GEO. T. BISEL CO. LAW PUBLISHERS AND STATIONERS, 724 SANSOM STREET, PHILADELPHIA. y UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A TREATISE ON THE PRICE ACT RELATING TO REAL ESTATE IN PENNSYLVANIA Act April 18, 1853, P. L. 503 BY ROLAND R. FOULKE OF THE PHILADELPHIA BAR Author of"T/ie Rule Against Perpetuities > &c., in Pennsylvania" PHILADELPHIA: THE GEORGE T. BISEL COMPANY 1914 Copyright 1914 by THE GEORGE T. BISEL COMPANY Preface Mr. Price's 1 treatise on the act 2 commonly referred to by his name, has been out of print for many years, and was written so soon after the act was passed that whatever its merits, it is of very little use at the present time. Section 9 of the act 3 has al- ready been discussed, and it is hoped that the great practical im- portance of the other sections will justify this discussion of them. Since there are several other statutes in force, in some respects duplicating the provisions of the Price Act, it has been found necessary, for the sake of clearness, to refer to them in some detail, and the act is so generally administered in the Orphans' Court that some observations have been introduced on the nature and effect of Orphans' Court sales in general. A number of forms have been inserted in an appendix which may add to the practical usefulness of the book. In conclusion, I desire to acknowledge my indebtedness to Judge John Marshall Gest, of the Philadelphia Orphans' Court, for the great interest he has taken in this work and for many helpful suggestions. Indeed, without his encouragement, I doubt if the book would ever have been written. This discussion covers the laws of 1913, and the citations have been brought down to 244 Pa. and 55 Super. Ct, each inclusive. ROLAND R. Philadelphia, June i, 1914. (1) Eli K. Price, an eminent member of the Philadelphia Bar, who flourished during the middle of the last century. (2) April 18, 1853, P. L. 503. (3) Relating to Accumulations. See Foulke, Rule Against Perpetuities in Pennsylvania, etc. (1909), Chap. 25, p. 371. TABLE OF CONTENTS CHAPTER i. Preliminary Discussion. Object of the statute and general view thereof 10 Constitutionality 1 1 No compulsory sale of vested interests owner sui juris 12 Jurisdiction Confined to cases specified 13 (Note: Table of cases in the act and its supplements.) As between Orphans' Court and Common Pleas 14 Only as to real property 15 As respects situs of the land 16 Consent, no jurisdiction by 17 Notice General discussion 18 Married women 19 Act construed with existing legislation 20 Court may ratify that which it could authorize in advance 21 Jurisdiction extends to ownership undivided or in severalty .... 22 Title acquired by purchase 23 Superfluous provisions of the act 24 Retroactive operation of the act 24a CHAPTER 2. General Jurisdictional Facts. Preliminary 25 To the interest and advantage Is a question of fact 26 Case of a mortgage ..... 27 As between life tenant and remaindermen 28 Reasons why to interest and advantage 29 Sale of unproductive real estate for improvements and re- pairs 30 Urgent necessity not required 31 Without prejudice to trust or charity 32 Without violation of any law conferring an immunity or exemp- tion from alienation Preliminary discussion 33 Cases discussed Burton's Appeal 34 Heffner's Appeal 35 I z TABI^E OF CONTENTS. Mercer Home Fisher's Appeal 36 Funck's Estate .' 37 Law as to immunity from alienation 38 Effect of prohibition against alienation as to a church 39 CHAPTER 3. Disposition of or Concerning "the Title Authorized by the Act. Preliminary 40 Sale May be public or private 41 Must be for an adequate consideration 42 Distinction between public and private sales as to discharge of liens 43 Terms of the sale 44 Mortgage General discussion 45 Stevenson's Estate 46 Expenditure of mortgage money 47 As to confession of judgment 47a Lease 48 Exchange 49 Conveyance of or on ground rent Preliminary 50 Extinguishment or sale of ground rent reserved under a power 51 Cases to which act applies 52 Sale or extinguishment under the act 53 Security and form of the decree 54 Square and adjust lines between adjoining owners 55 Purchase of real estate 56 Change location of right of way 57 Lay out and vacate streets, subdivide tract 58 Who may petition 59 Who may be appointed to execute the decree 60 CHAPTER 4. legal Disabilities of the Holder of the Title. Preliminary 62 Minority Preliminary 63 Necessity of distinguishing proceedings under other acts ... 64 Notes, Act of 1832, March 29, P. L. 190. Act of 1836, June 16, P. L. 682. Act of 1851, April 3, P. L. 305. Act of 1853, April 18, P. L. 503. OF CONTENTS. 3 Notice 65 Undivided interest Preliminary discussion 66 Necessity of joinder of other parties 67 Gilmore v. Rodgers 68 Pierce's Estate 70 Proceedings by owner of undivided interest sui juris where there is a minor's interest 71 Sale of undivided interest of a minor to another tenant in common 72 Reasons for sale of an undivided interest 73 Guardian appointed in one county, land in another 74 Foreign guardian 75 Lunatics and habitual drunkards 76 Act of 1836, June 13, P. L. 589 77 Notice in case of lunatics 78 Weak-minded persons 79 (Note on other acts relating to lunatics.) Coverture Married women 80 Married men 81 Corporations Preliminary 82 Capacity to convey 83 Holdings in excess of the amount prescribed by law 84 Religious, beneficial and charitable corporations 85 Religious, beneficial and charitable associations, 86 CHAPTER 5. Limitations of and Liens Upon the Title. Estates tail Preliminary 90 Not necessary to resort to act 91 Proceedings under act may not bar vested remainders 92 As to purchase money 93 Requisites of petition 94 Mortgage of an estate tail 95 Lease of an estate tail 96 Contingent remainders Preliminary 97 Provisions of the act 98 Distinction between equitable and legal remainders 99 Contingent remainders and ultimate vested remainders 100 Requisites of petition 101 Notice 102 4 TABLE OF CONTENTS. Remainders to a class Preliminary definition of remainders to a class 103 Formerly supposed that act provided for remainders to a class 104 Price Act did not provide for remainders to a class 105 Acts of 1897 providing for remainders to a class 106 Equitable remainders to a class 107 Discharge of purchase money from remainders Preliminary 108 Legal remainders 109 Equitable remainders no Mortgage of property which is subject to contingent remainders in Executory devise 112 L,ien of debts not of record Preliminary 113 Provisions of the act 1 14 Act of 1832 to be distinguished 115 Grenawalt's Appeal 116 Hower's Appeal 117 Pierce's Estate f 118 Orwig's Estate 1 19 Yard's Estate 120 Spencer v. Jennings 121 Burkhardt's Estate 122 West v. Cochran 123 Distinction between Price Act and earlier acts 124 Private sale discharging lien of debts 125 No jurisdiction under the act where the lien of debts has expired 126 Distribution of the proceeds of the sale 127 Act applies to executors selling under a power 128 Modified fees 129 CHAPTER 6. Trusts. Preliminary discussion 130 Jurisdiction of equity independent of the act 131 Act of 1851, April 3, P. L, 305 132 Jurisdiction now probably limited by the act 133 Provisions of the act as to trusts. Nature of cestui que trust immaterial 134 Where trustee has power which cannot be exercised 135 Vested equitable remainders 136 The Petition 137 Notice to and consent of the cestui que trust 138 Sole and separate use 139 Disposition of equitable title of cestui que trust 140 TABLE o? CONTENTS. 5 Sale by trustee to cestui que trust 141 Proceeds of the sale 142 Trusts for a charity 143 CHAPTER 7. Powers. Preliminary discussion. Division of powers 145 Provisions of the act 146 Powers of sale Provisions of the act as to 147 Time not arrived for execution 148 Unreasonably withhold consent 149 Powers of appointment 150 CHAPTER 8. Specific Performance of Decedent's Contract. Provisions of the act 151 Provided for by Act of 1834 152 Application of the Price Act doubtful 153 CHAPTER 9. Partition. Preliminary 154 Provisions of the act 155 Jurisdiction under the act as to partition proceedings 156 Jurisdiction under the act as to amicable partition i Preliminary discussion 157 Wilson's Estate 158 Hirsh's Estate 159 Thomas's Estate 160 Hunsworth's Estate 161 Conclusion as to jurisdiction 162 Security in case of partition 163 CHAPTER 10. o Cemeteries and Burial Grounds. Price Act seems to provide for all cases 165 Other legislation concerning cemeteries 166 Conclusion as to cemeteries 167 The petition , , 168 6 TABLE OF CONTENTS. CHAPTER ii. Persons Absent and Unheard from for More than Seven Years. Preliminary 169 Provisions of the act 170 The circumstances from which the law will presume decease ... 171 Notice to the absent one 172 The petition 173 Act of 1913 174 CHAPTER 12. Security. Preliminary, provisions of the act 177 Cases where bond is required 178 Amount of the bond 179 Sureties on the bond 180 Cost of obtaining security 181 Time of filing bond 182 Necessity of filing 183 Guardian's security where land lies in another county 184 Where party making sale resides in one county and land is in another 185 CHAPTER 13. Purchase Money. Purchase money takes the place of land sold 187 Account of proceeds 188 Devolution of the purchase money Preliminary, provisions of the act 189 As to interest of a minor, etc 190 Interest of a lunatic, habitual drunkard, married woman 191 Interest of a person sui juris 192 Effect of equitable conversion 193 Mortgage money 194 Rents 195 Proceeds of conveyance on ground rent 196 CHAPTER 14. Title of the Purchaser. Preliminary discussion of provisions of the act 197 Act presupposes a title to be sold 198 Provisions as to title to be read in connection with general prin- ciples affecting Orphans' Court sales 199 CHAPTER 15. Orphans' Court Sales. Preliminary ..,.., 200 Nature, of Orphans' Court sales | zoi OF CONTENTS. 7 Confirmation of sale 202 Jurisdiction of the Common Pleas over Orphans' Court sales ... 203 Sales under a power to be distinguished 204 Proceedings for a sale 205 Order of sale controls subsequent proceedings 206 Method of objecting to the sale 207 Where court has no jurisdiction 208 Dicta as to Orphans' Court sales 209 Statute of Frauds 210 Price of the sale Preliminary. Must be adequate 211 Setting aside for inadequacy 212 Security for a higher bid. Distinction between public and private sales 213 Decree of confirmation conclusive as to price 214 Fraud 215 Parties who may object to the sale 216 The purchaser Preliminary 217 Refusal to carry out terms of the sale 218 Purchaser should defend by objecting to confirmation 219 Liability of the purchaser after confirmation 220 Liability after deed delivered and purchase money paid 221 Title passed by the sale 222 Purchaser obtaining possession 223 Rights of the various parties pending completion of the sale Preliminary 224 Title of the heir or devisee 225 Incidence of rights and liabilities between parties 226 Destruction of buildings by fire 227 Apportionment of interest on encumbrances 228 Title of the purchaser Preliminary 229 Judgments against , 230 Rights against third parties 231 Devolution 232 Alienation 233 Deed Who is to execute 234 Endorsing decree on deed 235 Acknowledgment and recording 236 Must conform to the decree of the court 237 CHAPTER 16. Collateral Attack. Preliminary 240 Former law as to decrees of the Orphans' Court 241 8 TABI,E OF CONTENTS. Present law as to decrees of the Orphans' Court 242 Decree valid notwithstanding irregularities 243 Decree may be impeached by party in interest without notice ... 244 Decree conclusive of facts set out in the record 245 Party in interest who had notice cannot imp'each 246 Where record does not show that the court had jurisdiction, the decree may be impeached 247 Fact that there is no decree may be set up in a collateral action 248 Parol evidence to vary or explain proceedings 249 Fraud 250 Mistake Preliminary 251 Unilateral 252 Mutual 253 Statement of the law in Pennsylvania as to collateral attack upon Orphans' Court sales 254 CHAPTER 17. Discharge of Liens by Sale Under the Act. General rule as to judicial sales 257 Distinction between Orphans' Court sales and sheriff's sales 258 Effect of public sale under the act 259 Effect of private sale under the act 260 Liens Mortgages 261 Judgments 262 Legacies 263 Collateral inheritance tax 264 Dower 265 Taxes . . . . 266 Debts of decedent 267 Arrears of interest on the lien 268 Ground Rents 269 Agreement of parties as to discharge of liens 270 CHAPTER 18. Appeals. Appendix A. Text of the Price Act and its supplements, and subsequent legislation. Appendix B. Forms. Table of Cases. Table of Statutes. Index. INTRODUCTION 1. The State unquestionably has power to control the use, transfer and devolution of property, and that power is limited in this country by public opinion and by various constitutional provisions which may be summed up for the purposes of our dis- cussion in the requirements that (i) there must be some ade- quate reason for regulating the ownership of property, (2) just compensation must be made to an owner whose property is taken, and (3) the proceedings must be by due process of law. 2. The statutes relating to the use and devolution of prop- erty lie outside the scope of this discussion, which is concerned solely with a part of the law relating to the transfer of property, The question of just compensation and due process of law are of subordinate importance and will be passed for the present. The adequate reasons for the exercise of the power of regulating the transfer of property will vary from time to time in different communities and at different times. So far as we are concerned, the cases generally provided for by law may be summarized as follows under the divisions of involuntary alienation and volun- tary alienation, which, however, overlap each other at certain points. 3. Involuntary alienation is prescribed in the following cases : ( i ) Where it is necessary to sell property in order to sat- isfy some lien or charge, as the lien of debts or legacies, or to sat- isfy judgments, and the principle is the same whether the obli- gation is that of a deceased or a living person. In each case the property is turned into money in order to satisfy some lawful charge. The alienation here is involuntary as to an heir or a devisee when it may be voluntary as to a testator. (2) Where it is desirable to appropriate private property for a public use, the exercise of the power of eminent domain. (3) Where the absolute ownership of property is divided into different estates or is qualified by some trust or special limitation preventing some one or all of the owners from disposing of the property. In this case an alienation may be authorized, involuntary as to some of the owners. This case will be noticed again when we discuss voluntary alienation. The typical instances under this heading (9) io INTRODUCTION. 4-5-6-7 are where property is subject to contingent remainders or execu- tory devises or where there is an estate tail or a modified fee. 4. The case of ownership in common is, however, not re- garded as an adequate reason for authorizing one co-tenant to compel the others to join in a transfer of the property, since the law provides another method of escape from the accident of un- divided ownership, that is, by proceedings in partition. Where one of the co-tenants is under a disability, as minority, the law may authorize him to join with the others in a voluntary aliena- tion. The cases of voluntary alienation authorized by law are those where the owner cannot under the existing law, because of some disability, make the transfer himself. The principal in- stance of this are minority, coverture, insanity and drunkenness, trustees who have no power of sale or cannot exercise the power conferred. 