194 Pa. 294 | Pa. | 1900
Opinion by
' While it is true that when this case was here before (178 Pa. 245), we were of divided opinion, we now decide to abide by the decision then made. It is scarcely necessary to repeat the reasons for our judgment which were fully expressed in the opinion of our late Brother Williams. As a matter of fact, upon the testimony, the orphans’ court which granted the order of sale of the land in question had no jurisdiction to make such a decree. But the case was worse than that, because on the face of the petition for the order there was a presumption of the want of jurisdiction which was not explained by any averments in the petition, nor by any evidence given in its support. While the date of the death of James Smith, the intestate, was not stated in the petition the debt upon which the order was asked for was stated to be:
*298 Amount paid to her (Rebecca Jane Lippincott) on parol contract for decedent 1702.74
463.76 Interest on same 11 years . . . .
$1,166.60
According to this, the debt accrued by reason of a payment made by Rebecca J. Lippineott for James Smith on a, parol contract, eleven years before June 10, 1872, when the petition was presented. No bond, note or other written obligation was alleged to have been given; only the bare fact was stated that eleven years before, which must have been in 1861, this creditor had paid for the decedent upon a parol contract, the sum of $702.74. Tins being so, the debt was barred by the statute of limitations, no matter when James Smith died, and no orphans’ court could have any authority to grant an order of sale of real estate for the payment of such a debt without at least an averment, followed by proof of facts which showed that the debt was still existing in a lawful condition for enforcement at the time when the petition was presented. On the trial of the present case no attempt was made to remove this prima facies of invalidity in the grant of the order, but full proof was made by the plaintiffs that James Smith had really died more than ten years before the petition was presented. It is not a case, therefore, where the presumption of validity arises upon the mere proof that the order was made and that, therefore, the maxim omnia ‘ preesumuntur rite esse acta prevailed. On the contrary, on the face of the proceedings, it is manifest that, without other facts being made to appear, the order of sale was illegally granted. But more than this, the purchaser, Wm. Lippincott, at the sale which took place under the order, was the brother-in-law of the decedent, and the husband of the alleged creditor for the payment of whose debt the order of sale was granted, and he necessarily knew that James Smith, the decedent, had died ten years before the order of sale was granted, and that the land was at the time of the sale the property of the minor children of the decedent, and altogether divested of the lien of his debts. There was good reason, therefore, why the petition for the order of sale studiously concealed the date of James Smith’s death from the knowledge of the court. If that fact had been stated in. the petition, as it most certainly
There is nothing contained in the rejected offers of testimony covered by the fourth, fifth and sixth assignments of error that in any way connects the present plaintiffs with the offers of proof, and they certainly could not be divested of their title by anything that took place between other persons. Even if the offers tended to show ground for a claim of title by way of a resulting trust, such a claim is absolutely at war with the only claim that is really set up in the case, that the money paid by Mrs. Lippincott was loaned to James Smith and made him a debtor to her for the amount paid, and it is upon that ground only that the order of sale under which alone title is claimed can be sustained. If James Smith was her debtor for the money as a loan, she certainly was not the equitable owner of the land by way of a resulting trust. The seventh and eighth assignments relate to a further offer to prove a resulting trust by the testimony of Mrs. Lippincott. It is impossible to see how if such testimony were admitted it could affect the title of these plaintiffs. We think the witness was incompetent under the
Judgment affirmed.