Lair et al. v. Hunsicker
| Decision Date | 01 January 1857 |
| Citation | 28 Pa. 115 |
| Parties | Lair et al. versus Hunsicker. |
| Court | Pennsylvania Supreme Court |
Fox, for plaintiffs in error.—The Orphans' Court derives its power to make partition of the lands of a decedent from the Acts of Assembly. The petition must be by the widow or lineal descendant, "having an interest in such real estate." The court has no power in any other case. It is the petition of such a person that gives the jurisdiction; and they can have no jurisdiction unless brought before them in the mode prescribed by the statute. Henry Shade's petition showed upon its face that he was not a descendant of the decedent, and had no interest in her real estate. The heirs have done nothing to estop them; nor was it proved that any knew of the proceedings except Uriah Shade.
2. There was no evidence that defendants were "intruders," "trespassers," or "strangers;" or that they "pretended no title." These expressions were calculated to mislead and prejudice the minds of the jury. The law presumed the defendants to have a perfect title. They were not bound to show any, but had a right to rely upon the long and well-established principle, that the plaintiff must show a complete title in himself.
3. The plaintiff was counsel for Shade, and must show affirmatively that he purchased with his client's consent. The principle of law is stated in Hall v. Hallett, 1 Cox 134: "Upon principles of policy, no attorney shall be permitted to purchase anything in litigation, of which litigation he has had the management." This doctrine is fully recognised by Leisenring v. Black, 5 Watts 394; Hockenbury v. Carlisle, 5 W. & S. 350; Galbraith v. Elder, 8 Watts 100; Reid v. Stanley, 6 W. & S. 369; Henry v. Raiman, 1 Casey 359.
4. The instruction that the plaintiff was not bound to show title out of the Commonwealth, was erroneous. If there had been evidence that the defendants neither had nor pretended to have any title, the position would be correct; but the court and jury were bound to presume that they had a perfect title. Nor was there any evidence that parties claimed to derive their rights from a common source. In all other cases the defendant must show the title out of the Commonwealth, and trace his own right back to him who last died seised.
Boyd, for defendant in error.—1. The Orphans' Court clearly had jurisdiction of the subject-matter, and consequently the decree confirming the sale, cannot be inquired into collaterally. Such is the express terms of the Act 29th March, 1832, § 2. The case of Herr v. Herr, 5 Barr 429, is decisive of this, and the cases cited
by his Honour, Judge SMYSER. These cases have never been overruled, or even doubted. The plaintiff showed at least a prima facie title, and that should prevail against the defendants, who show no title at all. The sale was in 1848, and it is fair to presume that the heirs got the proceeds of the sale, and are satisfied with it. And the time for an appeal having passed, the question should be considered at rest.
2. The instruction complained of in this assignment is in relation to the alleged fiduciary relation between Shade and Hunsicker, and was not given as a binding direction to the jury. If the defendants were prejudiced by this instruction, their remedy was a motion for a new trial on this ground, but this was not done. The judge had the right to instruct the jury, that upon the whole case the plaintiff was entitled to recover: Faust v. Ross, 1 W. & S. 501.
3. It is a sufficient answer to this assignment and the argument urged in support of it, to say, that if Hunsicker's purchase enured to the benefit of his client Shade, still he could maintain the ejectment, and if he held as trustee before...
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