5. We must again look at the case before noticed, where the absolute ownership is divided into different estates or is quali- fied by some trust or special limitation. Some owner of the property desiring voluntary alienation invokes the aid of the law (a) to compel the other owners to join in the transfer, (b) to en- able him to make the transfer without their joinder, (c) to re- move some defect inherent in his title, and preventing him from making a transfer or joining with the others in a transfer. Where the other interests are vested, the law only authorizes the owner to remove some defect inherent in his own title. Where the other interests are contingent, he may be authorized to transfer without their consent but may not compel them to join in the con- veyance. 6. In the case of a trustee, legislative interposition is really not needed for a court of equity obviously had power to author- ize the conveyance without the aid of a statute and protect the purchaser from a subsequent claim of the cestui que trust. In Pennsylvania, however, the limited notions of equity and cramped jurisdiction of the courts prevented this principle being generally recognized. 7. These are the principal headings of the legislative inter- position upon the alienation of real estate. A number of statutes have been passed in Pennsylvania providing for these different cases, and one of them, the Price Act, the Act of April 18, 1853. P. L. 503, and its supplements, will be the subject of our dis- cussion. 8 INTRODUCTION. n 8. There are several other cases which do not strictly come within the headings we have referred to, but which are provided for by the act in question. For instance, one case is where the owner of property is absent and unheard of under circumstances from which the law will presume his decease. In this case, the statute provides for a transfer of the property by someone ap- pointed to act on his behalf. This is merely a case of a prescribed manner of establishing a presumption of a fact which probably exists, but is not susceptible of proof in the usual manner. This and several other cases will be discussed in their proper place. We have said enough perhaps to indicate the place in the law of the subject matter of the pages which follow. io PRELIMINARY DISCUSSION. 13 CHAPTER i. Preliminary Discussion. Object of the statute and general view thereof io Constitutionality II No compulsory sale of vested interests owner sui juris 12 Jurisdiction Confined to cases specified 13 (Note: Table of cases in the act and its supplements.) As between Orphans' Court and Common Pleas 14 Only as to real property 15 As respects situs of the land 16 Consent, no jurisdiction by 17 Notice General discussion 18 Married women 19 Act construed with existing legislation 20 Court may ratify that which it could authorize in advance 21 Jurisdiction extends to ownership undivided or in severalty 22 Title acquired by purchase 23 Superfluous provisions of the act 24 Retroactive operation of the act 243. Object of the Statute. 10. Upon the whole statute it is first to be observed that it was obviously designed 1 to promote the alienability of real prop- erty and vest in the courts the jurisdiction to determine the propriety of the disposition of a title in a case provided for in the statute. 2 The court is authorized in the cases specified, upon petition (1) The full text of the statute and its supplements will be found in Appendix A. The preamble is as follows : "Whereas, The general welfare requires that real estate should be freely inalienable," (should be alienable, obvious misprint) "and be made productive to the living owners thereof. And Whereas, In matters which the judiciary is competent to hear and decide, it is expedient that the courts should adjudicate them after a full hearing of all parties, rather than that they should be determined by special legislative acts upon an ex parte hearing." (2) For some remarks on the object of the act, see Ludlow, J., in Brides- burg Land Co.'s Petition, 7 Phila. 436 (1870), s. c. 27 L. I. 317; Penrose, J., in Yard's Est., 17 Phila. 436, (1885), s. c. 15 W. N. C. 422, 42 L. I. 17; Rice, P. J., in Merrell v. Merrell, 5 Pa. C. C. 531 and 533 (1888), s. c. 5 Kulp 125, 6 Lane. L. R. 17; Thompson, J., in Gilmore v. Rodgers, 41 Pa. 120 (1861), s c. 9 Pitts. L. J. 209, sub nom. Gilmore v. Rogers, 19 L. I. 28; Holmes's 14 CONSTITUTIONALITY OF THE ACT. n of the proper parties, to decree a sale, mortgage, lease or con- veyance on ground rent, etc., of the property if certain circum- stances exist, with a proviso as to the method of proceeding and the effect of the decree on the title. The statute applies exclu- sively to the legal title to real estate, 3 and specifies certain cases in which the courts may authorize the disposition mentioned in the act. 4 It was formerly the practice to procure a special act of as- sembly when any one of the cases specified arose, and the Price Act was designed to obviate the necessity of such frequent ap- plication to the legislature. 4 * Constitutionality of the Act. 11. The constitutionality of the Price Act has been sus- tained in all cases where the question has been raised. 5 It is valid in so far as it provides for the sale, etc., of property under cir- cumstances which are generally regarded as sufficient to author- ize the interposition of the legislature, 6 and in so far as it does not provide for the sale, etc., of property owned in fee simple by a person sui juris. 7 There are several provisions of the act which seem to provide for the sale, etc., of the vested interests of a sui juris owner without his consent, 7 * and may, therefore, although App., 53 Pa. 339 (1867); Penrose, J., in Orwig's Est, 7 Pa. C. C. 71 (1889), s. c. 19 Phila. 158, 46 L. I. 99; Strong, J., in Smith v. Townsend, 32 Pa. 434 (1859), s. c. 16 L. I. 92. (3) See 15, post. (4) See 13, post. (4a) For a discussion of some of the cases arising under these special acts, see Price on The Act for the Sale of Real Estate ( 1874) , p. 12, et seq. p. 65. (5) The constitutionality of the act was discussed in the following cases: Grenawalt's App., 37 Pa. 95 (1860), s. c. Luz. L. Obs. 243, sub- nom. Greenawalt's App., 17 L. I. 404; Freeman's Est, 181 Pa. 405 (1897) ; Smith's Est., 207 Pa. 604 (1904). (6) See i, ante. (7) The unconstitutionality of an attempt by the legislature to compel a transfer of property without an adequate reason, is illustrated by the Act of April 15, 1869, P. L. 47, authorizing the owner of property, subject to an irredeemable ground rent, to compel a sale of the ground rent to him, which act was declared unconstitutional in Palairet's App., 67 Pa. 479 (1871). (73) See 129, post, as to possibility of reverter after a modified fee. See 148, post, as to exercise of a power of sale before time fixed for its execution. See 12, post, as to compulsory sale of a vested interest. ii CONSTITUTIONALITY OF THE ACT. 15 there is no authority for the statement, be regarded as unconstitu- tional. The validity of the provisions as to a contingent re- mainder, executory devise, and estate tail, is sustainable on well- recognized historical grounds. 7b The constitutionality of the clause providing for the disposition of the title of a person absent and unheard from for more than seven years under circumstances from which the law will presume his decease, is not free from doubt, 7c and it will be unsafe to take a title under this clause until the Supreme Court has sustained its constitutionality. The dis- cussion of this subject belongs more properly to a treatise on constitutional law, and will, therefore, be omitted, although a few of the principles involved are referred to in the note. 8 The better opinion probably is that the provision is constitutional. (7b) As to the constitutionality of the act in providing for the divesting of contingent remainders and executory devises, see Smith's Est., 207 Pa. 604 (1904). As to the divesting of vested remainders after an estate tail, see 92, post. (7c) Query: Does the same objection apply to the clause providing for the sale, etc., of the title of a married woman whose husband has abandoned her for two years or been absent and unheard from for seven years? (8) The arguments as to the constitutionality of the clause in the Price Act providing for the disposition of the title of an absentee are probably as follows : r. The clause is unconstitutional because (a) no sui juris owner of a vested interest in property may be deprived of that interest by ex parte judicial proceedings of which he has had no notice; (b) the application of this principle to the case in question is illustrated by the case of Scott v. McNeal, 154 U. S. .14 (1894). 14 Sup. Ct. Rep. 1108, 38 L. ed. 896, which decided that an administrator's sale under order of a court of probate of the property of a living person is void even though that person had been absent for more than seven years, and the court had investigated the cir- cumstances of the absence before issuing the letters of administration, see Devlin v. Commonwealth, 101 Pa. 273 (1882). 2. To this argument it may be answered that the case of Scott v. McNeal, supra, is inapplicable to- the matter in hand since the decision in Cunnius v. School District, 198 U. S. 458, 25 Sup. Ct. Rep. 721, 49 L. ed. 1125, aff. 206 Pa. 469, which reversed 21 Super. Ct. 340, s. c. 25 Pa. C. C. 17, and which affirmed the constitutionality of the Act of June 24, 1885, P. L. I5S, providing for the administration and distribution of the personal estate of a person absent and unheard from for more than seven years on the ground that such a statute is the exercise of a power which has from time im- memorial been generally regarded as exercisable by a sovereign state over property within its jurisdiction, and being within the police power of the state, is constitutional so long as it (i) does not violate any express provision of the constitution, (2) provides for (a) a reasonable period of 16 VESTED INTEREST, OWNER Sui JURIS. 12 No Compulsory Sale of Vested Interest, Owner Sui Juris. 12. The act, therefore, does not, and could not constitution- ally, except perhaps in the case of remainders after an estate tail, compel the sale, etc., of a vested interest owned by persons sui juris or authorize the divesting of such an interest against the consent of the owner. 9 absence, (b) a reasonable amount of notice, (c) adequate safeguard for the protection of the interests of the absent one. 3. Since the Price Act applies to property within the jurisdiction of the State and adopts the same length of absence as that specified in the statute construed supra, and is on its face a regulation of the property of an absent one, it seems to follow that the only remaining objections to the constitutionality of the Price Act which may be urged are (a) that it does not provide for a reasonable notice, (b) that there is no adequate safeguard for the protection of the rights of the absentee. 4. In answer to this, it may be said (a) that the Price Act does not destroy the title of the absent one but merely changes the nature of the property to which that title attaches from real estate to personal property, a legislative provision which is admittedly constitutional, when the proceeds of the sale are adequately safeguarded; (b) that the act expressly pro- vides that the court shall not make the decree prayed for unless (i) they shall be of the opinion that it is to the interest and advantage of the parties, (2) it shall appear that the person in question has been absent and unheard from from more than seven years, etc., which fact must be duly inquired into by the court; (c) the act expressly provides for notice to all parties, and leaves it in the discretion of the court to make such orders as to notice as may be necessary in each particular case; (d) no question as to notice can be raised, therefore, except in so far as it may be urged that the notice in any given case is, under the circumstances of that case, so inadequate as to be unreasonable; (e) the rights of the absent one are adequately safe- guarded because the act provides that the proceeds of the sale shall take the place of the land and be subject to the same right and title; the absentee, or his heirs or devisees, are, therefore, entitled to the purchase money, for the safe custody of which security must be ordered. The doubt as to the distribution of the purchase money does not affect the title of the purchaser because the right of the absentee is transferred intact from the land to the proceeds. This clause, therefore, admirably promotes the object of the statute in furthering the alienability of real estate. 5. This provision of the Price Act may, therefore, be held constitutional, and the Act of 1885, supra, unconstitutional. If the Act of 1885, supra, is constitutional, a fortiori the provision in question is constitutional. 6. Since the Price Act does not provide for the distribution of the pro- ceeds to anyone except the absentee or his heirs or devisees, it follows that they must be distributed, if at all, in his absence, under the Act of 1885, supra. (9) For a discussion of the divesting of vested remainders after an estate tail, see 92 post. See 129 post. See 148 post. 12 VESTED INTEREST, OWNER Sui JURIS. 17 Thus, in Van Dusen's Est., 10 where a tenant for life petitioned for a sale of part of the land alleged to be unimproved, un- productive, and a source of great expense, for the payment of municipal improvements, which sale was opposed by three of the eight devisees in remainder, the court held that as there was no trust, no contingent remainders or executory devises, the owners of full age and under no disability, that there was no jurisdiction under the Act of 1853 or any other act. 11 So also in Kerner's Estate, 12 there was a petition by a life tenant for leave to sell real estate on the ground of its unpro- ductiveness, which was objected to by vested remaindermen, and in consequence refused, the court saying that no act of assem- bly authorized such a proceeding. Ashman, J., pointed out that the sweeping language of Mitchell, J., in Freeman's Est. 13 was not to be regarded as an authority for the granting of the peti- tion in such a case. 14 A lease and possibly a mortgage might be authorized against the consent of vested interests in remainder, because in this case there is no divesting of the interest or compulsory transfer thereof, but merely an act done in furtherance of the proper ad- ministration of the property, which, if well advised, would benefit all parties concerned. The proceeds of the mortgage in such a case must, of course, be spent upon or in ease of the property. 14 * Any diversion of them to another purpose would be, to that extent, a divesting of the vested interests and contrary to the express pro- visions of the statute. (10) ii Pa. C. C. 201 (1892), s. c. 29 W. N. C. 573, i D. R. 156. For a case where there was apparently a sale by a trustee with a joinder of the vested remaindermen, see Owens' Est., 15 Pa. C. C. 196, s. c. 3 D. R. 331 (1894). (n) As to the unconstitutionality of earlier acts attempting to divest vested interests of owner sui juris, see Ervine's App., 16 Pa. 264 (1851) ; Kneass's App., 31 Pa. 87 (1825). (12) 30 Pa. C. C. 175 (1904), s. c. 13 D. R. 311. (13) 181 Pa. 405 at 408 (1897). (14) For a case where the parties were all sui juris and able to make a deed to the property without the decree of the court, yet for some un- explained reason, they petitioned under the Price Act and had a trustee appointed to make the sale, see Carrier' App., 79 Pa. 230 (1875). For a case of a sale by trustees upon petition of cestui que trusts having the entire interest and entitled to terminate the trust, see Brooke's Est., 214 Pa. 46 (1906). (i4a) See 47 post, as to mortgage money. i8 CASES WHERE JURISDICTION UNDER THE ACT. 13 Jurisdiction. Confined to Cases Specified. 