Gregory v. Commonwealth

• Decision Date: 01 October 1888
• Docket Number: 20
• Citation: Gregory v. Commonwealth, 121 Pa. 611, 15 A. 452 (Pa. 1888)
• Parties: JAMES GREGORY'S EXRS. v. COMMONWEALTH
• Court: Pennsylvania Supreme Court

15 A. 452

121 Pa. 611

JAMES GREGORY'S EXRS. v. COMMONWEALTH

No. 20

Supreme Court of Pennsylvania

October 1, 1888

Argued May 30, 1888

ERROR TO THE COURT OF COMMON PLEAS OF FULTON COUNTY. ^[*]

No. 20 May Term 1888, Sup. Ct.; court below, No. 67 June Term 1887 C.P.

On April 22, 1887, a scire facias sur recognizance in the Orphans' Court, was issued in the name of the Commonwealth of Pennsylvania, for use, against Henry Gregory and D. C. Spitzer, executors of James Gregory, deceased, to enforce the payment of the share of John Gregory in the real estate of Joseph Gregory, deceased. The defendants pleaded payment.

At the trial on October 10, 1887, it was made to appear that Joseph Gregory, a resident of Fulton county, died intestate in 1856 leaving to survive him three brothers, one of whom was John Gregory, one sister, and the children of a deceased brother and of two deceased sisters. Two of the brothers, James and Moses Gregory, became the administrators of his estate, and on August 4, 1857, settled an account which was confirmed and showed a balance due accountants of $1,380.98. A second and final account, as corrected and confirmed on October 29 1859, showed a balance due accountants of $350.12. On January 13, 1866, proceedings in the Orphans' Court for the partition of the real estate of Joseph Gregory terminated in a decree awarding the land to James Gregory, who entered into the recognizance upon which the suit was brought. At this time and until his death in 1878, John Gregory, a beneficiary in the recognizance, lived in the state of Indiana.

The plaintiff to rebut the presumption of payment arising from lapse of time, called several witnesses who testified to conversations with James Gregory in his lifetime and within 20 years before the suit was brought. These conversations sufficiently appear in the Opinion of the Court.

The defendant put in evidence the administration accounts referred to above, and the case closed upon the evidence.

The court, McCLEAN, P.J., charged the jury:

You have seen the origin of the cause of action in this case. The estate of Joseph Gregory, deceased, was settled by his brother James, who is also now deceased, and Moses Gregory, administrators. The personal estate was settled in the course of this administration. James afterwards came into the Orphans' Court and asked to institute proceedings in partition of the real estate of his brother Joseph, and after the valuation made in that case by the inquest, he came into court, and on January 13, 1866, entered into a recognizance for the payment, among other shares, of a share due to his brother John, the property having been taken by James at an advance somewhat over the valuation, and decreed to him, the day before, January 12, 1866. This put the title to this real estate in James Gregory at that date.

The Orphans' Court act of 1832 [§ 37, act March 29, 1832, P.L. 201] provides that in every such case the party accepting the real estate, or some one on his behalf shall pay "to the other parties interested, their proportionable parts of the value of such estate, according to the just appraisement thereof, made in manner aforesaid, or giving good security by recognizance or otherwise, to the satisfaction of the court for the payment thereof, with legal interest, in some reasonable time, not exceeding 12 months, as the court may direct." Now it appears, gentlemen, that in this case the share was payable presently, on January 13, 1866. James Gregory acknowledged himself bound to the commonwealth of Pennsylvania in a certain sum, on condition that he would pay his brother John Gregory, the sum of $337. John Gregory could have immediately demanded that amount. The person "for whose use payment or satisfaction shall be so made, in any of the cases aforesaid," for the part or share of such real estate, shall be forever barred of all right or title to the same.

The defendants, the executors of the conusor in this case, say that it is paid. They offer you no evidence of direct payment. They say it is presumed to be paid by the lapse of time which has run before any demand was made upon them; and you will see, gentlemen, that that has been twenty-one years, three months and nine days. On January 13, 1866, this money was acknowledged to be due to John Gregory. No suit was brought, no demand made by any action in court upon James Gregory or the executors of his will, until April 22d last, and that is the case we are now trying; and it is after an interval of time, as I have said, of twenty-one years, and three months and nine days.

