Sager v. Mead

171 Pa. 349 | Pa. | 1895

Opinion by

Mr. Justice Green,

The land for which the present action of ejectment is brought was part of a large body of land containing in the whole about a thousand acres. According to the testimony of all the witnesses on both sides, the great bulk of it was wild land, quite hilly, steep and rocky on the river side, most of the timber cut off in 1872, and according to the testimony of the plaintiffs having about one hundred and fifty to two hundred acres of cleared land, but according to the testimony of the defendant having at the time only about one hundred acres of cleared land, about sixty acres of which was in a good state of cultivation. There ivas a large frame dwelling house upon it and quite a large barn. Two witnesses for the plaintiffs, Brassington and Shaler, testified that they thought the whole property, improvements and all, was xvorth from $15.00 to $20.00 per acre in 1872. Another witness, Lauffenberger, said be thought the wild land was worth $10.00 an acre, but gave no estimate as to the cleared land and improvements.

The only remaining witness for the plaintiffs, Sweeting, said he thought the cleared land including the improvements would bo worth not less than $7,000 to $8,000, and with some reluctance said he thought the wild land was worth about $20.00 an acre.

On the part of the defendant one witness, Irvine, a farmer who had known the property for over fifty years, testified that in 1872 it contained about one hundred acres of cleared land, of which about fifty acres were fit for cultivation, the other forty being plowed over and grown up to briars and sprouts. He said he would not consider the whole property worth over $3,500 to $4,000, and gave his reasons for it. Another witness, Wetmore, who had known the property for many years, and whose business was farming and lumbering, said the cleared land was in a poor state of cultivation, that the wild land was very hilly, part of it barren, and that the value of the entire property was not over $4.00 an acre. Another witness, Mowris, who had lived in the township since 1865 and had known the property from about fifteen years before George A. Cobham’s death, said about one hundred aeres were under cultivation, not good cultivation however, that the wild land was rough, and hilly, and rocky, and that he considered the entire property was not worth more than from $4.00 to $5.00 an acre. Another witness, Walters, who had known the property for forty years, said all the choice timber had been cut off before Cobham’s death, that not more than one hundred acres was cleared, and only sixty acres of that was so it could be plowed, and that was partly stumps and stones, and that the value of the whole property in 1872 was not more than $4.00 per aere. Another witness, Eldred, said the cleared land was much grown up with brush, that the most of the wild land was hill land, and that he did not consider it worth anything in 1872 with the timber off, and that he would not have been willing to give $5.00 an acre for tho whole property at that time'. Another witness, Smith, testified that he had purchased and removed all the pine timber, about four hundred acres, before Cobham’s death, and that another man named Ballard had purchased and cut'all the oak. He said also that practically all the valuable timber had been cut off before Cobham’s death,, and that the small and inferior timber that was left was of very trifling value.

This being the condition of the property a petition was presented to the orphans’ court for an order to sell it for the pay raent of debts of the decedent, by the administrator de bonis non, on December 18, 1871. The order was granted the same day and on March 6, 1872, the administrator returned to the court that he had sold the land to George N. Parmlee for the aggregate sum of $4,275, .he being the highest and best bidder, ■upon the terms set forth in the order. The petition set forth “ that the available personal assets of the decedent that has come to the hands and knowledge of your petitioner are entirely insufficient to pay the debts owing by said estate, as appears by the accounts and claims duly authenticated and filed with him.” That the whole amount of personal property after deducting the exemption claimed and retained by the children was $921, and the debts presented and filed with the petitioner amounted to $5,124.64, leaving a balance over and above the assets of $4,208.64 besides interest and costs of administration. When this case was here before we held this petition and proceeding to be a sufficient compliance with the law: 164 Pa. 131. An agreement had been made by all the parties then interested in the estate to withdraw from the register the application for the probate of the will, that Wm. M. Lindsay should take out letters of administration on the estate 'of the deceased and dispose of the estate for the payment of debts, that George N. Parmlee should.purchase the property at the sale and should hold it for redemption and distribution to and among the parties according to their original rights and equities in the same way as if the deceased had died intestate. For the purpose of settling all disputes and differences the whole question of distribution was referred to the final arbitrament of three selected gentlemen of reputation and integrity, whose action should be binding and conclusive upon, all the parties, and that they should furnish the money necessary to extinguish the indebtedness of the decedent. There were some other details of the agreement not important to mention. As a matter of course this agreement and all the proceedings were prepared and conducted under legal advice, tbe gentleman who acted for tlie parties in tbe premises being one of the most distinguished and honorable lawyers of the commonwealth. It will be perceived at once that the foundation of the whole adjustment was the sale for the payment of debts. If that was legal all title under the will would be divested.