13. The courts have jurisdiction to enter the decree author- ized by the act only in the cases therein specifically enumerated. Unless it appears that one of the defects in the title mentioned is present the proceeding will be null and void. 16 This is so be- cause the Orphans' Court have no jurisdiction at all, 17 and the Court of Common Pleas have no equitable jurisdiction in Penn- sylvania except where specifically conferred by statute. The cases in which the court has jurisdiction are not arranged in the act in logical order, so we have departed from it and re- arranged them as indicated in the table in the note. 18 (16) This subject will be further discussed under the heading of Col- lateral Attack. See 240 post. (17) The Orphans' Court 'has no advisory jurisdiction, Morton's Est., 201 Pa. 269 (1901), Jacoby's Est, 201 Pa. 442 (1902), Willard's Est, 65 Pa. 265 (1870). But see Phila.'s Pet., 2 Brewst. 462 (1868) ; Rogers's Est, 16 W. N. C. 228 (1885), contra. And the jurisdiction is not ousted by a direc- tion to the executors to construe the will with a provision that their de- cision shall be final: Reilly's Est., 200 Pa. 288 (1901). Accordingly, in the following cases the petition was dismissed : Carpenter's Est, 17 D. R. 170 (1908); substituted trustees had power to sell. In Crawford's Est, 221 Pa. 131 (1908), the circumstances alleged, to-wit, the lien of debts not of record, did not exist. (18) TABLE OF THE CASES TO WHICH THE PRICE ACT AND ITS SUPPLE- MENTS APPLY. A. Legal disabilities as to conveyance of title Where legal title is held by Minors Lunatics so duly found by inquisition Habitual drunkards so duly found by inquisition Married woman whose husband has Abandoned her for two years Been absent and unheard from for seven years. Husband with wife who is Lunatic Minor Where any party interested is under a legal disability to sell and convey Corporations Religious, beneficial or charitable societies or associations in- corporated or unincorporated 14 JURISDICTION ORPHANS' COURT AND COMMON PLEAS. 19 Jurisdiction as Between Orphans' Court and Common Fleas. 14. The act provides in the first section as follows : "That in all cases where real estate shall have been acquired by descent or last will, the orphans' court, and in all other cases the courts B. Legal limitations of and liens upon the title Estate tail Title, where, is subject to Contingent remainders Executory devises Lien of decedents debts not of record Vested remainders which are liable to open and let in after- iborn children Lands devised or granted for life or the life of another with remainder limited to a class of persons, some or all of whom may not be in being at the time of making the de- cree. Act June 15, 1897, P. L. 159. Jurisdiction only con- ferred on Orphans' Court Where property is devised or granted for special or limited purposes. C. Trusts superimposed on the legal title. Equitable limitations of the title. For the sole and separate use of married women For minors. For religious, beneficial or charitable societies or associations in- corporated or unincorporated For or by any other corporation By trustees for any public or private use or trust Generally in all cases where estates are devised or granted in trust for special or limited purposes Trustees, purchase and sale of real estate. When ground rents shall have been reserved When real estate shall have been purchased and be held by any person acting in a trust or fiduciary capacity C. Powers over the legal title Where power of sale may exist and Time not arrived for its exercise Time limited for its exercise has expired 1 Preliminary act not done to bring it into exercise Persons required to consent or join in its execution are any one or more (a) Non compos mentis (b) Removed out of the state (c) Deceased (d) Refuse to act (e) Unreasonably withhold consent 2O JURISDICTION ORPHANS' COURT AND COMMON PLEAS. 14 of common pleas, of the respective counties of this common- wealth, shall have jurisdiction to decree the sale, mortgaging, leasing or conveyance upon ground rent of such real estate in Powers of appointment Defective appointment in any deed or last will and testament, and the necessary power is not given to the executor, de- visee or appointee to make sale or conveyance of real es- tate. Every power to sell in fee simple. Real estate created by deed or will shall be taken to confer authority (1) to sell and convey, reserving ground rent, or rents in fee, and the same to release or extinguish according to law and the stipulation of the deed (2) to grant and convey such ground rent or rents to any purchaser free of all trusts E. Parol contract of decedent Where decedent shall have contracted by parol to sell real estate and those interested do not think it expedient to plead the statute requiring contracts to be in writing to enable the pur- chaser to recover the real estate agreed to be sold. F. Partition When in proceedings in partition in equity it shall appear that real estate cannot be divided without prejudice to the interest of the owners Trustees, guardians, committees, married women and corporations to make and take conveyances without public sale to perfect partition G. Exchange, Trustees, guardians, committees, married women and corporations to make and take conveyances, to square and adjust lines be- tween adjoining owners without public sale H. Trustees, guardians, committees, married women and corporations To purchase real estate when necessary to protect any security or rent held on property exposed to judicial sale. To join with other undivided interests in making and taking deeds without public sale, to change in part or in whole the route or lo- cation of any right of way or passage existing over and upon ad- joining or other lands. Security in the discretion of the court. (Act of April 18, 1864, P. L. 462, Sec. i.) To purchase other real estate when needful (adjoining) to that al- ready owned by any such party or useful to the business there- upon carried on. I Trustees of religious societies, corporations or church organizations to sell to associations or corporation for exclusive purpose of a ceme- tery or place of sepulchre for the dead. (Act of March 24, 1877, P. L. 39, Sec. I.) 15 ACT APPLIES ONLY TO REAL PROPERTY. 21 the cases hereinafter described. 19 The only difficulty was where the title was derived partly by deed and partly by will or descent. It was accordingly provided by the Act of April 27, i855, 20 that in such case either the Common Pleas or the Orphans' Court might take jurisdiction, 21 and by the Act of April 21, 1856," sales of real estate of lunatics, in the case where the title was derived partly by deed and partly by will, were confirmed. The decree of the Orphans' Court confirming a sale under the Price Act is conclusive on the Common Pleas. 2 * Both courts would hardly entertain jurisdiction of the same proceeding, and should such a case arise, the court to which the second application was made would very probably refuse to entertain the petition. 24 * Jurisdiction is Only as to Eeal Property. 15. The jurisdiction under the act is conferred solely as J. Persons presumed to be deceased Whenever the owner of real estate may have been absent and un- heard from for seven years, under those circumstances from which the law will presume his or her decease. K. Trustees, treasurer or other proper officers of a church, congregation, presbytery or other church organization, to sell real estate used as a burying ground. Act of May 23, 1887, P. L,. 168, C. P. (19) This clause may confine the jurisdiction to cases of title acquired by gift By a subsequent clause the courts may enter a decree where real estate shall have been purchased and held by any person acting in a trust or fiduciary capacity. See 56, post. In the following cases the juris- diction was in the Common Pleas: Carswell's Pet., I Phila, 521 (1854), s. c. 12 L. I. 14; Swift v. Harbison- Walker R. Co., 228 Pa. 584 (1910), Owens' Pet., 3 D. R. 328 (1894) In the following cases the jurisdiction was in the Orphans Court: Morrison v. Nellis, 115 Pa. 41 (1887), s. c. 19 W. N. C. 20, 44 L. I. 187, 34 Pitts. Lg. 274, 14 Lane. L. R. 968. (20) P. L. 368, Sec. 5. (21) Jurisdiction under this act in the following cases: Reed v. Palmer, 53 Pa. 379 (1867), deed and will, Common Pleas. Goddard's Est, 198 Pa. 454 (1901), aff. 9 D. R. 703 (1900), deed and will, Orphans' Court. Fell's Est., 14 Phila, 248 (1880), s. c. 9 W. N. C. 382, 38 L. I. 6. In Sharp's Pet., 6 Phila. 153 (1866), s. c. 23 L. I. 412, the petition in the case of a testamentary trust was presented in the Court of Common Pleas. The petition was dismissed on other grounds, and question of jurisdiction was not discussed. (22) P. L. 486, Sec. (24) Mercer Home v. Fisher, 162 Pa. 239 (1804). (243) bee 203, post, as to orphans' court sales. See Stadelman's Est., O. C. Phila. Co., Oct. Term 1913, No. 742, not reported. 22 JURISDICTION AS RESPECTS SITUS OF LAND. 16 to real property, and the courts have no power under its pro- visions to make an order concerning personal property. This is so clear that no question as to it has ever been raised. It does not appear 25 that the jurisdiction of the court extends to the equitable interest of the cestui que trust. If such equitable in- terest is considered as personal property, as it sometimes is, we have another reason why a decree will not be made in such cases. Jurisdiction as Respects Situs of the Land. 16. In the case of proceedings under the Price Act, it will be found that the condition of the estate is immaterial. The act is simply designed to remove obstacles to the alienation of prop- erty and provide means by which, in the cases specified, where there is some defect preventing the transfer of the title, the court may, in spite of the difficulty, authorize a sale, etc. The propriety of the sale, etc., therefore depends entirely on the condition of the title to the land, and the advantage to the parties interested of that particular sale, etc., with reference to the land in ques- tion. These questions are to be determined solely by the court having jurisdiction over the land. Indeed the jurisdiction is clearly confined to the court of the county where the lands lie by the words of the act providing in Sec. I, "that any such court in the county where the land shall be situate shall be of opinion," etc. It is not necessary, therefore, in the case of a proceeding under the act, to make application anywhere except in the court of the county where the land lies. In the case, however, of proceedings for a sale for the pay- ment of debts where the orphans' court of another county has jurisdiction of the accounts, then the two courts must concur for the reason that the necessity of the sale under the terms of the statute depend on the condition of the decedent's estate, and the only court which can inquire into that, is the court having jurisdiction over the accounts, and the same is true of many cases of proceedings by executors and guardians. Where the court authorizes trustees to buy land in another county, it is not necessary to apply to the court of the county where the land lies because the owner of the land may sell to whom he pleases, and the court of his county has no jurisdiction over him. The only question involved is one of a propriety of (25) See 140, post. 1 7- 1 8 CONSENT, JURISDICTION BY, NOTICE. 23 investment determined solely by the court having jurisdiction over the accounts of the trust. 26 Consent, No Jurisdiction By. 17. It may be added that jurisdiction under the act cannot be conferred by consent. Thus, in Crawford's Estate, 27 the court decided that the consent of the heirs would not validate a sale to relieve from the lien of decedent's debts when the sale was not confirmed within two years. 27a General Discussion of Notice 18. The clause requiring notice to be given to all parties is essential to the constitutionality of the act. 28 This section of the statute speaks for itself and requires very little comment. Where there is no opposition to the proceedings it is more ex- pedient to have all parties join in the petition which obviates the necessity of preparing an answer. In other cases service must be made personally, which may be in any part of the United States and the territories thereof, or if no personal service can be made, (26) For such a case see Derr's Est., 203 Pa. 96 (1902). Aff. 10 Kulp 438 (1901). (27) 221 Pa. 131 (1908). (273) Willard's App., 65 Pa. 265 (1870) ; in this case the court refused to entertain jurisdiction of a petition to construe the terms of a will, the decree of the court below being reversed and petition dismissed. See 253, post, as to mistake. (28) The provisions as to notice in Sec. 3 are as follows: "If all proper parties shall not have voluntarily appeared as petitioners or respondents, the court shall fix a day for parties to appear, and cause a citation to be served on all persons in being who shall not have appeared, and who shall have any present or expectant interest in the premises, warning them to appear, and that they shall be heard on the day designed, and for those who cannot otherwise be served, cause advertisement to be made in manner most likely to afford notice, and services made in any part of the United States and the territories thereof, with oath or affirmation of the fact, taken before any judge or justice of the peace, and filed of record, shall be good service, and guardians shall be served and appear for their wards, and if minors shall have no guardian, the court shall appoint a guardian for them ; committees shall be served and appear for lunatics and habitual drunkards, and husbands shall be served and appear with their wives, except husbands who shall have abandoned their wives for two years, or have been absent and unheard from for seven years, and if parties make default in appearing, the court, after an investigation of the facts, may proceed to make a decree in the premises." 24 NOTICE TO MARRIED WOMEN. 19 advertisement shall be made in manner most likely to afford notice that is under the approval of the court. Notice must be given to all parties in interest so that they may be heard as to the expediency of making the sale, etc., that is, whether it is to the interest and advantage of all concerned that the prop- erty be sold, etc. No one having a present or expectant interest will be affected by the proceedings under the act unless notified. 29 Where the record is lost, it will be presumed thirty years after the sale that notice had been given to the guardian of a minor having a contingent interest. 30 Where all of the heirs and par- ties in interest are made parties except a non-resident heir not heard from for thirteen years, and upon whom service by adver- tisement has been made by order of court, the court will make a decree authorizing the sale and the title will be good. 31 Further questions as to notice will be discussed under the separate headings. 32 Notice to Harried Women. 19. The clause providing that husbands shall be served and appear with their wives does not appear to have been construed or to have received much attention in practice. The phrase when strictly construed probably means that in every case where a married woman is a party to proceedings under the Price Act her husband must be served and appear with her unless he shall have abandoned his wife for two years or been absent and un- heard from for seven years. Therefore, when she signs an ap- proval of a petition under an act her husband should join in unless he comes within the exceptions mentioned. The clause on the other hand may be construed to mean that the husband is to be served and appear only in the case where the proceed- ings are taken under the act as to the title of a married woman to free her from a disability arising out of the coverture. In the absence of any authority, no statement can be ventured, and (29) Smith v. Townsend, 32 Pa. 434 (1859). See Collateral Attack, 240, post. (50) Smith v. Schwarz, 209 Pa. 79 (1904). (31) Freker v. Berg, 193 Pa. 442 (1899). (32) See 240, post, as to Collateral Attacks, 97, post, as to Contingent Remainders, 169, post, as to Persons Absent and Unheard from for Seven Years, 63, post, as to Minors, 138, post, as to cestui que trusts. 20-21 EXISTING LEGISLATION. RATIFICATION. 25 it therefore seems desirable to follow the safe practice and have the husband join in every case. The Act Construed with Existing Legislation. 