Swain v. Fidelity Insurance Co.

• Decision Date: 27 May 1867
• Citation: 54 Pa. 455
• Court: Pennsylvania Supreme Court
• Parties: Swain and Abell <I>versus</I> The Fidelity Insurance, Trust and Safe Deposit Company.

Page 455

54 Pa. 455

Swain and Abell versus The Fidelity Insurance, Trust and Safe Deposit Company.

Supreme Court of Pennsylvania.

March 2, 1867.

May 27, 1867.

March 2d 1867.

Before WOODWARD, C. J., THOMPSON, STRONG and AGNEW, JJ. READ, J., sick

Appeal from the decree of the Supreme Court at Nisi Prius.

COPYRIGHT MATERIAL OMITTED

H. Wharton, for appellants, cited Fry on the Specific Performance of Contracts; Dalzell v. Crawford, 1 Pars. R. 57; Gans v. Renshaw, 2 Barr 35; Pyke v. Waddingham, 10 Hare 1; Roscoe on Real Actions 146, 168, &c. Acts of 1700, Brad. Ed. Laws of 1728, 225; 1724, 1 Sm. Laws 164, § 1; 1722, 1 Id. 143; 1728, Brad. Ed. of 1728, 335; 1807, § 3, 3 Sm. Laws 398; June 13th 1836, §§ 82, 83, 84, Purd. 39, pl. 5, 6, 7; Pamph. L. 587; Brown v. Sceggels, 2 Foster 548; Intestate Act of 1833, § 9, Purd. 564, pl. 27, Pamph L. 318; Emes v. Brown, Sup. Ct., June 1854, 1 Am. Law Reg. 634; Ward v. Paul, 2 Bro. Ch. 583; Ex parte Pye, 18 Ves. 153; Vanartsdalen v. Vanartsdalen, 2 Harris 384; Simpson v. Simpson, Cro. Jac. 640; Bac. Abr. Infancy K, 2; Rawling's Case, 4 Cro. 53 b, 54 a; Rogers v. McLean, 21 Barb. 304; Colton v. Smith, 11 Pick. 315; Zimmerman v. Rapp, 20 Wend. 100; Burhans v. Burhans, 2 Barb. Ch. 398; Howe v. Blandan, 21 Verm. 315; Dorn v. Beasley, 7 Rich. Eq. 84; Platt v. Stewart, 10 Mich. 260; Harlan v. Stout 22 Ind. 488; Denning v. Corwin, 11 Wend. 65; Castle v. Matthews, Hill & Denio 438; Gallatian v. Cunningham, 8 Cowen 362; Glidden v. Strupler, 2 P. F. Smith 400; Simons v. Simons, 1 Miles 404.

J. E. Gowen and S. Hood, for appellees, cited Acts of June 13th 1836, §§ 79, 82, 83, Purd. 39, pl. 1, 5, 6, Pamph. L. 507; April 7th 1807, § 1, Purd. 770, pl. 6, 4 Sm. L. 398; Bingham on Inf. 118, n. 1; Apthorp v. Backus, Kirby's R. 407 (Conn.); 5 Com. Dig. 573; Styles Pr. Reg. 265; Rawlin's Case, 4 Rep. 52; Stratton v. Burgis, 1 Strange 114; 1 Crompton's Pr. 158; Archer v. Frowde, 1 Strange 304; Heft v. McGill, 2 Barr 264; Turner v. Partridge, 3 Penna. R. 173; White v. Alburton, 3 Dev. 241; Hamilton v. Foster, 1 Brevard's R. 464; Smith v. Bradley, 6 Smedes & Marsh. 485; Runyan v. India Rubber Co., 4 Zabr. 476, 3 Harrison 74; Pittinger v. Pittinger, 2 Green. Ch. R. 156; Althouse v. Radd, 3 Bosw. 410; Millican v. Millican, 24 Tex. 426; Payne v. Benham, 16 Id. 364; Stock v. Middleton, 4 Dutcher 32; 1 Tidd's Pr. 90; Foot v. Stevens, 17 Wend. 483; Hart v. Seixas, 21 Id. 40; Co. Litt. 232 b.; Mellish v. Richardson, 9 Bing. 125; Colton v. Smith, 11 Pick. 315; Zimmerman v. Rapp, 20 Wend. 100; Burhans v. Burhans, 2 Barb. Ch. R. 398; Howe v. Blanden, 2 Verm. 315; Brown v. Sceggels, 2 Foster 548; Dorn v. Beasly, 7 Rich. Eq. R. 84; Platt v. Stewart, 10 Mich. 260; Denning v. Corwin, 11 Wend. 647; Castle v. Matthews, Hill & Denio's R. 438; Harlan v. Stout, 22 Ind. 488; Rogers v. McLean, 31 Barb. 304; Dalton v. State, 6 Blackf. 357; Rex v. Venables, 1 Strange 630; s. c. 2 Ld. Raym. 1405; Rex v. Cleg, 1 Strange 475; Nares on Conv. 10; Rex v. Clayton, 3 East 61; Brown v. Wood, 17 Mass. R. 68; 21 Wend. 48; Allnatt on Part. 29; 64 Co. Litt. 171 a.; Ralston v. Lahee, 8 Clarke (Iowa) 17; Cavender v. Smith, 5 Id. 157; Jack v. Davis, 29 Geo. 219; Medith v. Sanders, 2 Bibb 101; Doe v. Brown, 8 Blackf. 443; Miller on Part. 213, 214; Sliver v. Shelback, 1 Dall. R. 165; Regan's Estate, 7 Watts 438; Thompson v. Phillips, Baldwin 372; Fellows v. Niver, 18 Wend. 563; Am. Ins. Co. v. Oakley, 9 Paige 496; Rowley v. Stoddard, 7 Johns. 207; Com. Dig. tit. Attorney B., 7; Oades v. Woodward, 1 Salk. 88; Alleley v. Colley, Cro. Jac. 695; Lorymer v. Hollister, 1 Str. 693; McCullough v. Guetner, 1 Binn. 214; Reinholdt v. Alberti, Id. 469.

