Kellerman v. Miller

5 Pa. Super. 443 | Pa. Super. Ct. | 1897

Opinion bx

Orlady, J.,

On September 17, 1847, Oliver David contracted in writing to sell and convey two lots of ground in the borough of Butler in consideration of $847.32, to George Miller, in trust for John Miller, Joseph Miller, and Harvey Miller, his sons. Possession was taken under the contract by George Miller and the purchase money (except $381.42) was paid by him to Oliver David, who died without making a deed for the premises. On January 18, 1872, James Campbell administrator of Oliver David, presented his petition to the orphans’ court for specific performance of this contract, and a decree was entered against George Miller for the specific execution of the contract according to its terms.

In December, 1872, George Miller died, without having complied with the decree for specific execution, and letters of administration were taken out on his estate by I. N. Miller and J. H. Miller, who, as administrators of George Miller, deceased, paid the balance of the purchase money, and on February 15, 1873, James Campbell as administrator, made and delivered a deed for the premises to I. N. Miller and J. H. Miller, administrators of George Miller deceased in trust for said estate and in trust for John Miller and Joseph Miller and Harvey Miller, their heirs and assigns forever.

On February 3, 1879, I. N. Miller and J. H. Miller, as administrators of George Miller, presented a petition to the orphans’ court praying for leave to sell the two lots of ground for the payment of debts of George Miller, deceased. This petition was not pressed and on July 18, 1881,1. N. Miller as one of the administrators of George Miller presented a petition to the orphans’ court for leave to sell the two lots of ground for the payment of a debt of George Miller of $4,103.12 due the administrators as shown by an administration account which was previously stated by them and filed, and a citation on the widow and heirs was awarded. On July 30,1881, the widow and all the heirs except I. N. Miller and J. H. Miller agreed in writing that the order should be made as prayed for, the same as if the petition had been presented and the sale of property had been made thereon within five years after the death of George Miller. On December 8, 1881, I. N. Miller and J. H. Miller, as administrators, presented to the orphans’ court their report of the sale-of the land for the sum of $670 to Joseph Miller, which sale was confirmed, and a deed was directed to be made to Joseph Miller; and this order was complied with February 28, 1882. On August 10, 1888, Joseph Miller executed and delivered a quit claim deed for the undivided three fourths interest in the' land in dispute to I. N. Miller, George P. Miller and T. A. Cunningham, in trust for Harriet Miller. I. N. Miller died in 1884, and by his will devised his interest in the land in dispute (subject to-a life estate in favor of Elizabeth Miller, his mother) to his widow, now Ada S. Kellerman, the plaintiff. Elizabeth Miller died before this suit was brought. By other conveyances the interests of all parties except that of Ada S. Kellerman and Harriet Miller have become vested in J. H. Miller, who, with Harriet Miller was in possession of the premises, and this action was brought by Ada S. Kellerman, devisee of I. N. Miller to recover the undivided one fourth interest of the land in dispute which she claims under the deed of Joseph Miller to I. N. Miller, dated August 10, 1883.

It clearly appears by the evidence that J. H. Miller was one of the actors in securing the sale of this real estate under the proceedings in the orphans’ court; he joined in the return to the order of sale, in which he averred that the title to this land was in George Miller; also that he had received the purchase money and had under the authority of the decree confirming the return of sale executed a deed, but he now asserts that the proceeding was void because the title was not in fact in George Miller, but in cestuis que trustent. The order for sale of this real estate was secured after the account of the administration had been filed and a balance had been determined in their favor against the estate of George Miller, as against whose land they claim a lien, and from which they claimed payment of this debt. J. H. Miller was so intimately connected with the title as a party in interest, with the administration account, and with the proceedings to sell the real estate, that he could not have been ignorant of the natural effects of his act; and had the land been purchased by a person unconnected with the title, there could be no question but that J. H. Miller would have been estopped from asserting the title he then held, as against such a purchaser. So far as the evidence shows, there was no shadow of title in George Miller, nor any assertion on the part of any one that such title existed, and had J. H. Miller desired to put himself in such a position as not to be restrained from asserting the title that he knew he had in the land, it would have been a very easy matter to have described the interest they ■ were selling in the petition asking for the order of sale, and the deed following it in such a way that he would not be prejudiced thereby; although, had he done so, there probably would have been no price offered. Instead of doing this, he undertook to sell the property under cloak of an order of court, as the real estate of the decedent, that is to raise money to pay in part the debt due him and his coadministrator, and if the purchaser at such a sale would not acquire his individual title by estoppel, the reasons for applying the principle invoked in this case would be no longer well founded in any case, as the convincing argument of the learned trial judge shows. To us this is unanswerable.

The opinion of the court below in disposing of the legal question reserved on the trial covers the whole case, and to add to' it would be mere repetition.

The assignments of error are overruled, and the judgment is affirmed.