20. It so happens that many provisions of the statute are coterminous with or overlap previous statutes. 33 Particularly is this so with respect to the case of the sale of the interest of a minor, specific performance of decedent's parol contracts, and no small confusion has been caused by these circumstances. The distinction between these acts will be pointed out at the proper place. 34 So far as the acts relating to the sale for payment of debts is concerned, the provision in the Price Act relating to the lien of decedent's debts is entirely different from the other acts, and there is no overlapping, in this respect differing from the case of the sale of the interest of a minor. 35 Court may Ratify that which it could Authorize in Advance. 21. The Price Act provides that the court may decree such sale, etc. This would clearly embrace a decree ratifying a sale, etc., etc., already made as well as an order for a sale, etc., in the future. If any doubt existed on this point, it has been set at rest by the Act of April 13, i854. 36 which provides that all cases (33) The provision in the statute as to its construction with respect to existing legislation is as follows: 2 "Provided, that nothing in this act contained shall be taken to repeal or impair the authority of any act of assembly, general or private, authorizing the sale of real estate by decree of court or otherwise, nor to affect or impair any right or powers other- wise existing in any persons or corporations to sell, mortgage, lease, or let on ground rent, any real estate. (34) See 64, post, as to minority. See 152, post, as to specific per- formance of decedent's contracts. (35) See 115, post, as to lien of decedent's debts. (36) P. L. 368, Sec. 3. "That in all cases wherein any of the courts of this Commonwealth might have authorized any sale or conveyance, or letting on ground rent or otherwise, and such sale, conveyance or letting, may have been made without the leave of such court, it shall be lawful for such court, if approving of such sale or conveyance or letting, to ap- prove, ratify and confirm the same, with the same effect as if such decree had preceded such sale, conveyance or letting." This act applies to all orphans' court sales and is not confined to sales under the Price Act, Donnelly v. Byers, 234 Pa. 339 (1912). 3 26 UNDIVIDED OWNERSHIP. 22 where any court might have authorized any sale, conveyance, etc., and such sale, etc., shall have been made without leave of court, the court may, if approving the same, ratify with the same effect as if such decree had preceded such sale, etc. It was the law before the Act of 1854 that the orphans' court could ratify and confirm afterwards what it could authorize in advance. 37 The practice on this point is now settled beyond a doubt. 38 Jurisdiction Extends to- Undivided Ownership. 22. The jurisdiction of the court, by the express provisions of the act, is to be exercised whether such ownership or interest shall be held or enjoyed in severalty, joint tenancy, coparcenary, or in common with others. Under this clause, the jurisdiction of the court extends to the case where the holder of any undi- vided interest in property is subject to any of the legal disabilities mentioned in the act. This clause, however, does not, it seems, authorize one undivided interest to compel another undivided interest to join in the sale merely because the other undivided (37) Bell's App., 66 Pa. 498 (1871), semble; Mussleman's App., 65 Pa. 480 (1870). In this case there was a bill in equity in the common pleas for specific performance of the executor's sale made without authority of the orphans' court, but which should have been approved by them. A demurrer was sustained without prejudice to the right to proceed in the orphans' court, with a dictum that that court could ratify on proceedings to confirm the sale. (38) Bowker's Est., 12 Phila. 161 (1878), s. c. 35 L. I. 456. The petition of purchaser to have a sale vacated refused, the court having power under the Act of April 13, 1854, P. L. 368, Sec. 3, to validate the sale although minor irregularities therein. Sale also confirmed after made under the act itself or its supplement of 1854, in Charlton's Est, 12 Phila. 102, s. c. 35 L. I. 194 (1878). McCaffrey v. Gibney, 223 Pa. 368 (1909) ; Sheetz's Est, 29 Pa. C. C. 14 (1903), s. c. 12 D. R. 372, 17 York 44, apparently a petition by a minor to restrain a sale, report obscure. In Donnelly v. Byers, 234 Pa. 339 (1912), there was a sale under a power which did not divest the lien of decedent's debts, which was ratified by a sub- sequent order for sale for payment of debts rested on the provisions of the Act of 1854. Query: Why was the Price Act not resorted to? See 128, post. For a case of a mortgage subsequently ratified, see Bur- ton's Est, 16 Pa. C. C. 289 (1895), s. c. 4 D. R. 106 Ashman, J., refers to Act of April 18, 1853, 3, probably a misprint for April 13, 1854. Corr's Est., 29 Pa. C. C. 276, s. c. 12 D. R. 788 (1903), Confer Hubley's Est, 16 Phila. 327 (1884), s. c. 41 L. I. 66; Burton's Est, 16 Pa. C. C. 289 (1895), s- c. 4 D. R. 106, mortgage subsequently ratified. 23-24 TITLE BY PURCHASE. SUPERFLUOUS PROVISIONS. 27 interest is under one of the legal disabilities, etc. 39 The remedy in such a case is by proceedings in partition. If, however, all the undivided interests are subject to the same disability, as where they are all subject to the lien of decedent's debts, it seems that the court may compel an unwilling owner to join in the sale. 40 It is important furthermore to remember that the act provides* 1 that no such private sale, leasing or letting on ground rent of an undivided interest shall be upon terms or at rates less favorable than others who of competent ability to con- tract and uniting in the sale of undivided interests shall accept. It is therefore necessary under this clause, in all cases of a private sale of undivided interests, for it to appear, if other parties are joining in the sale, that those who are sui juris are not receiving a larger price. Where a Title to Property is Acquired by Purchase. 23. If it should be supposed that the language in the first section of the act would be construed to exclude the juris- diction of the court from the case where the property was pur- chased by any fiduciary mentioned in the act, such doubt will disappear when we refer to the language in a subsequent part of the act, 42 providing that the jurisdiction shall be exercised "when real estate shall have been purchased and be held by any person acting in a trust or fiduciary capacity." This lan- guage seems to plainly extend the jurisdiction as to trusts, at least to all cases where the trustees shall have bought property after the trust was created. Superfluous Provisions of the Act. 24. It seems clear that it will be entirely unnecessary to authorize any disposition by the court in a case where there is ample power independently of the statute to make the proposed conveyance, etc. Any statutory provision in such a case would be entirely superfluous. There are, however, several clauses in the Price Act which seem to come under this category, such, (39) See remarks of Trunkey, J., in Spencer v. Jennings, 123 Pa. 184 (1888), at 195-196. See 12, ante. (40) Price on the act for the sale of real estate (1874) p. 121, 122. (41) In Sec. 4. (42) See 56. post. 28 RETROACTIVE: APPLICATION, 243 for instance, as the clause relating to corporations, 43 relating to purchase of real estate, 4 * to leases, 45 etc. These will be noticed in the proper place. Retroactive Application of the Act. 24a. Cases sometimes arise where the title has been ac- quired by descent or will prior to April 18, 1853. The question then arises whether such a case is within the provisions of the act. It seems clear that it is because that act provides in Sec. I that in all cases where real estate shall have been acquired by descent or last will, etc., the jurisdiction of the court shall attach. 48 It seems, however, that since the act in Sec. 2 provides, in enumerating the cases where the court is said to have jurisdic- tion, that such sale, mortgaging, leasing, etc., may be decreed whenever real estate shall be held for, etc., that there is room to argue that although the act applies to titles vesting before it was passed, yet the circumstances in which the court is to have juris- diction must have arisen after April 18, 1853. No case has been found on this point. In the absence of any authority no state- ment of the law can be ventured. 47 (43) See 83, post. (44) See 56, post. (45) See 48, post. (46) In Owens' Est, 15 Pa. C. C. 196 (1894), s. c. 3 D. R. 331, the court took jurisdiction under the act as to a trust created in 1844. See Hinkson v. Lees, 181 Pa. 225 ( 1897) . (47) 9. relating to accumulations, is expressly confined to limitations under deeds or wills made after the passage of the act. 25 GENERAL JURISDICTIONS, FACTS. 29 CHAPTER 2. General Jurisdictional Facts. Preliminary 25 To the interest and advantage Is a question of fact 26 Case of a mortgage 27 As between life tenant and remaindermen 28 Reasons why to interest and advantage 29 Sale of unproductive real estate for improvements and re- pairs 30 Urgent necessity not required ; 31 Without prejudice to trust or charity 32 Without violation of any law conferring an immunity or exemp- tion from alienation Preliminary discussion 33 Cases discussed Burton's Appeal 34 Heffner's Appeal 35 Mercer Home Fisher's Appeal 36 Funck's Estate 37 Law as to immunity from alienation 38 Effect of prohibition against alienation as to a church 39 Preliminary. 25. It is provided that the court shall be of the opinion that the sale etc., is (a) to the interest and advantage of those inter- ested, and (b) may be made without injury or prejudice to any trust, charity, etc., for which property may be held, (c) may be done without violation of any law which may confer an immunity or exemption from sale or alienation. 1 The require- (i) The words of the act are as follows: "Provided, That any such court in the county where the premises shall be situated, shall be of the opinion that it is for the interest and advantage of those interested there- in, that the same should be sold, mortgaged, leased or let on ground rent, and may be done without injury or prejudice to any trust, charity, or purpose for which the same shall be held; and provided, That the same may be done without the violation of any law which may confer an im- munity or exemption from sale or alienation." It is apparently not neces- sary, from the remarks of Mitchell, J., in Brock v. Steel Co., 203 Pa. 249 at 253 (1902), to insert in the petition and decree the finding of the court in the above words. It is, however, much better practice to do so. See as to this appendix, B. 30 To INTEREST AND ADVANTAGE. 26 ment that no law conferring immunity or exemption from aliena- tion shall be infringed obviously applies only to the case of a sale, mortgage, or conveyance on ground rent. There does not appear to be anything in the act to show that such a requirement must be found in the case of an exchange, lease, squaring and adjusting adjoining lines, changing location of right of way over adjoining ground, partition, specific performance of decedent's contracts, purchase of real estate, except in so far as the provision we have referred to may be considered as applying to all subsequent cases in the act, although not specifically referred to. Whether to the Interest and Advantage is a Question of Fact. 26. The sale, mortgage, etc., must be to the interest and advantage of those interested therein. This is a question of fact to be determined by the court having jurisdiction of the proceed- ings. 2 The duty of investigation is in the court, and the title of an innocent purchaser does not depend upon the fidelity or sound judgment of the judges making the decree. 3 Like other similar questions of fact to be determined by the court below, the general rule is that the Supreme Court will not reverse findings of fact unless there is clear error.* Where the court has entered the decree on the ground that it is to the interest and advantage, the question is res judicata, and a party in interest who had notice cannot attack the de- cree on the ground that it is not to his interest and advantage to have the decree made. 5 (2) The court may appoint someone to inquire into the question of the expediency, as was done in Grenawalt's App., 37 Pa. 95 (1860) s. c. Luz. L. Obs. 243. Costs of reference should be paid out of principal, Lee's Est, 18 Phila. 2 (1885), s. c. 42 L. I. 488. (3) Trunkey, J., in Morrison v. Nellis, 115 Pa. 41 (1886). (4) Funck's Est., 1 6 Super. Ct. 434 (1901) ; Morrison v. Nellis, 115 Pa. 41 (1887), s. c. 19 W. N. C. 20, 44 L. I. 187, 34 Pitts. L. J. 274, 14 Lane. L. R. 96. But in Smith's Est., 207 Pa. 604 (1904), the Supreme Court, in an opinion by Meztrezat, J., made an elaborate discussion of the facts concerning the expediency of the sale, although affirming the court below, a discussion which seems unnecessary under the rule we have re- ferred to. (5) Thomas's Est, II D. R. 290 (1902), petition to vacate decree in partition dismissed. Sheetz's Est., 12 D. R. 372 (1903), s. c. 29 Pa. C. C. 14, 17 York 44, petition of a minor who had come of age, to vacate sale, joined in by his guardian under a decree entered under the Act of 1853. 27-28-29 To INTEREST AND ADVANTAGE. 31 To the Interest and Advantage in Case of a Mortgage. 27. Where there is an application for permission to mort- gage, the advisability of granting the petition may involve a consideration of the conflicting rights of the life tenant and the remaindermen, and the decree authorizing the mortgage must be so drawn that the different rights of the parties are ad- justed. 6 As Between Life Tenant and Remaindermen. 28. As between life tenant and remaindermen, the question of revenue arises and ordinarily the remaindermen cannot ob- ject on the ground that the property may increase in value in the future, as that is a mere speculative possibility. It is a question of price for the remaindermen and a question of rev- enue for the life tenant. Reasons Why to the Interest and Advantage. 29. There must be a reason why the sale, etc., is to the interest and advantage of the parties. It will not do to aver in the petition merely that it is to the interest and advantage of the parties in interest to make the sale or mortgage, etc. Some particular circumstances affecting the property in question must be shown, which will make it advantageous to the parties in in- terest for the court to act. These reasons must exist in conjunc- tion with some of the cases specified in the act as those in which the court has jurisdiction. Thus the circumstance that the title is held by a minor will give the court jurisdiction, but there must be a reason why it is advantageous to the minor to have the title sold, etc. The fact that property is subject to con- tingent remainders will give the court jurisdiction on petition of the life tenant or other party in interest to order a sale, but the life tenant here again must in the petition set out reasons why the sale is advantageous to all parties in interest. In most of the cases of proceedings under the act, the application is ex parte, and perhaps in the majority of instances all parties The petition was dismissed. It appeared that an attempt had been made on behalf of the petitioner to restrain the sale, the petition in which case had been refused before the decree confirming the sale was entered. (6) For such a case see Stevenson's Est, 4 Super. Ct. 46 (1897), affirm. in 186 Pa. 262 (1898), reversing 17 Pa. C. C. 312, s. c. 5 D. R. 5 (1895). See 46, post, for a statement of the case. 32 REASONS WHY TO INTEREST AND ADVANTAGE. 29 in interest join in the petition or have notice thereof. Where all these parties are sui juris, their wishes as to the disposition of the property are to be very highly regarded because they are practically the owners thereof. 