorney to George Wallace, the younger, for the one-fourth of the house and lot in Pittsburgh. It is contended by the appellee that the interest of Robert Reed, the cestui que trust, was personal estate, that he had no interest in the realty, and could not sell or convey it. I may as well, at the outset, deliver this point from Harris’' and Forster, 10 Barr, 457. That the marrow of the case' is, that the personalty was not intended by the parties to be sold and bought, and that not only the intent of'the parties but the Ian- ' guage of the deed was fulfilled by the transfer of the realty, and ■ that not one cent was paid for the personalty.' The same remark will cover the- cases cited in relation to party .walls; - But here what the appellee calls personal estate,' was: the very subject matter ' of the contract, and nothing else was "embraced. The parties sold - and bought,-and the price Was- paid under a full conviction that - the- interest of the vendor was an interest in the real estate.- The deed passed that, or it passed nothing.- I agree to- the -cases cited
One other point only is it necessary to notice. That is, that Geo. Wallace, the younger, was one of the executors of George Wallace, the elder, who was executor of Reed, the testator, and that as both the executors of Reed were dead, in 1812, George Wallace, the younger, was the executor of Reed, and in making the
Lord Alvanley, in Campbell vs. Walker, 5 Ves. 678, says: There is no rule that a trustee cannot be a purchaser. But, however fair the transaction, it must be subject to an option in the cestui que trust, if he comes in reasonable time, to have a re-sale. Here time has cured all defects on this score. The volunteer administrator de bonis non, who never paid a cent, comes, on behalf of somebody, perhaps the heirs of Robert Reed, to demand the land and money for which Robert Reed was fully compensated and paid by George Wallace, the younger, in 1812. There is not a scintilla of evidence of fraud or circumvention; but all appears' fair and honest, and the price paid fully adequate. Robert Reed lived and died acquiescing in the arrangement and sale, and Wallace and his heirs were eighteen or nineteen years in actual possession. It is too late to-disturb the repose of the dead, or blacken the memory of Robert Reed, for the benefit of his heirs.
The decree of the Orphans’ Court is reversed, and the court decree and adjudge that Costen and wife are entitled to the money in dispute, produced by the sale of one-fourth of the house and lot in Pittsburgh, as devisees of George Wallace, who purchased from Robert Reed.
The case is referred to the master, to report the sum due to Costen and wife, under the above decree; so that execution may issue from this court.
Before the master the appellee gave testimony for the purpose of showing that, upon other grounds than that relied on below, the decree below was correct; and that on account of the laches of the appellant, in perfecting his appeal, the appellee, in ignorance of the appeal taken, had paid away the fund, in accordance with the decree below.
On the coming in of the report finding the amount due, and reporting these circumstances specially, the counsel for the appellee proceeded to argue the case upon these circumstances; but the court said that the proper mode was by bill of review, if grounds would be laid; but that the testimony taken was not in accordance with the object of the reference.
May 1. — Pmlen, for the appellee, presented his petition for a review, setting forth that the decree below was based on one ground only, viz: the sufficiency of the proof of the power of attorney; that a record of a suit in equity between the parties, at Pittsburgh,
On appeal, the cause is heard de novo, and this court decides according to the justice of the whole case. All matters, up to the decree here, are res judicata in law, and some, relied on here as new matter, actually so in this case. The essentials of a bill of review are not and cannot be averred. Mitf. Eq. Pl. 83, 90.
May 2. — The court dismissed the petition for a review, and confirmed the report with costs.
For the petition, it was said this case resembled a judgment at common law, where there has been a reversal, when a venire de novo is of course. Here the party had no opportunity of bringing forward his case, having relied on the grounds taken below. That matters occurring after that decree could not be introduced on the record on an appeal, until that decree was disposed of; and there were facts exculpating the appellee directly within the rule laid down in Miller’s appeal, ante.