8 Pa. 64 | Pa. | 1848
This cause was here before, and is reported in 5 Barr, 216; then, the defendant below was plaintiff in error; and it was determined that Martha Mitchell, one of the three children of William Kerr, deceased, might impeach the proceedings in the Orphans’ Court of Lancaster county, by which the plaintiff claimed title to be in James Mitchell, husband of said Martha, and also the judgment confessed by James Mitchell to Henry Kinzer, arid the subsequent sheriff’s sale to George Kinzer, on the ground of fraud; and was entitled to establish by competent evidence, that the proceedings in the Orphans’ Court were not in reality a sale, but a mere mode of partition, adopted by the heirs for convenience; that James Mitchell never paid a farthing of money for the land, but held as the trustee of Ms wife Martha Mitchell, who, with the other heirs, throughout the whole transaction, understood the proceedings as in fact a partition. That no sale was in fact made, nor any purchase-money paid; and that Mitchell, after quarrelling with his wife, set up absolute title in himself, and confessed a judgment to Henry Kinzer, the father of George Kinzer, the plaintiff and purchaser at sheriff’s sale, who never paid any money and had notice of the fraud.
These observations may suffice as an answer to the forty bills and corresponding assignment of errors. This court is of opinion, that neither separately nor collectively, is there sufficient in them to disturb the verdict and judgment below. Independent, however, of' the parol evidence, that the proceedings in the Orphans’ Court were designed by the widow and heirs as a convenient mode of settling the estate, they having, by the aid of a surveyor, made an amicable partition, by metes and bounds, and agreed which part should go to Mrs. Mitchell and which to the other two heirs; and agreed upon the sum at which it should be returned as sold, by the administrator, who was an uncle of the parties; the record itself, and the accompanying papers, contain the strongest evidence that the proceedings were a partition among the heirs, and not a sale.
Thus, the administrator had settled his final account, from which it appeared that there was a balance in favour of administrator of §157. This was approved 19th September, 1820, and the next day the administrator presented his petition for the sale of the real estate of William Kerr, deceased, for the payment of his debts, which was granted; and he returned that he had sold one-third of the land to James Mitchell, and the other two-thirds to Heidelbaugh, the guardian of the two minor children, and the sale was confirmed. The obvious conclusion is, that as the administrator could not split up the estate and sell it in parcels, as he pleased, that the court never would have approved of the sale, unless as a matter of consent by all parties, and because- the land was assigned to the heirs. The next conclusion is, that the court would not have ordered the sale of the whole tract for the payment of the sum of §157 to the administrator, unless it had been a matter of consent and arangement all round, especially as the tract contained over one hundred and fifty acres, and each third as divided sold for something over three times the amount of debt. The administrator settled his account in June, 1821, and charged himself with §1,260, the amount of the sale, and takes credit for §420, one-
In Kaufman v. Kaufman, 9 W. & S. 131, it was ruled that where husbands had procured a deed for the lands of their wives, by virtue of a sale by executors, where the money was to be divided among testator’s daughters, and divided the land and executed deeds to each other, the husbands acquired nothing but the naked legal title, and upon their deaths the fee remained in their wives. In Fogelsonger v. Somerville, 6 S. & R. 267, it was held that where the husband agrees to take the land of the wife, and enters into recognisance, and the court decree the estate to him, the decree as to the wife’s share is void, and on her death her share descends to her heirs — and a hond fide purchaser is in no better situation than the husband. In Weeks v. Haas, 3 W. & S. 520, the chief justice lays down the rule, clear and unshadowed, that the law raises a resulting trust in favour of the person whose money paid for the land, and if partition be made
And as to the law rising out of the case, the court conforms to the principles established in Mitchell v. Kinzer, 5 Barr, 216, which have been fully considered by this court, and are re-affirmed.
Judgment affirmed.