Morgan's Appeal

| Pa. | Oct 5, 1885

Mr. Justice Gordon

delivered the opinion of the court, October 5th, 1885.'

We think the court below has misconstrued the character of the bill under consideration. It seems there to have been regarded as merely an attempt to renew the contention which had been previously settled under the rule of the 24th of March, 1879, to show cause why the judgment on the scire facias should not be set aside. Were it intended simply to re-open this controversy and thus get a rehearing of that which a competent jurisdiction had finally passed upon at the time mentioned, we would certainly agree that the plaintiffs were concluded by the principles announced in Gordinier’s x\ppeal, 8 Nor., 528. Where a defendant has been heard, or has had the opportunity to be heard, in a Court of Common Law, even though his defence be an equitable one, he cannot be re-heard on a bill. Neither can he thus cure a mistake in the trial of his case, or a neglect to appeal, or to sue out a writ of error in time. But the principles here stated do not enter into the contention in hand.

The order of the Orphans’ Coui’t to the administratrix to mortgage the real estate which had been of George P. Morgan, deceased, was without notice to Nannie B. Morgan, the heir at law, nor, indeed, was such notice required by the Act of 1882, hence, the decree of that court directing the mortgaging of her property, could bind her only so far as it was based on a substantial compliance with the provisions of that Act. Neither had she anything to do with the scire facias, and the award upon it. All the defence that was made upon the trial of that writ was made by the administratrix, and the judgment was against her alone. The first we hear of. the intervention of Nannie B. is by her guardian on the motion to set aside, or strike off, the judgment, some year or more after the entry thereof. She has now intervened in a proper manner and for a proper purpose, and, if the subsequent action of the court concludes her, and brings her within the doctrine of the case above cited, that is the end of her bill, but not otherwise. But, according to the authority invoked, the parties were concluded by the action of the Common Pleas because that court had power to determine the question brought before it on the rule to show cause, and to grant the required relief, if the facts of the case so warranted, and on no other hypothesis could such judgment be regarded as conclusive.

Our question then is, had the Common. Pleas of Blair county the power to make absolute the rule of the 24th of March, 1879, to strike off the award of arbitrators? For, if it had such power, it could also, on the exercise thereof, have ordered the parties to interplead, and thus have had full justice done between them. Four reasons were given in support of this rule to show cause; they were as follows: “ (1) Because the record does not show the terms of the mortgage, or that there is any mortgage, there being no copy thereof or suggestion of breaches. (2) The mortgage was not given for money borrowed, nor was there any return or confirmation thereof. (3) There was no notice to the minor child of decedent. (4) The mortgage was obtained by fraud.”

To these a fifth was added by the counsel for the guardian, but. as the substance of it is embraced in the third, we give it no consideration. But for neither of these reasons was the court authorized, under the compulsory arbitration Act, to strike off the award. That can only be done in two cases: (1) Where the arbitrators have misbehaved themselves in the course of the hearings before them, and (2) where the award has been procured by corruption or other undue means. The most, however, that is alleged in the reasons above stated is that the arbitrators made a plain mistake in matters of fact and law, but the only way to correct errors of this kind is by appeal: Walls v. Wilson, 28 P. S. R., 514; Wynn v. Bellas, 34 Id., 160. As to the alleged defect in the récord, that might have been cured by amendment or by a writ of error, but certainly not by a rule to strike off the award. The court, then, might have discharged this rule on the ground that it had no power to make it absolute; hence, in fact, the movers took nothing by their motion because they asked for what the court had no power to give them. It follows that, as yet, there has been no adjudication of the principal complaint contained in the plaintiffs’ bill; as yet Nannie B. Morgan has not been heard upon the validity of the mortgage!

That equity can, and will, interfere to prevent the execution of a judgment at law against the person or estate of one not bound thereby is a proposition now so long and well established that it is no longer open to discussion. If the mortgage of the -23d of July, 1874, executed by the administratrix to Edmund Mountney, was not binding on the property of the heir at law, she has the right to ask a court of equity to remove the cloud thus cast on her title, and prevent the annoyance and expense that may result from a judicial sale of her estate.