7 Where there is an opposition to the petition, then it becomes incumbent upon the petitioner to show by clear and satisfactory evidence that the disposition prayed for is advisable. 8 It may also be observed here, that where the application is by a life tenant and the objection is by the remaindermen, they cannot urge as a reason why the sale should not take place the fact that the property will be likely to increase in value in the near fu- ture. 9 We have included in the note a number of cases where the court has commented on the reasons for the disposition prayed for. 10 (7) "As a rule the judgment of the owners of property as to what is most to their advantage when they are of mature age and under no dis- ability is a safer guide than the theoretical opinions of persons no mat- ter how skilled who have no personal interest," Penrose, J., in Miller's Est, 16 Pa. C. C. 449 (1895) at 449. (8) Sharp's Est., 6 Phila. 153 (1866), s. c. 23 L. I. 412. (9) In McAlpin's Est., i Phila. 440 (1852) an act of assembly had been passed authorizing the executors to sell certain real estate. It appeared that the property was very much dilapidated and that some of the parties interested were unable to pay their share of the costs and repairs and that the price offered was fair and reasonable. The court held that the sale could be decreed notwithstanding the objection of some of the par- ties in interest that the property would probably increase in value in the future. This case is material because under the terms of the act the court was the judge of the propriety of the sale, and while, therefore, it was a special act of assembly, it is similar to the jurisdiction vested under the Price Act. (10) In the following cases the reasons indicated have been held suf- ficient to authorize the particular disposition prayed for: Sales Trustees. That the real estate, subject to a ground rent, was in a dilapidated condition and would require a large expenditure to make it tenantable, Brown's App., 68 Pa. 53 (1871). In the case of a lot of vacant ground of several acres, (i) that the price offered was a large one, (2) that the expense of maintaining the tract made it advisable to sell, as against objections of remaindermen, (i) that the testator had directed that this tract remain intact, (2) that the time would come when it would be possible to make it more valuable by buildings and other im- provements, Rhoades's Est., 4 W. N. C. 527 (1877). That the property had become dilapidated, comparatively unproductive and burdensome to retain, that the price offered was better than could be obtained at public sale; petition was by executor; not clear what the trust was as words of will were not given in the report, Freker v. Berg, 193 Pa. 442 (1899). 29 REASONS WHY TO INTEREST AND ADVANTAGE. 33 In the case of an undivided interest in an iron ore mine, (i) that by changes in ownership the petitioners were likely to lose control of the price of ore, (2) differences in mode of doing business had greatly di- minished the power of the petitioners over the mines and sale of the ore, (3) that the petitioners would soon lose a valuable control over the price of ore exercised indirectly through other furnaces, the relationship of the petitioners to which would cease upon the sale of those furnaces, (4) the prospective exhaustion of the ore banks before the coming of the re- mainders into possession, Brock v. Steel Co., 203 Pa. 349 (1902), at 253. Mortgages Trustees. That money was necessary to pay for improveH ments and repairs to the property, Lee's Est., 18 Phila. 2, s. c. 42 L. I. 488 (1885). Sales Contingent remainders to a class. That the property was un- productive, in bad repair and burdensome, and sale would inure to the benefit of the remaindermen and those having future or contingent in- terests therein, Loucks's Est., 203 Pa. 278 (1902), s. c. sub nom. Myers's App., 16 York 6, affirm. 15 York 181. (i) That income from the pro- ceeds would be greater than the revenue from the property, (2) that to maintain the rental at the time of presenting the petition the whole prop- erty would have to be kept rented and the assessment remain the same, a state of affairs not likely to continue, (3) that there was a mortgage of a large amount that jeopardized the property if there should be a dim- inuation in rental, (4) that with the number of owners, life tenants, and remaindermen who could not protect their interest it was a serious ques- tion to have an incumbrance the size of the mortgage in question against the property if the property fluctuated and affected income, (5) that the real estate was in an inflated condition; objection by remaindermen that property would continue to advance in price was overruled, Smith's Est., 207 Pa. 604 (1904), confer McAlpin's Est., I Phila. 440 (1852). That the property was entirely unproductive and costing the estate an annual sum for taxes and interest on the mortgage, equitable remainders, Moorehead v. Wolff, 123 Pa. 365 (1889), s. c. 23 W. N. C. 167, 36 Pitts. L. J. 352, 46 L. I. 261. Where the trust had terminated and the limitations after the life estate were contingent to children and then vested in nephews and nieces, the latter, therefore, having a vested remainder subject to be di- vested by the vesting of the contingent remainders, and who objected, petition being presented by the life tenant, (i) That the property was practically unproductive, (2) that the investment of the proceeds would yield a larger income to the tenant for life whose interests were more to be regarded than those of the remainderman, (3) that the price of- fered was not likely to be increased if the sale was deferred until the time of the falling in the remainders, when it would have to be made for the purposes of partition, (4) that the threatened enforcement of a municipal lien would expose the property to the expense of litigation and sheriff's sale, Gamble's Est., 9 D. R. 691 (1900). Sale of an interest of a minor; that the owner of an adjoining lot was about to erect thereon a large mill or factory to be operated by steam and machinery which would greatly diminish the value of the premises, Graham's Est, 14 W. N. C. 31 (1883). 34 SALE OF UNPRODUCTIVE REAL ESTATE. 30 Sale of Unproductive Real Estate for Improvement and Repairs. 30. It was intimated in Grenawalt's App., u that part of the property might be sold to raise money for repairs, improvements to the remainder and for payment of liens, which remarks were quoted with apparent approval by Penrose, J., in Van Dusen's Est. 12 It is clear that necessity for a payment for improvements and repairs, and the fact that the land is unproductive, are reasons why a sale is to the interest and advantage of those interested in any of the cases mentioned in the act but only when these circumstances are present. In nearly all of the cases where the court has dwelt on the advisability of the sale for improvements, repairs, and payment of liens, etc., one of the circumstances mentioned in the act was present. 13 In Carey's Estate, 14 a petition for inquest in partition was granted because the will did not work an equitable conversion. In the following cases the petition was refused for the reasons indicated. Trusts Sales. Petition by cestui que trust for decree of sale from trustees to him, (i) strong opposition to the sale, (2) conflicting evidence as to the value and propriety. Exceptions sustained to master's report in favor of the sale, Sharp's Pet., 6 Phila. 153 (1866), s. c. 23 L. I. 412. (n) 37 Pa. 95 at 98 (1860), Thompson, J., "But taking it as presented in the auditor's report, that there were existing claims against the estate for debts 'not liens of record,' and that repairs and improvements were needed to other parts of the estate, held for the 'same uses and persons/ which required the raising of money by a sale of a portion of it for the relief and benefit of the residue (for this is the essence of the report), what ground is there to question the power of the court to order a sale? It certainly may be done for the payment of debts; so also by a fair interpretation of the act may it be done for improvement and repairs; for the act provides that money raised shall not be expended except for the payment of liens or improvements of the real estate mortgaged, or other real estate, when held for the same uses and persons.' If it may be so applied, it may be raised for the purpose of such application." (12) ii Pa. C. C. 201 (1892), s. c. 29 W. N. C. 573, i D. R. 156. (13) e. g., Camber's Est., I W. N. C. 85 (1874), contingent remainder to a class, see 104, post. Rhoades's Est., 4 W. N. C. 527 (1877), petition by trustees to sell vacant land on the ground of expense in maintaining the tract. Petition granted on report of examiner in its favor. See Lee's Est., 18 Phila. 2 (1885), s. c. 42 L. I. 488, case of a mortgage by trustees to pay for repairs and improvements. (14) 9 Kulp 336 (1898). 3 J -3 2 WITHOUT PREJUDICE TO TRUST OR CHARITY. 35 A dictum by Darte, P. J., that the courts have power to order a sale of unproductive real estate even where executors have been given power of sale, if for the best interests of the estate, may be disregarded as unsound. That real estate is unproduc- tive may be a reason for a sale but is not ground by itself. It is not one of the circumstances mentioned in the act. Some of these circumstances must exist besides the reason. In Kerner's Est., 15 a life tenant petitioned for leave to sell real estate on the ground of its unproductiveness, and the peti- tion was refused as a vested remainderman objected. This case is a square authority for the proposition that the mere unpro- ductiveness of the real estate is not a sufficient reason for au- thorization of a sale. Urgent Necessity not Required. 31. In the Trust Estate of Libbeus S. Cotton, et al, 16 a trust was created without power of sale following the early form of spendthrift trusts, where the trustee is allowed a reasonable support and the title is free from liability for his debts. On application of the trustee, the Common Pleas re- fused a decree of sale. The case simply turned on whether it was expedient to make the sale, and the only thing necessary to notice is that the language of the court, where they say that there must be an urgent necessity to justify the ordering of a sale, is entirely too broad. Under the terms of the deed in that case, it might possibly be that an urgent necessity to the cestui que trust should be required before it would be to his interest and ad- vantage to sell. There is no occasion to require that the disposi- tion of the title prayed for must be a matter of urgent necessity or even of ordinary necessity. A sale, etc., may be to the interest and advantage of those interested without being necessary. Without Prejudice to Trust or Charity. 32. It must appear that the sale, etc., can be made without injury or prejudice to any trust, charity or purpose for which the same is held. This is a jurisdictional fact and should be averred in the petition, and set out in the decree although it may generally be gathered from the face of the title what effect the sale will (15) 30 Pa. C. C. 175 (1904), s. c. 13 D. R. 311. (16) 21 Pa. C. C. 451 (1899). 36 IMMUNITY FROM ALIENATION. 33 have on the trust. The cestui que trust must be as well off after the sale as before and receive as large an income from the prop- erty. Since the sale substitutes the purchase money for the land and does not change the title or limitations, these words must be construed to mean financial injury or prejudice. No case on this has been found. In the case of a charity, a prejudice to the party interested may exist which would not be present in an ordinary case, as where there are special reasons for the location of the charity in a particular place. This will sometimes occur in the case of a church, schoolhouse, etc. 17 This phrase "without prejudice to any trust or charity" is included in the requirement that the dis- position must be to the interest and advantage of the parties in- terested, really adds nothing to the act and does not appear to have received judicial construction. In McClurg's Est., 18 there was a sole and separate use created by will for two women. No trustee was appointed in the will and none had been appointed by the court. A petition was pre- sented by the cestui que trust to sell the undivided interest on the grounds (i) that taxes were in excess of income (2) that this excess was likely to become greater by increased taxes and assessments for opening and grading streets, (3) that by reason of the disability of the devisees to sell, the lands were likely to be sacrificed. Upon return of the sale, it appeared that it was for a nominal consideration and the whole object of the proceeding was to vest the devisees with the title free from the trust. Confirmation was refused. The court said the colorable sale would be to the prejudice of the trust, and that without prejudice required a full value for the land. Without Violation of Any Law Conferring an Immunity or Exemption from Alienation. 33. The act also provides that the court shall find that the sale etc., can be made without violation of any law conferring an immunity or exemption from sale or alienation. The first observation on this clause .is as to the meaning of "a law conferring" immunity. The word "law" in its common acceptance refers to some rule laid down by the legislature by (17) See 39, post. (18) 22 Pitts L. J. 133 (1875). 34 IMMUNITY FROM ALIENATION. 37 way of statute law or by the courts by way of common law, and in no case does it seem permissible to stretch the word "law" so as to cover the prohibition against alienation or immunity from alienation imposed by a former owner of the title. This, however, has been overlooked, and it has frequently been sup- posed by the courts that the question is whether a prohibition of alienation imposed by an individual will prevent a sale being authorized under the act. The cases are as follows : 34. In Burton's App., 19 where there was a petition for au- thority to sell land, the title to which was in the ministers and vestrymen of the church, by whom the petition was presented, the charter of the church contained a clause prohibiting aliena- tion. The court, in an opinion by Agnew, J., held that the con- gregation was the true owner of the property, while the cor- poration held but the bare legal title; that therefore the clause against alienation was a disability upon the trustee and not upon the congregation, and was, therefore, within the intent of the act as being capable of removal by the decree of the court, and did not come within the proviso as being a law conferring im- munity or exemption from alienation. 20 (19) 57 Pa. 213 (1868). "In the case of Burton's Appeal the unincor- porated congregation and the incorporated officers elected by the con- gregation, called Trustees or Board of Council, the latter restricted from aliening the realty, could together have conveyed; for the restriction was against the church council conveying without the congregation ; but it would have been unsatisfactory to the purchaser that his title should depend upon the preservation of the minutes of those two bodies, over which he could have no control." Price on The Act for the Sale of Real Estate, (1874) p. 81. (20) "The Act of April i8th, 1853, contains apt words to embrace this case. 'Such sale, mortgaging, leasing or conveyng upon ground rent may be decreed, whenever real estate shall be held' 'for religious, beneficial and charitable societies or associations, incorporated or unincorporated,' 'and generally in all cases where estates have been or shall be devised or granted in trust, or for special or limited purposes, or where any party interested therein is under a legal disability to sell and convey the same.' The committee who framed -this law say, in their report (p. 9), that the bill contains 'a general power intended to cover all cases of trust or powers, and wherever any party in interest is under any legal disability.' The property in this case is held in trust for a religious society or associa- tion, and for special or limited purposes, and the church corporation, the trustee, is under a legal disability to sell and convey. The restraint upon alienation imposed by the charter upon the church council is but a dis- 38 IMMUNITY FROM ALIENATION. 