Horner & Roberts v. Hasbrouck

• Decision Date: 06 January 1862
• Citation: 41 Pa. 169
• Parties: Horner & Roberts <I>versus</I> Hasbrouck.
• Court: Pennsylvania Supreme Court

41 Pa. 169

Horner & Roberts versus Hasbrouck.

Supreme Court of Pennsylvania.

January 6, 1862.

ERROR to the District Court of Allegheny county.

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Hamilton and Acheson, for plaintiffs in error.—It was the manifest intention of the legislature, in the Acts of 29th March 1832, and 24th February 1834, and the supplements thereto, to invest the Orphans' Court with the exclusive administration of the estates, real and personal, of decedents: Kittera's Estate, 5 Harris 422; Whitesides v. Whitesides, 8 Id. 473; Black's Executors v. Black's Executors, 10 Casey 357; Ashford v. Ewing, 1 Id. 213.

As respects the conversion of the real estate of a decedent into money for the payment of his debts, the Acts of 1832 and 1834 devise a complete system — a system which excludes the interference of the common law tribunals, where the Orphans' Court has taken jurisdiction.

We submit that the doctrine contended for by the other side, and sanctioned by the court below, is subversive of the whole Orphans' Court system for the administration of the real assets of a decedent. In vain did the legislature enact the 35th section of the Act of 1834, if the decision of the court below be correct. There is no authority anywhere to stay an execution against the heir, and the sale and administration of the real estate of the decedent is thus taken out of the hands of the Orphans' Court.

Again: the administrator cannot be compelled to make distribution of the personal estate until one year after the granting of administration. But, according to the decision of the court below, upon an execution against the heir, the whole real estate of the intestate may be swept away within a month after his decease, and that, too, before letters of administration have issued.

Moreover, the heir oftentimes bears a different name from the ancestor, and the public advertisement of the sale of the estate of the former would afford no sufficient notice to the creditors of the deceased.

Again: All recognise the importance of selling land as an entirety. Thus sold, it always yields a better price than when disposed of in undivided shares. But the interests of both heirs and creditors are liable to be jeopardized if the decedent's real estate may be converted into money by piecemeal, upon as many different executions against undivided shares as there are heirs.

To defeat the title of the plaintiffs in error the defendant relies on the cases of Milliken v. Kendig, 2 Penna. R. 477, and Luce v. Snively, 4 Watts 396. These cases arose prior to the Acts of 1832 and 1834, at a time when our Orphans' Court system was yet in its infancy, and they do not rule a case arising since the passage of said acts. Besides, there is such a marked difference between the Intestate Act of 19th April 1794, under which Milliken v. Kendig and Luce v. Snively were decided, and the intestate Act of 8th April 1833, which governs this case, as to justify a different ruling.

Undoubtedly under the Intestate Act of 1833, upon the death of the ancestor intestate, his real estate descends to and vests in the heir. But the interest of the heir is not absolute, but contingent. He takes, in the language of the act, "all that remains after payment of all just debts and legal charges." Lands being assets for payment of debts, the estate of the heir is liable to be divested. When a judgment-creditor of the heir levies upon and sells the right, title, interest, and claim of the heir, the purchaser acquires such contingent interest, and nothing more. He takes the same estate as he would upon purchase from the heir.

If it be said that "judicial sales divest all liens," we answer that this is by no means a universal rule. It has many exceptions: In re McKenzie's Appropriation, 3 Barr 156; Mix v. Ackla, 7 Watts 316; Swaar's Appeal, 1 Barr 92. The case of Parr v. Bouzer, 16 S. & R. 309, seems directly to rule the question under consideration in favour of plaintiffs in error.

We submit that by virtue of the proceedings at No. 70, October Term 1856, In re petition for the sale of the real estate of John Walker, Sr., deceased, commenced November 1st 1856, the Orphans' Court acquired exclusive jurisdiction over the lands of decedent for purposes of conversion. That jurisdiction was not ousted by the subsequent proceedings in the District Court against Samuel Walker, at the suit of James, Kent & Santee. It is true the first Orphans' Court sale was set aside, and that order was affirmed by this court. But subsequently the Orphans' Court made an order directing John Patterson, the administrator de bonis non of John Walker, Sr., to sell said real estate for payment of debts, and this must be regarded as a continuation of the original proceedings. In this view the title of the plaintiffs in error dates back to November 1st 1856, and must prevail against that of defendant in error.

