McKee v. McKee

• Decision Date: 09 October 1850
• Citation: 14 Pa. 231
• Parties: McKee <I>versus</I> McKee.
• Court: Pennsylvania Supreme Court

14 Pa. 231

McKee versus McKee.

Supreme Court of Pennsylvania.

October 9, 1850.

ERROR to the Common Pleas of Erie county, by John McKee et al., who were defendants below.

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The case was argued by Babbit, for plaintiffs in error.—He contended that the Orphans' Court had jurisdiction of the subject, and the decree was intended and understood to be a final decree, and a decree of specific performance, and was so treated by the court in directing the administrator to make a deed. That though there may be errors apparent on the face of the record, the proceedings and decree should not be treated as void. That the errors are not examinable in a collateral action. That notice of the application was given. That it does not appear affirmatively that there was no day appointed for the hearing and no notice given. Both may have been done and omitted to be noticed on the record; it may be presumed: 10 Ser. & R. 193; Kimball v. Saunders, 10 id. 207, 286; sect. 2 of act of 29th March, 1832, relative to Orphans' Courts, providing that the proceedings in the Orphans' Courts shall not be avoided collaterally. That the record, though incomplete in wanting the final adjudication, was evidence as far as it went, and should have been received.

Marshall for defendants in error.—That the Orphans' Court had no jurisdiction of the parties in interest, who never had a day in court; the court never fixed a day for hearing, and the petitioner did not give notice to the widow and heirs of that part of the order of the Orphans' Court which directed ten days' notice to be given of the application.

That the 52d section of the act of 29th March, 1832, provides the manner of giving notice, in all cases in which heirs are interested; and a further provision exists in the 53d section, where there are minors. The 15th section of the act of 24th February, 1834, requires, in case of a contract in writing to convey, notice of the bill or petition to the heirs, to appear on a day certain and answer — and the 16th section contains a similar provision as to a parol contract.

That the Orphans' Court never made a decree for the specific performance of the contract, as directed by the 17th section of the act of 24th February, 1834; they adjudged only the proof sufficient, and direct the same to be endorsed upon the petition, and to be certified, &c. That was not a proper decree to be made in the Orphans' Court, under the provisions of that act.

The opinion of the court was delivered, Oct. 9th, by BELL, J.

The record offered by the defendants below, exhibits a succession of radical mistakes from beginning to end. It is a little singular, that in spite of the unambiguous provisions of our statutes, relating to the contracts of decedents, court and counsel should have fallen into the error of confounding two distinct remedies, involving a confusion of jurisdiction, and a jumble of decrees, destructive of the whole proceeding.

The acts of 1792 and 1818 provide a method for taking proof in the courts of Common Pleas, of the unexecuted real contracts of decedents, previous to the institution of any suit for the breach of them, and enable the executor or administrator to make the necessary conveyance, under the order of the court. This remedy being found imperfect, in certain cases, the act of February, 1834, was passed, conferring on the several orphans' courts the power, elsewhere exercised by courts of chancery, of decreeing specific performance of these contracts. The difference between these several modes of procedure, and the results attained by each, is pointed out in Chess' Appeal, 4 Barr 52, and McFarson's appeal, 1 Jones 503, which show them to be strongly distinguished by features peculiar to each. Indeed, they possess no one leading characteristic in common. The jurisdiction exercised by the Common Pleas, is, in fact, a method devised to avoid common law suits for damages, was originated by statute, and is, perhaps, known only in Pennsylvania; while that conferred on the Orphans' Court, is, confessedly, borrowed from the long established practice of courts of equity. These important differences seem to have been overlooked by the defendants below. Apparently acting upon the notion, that the two jurisdictions are concurrent, they invoked the Orphans' Court to exert a power possessed by the Common Pleas only. This initiatory error was the propagator of others, equally gross. The step first consequent upon the presentation of the petition, would naturally be, to fix a day for the answer of the defendants, and giving notice thereof, by citation or other order. This, however, was wholly omitted, and instead, the court directed a commission to examine witnesses, of which notice was to be given to a guardian ad litem, appointed on the instant. Immediately on the return of this commission, and but one day after taking the single ex parte deposition, upon which the decree was founded, the court adjudged the proof to be sufficient, and directed it to be certified. Nay, if we are to give credence to the formal certificate of the proper...