Bennett v. Hayden

• Citation: 145 Pa. 586,23 A. 255
• Decision Date: 04 January 1892
• Docket Number: 207
• Parties: R. J. BENNETT ET AL. v. J. R. HAYDEN ET AL
• Court: Pennsylvania Supreme Court

23 A. 255

145 Pa. 586

R. J. BENNETT ET AL. v. J. R. HAYDEN ET AL

No. 207

Supreme Court of Pennsylvania

January 4, 1892

Argued October 5, 1891

APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY.

No 207, October Term 1890, Sup. Ct.; court below, No. 465 August Term 1888, C.P.

On July 27, 1888, Rebecca J. Bennett, Annie R. Bennett, and others brought ejectment against John R. Hayden and the Southwest Pennsylvania Railroad Company, for a tract of one hundred and thirty-five acres in Hempfield township. The defendants pleaded not guilty.

At the trial, on February 20, 1890, having shown that Israel Painter and George Bennett became the owners of the land in dispute on September 4, 1875; that George Bennett died on April 20 1877, intestate, leaving a widow, Rebecca J. Bennett, and eight children, one of whom subsequently died intestate unmarried and without issue, leaving her mother, said Rebecca J. Bennett, as her heir at law, said Rebecca J. Bennett and the seven surviving children of George Bennett being the plaintiffs in this action; and having shown possession by the defendants of the land in dispute, the plaintiffs rested.

The defendants then put in evidence the record of a proceeding at No. 316 November Term 1876, of the court below, in the matter of the lunacy of George Bennett. From this record the following facts appeared:

On October 28, 1876, after due proceedings had, George Bennett was adjudged to be a lunatic, and John George was appointed the committee of his person and estate. At that time, his children were all minors, the eldest being aged about seventeen or eighteen, and the youngest about six months. On November 25, 1876, John George, as committee of George Bennett, presented a petition setting forth that the lunatic was possessed, inter alia, of the undivided one half of the land in controversy in the present case; that his personal estate was insufficient for the payment of his debts, as appeared from certain schedules annexed to the petition; that there was no money in the hands of the committee applicable to the support of the lunatic's family and the education of his minor children; and that due notice of the intended presentation of the petition was given to Rebecca Bennett, wife of the lunatic, more than five days prior thereto; praying for an order to sell the interest of the lunatic in the tract of land above mentioned, for the purposes aforesaid, at private sale, the petitioner averring his belief that it would be to the interest of the estate of the lunatic to sell the same at private sale, and that thereby more money could be realized for the same. Attached to the petition was a notice of the application addressed to Mrs. Rebecca Bennett, with an affidavit of its service upon her on November 18, 1876.

Upon the presentation of this petition, the court made an order directing the committee to sell the said real estate at private sale. On the same day, the committee made return that he had sold the interest of the lunatic in said land, at private sale to Israel Painter, for two thousand seven hundred and ten dollars; whereupon the court made a decree confirming the sale, and directing the committee to make a deed to the purchaser, on compliance with the terms of sale. Subsequently the committee filed an account in which he charged himself with the receipt of the purchase money.

The record exhibited also a petition of John R. Hayden, presented December 12, 1887, averring that he had become the owner of the land in question, by purchase from a successor in the title of Israel Painter; that he had contracted to sell to the Southwest Pennsylvania Railroad Co. the right of way for a branch of its railroad, but said railroad company refused to accept a deed therefor from him, "because of the defect in his title, caused by the failure of the said committee of said lunatic to serve the next of kin with notice of the application to sell the real estate of said lunatic;" that the petitioner had attempted to procure an acceptance of notice of the sale of said land, which said heirs and next of kin refused to give; praying the court for a rule to show cause why the record should not be amended, nunc pro tunc, so as to show notice to the next of kin of the lunatic, of the application to sell, etc. A rule having been granted, the respondents answered averring, inter alia, that the petitioner had shown no reason entitling him to have the record amended as prayed for, and that in fact no notice was given to the respondents of the application for sale. Thereupon the rule was "discharged, without prejudice."

