Kiskaddon v. Dodds, 192

CourtSuperior Court of Pennsylvania
Writing for the CourtRICE, J.
Citation21 Pa.Super. 351
Decision Date13 October 1902
Docket Number192
PartiesKiskaddon, Appellant, v. Dodds

21 Pa.Super. 351

Kiskaddon, Appellant,


No. 192

Superior Court of Pennsylvania

October 13, 1902

Argued May 13, 1902 [21 Pa.Super. 352] [Syllabus Matter] [21 Pa.Super. 353] [Syllabus Matter] [21 Pa.Super. 354]

Appeal by plaintiff, from judgment of C.P. Butler Co.-1900, No. 51, on verdict for defendant in case of Emma J. Kiskaddon v. Findley B. Dodds, W. M. Starr, Peter Christie, trading as Starr & Company, and Thomas W. Phillips.

Ejectment for land in Penn township. Before White, P. J.

The facts appear by the opinion of the Superior Court.

The court gave binding instructions for defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned was in giving binding instructions for defendant.


W. H. Martin, for appellant. -- The sale was a private sale, and Dodds took no title: Jacoby v. McMahon, 174 Pa. 133.

The Act of April 4, 1901, P. L. 66, is unconstitutional: Fetter v. Wilt, 46 Pa. 460; Craig v. Kline, 65 Pa. 399; White v. Riggs, 27 Me. 114; Cottle's Appeal, 5 Pick. (Mass.) 483; Sigourney v. Sibley, 21 Pick. (Mass.) 101; Gay v. Minot, 3 Cush. (Mass.) 352; Peters v. Peters, 8 Cush. (Mass.) 529; Bloom v. Burdick, 1 Hill (N.Y.), 130; Peoples v. Corliss, 1 Sandf. (N.Y.) 228; Hendrick v. Cleaveland, 2 Vt. 329; Wattles v. Hyde, 9 Conn. 10; Babbitt v. Doe, 4 Ind. 355; Health v. Wells, 5 Pick. (Mass.) 140; Brodess v. Thompson, 2 Harr. & Gill, 120; Clapp v. Beardsley, 1 Aik. (Vt.) 168; Corwin v. Merritt, 3 Barb. (N.Y.) 341; Atkins v. Kinnan, 20 Wend. (N.Y.) 241; Clark v. Thompson, 47 Ill. 25.

If there was a want of jurisdiction to pronounce the judgment or decree, or to make the order or license of sale, no subsequent legislative validation can give validity to the same in the least degree: Finlayson v. Peterson, 5 N.D. 587 (67 N.W. 953); Perry v. Adams, 98 N.C. 167; Roche v. Waters, 72 Md. 264; Harrison v. Harrison, 106 N.C. 282; Pryor v. Downey, 50 Cal. 388; Hart v. Henderson, 17 Mich. 218; Hopkins v. Mason, 61 Barb. (N.Y.) 469.

Legislative enactments providing for the arbitrary and involuntary transfer of the property of one person to another without due process of law, whether with or without compensation therefor, are a flagrant violation of fnndamental law, and possess not the least pretext of validity: Gilman v. Tucker, 128 N.Y. 190; Maxwell v. Grace, 85 Ala. 377 (5 So. 319); Cromwell v. MacLean, 123 N.Y. 474; Embury v. Conner, 3 N.Y. 511; Louisville School Board v. Kentucky Bank, 86 Ky. 150; Weltzer v. Kelly, 83 Ala. 440 (3 So. 747); Palairet's Appeal, 67 Pa. 479; York v. Texas, 137 U.S. 15; Norman v. Heist, 5 W. & S. 171; Greenough v. Greenough, 11 Pa. 489; DeChastellux v. Fairchild, 15 Pa. 18; Baggs's Appeal, 43 Pa. 512; Schafer v. Eneu, 54 Pa. 304; Shonk v. Brown, 61 Pa. 320; Richards v. Rote, 68 Pa. 255.

The operation of curative statutes does not extend to cases where the proceedings involved were anterior to the enactment of the statute, hence a retroactive statute cannot affect a pending cause. This has been expressly held by the following cases: Marion Co. v. Louisville & Nashville Railway Co., 91 Ky. 388; Thweatt v. Bank of Hopkinsville, 81 Ky. 1; Mayor v. Horn, 26 Md. 194; Gilman v. Tucker, 128 N.Y. 190; Adams v. Pamer, 51 Me. 480.

T. C. Campbell, with him C. Walker and W. D. Brandon, for appellees. -- A moral obligation exists to confer this title. No one has a vested right to do wrong: Satterlee v. Matthewson, 16 S. & R. 191; Finlayson v. Peterson, 5 N.D. 487 (67 N.W. 953); Foster v. Essex Bank, 16 Mass. 245; Lycoming v. Union, 15 Pa. 166.

The orphans' court had jurisdiction: Lair v. Hunsicker, 28 Pa. 115; McPherson v. Cunliff, 11 S. & R. 422; Grier's App., 101 Pa. 412; Smith v. Wildman, 178 Pa. 245.

The plaintiff as heir at law of John Martin had, as against his creditors, no such vested rights in his property as would render a curative act unconstitutional: Wilkinson v. Leland, 2 Peters, 627; Lane v. Nelson, 79 Pa. 407; Weed v. Donovan, 114 Mass. 181.