The question, then, and the sole one, is that involving the validity of that instrument. If, as is contended, it has its foundation in the definitive decree of the Orphans’ Court, it cannot be impeached in this or any other collateral proceeding. No mere irregularity can be made to avail for that purpose, for such irregularity could only be corrected in the Orphans’ Court itself, or in this court by appeal. It is, therefore, to no purpose to urge that the court did not direct specifically the amount of money that should be raised by the mortgage, or that it was executed and delivered to Mountney in satisfaction of his debt without the payment of the money to the administratrix, or into court, for had there been a final approval of the proceedings by the proper tribunal, even though that approval itself were informal, it is suré that none of these things could be reviewed by a bill in equity, or in any other manner than as above stated. We are, however, considering a case in which there has been no approval of the action of the administratrix. We find an order authorizing the administratrix to execute a mortgage for the payment of the debts of the decedent, but beyond, this we find nothing. Even this is irregular, as it vests in the trustee a discretion which, under the Act, belongs to the court alone. This, however, might have been cured by a decree of confirmation, for, by such act, it would- be assumed that the court adopted what the trustee had done. But as there was no such decree we cannot assume an approval. The fact is that the court was never so much as informed that the Mountney mortgage had been executed, and had therefore no opportunity either to assent to or dissent from the act of its agent.

The court below, whilst admitting that an order of sale thus executed would be good for nothing, held, nevertheless, that in the case of a mortgage, this want of confirmation was but an irregularity that might be disregarded. We cannot see the matter in this light. Why is an administrator's sale of land not good without confirmation ? In the case of Watt v. Scott, 3 Watts, 79" court="Pa." date_filed="1834-09-15" href="https://app.midpage.ai/document/watt-v-scott-6311300?utm_source=webapp" opinion_id="6311300">3 Watts, 79, it was held that, under the Act of 1794, such a sale without confirmation was good, but because the requisitions of the Act of 1832 were different, a sale without confirmation, under that Act, would not he valid. And so in Demmy’s Ap., 7 Wr., 155, it is said that an Orphans’ Court sale requires confirmation by the express words of the Statute. We have not far to go, therefore, for the reason why the approval of the Orphans’ Court is necessary ; the Act of 1832 requires it. But it requires such confirmation just as much in the ease of an order to mortgage as in an order to sell. “ The said court may order the sale or mortgage of such part or so much of said real estate as to them shall appear necessary, ..... and such executor, administrator or guardian shall in all eases make return of his proceedings in relation to such sale or mortgage, to the Orphans’ Court of the county in which the real estate so sold or mortgaged lies, when, if the same be approved by the court, it shall he confirmed.” Now, as the court below lias done, we might give many good reasons why the legislature ought, in this particular, to have made a difference between sales and mortgages, but it would be a very useless job, for it would not alter the fact that no such difference was made, and we are bound, not by what that body might or ought to have done, but rather by what it actually did do. When the general assembly has said, for the debts of the decedent you may mortgage the estate of the heir, and if the Orphans’ Court approve such mortgage it shall be confirmed, how are we to assume the power to strike out this subjunctive clause, and say we will treat it as confirmed though not approved by the Orphans’ Court? Moreover, it is not altogether unreasonable that the Orphans’ Court should have in its power, and under its immediate direction the entire proceedings from first to last. Until final confirmation and delivery of the mortgage, the heir may interpose his objection to-its execution, or, if executed, to its delivery, and it is but reasonable that he should have such opportunity. He might well urge, in just such a transaction as the one in hand, that the mortgage should not be delivered without the payment of the money, or, at least, until the debt of the mortgagee had been definitely ascertained and passed upon by the proper authority. Many other reasons might be adduced why an administrator and creditor ought not to be allowed to encumber, at their own will, the estate of the heir, and why a court should very carefully scrutinize a matter such as this, and keep it well in hand, but, as the letter of the Statute itself furnishes a sufficient reason for its own provisions, we need not trouble ourselves with the task of framing others.

From what has been said, it is apparent that the decree of the court below must be reversed, and that the plaintiffs are, at least, entitled to an injunction against the execution of the judgment on the scire facias, but as we see nothing in the way of an application, by the mortgagee, to the Orphans’ Court for an approval and confirmation of the mortgage, after notice to all parties interested, and an adjustment of their several equities, we will not order its surrender and cancellation.

The decree of the court below dismissing the plaintiffs’ bill is now reversed at the costs of the appellees, and it is further ordered that Edmund Mountney and J. Levan Metzgar be enjoined and restrained from proceeding by execution on a judgment recovered in the Common Pleas-of Blair county on a mortgage given by Amelia S. Morgan, as administratrix of George P. Morgan, deceased, to Edmund Mountney, dated July 2Sd, 1874.