34 ability of the trustee and not of the congregaton, as we have seen, ex- cepting in so far as the possession of the legal title by the council, and the want of it by the congregation, together with the number and fluctua- tions in its membership, operate as a practical disability on part of the body. The really effective disability lies in the church council alone. This disability falls within the terms of the law and its spirit and intent, and is therefore capable of removal by the decree of the court, unless the case comes within the language and intent of the proviso to the first sec- tion. The court 'shall have jurisdiction to decree the sale,' &c. 'Pro- vided that the same may be done without the violation of any law which may confer an immunity or exemption from sale or alienation.' "Unquestionably the charter is a law, and prohibits alienation by the church council, but does it confer an immunity or exemption from sale? The stress of the appellant's argument lies in this proviso, but we think it misses its true meaning. The language is, any law, not any statute. If any law, which restrains the power to sell, is a barrier to the exercise of the power of the court, the proviso nullifies the act; for it was because the law refused permission to sell to infants, lunatics, trustees and others under a legal disability to sell, that the authority was given to the courts to decree a sale. It cannot be therefore a mere want of the power of alienation, a simple disability to sell, that the pro- viso was intended to cover. But an immunity or exemption from sale or alienation has a meaning, and it is important to protect certain inter- ests. Immunity or exemption from sale is not logically predicable of a person, but it is of a thing. It cannot be said of the owner that he is free from alienation, but his property may be exempt. It is therefore the real estate itself which is the subject of the proviso. It is that which possesses the immunity. "But is this a wise distinction? To be so it must have some valuable purpose ; and this is easily discovered. There are many cases where some use, purpose or trust lies at the foundation of the grant of title and where a diversion from the intent of the donor will cause the estate to revert; or where, by some act of law, by the exercise of public power, rights are acquired co-existent only with a purpose or use to which the property is devoted; and some where by contract and the sanction of a statute an estate is incapable of being divested. "Instances may be found in grants for special and exclusive uses, as for churches, schools, hospitals, &c., and for public purposes, as railroad tracks, public streets and squares, and others, which will occur to the professional mind. Some of them can be seen in the followng cases : McKissick v. Pickle, 4 Harris 140; s.c., 9 Id. 232; Western University v. Robinson, 12 S. & R. 29; Rung v. Schoneberger, 2 Watts 25; Commonwealth v. Rush, 2 Harris 193; Commonwealth v. McDenald, 16 S. & R. 390; Com- monwealth v. Alburger, i Whart. 469. In all such cases the immunity or exemption inheres in the title or estate itself, involving rights which would conflict with the interest decreed to be sold, and would therefore be impared by the sale. The proviso intends to protect these. But where there is no immunity from sale intended as a protection of the estate 35-36-37 PROHIBITION OF ALIENATION BY DONOR. 39 35. In Heffner's App., 21 where there was a petition for the sale of real estate under the act, and it appeared that the land was held under a will prohibiting a sale for a certain period, the petition was dismissed for other reasons, and the question as to the validity of the prohibition was not considered. 36. In Mercer Home, Fisher's App., 22 there was a gift in trust with a prohibition against alienation in the will, which the court construed to be applicable to the fund left in trust for the charity and not to the title to the land, and that therefore the trustees could make a sale of the premises under the Price Act. It is interesting to observe that in Burton's Appeal, 23 Agnew, C. J., sustained the jurisdiction upon the construction that the prohibition applied to the title held by the trustee and not to the cestui que trust, 24 whereas, in Mercer Home, Fisher's App., 25 the court sustained the authority to confirm the sale on the ground that the prohibition applied to the fund left in trust and not to the title in the land, the implication from this latter de- cision being that had the prohibition applied to the title, the sale would not have been authorized. 37. In Funck's Est., 26 the testator by his will directed that the burial ground of his family should not be sold, and devised the same to his son, Daniel, in fee, in trust for the use of a burial ground forever. It appeared that no bodies had been interred in the burial ground for a great many years, and that all the bodies had been removed therefrom, and that one of the itself, and it is but a mere want of power in the person or party who holds it, and no independent interest would suffer by the conversion, the law intended to confer the power upon the court to order a sale." Agnew, J., in Burton's App., 57 Pa. 213 at 219-220 (1868). (21) 119 Pa. 462 (1888), s. c. 21 W. N. C. 249. (22) 162 Pa. 232 (1894). (23) 57 Pa. 213 (1868). (24) The observations of the learned judge on this point are open to objection. The church was clearly the cestui que trust, and the title was in the ministry and vestrymen, and the prohibition against alienation, therefore, could be applicable only to the church corporation in its cor- porate capacity, and the process of legal reasoning by which the learned judge transferred that prohibition to the legal title held by the trustees is extremely difficult to follow. (25) 162 Pa. 232 (1894). (26) 16 Super. Ct. 434 (1901). 4o PROHIBITION OF ALIENATION BY DONOR. 37 heirs had filed a bill in equity to restrain the removal of the bodies, which had been dismissed. The court, therefore, held that the burial ground was lawfully tenantless after the lapse of thirty-five years. A petition was presented by Daniel for the confirmation of a private sale under the Price Act, which was affirmed. This is a very close case to a determinate fee but the court regarded it as a trust. It was contended that the clause in the will forbidding a sale prevented the sale under the act. The court said "In all cases where the immunity or ex- emption inheres in the title or estate itself, involving rights which would conflict with the interest decreed to be sold and would, therefore, be impaired by the sale, the protection of this proviso may be interposed with effect," but that in this case there was no such immunity and the clause did not apply, an unequivocal direction in the will being unavailing. In two re- cent cases the court expressly decided that a prohibition of alienation by the testator will not prevent the court authorizing the sale under the Price Act. 27 In both these cases the will was made after the act was passed. 28 No question was raised as to this point, and it does not seem as if the law would be any different if the will were made before the Act of April 18, 1853, because the jurisdic- tion of the court to order the sale depends on the circumstance that the prohibition of alienation is not a law, and if it is not, it makes no difference when it was made. 29 (27) Brock v. Steel Co., 203 Pa. 249 (1902) ; Grubb v. Steel Co., 203 Pa. 255 (1902). See also Rhoades's Est, 4 W. N. C. 527 (1877), where a sale by trustees under a will was ordered, notwithstanding an apparent direction to the contrary in the will ; no opinion ; meagre report. (28) See 24a, ante. (29) In Myers' Est, i D. R. 140 (1892) s. c., II Pa. C. C. 194, 30 W. N. C. 175, testator created a trust of his residuary estate and directed that there should be no sale thereof until after the decease of certain cestui que trusts named, and authorized his trustees to sell his residuary estate in their discretion confiding the period of the sale entirely to their discretion. The petition was presented by certain of the cestui que trusts for the sale of the estate. The petition was dismissed, the court holding that they had no power to interfere with the discretion of the trustees although the language of the court might seem to imply that they had no power to order a sale until the conditions imposed had been fulfilled. The case, there- fore, does not touch the question of whether the sale could have been ordered under the Price Act. In Fulton's Est, 51 Pitts. L. J. 257 (1904), there was a devise to A. and B. for life upon condition that neither should alienate, 3&-39 EFFECT OF PROHIBITION AGAINST ALIENATION. 41 Law as to Immunity from Alienation. 38. The later cases, therefore clearly point to the conclu- sion that a prohibition of alienation by a testator or donor does not confer the immunity or exception from alienation conferred by law mentioned in the act, and such a prohibition will be dis- regarded by the court in decreeing a sale. The grounds of de- cision in these earlier cases are not altogether clear. It is per- fectly obvious, however, that such a prohibition is not a law, and for that reason alone not within the act. There is probably no law in Pennsylvania conferring an immunity or exemption from alien- ation. The doctrine of spendthrift trusts is no exception because here there is an express prohibition of alienation which is upheld as valid by law. The immunity from alienation springs from the prohibition and not from the law. Effect of Prohibition Against Alienation as to a Church. 39. It has recently been suggested, however, 30 that a clause prohibiting alienation might be valid in the case of a church corporation when it was designed to keep the church in a cer- tain location. It is apprehended, however, that this dictum is contrary to the spirit and purpose of the act, which is designed to promote the alienability of real estate. It has already been pointed out 31 that a court of equity had ample jurisdiction, and that jurisdiction was exercised in Pennsylvania before the pas- sage of the Price Act, to authorize a sale of real estate held upon a charitable trust, and there is nothing in the act which indi- cates an intention to oust that jurisdiction. 32 and that an attempt to alienate should work a forfeiture. The property was sold under the Price Act upon petition of one of the life tenants, and it was held upon an audit of the account of the trustee who made the sale, that there was no breach of the condition as the sale was the act of the law, and therefore the surviving life tenant was entitled to participate in the distribution of the proceeds. (30) "Unless, therefore, it shall be clearly shown by the terms of a specific gift constituting an appreciable portion of the fund that raised the church, that a trust has been fastened upon the corporation expressly to remain forever in the particular location designated, no question of the right of removal can arise," dictum Sulzberger, J., in the court below in Phillips v. Church, 225 Pa. 62 at 63 (1909). (31) See Foulke, Rule Against Perpetuities, etc., in Penna., (1909). 758. (32) See 13, ante, as to prejudice to trust or charity. Confer Cush- man v. Church, 188 Pa. 438 (1898), s. c. 14 Pa. C. C. 26 (1892), see 162 Pa. 288 (1894). 4 42 DISPOSITION OF OR CONCERNING THE TITLE. 40 CHAPTER 3. Disposition of or Concerning the Title Authorized by the Act. Preliminary . . . 40 Sale ' May be public or private 41 Must be for an adequate consideration 42 Distinction between public and private sales as to discharge of liens 43 Terms of the sale 44 Mortgage General discussion 45 Stevenson's Estate 46 Expenditure of mortgage money 47 As to confession of judgment 473 Lease 48 Exchange 49 Conveyance of or on ground rent Preliminary 50 Extinguishment or sale of ground rent reserved under a power . . . .. 51 Cases to which act applies . .. 52 Sale or extinguishment, under the act 53 Security and form of the decree 54 Square and adjust lines between adjoining owners 55 Purchase of real estate 56 Change location of right of way 57 Lay out and vacate streets, subdivide tract 58 Who may petition 59 Who may be appointed to execute the decree 60 Preliminary. 40. It is important to refer in some detail to the different dispositions of or concerning the title authorized by the act. While the same general principles already referred to apply in all these cases, 1 yet there are a number of special considera- tions involved in each which deserve attention. It is to be ob- served that the case of a sale or a conveyance on ground rent are in the interests of the free alienation of property, while the (i) That the case is one of those specified in the act, that the disposi- tion in question is to be the interest and advantage of those interested, not prejudicial to any trust or charity, and not in violation of any law confering an immunity or exemption from sale or alienation. 4 J -4 2 SALE MAY BE PUBLIC OR PRIVATE. CONSIDERATION. 43 cases of a mortgage, lease and exchange are in the interest of a proper administration of the property. There is therefore a difference in the policy involved which leads to some practical distinctions. Sale may be Public or Private. 41. The principal disposition authorized by the act is a sale, and this is the case in which the jurisdiction of the court is most frequently invoked. 2 The sale may be public or private, as the act provides that the court may order a private sale if it is of the opinion that a better price can be thereby obtained than at a public sale. 3 It should therefore appear and be so averred in the petition and set out in the decree in the case of a private sale, that the price is better than that which can be obtained at public sale. Where sale is public, the act requires full adver- tisement for at least twenty days by handbills posted in at least twenty of the most public places in the city or county where the premises shall be situate, and in at least two news- papers not less than three times in each. 4 Sale Must be for an Adequate Consideration. 42. It seems hardly necessary to add that there must be an adequate consideration. In one case, where the parties cooked up a sale for one dollar in order to defeat the trust, 5 the court held that the transaction could not be authorized; that a sale of one dollar or a colorable sale, was not the sale con- templated by the provisions of the act. 6 (2) See 200, post. (3) The Act of May 9, 1889, P. L. 182, authorizing private sales for the payment of debts and other purposes does not appear to affect the Price Act which in itself authorizes a private sale, consequently the amendment of June 9, 1911, P. L,. 724, requiring notice of private sales, does not seem to apply to proceedings under the Act of 1853, and this conclusion is further strengthened by the provisions of the Act of June 12, 1913, P. L. 470, amending the Act of 1911, and confining its provisions to sales for the payment of debts of a decedent. As to when a private sale is better than a public sale, see Smith's Est, 188 Pa. 222 (1898). (4) See 18, ante. (5) McClurg's Est., 22 Pitts. L. J. 133 (1875) stated 32, ante. (6) See 211, post, on price of sale. 44 PUBLIC AND PRIVATE SALE. 43-44 Distinction Between Public and Private Sales as to Discharge of liens. 43. The distinction between public and private sales is of importance in considering what liens are discharge by the sale. 7 The act provides that by such public sale the premises sold shall be discharged from all liens, and the act of March 23, 1 867," provides that private sales under the act shall discharge the premises sold from the lien of the debts of the decedent, excepting debt of record and debts secured by mortgage. 