Thomas Ewing, for defendant in error.—The proceedings in the Orphans' Court prior to the sheriff's sale are wholly irrelevant. All the proceedings were set aside and formally decreed to be null and void, and that decree was affirmed by the Supreme Court: Walker's Appeal, 1 Grant's Cases 431.

The sole question is this: Does a regular sheriff's sale of the real estate of an heir, over two years after the death of the ancestor, divest the lien of the debts of the ancestor? or, in other words, does the purchaser at such sale take the land discharged of the lien of the debts of the ancestor?

The interest which Samuel Walker took in the real estate of his deceased father was an estate in fee simple, subject to the lien of the debts of his father.

The Act of June 16th 1836, § 66, Purd. Dig., p. 340, § 73, says that the purchaser at sheriff's sale, his heirs and assigns, shall quietly and peaceably hold the land sold, "as fully and amply, and for such estate and estates, and under the same rents and services as he or they for whose debt or duty the same shall be sold, could or ought to do at or before the taking thereof in execution."

Now, the Act of 1794 and the Act of 1834 both call the debts of the ancestor a lien on the estate of the heir, and no one will pretend that they are either "rent" or "service." Then, by a fair construction of the statute, when Robert Arthurs purchased the interest of Samuel Walker in the real estate in question, he took an estate in fee simple, discharged of all liens. Such was the construction of the Supreme Court on the statutes of 1700 and 1705. And the Act of 1836 is but a condensation of those acts: Pres. Corp. v. Wallace, 3 Rawle 109, 141.

The policy of the law in Pennsylvania has been, from the first, to make a judicial sale of land vest a complete title in the purchaser free from all encumbrances: Loomis's Appeal, 10 Harris 316; Barnet v. Washabaugh, 16 S. & R. 412; Commonwealth v. Alexander, 14 S. & R. 257; Milliken v. Kendig, 2 Penna. Rep. 477; Graff v. Smith, 1 Dallas 505; Luce v. Snively, 4 Watts 396.

The sheriff's sale to Robert Arthurs was fair, open, and regular in all the proceedings, and there is no room for pretence or allegation that there was any understanding or expectation that he took subject to any liens, and had there been, it would not affect Mr. Hasbrouck purchasing without notice.

The cases cited by the plaintiff in error are all cases in which the lien was saved either by statutory provision or by some fixed lien intervening. In Swaar's Appeal, 1 Barr 92, the case of Luce v. Snively is expressly recognised by the court as the existing law. Parr v. Bouzer, 16 S. & R. 309, shows that the land was charged with an annuity for the life of the widow; and this, being a permanent lien, not divested by a sheriff's sale against the devisee, preserved all prior liens, thus proving the rule by one of its established exceptions. And there the proceeds of the sheriff's sale had been applied to the debts of the devisee. There were also other circumstances in that case different from the present.

The first section of the Act of April 8th 1833 is but a condensation of the third and part of the second sections of the Act of 1794; and within a year of the passage of the Act of 1833, we have a legislative construction of the character of the debts of the decedent, in regard to the real estate in the hands of his heirs: "No debts of a decedent, except they be secured by mortgage or judgment, shall remain a lien on the real estate of such decedent, longer than five years, &c." In 1794-97 and in 1834, they are alike but a lien. See Simpson v. Kelso, 8 Watts 252; McCoy v. Scott, 2 Rawle 222; Adams v. Adams, 4 Watts 163; Swartz's Estate, 2 Harris.

The heir takes an absolute, not a "contingent" estate, at the instant of the ancestor's death, subject to the lien of the ancestor's debts. So, if A. purchase land from B., against whom there is a judgment, A.'s estate is liable to be divested by a sale for B.'s debt. The estate of the heir by descent is as absolute as that of the purchaser; both are alike liable to be divested, by a sale for the debt of the former owner. So, also, the judgment against the former owner is liable to be divested, by a sale on a judgment against the subsequent owner, and it is no objection that the former owner is not named in the proceedings.

That the Orphans' Court has exclusive jurisdiction in the settlement of decedents' estates, no one disputes; but that an Orphans' Court sale is the only way in which the land of a decedent can be converted into money, and the liens upon it discharged and paid, is denied. The 33d section of the Act of 24th February 1834 recognises a sale on an execution, and directs that the balance of proceeds, after paying liens of record, shall be paid over to the administrator for distribution.

Here the lien-creditors of the ancestor have received the proceeds of the sheriff's sale of the land in question, sold in the hands of the heir, and are not here to question the title of the ...