[This Orphans' Court act [§ 50, supra] further provides that "where a recognizance hath heretofore been, or shall hereafter be taken in any Orphans' Court, on the acceptance of the real estate of a decedent at the valuation or appraisement thereof, as hereinbefore provided for, and the same, or any part thereof, shall be satisfied or paid to the person or persons interested therein, his, her, or their agent or attorneys, any such person so having received satisfaction of the amount coming to him, shall enter an acknowledgment thereof upon the record of such court, which shall be satisfaction and discharge of the said recognizance, to the amount acknowledged to be paid." Here was a duty resting upon John Gregory, if the whole or any part of this money had been paid to him in his lifetime. He could either come in to the Orphans' Court, or the office of the clerk of the Orphans' Court, and enter satisfaction if he had received the whole amount, or give credit for whatever amount might have been paid; but it has not been done. So it rested upon him, and the law enjoined upon him, if the money was paid, to enter satisfaction of record to the amount acknowledged to be paid, and then "the recognizance shall cease to be a lien on the real estate of the conusor to a greater amount than the principal and interest actually remaining due."

Again [§ 51, supra]. "If any person who shall have received satisfaction as aforesaid, for his claim or lien, secured by such recognizance, shall neglect or refuse to enter upon the record his acknowledgment thereof, upon the written request of the owner of the premises, bound by such recognizance or of any part thereof, or of his legal representative or other persons interested therein, on tender of all the costs for entering such acknowledgment within sixty days after such request and tender as aforesaid, such person, for every such default, shall forfeit and pay to the party aggrieved the sum of fifty dollars, absolutely, and any further sum, not exceeding the amount by such person received, as shall be assessed by a jury on a trial at law." If this amount had been paid to John Gregory, James could have compelled him to come and enter satisfaction, or to execute a power of attorney to some one else to do it. "Or the Orphans' Court, on due proof to them made that the entire amount due to any heir, legatee or distributee, shall have been fully paid and discharged, may make an order for the relief of such person from any recognizance or other recorded lien; which order, being certified to the proper court where such lien may appear, shall be entered on their records, and shall enure and be received as a full satisfaction and discharge of the same."

This, gentlemen, is the provision of the original Orphans' Court act of 1832. Later than that, in 1850 [act of April 26, 1850, P.L. 581], we have extended and applicable to recognizances of the Orphans' Court the provisions of the act of 1823, relating to mortgages. That is made applicable to "recognizances in the Orphans' Court of any county of this commonwealth which are or may be liens upon any real estate within the same, in as full and particular a manner as if the several provisions of said act were here repeated at length." And "the proceedings for the discharge and satisfaction of the lien of any such legacy or legacies, or any such recognizance, shall be the same as those prescribed in the act referred to in the preceding section, in reference to the satisfaction of mortgages, except that with regard to the aforesaid recognizances, the proceedings shall be had in the Orphans' Court, upon whose records the said recognizances are found." If we turn to the act of 1823 [act of March 31, 1823, 8 Sm. L. 131], which is entitled an act relating to mortgages, and made applicable to recognizances in the Orphans' Court, we find this: "In all cases where the legal holder or holders of a mortgage have died, or shall die, without entering satisfaction upon the record of the same, and also in all cases where the legal holder or holders of a mortgage have removed, or shall remove, or be out of the state, and payment being made of all the money or amount due, or to become due thereon, and shall so continue for two years, in such case the mortgagor, (in this case the conusor, James Gregory,) -- "or mortgagors, his, her or their legal representatives, or the owner or owners of the mortgaged premises, or any or either of them, may petition the Court of Common Pleas of the county where the mortgaged premises are situate, setting forth the premises; whereupon the said court shall direct the sheriff of the said county to serve a notice, stating the facts set forth in the petition, on the legal representative or representatives." In this case it could have been served upon the administrator of John Gregory, after his death in 1878. If he could not be found in this county the sheriff could give public notice as aforesaid.

Now, I referred you, gentlemen, to the provisions of the law showing what could have been done, what could have been required, what indeed the law did make incumbent upon John Gregory, if demand had been made on him for the satisfaction...