The defendants put in evidence, under objections and exceptions, a deed from John George, committee of George Bennett, to Israel Painter, dated November 25, 1876, in pursuance of the sale above mentioned; record of proceedings in the Orphans' Court of Westmoreland county, to No. 23 November Term 1880, for sale of the real estate of Israel Painter, deceased; deed from Israel Painter's administrators to James A. Dick, and deed from James A. Dick and wife to J. R. Hayden. They then made the following offer:

Defendants' counsel offer in evidence mortgage of Israel Painter and George Bennett to Lewis Collner, dated 4th September, 1875; mortgage-book 8, page 566; debt $14,387.20: this offer for the purpose of showing a subsisting lien upon this property at the time of the sale by the committee.

Upon the record of the mortgage so offered appeared a satisfaction thereof executed by the mortgagee on September 26, 1879.

The offer was objected to as irrelevant.

By the court: Objection sustained; offer refused; exception.

At the close of the testimony, the court, DOTY, P.J., directed the jury to find a verdict for the plaintiffs for the undivided half of the land described in the writ, with six cents damages and six cents costs, subject to the opinion of the court upon questions of law reserved as follows:

1. The court reserves the point whether or not the record and proceedings at No. 316 November Term 1876, in the Common Pleas of Westmoreland county, Pa., given in evidence by the defendants on the trial of this cause, In re Commonwealth v. George Bennett, were or were not sufficient to divest the title of said George Bennett to the premises in dispute, to wit, the undivided one half of the land described in the writ.

2. And whether the deed given in evidence by defendants, made and delivered by John George, the alleged committee, to Col. Israel Painter, dated November 25, 1876, for the premises, made in pursuance of said proceeding at No. 316 November Term 1876, was or was not sufficient to divest the title of George Bennett to the undivided one half of the premises described in the writ.

The same day, the defendants filed the following motion:

And now, February 20, 1890, counsel for defendants move the court, after testimony closed, to revoke the order of the court at No. 316 November Term 1876, made July 5, 1888, discharging, without prejudice, the rule to show cause, etc., granted February 12, 1887, upon petition of John R. Hayden to amend the record; the said petition to amend to be considered in connection with the reserved point in the above-stated case.

The jury returned a verdict for the plaintiffs, subject to the questions of law reserved. The defendants then filed a motion for a new trial, the reasons assigned in support thereof being, in substance, that the court erred in permitting one of the plaintiffs to testify; "in not admitting in evidence the liens that were subsisting against the real estate at the time of its sale, and to which was applied the money therefrom;" in not allowing the record of the lunacy proceeding to be amended; in directing a verdict for the plaintiffs, and in not directing a verdict for the defendants.

After argument, the court, DOTY, P.J., on April 5, 1890, filed an opinion citing Spencer v. Jennings, 123 Pa. 193; Wright's App., 8 Pa. 62; Warden v. Eichbaum, 14 Pa. 121; Halderman's App., 104 Pa. 258; and, ruling that the deed of the committee passed no title, entered judgment on the verdict for the plaintiffs. Thereupon, the defendants took this appeal, assigning inter alia for error:

1. The refusal of defendants' offer.

2. The refusal of defendants' motion.

4. The entry of judgment for plaintiffs on the reserved points.

9. The order of the court "in directing an unconditional verdict in favor of the plaintiffs for the premises described in the writ, without providing for the re-payment by the plaintiffs to the defendants, within a specified time, of the purchase money of the alleged invalid sale by the committee to the defendants' predecessor in title, to wit: the sum of $2,710; and further, the one half of the Collner mortgage, which was a subsisting lien at the time of the alleged invalid sale, and undischarged by said sale, and subsequently paid by the defendants' predecessor in title, in addition to the amount of his bid at said sale, which sum in the aggregate amounts to $9,803.10."

Judgment affirmed.

Mr. Paul Gaither (with him J. A. Marchand, Mr. E. E. Robbins, Mr John E. Kunkle, Mr. D. S. Atkinson and Mr. J. M. Peoples), for the appellants.

1. The sale by the committee was under the act of April 18, 1853 P.L. 503. While it is true, the petition sets forth the grounds specified in § 23, act of June 13, 1836, P.L. 597, it is none the less true that better reasons could not have been given to obtain authority to sell under the act of 1853. The petition gives two good reasons why it would be "to the interest and advantage of those interested therein" that the land be sold. It is a significant fact that the court granted an order for a private sale, a thing which the act of 1836 does not authorize, but which the...