206 Pa. 220 | Pa. | 1903
Opinion by
The title of appellant rests upon proceedings by which the property of a man, not only living but present and contesting the right to interfere with him, was taken away from him without even a hearing. Such a title challenges close scrutiny.
It is true that the condition of one non compos mentis demands for his own sake that the judgment of others be substituted for his, and the law must provide even for the ease of a prima facie appearance of lunacy. This the statute has done with great care and regard for the rights involved, and every requirement intended for their protection must be strictly observed : Bennett v. Hayden, 145 Pa. 586.
In the present case they were scarcely observed at all. The proceedings from their inception show most discreditable irregularities. The order of sale was improvidently made, the learned judge admitting in his opinion that the pendency of
The order of sale was fatally defective for want of jurisdiction of the court to make it. The inquisition of lunacy at the time of the sale under it was void on its face. It was returned signed by only five jurors summoned by the sheriff. It had an additional signature but not that of any one known to the proceeding. The statute requires that there shall be not less than six jurors of those duly summoned. Nearly two years after the sale the inquisition was set aside by the court for this patent illegality. A few months later, however, it was reinstated and the return allowed to be amended upon affidavits that the superfluous name was really signed by a juror duly summoned and acting as one of the inquest, but that at the time he was so stupid, or drunk or careless that he wrote the signature B. J. Whitman instead of his own name, B. J. Davidson. The reason is .not expressed in this exact phrase in the application to amend but this is the plain English of it. The facts are admitted. The right to make such an amendment upon the extraordinary story told and after that lapse of time may well be questioned. But it is not necessary to be determined now as it is clear that it could not be done to the prejudice of intervening rights, and this becomes material because the plaintiff bought during the interval. When plaintiff bought from Spaulding if he went to the record he found an inquisition of lunacy, a traverse, and then the inquisition itself set aside and vacated for patent illegality, and nothing to show that he would not get a clear title from his grantor. When the defendant bought at the committee’s sale, on the contrary, he was bound to look at the record on which the validity of his title would depend, and if he did so he found an inquisition clearly illegal on its face, that gave the court no jurisdiction whatever to order the sale.
But the record shows a further defect of jurisdiction, and the one on which the Superior Court rested its decision. The
A notice of only two days to a party in another state to appear and defend what is practically an adverse suit, is no notice at all. Even under the loosest construction it could not be held to be the “ due notice ” which the statute requires.
But insufficient as the notice was in point of time, it was not given to any proper person. The party entitled to notice
The defects in the inquisition and in the petition for sale being thus apparent on the face of the record, and going directly to the jurisdiction of the court, the cases relied on by appellant as to collateral attack on the judgment have no applicability.
It was argued by appellee that pending the traverse the court had no jurisdiction to sell the real estate except in case of necessity which should appear as a fact in the proceedings. The language of section 18 of the act of 1836, defining the powers of the court while the traverse is pending, covers only the authority of “ management and safe-keeping ” of the estate, while the larger authority to sell for maintenance, or payment of debts is in subsequent sections. And notwithstanding general expressions in some of the cases that management must include the power of sale, no case has yet arisen in which the power to sell while a traverse is pending was involved or has been directly passed upon. As it is not necessary to do so now we express no opinion on it.
The judgment of the Superior Court is affirmed.