57 Pa. 54 | Pa. | 1868
Lead Opinion
The opinion of the court was delivered, by
The principal part of the fund for distribution arose from the sale, made by direction of the Orphans’ Court, of the real estate of Martin Billmyer, deceased. Under that sale nothing but the interests of which Billmyer died seised could possibly pass. The Orphans’ Court had no power to order the administrator to sell anything which was not assets for the payment of the decedent’s debts. The Act of February 24th 1834, confers no jurisdiction over any other lands, or estates in land, than such as belong to a decedent at his death. Hence, under an order to sell the 13 acres and 4 perches in Turbut township, for the payment of the debts of Billmyer, nothing could pass to the purchaser but Billmyer’s interest. Whatever estates in the property others may have had, either as tenants in common, or partners, or holders of equitable estates, remained unaffected by the sale, unless they were estates or interests of which the purchasers had no notice; and, consequently, the purchase-money was wholly the proceeds of the land of the decedent, chargeable in the hands of the administrator with the liens which had attached in the decedent’s lifetime. It was a radical mistake, therefore, of the auditor .and of the Orphans’ Court to distribute that fund, as if not only the estate of Billmyer, but that of the other members of the firm of Billmyer, Follmer & Co. had been sold. If it be assumed, as found by the auditor (though only as a legal conclusion), that the land in equity belonged to the partnership, and that only the legal title was in Billmyer, then only that legal title was sold, disencumbered of secret equities, and the price paid must go first to .discharge the liens upon it.
But we are of opinion that the facts found by the auditor dp
Undoubtedly a partnership may hold real estate and they may have a resulting trust, where the partnership funds have paid for land. Such was the case of Erwin’s Appeal, 3 Wright 535. So, there may be a constructive trust in favor of a firm, as was held in Lacy v. Hall, 1 Wright -360, but these come within the exceptions to the Statute of Frauds. In both these cases the lands were acquired after the partnerships had been formed, and while the joint business was in progress. But here there is no resulting
Holding these opinions, we think the court and the auditor erred in holding the tract of 13 acres and 4 perches to be partnership property. The title, neither the legal nor equitable ownership, ever passed from Martin Billmyer, and, of course, the judgments of Porter for the use of McCormick, the appellant, were liens upon it, superior to all others except the mortgage to Philip Billmyer, and they were entitled to payment out of the fund in the hands of the administrator.
• This really disposes of the whole-case. But the auditor assigned several reasons for excluding the judgments from participation in the distribution of the proceeds of the land (the saw-mill property), and these we will briefly notice. Martin .Billmyer, the debtor, had, beside the saw-mill tract, a house and lot in Milton, upon which these judgments were a lien, as well as upon the 13 acre tract. In 1857 he sold the house and lot to McCormick, who paid the entire consideration. But the person who held the Porter judgments continued to revive them and preserve their lien upon both properties until Billmyer’s death. These facts led the auditor to conclude that the holder of the judgments was bound to look first to the house and lot for payment, the other creditors having no lien upon that property, upon the principle 'that where a creditor has a lien upon two funds of the same debtor he may be compelled by a creditor who has a lien but upon one of them to levy his debt out of the fund to which the other creditor cannot resort. The principle is sound, but it is inapplicable to the facts of this case. Here are no two funds or properties belonging to the same debtor. Billmyer has no interest in the Milton house and lot. The owner of that property has not only a legal right, but he has an equity of earlier date than any equity of creditors of the firm of Billmyer, Eollmer & Co. When he bought he had a right to insist that the judgments of Porter, for use, &c., should be levied first out of the remaining property of his vendor, that is, out of the 13 acre tract, and that right has not been lost. If there was, as we have seen, no divestiture of Billmyer’s estate, in that, prior to the sale of the house and lot in Milton, it is the fund which is primarily liable for the payment of the judgments: Nailer v. Stanley, 10 S. & R. 450; Mevey’s Appeal, 4 Barr 80; Lloyd v. Galbraith, 8 Casey 103. The appellees rely upon this rule, assuming that the saw-mill tract was first sold, an assumption which the law and the evidence do not sustain.
In the report of the auditor, and on the argument in this court,
Though, then, the judgments of Porter, now for the use of McCormick, were liens both upon the house and lot in Milton and upon the saw-mill, or 13 acre tract, they are entitled to be paid first out of the latter. The ease calls for nothing more. The fundamental errors of the decree in the court below were first, holding that the 13 acre tract had become partnership property in such a sense as to transfer the title from Martin Billmyer, and thus render judgments entered against him no liens upon it; and, secondly, in regarding the Orphans’ Court sale as having passed something other than the estate of Billmyer, that of which he died seised, in other words, his interest as realty.
It thus appears that out of the fund arising from the sale of the 13 acre lot, the judgments 112, 113 and 114, Jan. Term 1854, having been kept alive by revivals, are entitled to priority of payment over all other claimants than Philip Billmyer, the mortgagee-of an undivided half. And they are the first lien, and first entitled to payment out of the half of the-tract which was not covered by Philip Billmyer’s mortgage. Taking the facts as stated in the auditor’s report, that part of the sum realized by the Orphans’ Court sale of the 13 acres and 4 perches, applicable to the payment of these judgments, was sufficient to pay them in full. The decree is, therefore, to be reversed.
The decree of the Orphaps’ Court is reversed, .and the record is remittecTwith instructions to award distribution in accordance with the rule laid down in this opinion.
Concurrence Opinion
I concur in this judgment, understanding it not to interfere with our decision in Abbott’s Appeal, 14 Wright 234.