The opinion of the court was delivered, May 27th 1867, by AGNEW, J.

It is a well-settled rule in equity not to enforce specific performance of a contract in favor of a vendor of real estate unless he is able to offer a marketable title which is beyond reasonable uncertainty.

The title of the plaintiffs in this case is founded in a proceeding in partition which is clearly irregular, though not perhaps void. But the irregularity in the proceeding was one affecting the title of minors, to whom a period of five years is allowed after their arrival at full age, before they are bound by limitation from taking a writ of error: Bright. Purd. 1861, p. 410, pl. 7. The proceedings in partition, in this case, are liable to reversal, while the minors who are not parties to this bill would not be bound by any judgment we might now give. Were we therefore to decree specific performance against the defendants, compelling them to take a title defeasible by a reversal for errors manifest in the record of the partition, we should do them gross injustice.

No service was made upon any of the minors, according to the provisions of the Act of 13th June 1836. Mr. Phillips appeared (as the record shows) at the instance of the mother as the next friend of some of them. This itself was an irregularity. An infant can appear only by guardian. No guardians ad litem were appointed by the court as the act requires. Even where service has been duly made upon the minor under fourteen years of age, by notice of the writ to his next of kin, and upon the minor over fourteen by service upon himself, yet no further proceeding can be taken in the cause until the plaintiff has made application to the court for the appointment of a guardian of the minor. The service upon the next of kin, or upon the minor over fourteen is so imperfect the plaintiff cannot take judgment by default, or any rule in the action: Act 13th June 1836, § 83, clause 3d, &c. The answer made to this is, that we may presume that the court did appoint guardians, not by name, it is true, but by suffering the proceedings to go on in the names of the next of kin, who were therefore substantially the recognised guardians ad litem.

This might serve as a sufficient answer in a collateral proceeding, where any presumption would be made to support a title. But the question here is presented upon the record itself, for we are now looking at its reversible character, upon a writ of error, which the minors can yet take. And assuming that the presumption might be good upon a writ of error as to the minors under fourteen years of age, it is wholly inapplicable to the case of the minor who was over fourteen when the writ issued. The Act of 1836 recognises no service upon his next of kin. It directs service to be made upon his guardian, and also upon himself. Having no guardian at the time, service was good only upon himself. It is very clear that as to him Mr. Phillips could not appear by authority of his next of kin. His nearest kindred were aliens wholly to the action. He was therefore not in court except by the unauthorized appearance of an attorney. The court really had acquired no valid jurisdiction over him.

Under these circumstances, to presume that the court appointed a guardian for him, would be to presume what would not cure the error, even if we could make the presumption. But if the record of the proceedings in partition were before us, how could we presume any such thing in a case where the minor himself never had been regularly subjected to the jurisdiction of the court? Under these circumstances we...