Armor v. Cochrane

• Decision Date: 03 January 1871
• Parties: Armor <I>et al. versus</I> Cochrane <I>et al.</I>
• Court: Pennsylvania Supreme Court

66 Pa. 308

Armor et al. versus Cochrane et al.

Supreme Court of Pennsylvania.

October 27 and 28, 1870.

January 3, 1871.

October 27th and 28th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Westmoreland county: No. 98, to October and November Term 1870.

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E. Cowan, for plaintiffs in error.—Jane's heirs had ten years after their father's death to bring suit: Henry v. Carson, 9 P. F. Smith 297. The cestui que trust may take the land, however fair the sale, to the trustee: Ex parte Lacey, 6 Vesey 625; Ex parte Bennett, 10 Id. 381; Fisk v. Sarber, 6 W. & S. 22; Leisenring v. Black, 5 Watts 304; Beeson v. Beeson, 9 Barr 280. For laches to operate, it must appear that the cestui qui trust knew of the fraud: Randall v. Errington, 10 Vesey 423; Campbell v. Walker, 5 Id. 678; s. c., 13 Id. 602; Roche v. O'Brien, 1 Ball & B. 330; Lewin on Trusts 475. As to rejecting the evidence: Bull v. Towson, 4 W. & S. 557.

H. D. Foster (with whom were H. C. Marchand and A. A. Stewart), for defendants in error.—The proceedings in the Orphans' Court were conclusive: Gilmore v. Rodgers, 5 Wright 123; Dixcy v. Laning, 13 Id. 143. The delay was too great: Kribbs v. Downing, 1 Casey 399; Strimpfler v. Roberts, 6 Harris 283. Declarations of trust must be in writing: Act of April 22d 1856, § 4, Pamph. L. 533; Purd. 497, pl. 3; Warfield v. Fox, 3 P. F. Smith, 382.

The opinion of the court was delivered, January 3d 1871, by SHARSWOOD, J.

This was a compulsory nonsuit entered in the court below, on motion of the defendants, after the conclusion of the evidence of the plaintiffs. The question then is, whether the plaintiffs had made out a case which in any aspect entitled them to go to the jury? No actual fraud was pretended. But it was maintained that as it appeared that William Cochrane, the administrator of John Cochrane, Sr., had become the purchaser at his own sale, made by the order of the Orphans' Court, his title and that of his heirs were defeasible at the election of any of the cestuis que trust who did not agree or assent to the purchase. It is not necessary to decide whether, when one of the heirs of a decedent, who happens to be also the administrator, is ordered by the Orphans' Court to make sale of the real estate under proceedings in partition, he is thereby precluded from his equal right with all the other heirs of bidding at, and becoming a purchaser at the sale. It may be doubted whether the doctrine of Fisk v. Sarber, 6 W. & S. 18, does not apply. The administrator, as such, has nothing to do with the realty; he is the mere organ of the court in making the sale, and it is possible that he ought not to be regarded as in any sense a trustee until the purchase-money has been received by him. But in reference to this we intimate no opinion. It would of course be advisable in all such cases, if the administrator has any wish to be a bidder, either that an order should be obtained from the court allowing it, or that application should be made for the appointment of some other suitable person as trustee for the purpose, under the 44th section of the Act of February 24th 1834, Pamph. L. 81, which the court has authority to make whenever the executor or administrator refuses to execute the order. In this case, however, upon the plaintiffs' own evidence, although there may have been some understanding among the heirs before the sale that William was to become the purchaser of one of the properties, and John of the other, yet according to the clear testimony of Samuel Cochrane, the only witness produced and examined, the agreement was not made until after the sale, at which the whole was knocked down to John Cochrane. He said:...