The facts being that the personal estate was insufficient for the payment of debts, there was no legal difficulty in the way of selling the property under an order of sale out of the orphans’ court, and that course was adopted manifestly because it was a clearly legitimate and proper way in which to divest the title of claimants under the will. It is simply impossible to say that there was any fraud either in the conception or execution of such a plan of procedure. If a sale was necessary for the payment of debts the estate could not he settled without doing that very thing, and the mere doing of it is not the slightest evidence of fraud. Hence the chief inquiry in the case is, was the proceeding in the orphans’ court for the sale of the property for the payment of the debts of the decedent a valid proceeding. On its face it most assuredly was. The necessary facts to give tlie court jurisdiction to grant the order appear on tbe record, and the proceeding was most strictly regular and correct in every respect. It was followed by an account subsequently filed by the administrator, which shows how the entire estate was disposed of. The accountant charged himself with the whole of the personal estate as contained in the inventory, and which came to him thereafter, and with the whole proceeds of the real estate sold, the total amount being $5,922.11. Taking credit for the goods and chattels retained by the heirs, $1,070.70, and the cash paid them, $738.43, and for the various debts and expenses paid, there was abalance due the accountant of $21.05. This account was filed on Jul}r 9, 1878. So far as any testimony in this case is concerned no exceptions were ever filed to it, nor was any question ever raised as to its correctness. Under the law it was duly confirmed in regular course during the year 1878, and has remained unimpeached from that time to the time of this trial, a period of about sixteen years. All the parties in interest, including Elizabeth Sager, one of the present plaintiffs, had the opportunity of attacking the sale but they never did. The question which now arises is, was the sale of that real estate a valid sale. If it was the plaintiffs have no case.

A very weak and feeble attempt was made on the trial to impeach its validity. A little evidence was given, the purpose of which was to show that there was some personal property more than appeared in the inventory. If the testimony rendered that fact clear, and yet the additional property was not sufficient to yield money enough to pay the debts with, it could not invalidate the sale. Bub the evidence did not establish the fact. It was said there was some hay not accounted for, but the proof did not support the assertion, nor did it specify the quantity of the hay, nor its value, nor whether it really belonged to the decedent. Mrs. Sager’s husband said he told Mr. Lindsay, the administrator, that one Curtis had one hundred head of sheep that he took from the deceased on shares, that the sheep mostly all died and that Mr. Cobham had said Curtis should pay him $400, that Lindsay said Curtis had paid him, without stating any amount. Mr. Lindsay testified that he had collected $100 from Curtis and it was charged in the account. Sager also said he told Lindsay that one Laufenberger owed money to the estate. Lindsay testified that he had settled that matter and it was charged in the account. Sager also said he told Lindsay there was $5,000 or $6,000 worth of personal property, and Lindsay says he never told him anything of the kind, or anything else about the amount of personal property on the premises. It is upon such flimsy and worthless testimony as this that it is now asked to invalidate an orphans’ court sale' of real estate sixteen years after it was finally confirmed, when the very witness and his wife and all the other parties acquiesced in it during all that time, and never sought to surcharge the administrator when his account was filed, or at any time after. Of course the attempt is preposterous.