That the act was passed after the bringing of this suit is no reason why it should be held to be unconstitutional: Windsor v. Des Moines, 110 Pa. 175; Mechanics', etc., Bank v. Allen, 28 Conn. 97; Hepburr v. Curts, 7 Watts, 300; Schenley v. Com., 36 Pa. 29.

Under the facts the want of authority in the orphans' court to approve the sale should not be taken advantage of at this time: Miller v. Spear, 21 W.N.C. 554; Jacoby v. McMahon, 189 Pa. 1; McPherson v. Cunliff, 11 S. & R. 422.

In substance, if not in form, the orphans' court sale to Dodds was a public one, the bid of $ 2,000 being merely a private agreement to increase his previous public bid of $ 1,700: Texas v. Hardenberg, 10 Wall. 68; Gwinn v. Lee, 6 Pa.Super. 646; Hudson v. Barrett, 1 Pars. 421; Weigle v. Mercer, 1 Pa.Super. 490.

While we contend that the plaintiff ought not to recover by reason of the equities in the defendant, although the ground therefor may not amount to an equitable estoppel, yet we also contend that under the proofs in the case the plaintiff is estopped, though she be a married woman: Grim's App., 105 Pa. 375; Horner v. Hasbrouck, 41 Pa. 169.

Though the circumstances in this case may not amount to a technical estoppel, yet they are entitled in equity to consideration: Pollard v. Shaffer, 1 Dallas, 210; Wikoff v. Coxe, 1 Yeates, 353; Church v. Ruland, 64 Pa. 432; Jordan v. Cooper, 3 S. & R. 578; Lehr v. Beaver, 8 W. & S. 106; Murray v. Williamson, 3 Binn. 135; Smith v. Wildman, 178 Pa. 245; Menges v. Dentler, 33 Pa. 495.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.


RICE, J. [21 Pa.Super. 355]

John Martin died on August 29, 1879, seized of a property in the borough of Butler, on which he resided, and also of a farm in the township of Pa. The latter he devised to his wife for life, or during widowhood, and at her death to his children then living and the issue of any who might not be living at her death. He directed his executors to sell the former and to apply the surplus remaining after payment of his debts to the improvement of the farm.

The widow died on October 25, 1897, and on February 13, 1900, the plaintiff, one of the six children of the testator, brought this action of ejectment, in which she claimed to recover an undivided one-sixth part of the farm.

The facts upon which the defense rested are as follows:

Upon February 5, 1881, the widow, as sole acting executrix, presented her petition to the orphans' court, reciting that she had, without success, offered the town property at both public and private sale, and had no prospect of sale within a reasonable time, that the personal estate of the testator was insufficient for the payment of his debts, it having all been taken by the widow, as would appear by a true and conscionable appraisement thereof filed in the clerk's office, and praying the court to order the sale of the farm property for the payment of debts. There were attached to the petition as exhibits, a copy of the will, a precise description of the farm property and a schedule of debts. We have referred to these details because that seemed to be the best mode of answering the criticisms of the petition made by the appellant's counsel. We can discover in it no defect in form or substance which could be taken advantage of in any collateral proceeding to invalidate the decree made thereon.

Upon the same day, the court ordered that the executrix raise the sum of $ 2,500 by a sale of the farm, and that she give [21 Pa.Super. 356] bond with surety in double the amount of any sale conditioned according to the act of assembly.

Upon March 14, 1881, she made return that she had duly advertised the land for sale on March 1, on the premises and from thence adjourned the sale to March 7 at the courthouse, and then to March 8, at the same place, where it was bid up to $ 1,700 by F. Dodds, who was the highest bidder, but that she believed the price bid was insufficient, and asked leave to report the property unsold for want of bidders. Upon the same day the court confirmed the report and ordered it to be filed.

Two days later she presented a further petition reciting her former petition, the order to sell made thereon and her report, and alleging that the same necessity to sell still existed, that a better sale could be made privately than by public outcry, and that she had agreed to sell the farm, subject to the approval of the court, to Finley B. Dodds (shown by the testimony in this case to be the same person who had made the bid of $ 1,700 at the public outcry), for $ 2,000, one half to be paid April 1, 1881, and the balance in two equal annual payments with interest; that this was an advance of $ 300 over the sum bid at the public outcry, that it was a fair price, and the best that could be obtained under the circumstances. She therefore prayed the court to approve, ratify and confirm the sale, " with the same effect as if a decree for the sale thereof had preceded." Attached to this petition was a copy of the agreement with Dodds, together with his affidavit setting forth that he was ready and...

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1 practice notes
  • Womer v. Schlottman, 41
    • United States
    • Commonwealth Court of Pennsylvania
    • January 18, 1926
    ...of legal proceedings to authorize recovery upon a just claim, or upon one supported by a moral obligation to pay: Kiskaddon v. Dodds, 21 Pa.Super. 351, 363; Investors Realty Co. v. City of Harrisburg, 82 Pa.Super. 26, 31; Stebbins v. Crawford County, 92 Pa. 289, 293; John T. Bailey et al. v......
1 cases
  • Womer v. Schlottman, 41
    • United States
    • Commonwealth Court of Pennsylvania
    • January 18, 1926
    ...of legal proceedings to authorize recovery upon a just claim, or upon one supported by a moral obligation to pay: Kiskaddon v. Dodds, 21 Pa.Super. 351, 363; Investors Realty Co. v. City of Harrisburg, 82 Pa.Super. 26, 31; Stebbins v. Crawford County, 92 Pa. 289, 293; John T. Bailey et al. v......

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