9 Terms of the Sale. 44. It is also provided that the sale may be partly for cash and partly on credit. 10 The usual practice is to take some form of purchase money obligation, generally a mortgage, for the amount upaid. It was frequently the practice, particularly in the country where ready money was not so available, for the orphans' court to direct a sale with provision for deferred pay- ment of the purchase money, extended sometimes over a con- siderable period of time. 11 It was provided by the Act of March 22, i859, 12 which, how- ever, does not apply to the City of Philadelphia, that the Or- phans' Court should in authorizing sales of real estate have power to direct a sale on credit if at least one-fourth of the purchase money were paid down at the confirmation of the sale. 13 (7) This subject is discussed in Chapter 17 on Discharge of Liens by the sale. (8) P. L. 43, 2. (9) See also discussion of sale discharged from lien of debts of dece- dent, not of record, 113, post. (10) As to the title of the purchaser pending the completion of the sale. See 229, post. (n) In Bailey's App., 2 Grant 225, s. c. Bailey's App., 32 Pa. 40 (1859), there was an administrator's sale for the payment of debts. Order of the orphans' court provided for the payment of one-third down at confirmation, one-third in one year, and one-third in two years. Upon petition of the administrator of a judgment creditor of the decedent who had levied on the real estate,, the sale was set aside and decree amended to make the purchase money payable in one year. Confer, Thompson v. Rogers, 67 Pa. 39 (1870). (12) P. I,. 207. For text of the act see Appendix A., n. 66. (13) It seems hardly worth while to add that if the decree calls for a purchase money mortgage, the purchaser may, nevertheless make payment entirely in cash, Potts v. Wright, 82 Pa. 498 (1876), s. c. 34 L. I. 148, 24 Pitts. L. J. 125, 5 L. Times O. S. 35, 9 tanc. Bar 14. 45 MORTGAGE UNDER ACT. 45 This act may be construed as limiting the provisions of the Price Act in counties outside of Philadelphia. In Philadelphia County the court seems to have full discretion under the terms of the Price Act in fixing terms of the sale. General Discussion of Mortgages. 45. A mortgage is in fact an incumbrance or pledge of the legal title as security for a loan. The considerations involving the advisability of a mortgage will therefore obviously be some- what different from those applicable in the case of a sale. 14 It is not proper, therefore, to authorize a mortgage to pay a debt contracted by the trustee which the cestui que trust does not admit to be due. 15 The Orphans' Court may, under the act authorize an admin- istrator c. t. a. to mortgage real estate for the purpose of pay- ing for repairs and improvements contracted for by a testa- tor in his lifetime, together with such additional expenditures as are necessary in order to properly complete the contracts. 18 The propriety of authorizing a mortgage in the case where there are conflicting interests of a life tenant and remainder- man will often be a subject of anxious inquiry. For a case where the trustees of a life estate were authorized by Common Pleas to mortgage on petition of the cestui que trust, see Carswell's Pet. 17 A few other cases of a mortgage are collected in the note. 18 Since the mortgage is a burden on the (14) In the case of a proposed mortgage, the question of expediency is a broader question of fact than in the case of a sale, as where subject to the lien of debts not of record, Penrose, J., in Reilly's Est., 13 Phila. 201, 202 (1879), s. c. 36 L. I. 49. (15) Reilly's Est., 13 Phila. 201 (1879), s. c. 36 L. I. 49. In this case the cestui que trust were minors and the claim was not yet reduced to judg- ment. The trustee was authorized to mortgage the trust property to pay taxes and other necessary expenses, and the mortgage included fee of counsel whose services had been for the benefit of all interested. (16) Burton's Est, 16 Pa. C. C. 289 (1895), s. c. 4 D. R. 106. (17) I Phila. 521 (1854), 12 L. I. 14. There was also a dictum in this case that as to equitable interests in remainder vested in minors, application would have to be made to the orphans' court if it was desired to unite all interests, and the decree was apparently drawn to authorize only a mort- gage of the life estate. (18) For other instances of mortgages under the act see Orwig's Est., 19 Phila. 158 (1889), s. c. 7 Pa. C. C. 71, 46 Iy. I. 99. All owners were sui juris 46 MORTGAGE UNDER ACT. 45 estate and only authorized after it is found to be to the interest and advantage of all concerned, it follows that the decree authorizing the mortgage must be strictly pursued. The mortgagee is put on notice of the nature of the transaction and bound to see that the mortgagor who executes the mortgage is fully authorized by the terms of the decree. 19 A mortgage when signed by the trustees as individuals is sufficiently executed when the circumstance of the transaction appears on the face of the papers. 20 In the case of a mortgage of a trust estate, the trustee is the proper party to present the petition, although it may be presented by the cestui que trust, in which case if all the parties join the defect is overcome. 22 The mortgage, however, should be made except one, and all united in the application including the guardian of the minor, and the land was subject to the lien of decedent's debts. Penrose, J., construed the act very broadly. In Ash's Est, 12 D. R. 72 (1902), the petiton of a trustee for leave to mortgage was apparently granted. The facts are, obscurely reported and it does not appear what act the proceed- ings were under. In Lee's Est., 18 Phila. 2, s. c. 42 L. I. 488 (1885), a trustee was authorized to mortgage to repair and make improvements. The ref- erence by Penrose, J., to the 6th Sec. of the act of April 13, 1854, P. L. 368, is probably erroneous as that act has no 6th Sec. and probably was meant for the 6th section of the Price Act (Act of 1853), which provides, inter alia, for the disposition of the proceeds of the mortgage, and, inter alia, that such proceeds shall not be expended except upon or the improve- ment of real estate, etc., except, etc. The case probably arose under the Act of 1853. In Lombaert's App., 99 Pa. 580 (1882), a trustee was authorized to execute a mortgage to raise money to make repairs to the real estate. In Anderson v. Devlin, 17 Phila. i (1877), s. c. 34 L. I. 115, it was not clear under what act the proceeding was had. A mortgage was executed and there was apparently a controversy over the application of the proceeds of the mortgage. In West v. Cochran, 104 Pa. 482 (1884), sub nom. West v. Cochrane, 41 L. I. 330, s. c. 31 Pitts. L. J. 373, the guardian of the minor children of a decedent was authorized to mortgage the interests of the minors in order to raise money for the payment of debts. (19) Lawrence's & Appleton's Ests., 14 Pa. C. C. 662 (1894), s. c. 3 D. R.' 356, 35 W. N. C. 406; reversed on other grounds in Lawrence's Est., 169 Pa. 185 (1895). The mortgagee, therefore, who advances more money than the amount authorized by the decree does so at his peril. (20) Lawrence's Est, 169 Pa. 185 (1895), s. c., 14 Pa. C. C. 662 (1894), 3 D. R. 356, 35 W. N. C. 406. Query by Ashman, J., in this case in the court below whether a decree authorizing a mortgage generally would au- thorize a mortgage to a building association if question were raised at the time of execution. (22) Stevenson's Est., 4 Super. Ct. 46 (1897), at 51. Carswell's Pet., I Phila. 521 (1854), s. c. 12 L. L 14. 46 MORTGAGE UNDER ACT. 47 by the trustees and not by the life tenant. The same rule applies here as in all cases of mortgages by trustees, namely, that the mortgagee cannot recover on the mortgage if it appears that he knew of a misapplication of the proceeds by the trustee. 23 In Spencer v. Jennings, 2 * the administrator made a mortgage under order of the court upon a petition setting forth that it was to raise money to pay debts not of record and purporting to be under the Price Act. It was held that the case was not provided for by the act, and therefore the mortgage was void and the mort- gagee had no title and the heirs of the decendent could recover in ejectment. 25 46. In Stevenson's Estate, 28 a testator had left property in trust for certain life estates with remainders over. The life tenant applied for leave to mortgage under the Price Act. The court com- mented on the fact that the petition should have been made by the trustee but since the trustee and all parties joined in the petition, that defect was remedied. The decree of the court below, 27 au- thorizing the mortgage, was reversed, the Superior Court appar- ently not thinking it was to the advantage of the estate that the mortgage should be made. The remarks of Smith, J., are as fol- lows : 28 "It will be proper to ascertain with reasonable certainty: (i) The probable duration of the life estate, (2) whether the pro- posed outlay becomes necessary because of the neglect of the trus- tee to maintain the premises in a tenantable condition, (3) whether the proposed alterations are such as the trustee should reasonably (23) Confer Lawrence's Est., 169 Pa. 185 (1895). For a case where the court sent the proceedings back because of insufficient facts on the record, see Stevenson's Est, 186 Pa. 262 (1898). (24) 114 Pa. 618 (1886), affirmed on reargument in 123 Pa. 184, s. c. 139 Pa. 198 (1890). (25) Confer, Act of May 3, 1855, P. L. 415, which provides that the court of common pleas may, upon petition of the trustee and the cestui qui trust of at least a life estate, of an estate composed of real and per- sonal property, direct the application of the personal property or a portion thereof to the improvement of the real estate in certain cases, the expend- itures to be a charge on the realty and recoverable, if necessary, by a sale, as in the case of orphans' court sales. (26) 186 Pa. 262 (1898), s. c. 4 Super. Ct. 46 (1897), 17 Pa. C. C. 312, 5 D. R. 5 (1895). (27) 17 Pa. C. C. 312, s. c. 5 D. R. s (1895). (28) 4 Super. Ct. 51. , 48 EXPENDITURE OF MORTGAGE MONEY. 47 make for the benefit of the life tenants, without regard to possi- ble advantages to the remaindermen, (4) whether the improve- ments may not be worn out, or the changing demands of the neighborhood render them useless, before the expiration of the life estate. In either of these events the loan, if authorized, should be made on the credit of the life estate and the lien re- stricted to it. "If it should be found to the interest and advantage of both the life tenants and the remaindermen to have the improvements made and the loan effected, and that the cost would be more than the life estate should bear, then the court will determine by itsi decree what proportion should be borne by each estate, the lien, notwithstanding, to extend to both. Ordinarily, when both es- tates will be benefitted by the proposed improvements, the court should consider to what extent the improvements will remain and benefit the property beyond the termination of the life estate, and this should form the basis of the charge against the remainder." On appeal to the Supreme Court, 29 the decree of the Superior Court was affirmed, the Supreme Court being of the opinion that the record was in such a defective condition that it was impossible to ascertain what facts had developed by the decree and therefore to properly decide the case. In a case of this kind the nature of the improvements to be made by the mortgage money should be carefully examined, and any excess of income above what the life tenants might properly expect should be applied by the trustee as a sinking fund towards paying off the mortgage. The adjust- ment of the equities between the life tenant and remainderman, is frequently of very considerable difficulty. 30 Mortgage Money to be Spent Only on the Land, etc. 47. It must be remembered that the Price Act specially pro- vides in Sec. 6 that no principal monies raised by mortgage shall be expended for any other purpose than for the payment of liens upon the improvement of the real estate mortgaged or other real estate when held for the same uses and persons unless the sale be required for the maintenance or education of parties having the like interests vested or expectant and can be equally and equitably so applied and without diminution of the capital that may of right (29) 186 Pa. 262 (1898). (30) As to this point, see Phillips's Est., 12 D. R. 690 (1903). 47 a -4& CONFESSION OF JUDGMENT. LEASE. 49 become the property of parties having unbarred interests or title in remainder or by executory devises. These provisions of the act must be carefully kept in mind in applying the proceeds of such a mortgage. The money must be spent upon the real estate upon which the mortgage is an encumbrance or upon other real estate which is held under the same title. It would not be proper, for instance, to take the proceeds of the mortgage upon property held under one trust in a will and apply that to the improvement of real estate held under another trust, but the proceeds may be applied to another piece of real estate held under the same trust. In like manner, where a minor has an interest in any proceeds, it would be proper for the court to apply any part thereof to the education and maintenance of the minor. It is apprehended that this could only be done where the minor has a vested interest and the provisions of the act in this particular are merely co-extensive with the law under which the orphans' court may in all cases allow out of the estate of a minor a suitable sum for its support, maintenance and education. 81 As to Confession of Judgment Under Order to Mortgage. 47a. There seems to be some doubt whether a decree of the orphans' court merely authorizing a mortgage confers sufficient authority to execute a warrant of attorney to confess judgment. 81 * In view of this doubt, it is probably better to insert in the decree authorizing the mortgage, a special clause authorizing and direct- ing the execution of a warrant of attorney to confess judgment under the usual form. Lease. 48. Although the act provides for the authorization of a lease in the cases specified, it is rarely necessary to invoke this clause of the statute and few cases have arisen. The reason is that defects in title specified 32 do not interfere with the leasing of the property except in extraordinary cases. A trustee has power, indeed it is his duty, to lease without any authority being expressly conferred. So also a guardian, 33 committee of a luna- (31) Act March 29, 1832, P. L. 190 13. (3ia) See 248, post. (32) See table in note 18 13 ante. (33) Stoughton's App., 88 Pa. 198 (1879), semble. 50 LEASE. 