Then it was sought to prove that the sale was invalid because the real estate was worth much more than the price at which it was sold. Such a reason would be of no account if it were true, if the sale was properly conducted, although the effort to set the sale aside had been made immediately after the sale. But after sixteen years of acquiescence, and-after the title had passed under the sale for that length of time, the proposition to declare it invalid for such a reason is ridiculous. There is however a still more conclusive reason against it, and that is that the proof does not establish the fact. A large preponderance of the testimony proves that the property brought all it was worth, and it is no answer to say that the jury should have determined this. The question is, shall a deed made and delivered under, and in pursuance of, an order of sale granted by an orphans’ court, under which possession has been taken, purchase money paid and title unquestioned for sixteen years, be set aside and avoided, because three selected witnesses say that in their opinion the property was worth more than the price at which it was sold, when six witnesses say it brought all it was worth. There can be but one answer to such a question. No trial judge could permit a verdict setting aside such a deed upon such testimony to stand. It would be his duty,.sitting as a chancellor, to pronounce the evidence insufficient for such a purpose, and therefore as a trial judge to give a binding instruction to the jury. This is what the learned judge of the common pleas did with eminent propriety and correctness.

As to the general charge of fraud in the whole transaction there was absolutely no evidence to support it. If the sale of the property for the payment of debts was necessary, it was entirely competent for the parties interested in the estate to furnish the money for the payment of the debts, and to take deeds for it in severalty. The necessity for the sale was adjudged by the court which granted the order, and if the present plaintiff Elizabeth Sager, or any of the other persons interested desired to question its validity then was the time to do it. If, having the opportunity to do so, as they all had, they acquiesced in the sale, and stood by and permitted title to be taken, a division of the property into several parcels to be made, and an acceptance of title by each distributee of the parcel allotted, and possession to be taken and maintained for sixteen years, such persons cannot now call in question such a title. Another reason especially applicable to Elizabeth Sager is that she was herself, together with her husband, a party to the original agreement and has accepted an allotment of the land according to its terms, and is at this time enjoying the full benefit of its provisions. It would be a scandal upon the administration of justice to permit a person so circumstanced to impugn successfully the validity of an agreement to which she was a party, to the performanee of tlie terms of which by the other parties she assented, and under which she claimed and received and now enjoys, all the benefits it gives to her. It is no answer to say that she is only acting as a trustee. She cannot in such a matter do as a trustee what she cannot do as an individual. And as to her and both the other trustees it is enough to saj’' that they were not appointed for any such purpose. In fact they were appointed upon her petition presumably for the furtherance of her interests. Her petition sets forth that certain moneys which had come into the hands of a receiver appointed by the court of chancery in England belonging to the estate of her father, could not be distributed to the persons entitled in this country, unless trustees were appointed under the will of George A. Cobliam, who could properly receive .the same and make distribution of them under the will, and for that purpose and to enable her to get her share of those mone3rs, these trustees, she being one of them, were appointed. The original trustees were parties to the proceedings under the caveat against the will, and they assented to the withdrawal of the will from probate. Two others subsequently died and two resigned, but neither the whole of them, nor any of them, ever made any attempt to interfere with the family settlement, or with the orphans’ court sale. In the exercise of their official functions they evidently never considered it necessary to take any such action. The period of their inaction therefore must be counted as laches as well against their successors as themselves. A period of sixteen years without any action must be taken as gross laches which cannot be condoned by a fresh appointment of trustees.

Contemplated therefore in any aspect the case of these plaintiffs is destitute of merit. There was no actual fraud in the original agreement, the orphans’ court sale was a valid and effective proceeding to divest all title under the will, and no present allegations against it are sufficient to avoid it or affect it in any way, and the laches in the institution of any proceeding to invalidate the title acquired by the orphans’ court sale is such that it cannot now be entertained.

As Elizabeth Sager is the one person who can be benefited by a recovery in this case, and as she was a party to all the proceedings now sought to be invalidated, and as she still continues to hold and keep all the benefits which came to her out of those proceedings, she is bound by them if they were not fraudulent, and she cannot be permitted to attack them if they were, either directly by herself or indirectly by trustees appointed at her instance. She cannot be permitted to assert her own fraud and obtain a judicial decree founded thereon.

These considerations make it unnecessary to discuss or decide the question of jurisdiction as to the appointment of the trustees. The assignments of error are all dismissed.

Judgment affirmed.