Sprecher v. Single

127 Pa. 209 | Pa. | 1889

Opinion,

Mr. Justice Sterrett :

The subject of complaint in the first and second specifications is the finding of fact that the real estate of Simon Single, the proceeds of which is the fund for distribution, was sold subject to the f2,800 mortgage in favor of the Orphans’ Asylum.

It is a mistake to suppose there was no evidence before the auditor to justify him in finding that fact. In addition to other testimony tending to prove that the property was sold subject to the mortgage, it was clearly shown that shortly after the sale, appellant, who was the sheriff’s vendee, assumed the mortgage debt by giving his own mortgage for same amount, and thereupon the original mortgage was marked “ paid and satisfied ” by the mortgagee, on the record thereof. That transaction, on its face, is wholly inconsistent with his present contention that the property was sold clear of the mortgage. If it was so sold, why did he assume the payment of the mortgage debt, as the evidence shows he did ? In view of all the evidence as to what occurred at the time of sale, as well as afterwards, there was no error in finding as complained of. The first and second specifications are therefore dismissed without further notice.

The third and fifth specifications relate to the costs of inquisition, etc., 1225.62, which the Court of Common Pleas, by its decre’e of. April 17, 1886, ordered to be paid by the estate of said Simon Single.

The proceedings, which led to the making of that order or decree, were substantially as follows: In 1882, Simon Single, by inquisition duly taken, was found to be an habitual drunkard. Francis Pfeiffer, the appellee, was appointed committee of his person and estate and gave bond with sureties in |15,800. In June, 1884, the court ordered a sale of the habitual drunkard’s real estate, to which the committee made return, in November following, that the property remained unsold for want of bidders. An alias order was thereupon issued to sell on December 1, 1884, at seven o’clock u. M. On that day, before the hour of sale, a traverse of the inquisition was filed on behalf of the alleged habitual drunkard, and subsequently an order was made, staying the sale until the traverse was disposed of. That was done on April 26, 1886, by the verdict of a jury finding, that the traversor “ is not an habitual drunkard.” In the meantime Pfeiffer, the committee, having become satisfied that the traversor was capable of managing his own estate, determined not to resist the traverse and ceased to act as committee. He accordingly presented to the court an itemized account of costs and expenses incurred by him as committee, etc., and asked the court to approve the same and order payment thereof out of the estate of said Simon Single. The result was the decree of April 17, 1886, above mentioned, which on April 22,1886, was entered on the judgment docket. Afterwards the court awarded execution thereon, by virtue of which the real estate of Simon Single was levied on and sold. . The proceeds of that sale constitute the fund for distribution.

The presentation of the committee’s account and the action of the court thereon were manifestly intended as a final settlement ; and the decree ordering payment of the balance due him is in the nature- of a final decree in equity for the payment of money. It had all the effect of a lien from the date of entry in the judgment docket. In Vincent v. Watson, 40 Pa. 806, it was held that the balance due a committee of an habitual drunkard, as per his account filed and confirmed by the Court of Common Pleas, becomes a debt of record, the settlement of the account being in the nature of a decree in chancery. Our act of March 29, 1859, P. L. 289, provides that decrees for the payment of money shall be a lien on the real estate of the defendants or debtors named in the decree, in like manner and with the same force and effect as the lien of judgments rendered by common law courts, and shall be entered in like manner in the judgment docket of the proper county.

The order in question, being clearly in the nature of a decree in equity, and having been entered in the judgment docket, became a lien, from that date, entitled to participate in the distribution in its proper order. It was never reversed or modified.

When the court ordered execution to issue thereon, a writ of error to the execution was taken, but that appears to have been non-prossed in this court. As a decree, having the force and effect of a judgment duly entered in the judgment docket, it remained undisturbed and unsatisfied at the date of the sheriff’s sale, and being prior in date to appellant’s judgment, it was, of course, entitled to he paid in full, in preference to his.

From what has been said, it follows that the fourth specification cannot be sustained.

Decree affirmed, and appeal dismissed at the costs of appellant.