Leedom v. Lombaert

• Decision Date: 08 May 1876
• Citation: 80 Pa. 381
• Parties: Leedom <I>versus</I> Lombaert <I>et ux.</I>
• Court: Pennsylvania Supreme Court

Page 381

80 Pa. 381

Leedom versus Lombaert et ux.

Supreme Court of Pennsylvania.

January 18, 1876.

May 8, 1876.

January 18th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Delaware county: Of January Term 1876, No. 43.

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A. L. Smith and J. J. Lewis, for plaintiff in error.—The mortgage was not properly authorized, notice not having been given to all the parties interested: Act of April 18th 1853, sect. 3, Pamph. L. 503, 1 Br. Purd. 1243, pl. 3. Leedom himself had no interest: Brown v. Williamson, 12 Casey 338; Rees v. Livingston, 5 Wright 113; and the minors had no notice: Smith v. Townsend, 8 Casey 434. The mortgage was obtained by fraud; the assignee should have made inquiry: Harper v. Jeffries, 5 Whart. 26; Metzgar v. Metzgar, 1 Rawle 227; Frantz v. Brown, 1 Penna. R. 257; Flynn v. Allen, 7 P. F. Smith 482; Faull v. Tinsman, 12 Casey 108; Mann v. Dungan, 11 S. & R. 75; Weaver v. Lynch, 1 Casey 449; Buchanan v. Wurtz, 5 Watts 151; Edgar v. Kline, 6 Barr 327. Leedom's silence or even false representations could not bind the owners of the land: Hill on Trustees 317, 503.

J. B. Hinkson, for defendants in error.—The Orphans' Court had jurisdiction to authorize the mortgage; the decree could be reversed only by appeal to the Supreme Court: Act of March 29th 1832, sect. 2, Pamph. L. 190, 2 Br. Purd. 1103, pl. 4; Torrance v. Torrance, 3 P. F. Smith 510; Moorehead v. Commonwealth, 1 Grant 215. When looking at a decree collaterally, it is presumed that every element necessary to make it was in it: Murklein v. Trapnell, 10 Casey 46; Colbaugh's Appeal, 12 Harris 144. That the bond was filed, was sufficient evidence that it was approved without an endorsement of approval. The mortgagor having been present at the transaction with Forrest assenting to what was done, he is estopped: McMullen v. Wenner, 16 S. & R. 18; Edgar v. Kline, 6 Barr 327: Weaver v. Lynch, 1 Casey 449.

Mr. Justice MERCUR delivered the opinion of the court, May 8th 1876.

The argument of the twenty-five assignments of error was well made by the counsel for the plaintiff under three questions. The first relates to the validity for any purpose of the mortgage in question.

The plaintiff in error was the testamentary trustee of certain real estate, for the use and benefit of his wife, and their children. He applied, by petition, to the Orphans' Court of the proper county, setting forth that the said real estate was much dilapidated, and required repairs to the houses and saw-mill, and that the personal estate in his hands and under his control, as trustee, was insufficient for the improvement and repairs of said real estate, and for the purposes necessary to carry out the trust. He therewith exhibited a true and perfect inventory and consignable appraisement of all the personal estate whatever in his hands as said trustee. He therefore prayed the court to order the mortgage of said real estate, or so much thereof, and for such sum as to the court should appear necessary for the improvement and repairs of said real estate, and for the purposes of the business of said trust. Thereupon the court appointed an auditor to take testimony and report the facts, together with his opinion. The auditor reported, fully sustaining all the averments in the petition, and recommended that the petitioner "be authorized to mortgage the said real estate to the amount of $5500, which would be in no way an injury or prejudicial to the estate." The court confirmed the report, granted the prayer of the petitioner, and decreed that he be ordered and authorized to mortgage the property to an amount not exceeding the sum recommended by the auditor, for the purposes stated in the petition, on his giving security, to be approved by the court, in the sum of $10,000, conditioned for the faithful appropriation of the mortgage-money for the benefit of the trust. The record shows the bond, duly executed by the trustee and two sureties, was filed a few days thereafter. It is endorsed approved over the signature of two of the associate judges. It is claimed that this was not sufficient evidence of the approval, and that parol evidence that it was not approved by the court was improperly rejected.

The record shows it was filed and approved. It was a statutory bond. The law presumes it was properly examined and passed upon by the court as a part of the proceedings before it was approved and filed: Hartz v. Commonwealth, 1 Grant 360; Boyd v. Commonwealth, 12 Casey 355. In Lockhart v. John, 7 Barr 138, it was held, that the provisions of the Acts of Assembly of 1832 and 1834, requiring administrators to give security for the faithful application of the proceeds of Orphans' Court sales, were directory merely, and the want thereof did not avoid the sale. So in Thorn's Appeal, 11 Casey 47, the giving of surety was treated as directory under the 6th and 10th sections of the Act of 18th of April 1853, 2 Purd. Dig. 1242, although in this case security was given before confirmation of the sale.

It is further objected that the record fails to show notice to all the persons interested. The Orphans' Court is a court of record. It has, within its jurisdiction, all the qualities and incidents of a court of record at common law. It had undoubted jurisdiction of the trustee and of the property. "Its proceedings and decrees in all matters within its jurisdiction shall not be reversed or avoided in any other court:" 2 Purd. Dig, 1103, pl. 4. In collateral suits and proceedings they must be held conclusive, unless impeached for fraud, or want of jurisdiction appearing on the record: Painter v. Henderson, 7 Barr 48; Welty v. Ruffner, 9 Id. 224; Keech ...