Frederick Estate
| Decision Date | 25 January 1945 |
| Citation | 41 A.2d 59,156 Pa.Super. 547 |
| Parties | Frederick Estate |
| Court | Pennsylvania Superior Court |
Argued October 25, 1944.
Appeal, No. 69, Oct. T., 1944, from decree of C. P., Blair Co., October T., 1941, No. 45, in Estate of David B Frederick, a weak-minded person.
Proceeding upon petition of guardian of feeble-minded person for confirmation nunc pro tunc of deed executed by guardian after approval of prior petition.
Decree entered ordering execution of new deed, excluding land of respondents, opinion by Patterson, P. J. Intervenors, vendees under agreement of sale, appealed.
Robert C. Haberstroh, for appellants.
R J. Puderbaugh, with him Charles M. Kurtz, Paul E Beaver and Frank B. Warfel for appellees.
OPINION
Petitioners were permitted by the court below to intervene and appeal from a decree excepting certain land from a tract which the guardian of a feeble-minded person was ordered to convey to the petitioners under the Act of June 13, 1836, P. L. 589, 50 PS § 821.
In 1924, D. B. Frederick bought from J. G. Myers a tract of land containing approximately 222 acres divided by a road commonly known as the "back road." Over a period of years, he disposed of some ten to fifteen acres of farmland and cottage sites lying on both sides of the back road. A daughter and son-in-law, Mr. and Mrs. Harry Hardy, also occupied, ever since 1932, a cottage anda strip of land to the right of the back road. On March 31, 1941, D. B. Frederick delivered a written and acknowledged agreement of sale promising to convey to the petitioners, Mahlon A. Otto and Daisy V. Otto, his wife, the entire tract of 222 acres, as described in the deed from J. G. Myers, for $ 5,000, payable within ninety (90) days. The Ottos and some of D. B. Frederick's children were present during the delivery, and it was understood between them that although they were included within the metes and bounds named in the agreement of sale, those cottage sites which had been deeded away were to be excepted. On May 26, 1941, D. B. Frederick was adjudicated a feeble-minded person and the Altoona Trust Company appointed guardian. Shortly the guardian had surveys made, showing the parcel of land to the left of the back road contained 132 acres and the parcel to the right 62 acres. On October 20, 1941, the guardian filed a petition in the Court of Common Pleas of Blair County alleging the agreement of sale; that the best interests of the ward required the property be sold under the terms of the agreement rather than at a public sale; and praying the court to decree a sale to the Ottos of a tract of 132 acres lying to the left of the back road. In the petition the description of the land differed both in boundaries and in acreage, from that contained in the agreement of sale and in the original deed from J. G. Myers. No notice of the petition was given to the next of kin or to the Ottos, the purchasers. The court, finding that the best interests of D. B. Frederick required a private sale and that the sum of $ 5,000 offered was more than a public sale would bring, directed the conveyance of the land described in the petition. Thereupon, the guardian executed a deed to the Ottos conveying not only the 132 acres named in the petition, but an additional 62 acres lying to the right of the back road. On April 5, 1943, the guardian filed an amended petition, admitting that the description in the original petition was erroneous, but asking the court to ratify and confirm nunc pro tunc as of October 20, 1941 the deed given. Notice was served upon the next of kin and the Hardys filed an answer averring that a part of the 62 acre plot had been purchased on an oral agreement in 1936 with David B. Frederick; that the purchase price had been paid, improvements had been made and that they had continuously lived on the land since the date of the agreement. The court then heard evidence by the guardian and the respondents as to whether the land occupied by the Hardys should be excluded from any conveyance by the guardian to the Ottos. On December 14, 1943 the court decreed the original proceedings of October 20, 1941 void because notice was not served on the next of kin of D. B. Frederick; that it could not amend a record nunc pro tunc to the prejudice of the Hardys; and that the amending petition must be treated as an original petition. Thereupon it found that the description in the agreement of sale did not correctly describe the land intended for sale; that the true intention was to exclude the land held by the Hardys; that the Ottos had knowledge of the open and notorious possession of the Hardys and were bound to inquire into their title, and having failed to make the inquiry, they cannot obtain that portion of the land in an action for the specific performance of a contract. The guardian was ordered to execute a new deed conveying to the Ottos the tract of 132 acres described in the original petition as well as the additional 62 acres, except the parcel containing about an acre occupied by Mr. and Mrs. Hardy. On February 7, 1944, upon petition of appellants, they were permitted to intervene as parties in interest.
In discussing the procedural points raised by the appellants they overlook the fact that the original petition was brought under the Act of May 28, 1907, P. L. 292, 50 PS § 961, while the amended petition was based on the Act of June 13, 1836, P. L. 589, 50 PS § 821. Under the Act of 1907, realty may be sold whenever, in the opinion of the court, it is necessary for the maintenance of the ward or his family, or the education of his minor children, or the payment of his debts, or where it is for the interest of the ward that the property be sold; and unless a better price is obtainable by private sale, the sale must be public. The Act of 1836, however, prescribed how agreements of sale made before incapacity may be enforced against the estate of the incompetent, the court possessing "full power, if the facts of the case be sufficient in equity, and no sufficient cause be shown to the contrary, to decree the specific performance of such contract, according to the true intent and meaning thereof"; there are no requirements that the proceeds be needed for the support of the ward or the payment of his debts, or that the sale be to the interest of the ward, and from the nature of the case, a publicly conducted sale is impossible. In brief, the Act of 1907 gives the court broader powers to protect the ward and his estate than the Act of 1836. The objective of the Act of 1836 is even more apparent when it is recalled that in 1836 the real estate of a feebleminded person could be sold to maintain him, pay his debts, or educate his children, but not to protect his estate. Act of 1836, supra; see Gerlach's Est., 127 Pa.Super. 293, 300, 193 A. 467. The discretion to sell for the interest of the estate was first conferred upon the court by the Act of April 18, 1853, P. L. 503. Bennett v. Hayden, 145 Pa. 586, 597, 23 A. 255. Consequently, the court properly treated the amended petition as an original one, predicated upon a different discretionary power vested by another statute. "A record can only be amended where there is something to amend by." Bennett v. Hayden, supra, at p. 592. But the amended petition which was served upon the next of kin merely informed them that the contents of the agreement of sale would be involved, not the interest of the estate of the ward, and their answer and proof was directed accordingly. As for the original petition, the failure to give any notice to the next of kin of its...
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