48 tic, married woman, tenant of a property subject to contingent remainders or executory devises, owner of a qualified fee, or a corporation may each make a lease notwithstanding the disability to convey or mortgage embraced or inherent in their title. Where, however, it is desired to lease for a long term of years, it may be advisable to obtain the order of the court, particularly where there is a life estate the probable duration of which will be less than the proposed term of the lease, and there are contingent remainders limited after the life estate. Although this proceed- ing would be found just as useful where the life estate is followed by vested remainders, apparently no provision is made for such a case. Here, of course, all parties not under disability could join in the lease. If one of the vested remaindermen is a minor, there would be sufficient ground for the jurisdiction of the court to attach as to his interest. A lease which extended beyond the duration of the life estate would, to that extent, divest the inter- est of the vested remaindermen, and the lessee could assert his right as against them. The court may consider a very long lease of 50 years as amounting to a sale in a case where the will re- quires the assent of several persons to a sale. 34 In Stoughton's App., 35 a guardian executed a lease of 40 acres of certain oil lands for twenty-one years without confirmation of the court. He then made another lease for twenty years to an- other party, which was confirmed, which second lease interfered with the first. It was held on application by the first lessees to have relief against the second lease that they had no standing, the first lease having been made without authority. It did not appear under what act the second lease was confirmed ; probably under the act of 1853. By the act of June 8. i874, 36 supplementing the Price Act, the court may in the case of a lease of mining lands decree a combina- tion of the same (presumably for the purpose of the lease) with other adjoining lands so as to form one tract and apportion the rent among the several owners thereof, as if they were tenants in common of the whole according to the quantum of their interests before the combination was made. So also where a trustee proposes to make a long term improve- (34) Freeman's Est., 181 Pa. 405 (1897). See 21 D. R. i (1911). (35) 88 Pa. 198 (1879). (36) P. Iy. 277, Sec. I. For text see appendix A. 49"5 EXCHANGE. CONVEYANCE OF OR ON GROUND RENT. 51 ment lease, the jurisdiction of the act should be invoked to pro- tect all parties. In Hollins's Est., 37 the trustee of a one-fourth undivided interest was refused leave to join in a sixty years im- provement lease because of the objection to the lease by a cestui que trust who was sui juris. Penrose, J., said that such objection would almost be sufficient to defeat a sale or lease. The joinder of the other tenants is material under the act, only as of impor- tance as furnishing persuasive evidence that the proposed disposi- tion is to the interest of the cestui que trust. A decree of the court in these cases is perhaps more necessary for the protection of the lessee than for the protection of the lessor. Exchange. 49. The exchange of real estate is the same as a sale except that, in the first case, land is exchanged for land, and, in the second case it is exchanged for money. The words of the act, therefore, authorizing a sale seem to cover the case of an ex- change. No case has been found on this point except Miller's Est., 38 where, however, the court refused to authorize the trans- action because it was not of the opinion that it was to the interest and advantage of those interested. Most of the parties in interest opposed the exchange. Penrose, J., said that the court had power to authorize the exchange under the act of 1853 and the act of April 13, i854, 39 permitting investment in other real estate. Exchange means exchange of interest in land for another land, and not an exchange of interests in the same property, as in Thomas's Est., 40 which is partition. Section 7 provides that the court may authorize trustees, committees, guardians, married women and corporations to make and take conveyances by deed acknowledged in court without public sale in order to square and adjust lines between adjoining owners. Conveyance of or on Ground Rent. 50. A conveyance on ground rent is where the grantor se- cures part of the purchase money by reserving a rent out of the property conveyed to be paid by the grantee, his heirs and assigns, which rent in generally expressed to be extinguishable upon the (37) 16 D. R. 441 (1907). (38) 4 D. R. 328, s. c. 16 Pa. C. C. 449 (1885). (39) P. L. 369- (40) ii D. R. 290 (1902). 52 EXTINGUISHMENT OF GROUND RENT. 51 payment of a certain capital sum which is mentioned in the con- veyance. It is often extremely convenient to make settlement for a property in this way, and the act merely recognized a prac- tice which has long been common in the State of Pennsylvania, when it empowered the courts to authorize a conveyance on ground rent. Indeed, power to authorize a conveyance of this kind seems to be implied in that part of the act providing that the sales may be partly for cash and partly for credit, and on such terms as the court shall approve. This clause, however, puts the matter beyond doubt. Extinguishment or Sale of Ground Kent Reserved Under a Power of Sale. 51. Under the law as it stands independently of the act, there is some doubt whether an executor or trustee having a power of sale who should exercise the power by a conveyance reserving the ground rent, would have the power to convey or extinguish the rent, it being supposed that the power had been exhausted by the first conveyance. 42 The clause in the act providing that "[every power to sell in fee simple real estate] created by deed or will shall be taken to confer an authority to sell and convey reserving a ground rent or rents in fee and the same to release and extinguish according to law and the stipulation of the deed, and also to grant and convey such ground rent or rents to any purchaser or purchasers thereof free of all trust," was obviously designed to remove this doubt and make it clear that such power of sale would authorize a subse- quent extinguishment of the rent which had been reserved there- (42) Where there is a sale on ground rent under a power of sale which does not specifically give power to extinguish the rent, the power is ex- hausted by the conveyance, and the executors cannot subsequently sell or extinguish the rent, Ex parte Elliott, 5 Whart. 524 (1840), semble. Gibson, C. J., pointed that the execution of the power cannot be repeated, and said that the question was whether the power was exhausted by the conveyance in question. Where the will gave the executors "full power to sell and dispose of or to let on ground rent and make and execute suf- ficient deeds of conveyance in fee simple or otherwise," and the executors conveyed on ground rent with a clause of redemption, it was held that they had full power to extinguish the ground rent and receive the extin- guishment money, Ex parte Huff, 2 Pa. 227 (1845). The court put the decision partly on the ground that a sale on ground rent was in effect an executory contract of sale, and that the extinguishment was merely the completion of the entire contract. 52 APPLICATION OF ACT TO GROUND RENTS. 53 under. It is to be observed that the part of the clause enclosed in brackets was omitted from the amendment of June 14, i897, 48 and there is therefore some doubt under the law as it stands as to what this clause means. Assuming that the clause had a meaning, that is to say as to cases arising between April 18, 1853, and June 14, 1897, when the clause stood in its original form, the further question arises as to whether under this clause it was neces- sary for the person having such power of sale to apply to the court in order to make the conveyance or reservation of the ground rent. There is nothing whatever to indicate that such applica- tion to the court is necessary, and the clause is so worded as to merely operate as a construction of a power, independently of any proceedings in court. Cases to Which Act Applies. 52. When the title to the ground rent is derived under a deed or will, and there is a power of sale in fee simple, the law is clear that the ground rent may be sold or extinguished under the power. It is furthermore plain that the only person who can deal with the ground rent is the one having the legal title, and no question as to the application of the power of sale can arise unless the power of sale is conferred upon him. 43a Where, however, the title of the ground rent is affected by any of the circumstances mentioned in the act, 43b there is a clear necessity for resorting to the court. A ground rent may be vested in several owners and in such case be the subject of partition. It cannot, however, be subdivided or leased, and is never, except in rare instances, conveyed on ground rent. The only cases where the court will be asked to act, there- (43) P. L. 144- (43a) In Church v. Williams, 5 Pa. C. C. 641 (1888), a bill in equity was filed for specific performance of the covenant to extinguish the ground rent. This case is badly reported. The bill was apparently filed by the owner of the land against the holders of the rent. The owner of the rent died devising the ground rent to his wife for life, with power of appoint- ment as to one-half, the otheir one-half to his heirs at law. The life ten- ant was also executrix. She exercised the power of appointment and letters of administration d. b. n. c. t. a. were issued on the estate of the owner of the rent. Extinguishment requested from the heirs of the testator and the appointee of the life tenant. Demurrer on the ground that the administra- tor d. b. n. c. t. a. was the one to exercise. Demurrer overruled. The owner of the rent extinguishes and not the person having the power of sale. (43b) Chap. I, n. 18. 54 SALE OR EXTINGUISHMENT OF GROUND RENT. 53 fore, will be the case of a sale, mortgage, extinguishment or par- tition. The case of a partition presents no difficulty, there being nothing in the partition of a ground rent to differentiate it from the partition of any other piece of real estate. 44 In like manner, the mortgage of a ground rent is free from difficulty, and is similar to any other mortgage. 441 The case which is of usual occurrence and is involved in some obscurity is the case of a sale or extin- guishment. 45 As to Sale or Extinguishment of a Ground Rent Under the Act. 53. The jurisdiction of the court under the act in ordering the sale or extinguishment of a ground rent is frequently invoked and there are several distinctions to be drawn. The difficult ques- tion is whether the act authorizes the court to enter a decree di- recting an extinguishment of the rent. It has been frequently supposed that the act does not confer jurisdiction to order an ex- tinguishment of a ground rent, and petitions in such cases have been refused. It is apprehended that there is no solid distinction, so far as the Price Act is concerned, between an extinguishment and an assignment. The extinguishment is a sale differing from an assignment only in the form of the deed and in the circum- stance that in one case the grantee is the owner of the rent, and in the other case he is not. This latter circumstance, however, seems to be utterly immaterial. The difference in the wording of the deed is made at the request of the grantee in order that it may clearly appear on the record that the ground rent is merged and thus clear his title of an encumbrance. The extinguishment of the rent depends entirely on the status and intent of the assignee of the rent, and the assignor has no voice in the matter whatsoever. Neither does the extinguishment or the assignment of the rent affect the relation of the assignor to the conveyance in any way. It seems, therefore, that the distinction between an assignment and an extinguishment is merely technical and utterly immaterial, so far as the jurisdiction under the act is concerned. In Hirst's Estate, 46 the trustees were seized of a ground rent (44) See 154, post, as to partition. (443) See 45, ante, as to mortgage. (45) See Pierce's Est, 7 Phila. 475 (1869), s. c. 26 L. I. 13, s. c. sub. nom. Clothier's Pet., 3 Brews. 254. Case of a sale of an undivided interest. (46) 147 Pa. 319 (1892). 53 SALE OR EXTINGUISHMENT OF GROUND RENT. 55 which belonged to the testator and filed a petition in the orphans' court for a decree authorizing the extinguishment of the rent. The decree was made but was held void because of lack of notice to the committee of the cestui que trust, who was a lunatic. In this case, however, it was held that the trustees had ample power to voluntarily extinguish the rent because they could be compelled to do so under the terms of the ground rent deed, and that what- ever a person under disability might be compelled to do, his repre- sentatives might do voluntarily. 46a In Kramer's Est., 47 the peti- tion was apparently by the owner of the land against trustees to compel them to extinguish the ground rent, and although they sub- mitted themselves to the decree of the court, the petition was dis- missed on the ground that there was no jurisdiction under the Act of 1853, the remedy being in the Common Pleas. 48 The case is poorly reported, and it appears from an examination of the record that the ground rent had been paid off at some time in the past and there had been a failure to execute a proper deed of ex- tinguishment. The case may be explained on the ground that no consideration would pass, and therefore not within the terms of the Price Act, which always contemplates a sale for an adequate consideration. The distinction between a redeemable and an irredeemable (46a) See remarks of Penrose, J., in Shepherd's Est., 8 Pa. C. C. 520 (1890) at 522. (47) 37 Pa. C. C. 520, s. c. 19 D. R. 603. (48) The Act of Feb. 5, 1821, P. L,. 25, 7 Sm. L. 355, Sec. i, provides that where a redeemable ground rent is vested by death of owner or in any other manner, in minors, trustees or other persons not authorized to ex- tinguish, proceedings may be had in Supreme Court or Common Pleas by (1) Executors or administrators of grantors of ground rent Other owners of the ground rent Guardians of minors Trustees (2) Grantee of the ground rent Heirs or assigns of the grantee by petition for release of the ground rent to be executed by (i). Court may order (i) to execute releases and receive principal and arrearages of interest, and may in its discretion order security. See Sen-ill's Pet. (C. P.) 9 D. R. 755 (1900) ; Calhoun's Pet. (C. P.) 3D. R. 232 (1894). The Act of 'Sept. 6, 1860, P. L. (1861) 840, Sec. i, authorizes proceedings by owners of property to pay the amount of the ground rent into court and extinguish the same where there are judgments or liens against the owners of the ground rent. 56 SALE OR EXTINGUISHMENT of GROUND RENT. 53 ground rent is of some importance. In the case of an irredeem- able rent, the owner of the rent may accept the payment of any sum he pleases as a price for the sale or extinguishment of the rent. It therefore follows that every case of an irredeemable ground rent is similar to every other case of real estate where the owner of the land is free to sell or not, and consequently the court in considering the propriety of decreeing a sale or extinguishment of such a rent will consider the value of the property out of which it issues, because the value of the ground rent will be determined thereby. Some irredeemable ground rents may sell at a premium of one hundred per cent, or upwards and some may be worth less than par, the value in each case being determined by the value of the property out of which it issues. In every case of an irredeem- able rent, therefore, the court will be under the necessity of making the same inquiry as to the propriety of the sale and the adequacy of the consideration, as in any other case of a sale of real estate. In the case of a redeemable ground rent, however, somewhat different considerations apply. Here the owner of the rent, if sui juris and able in law to make an extinguishment, may be com- pelled by the owner of the land to extinguish upon receiving the capital sum mentioned in the deed reserving the rent. 483 By reason of this circumstance, the market price of the rent will be almost equivalent to the capital sum mentioned in the deed as payable for its extinguishment. It may be in cases where the property has depreciated that the value will be considerably less than the capital sum. It will not ordinarily be worth more be- cause the owner of the property will not pay more for it since he can always extinguish by paying the sum specified, and a third party will not usually regard it as a desirable investment to buy it at a premium. All these considerations are important for the court to con- sider in entering the decree in such a case and should be borne in mind in preparing the petition and decree. In the case of the holder of the rent, the jurisdiction vested by the act seems per- (48a) It is, therefore, important in all cases of petitions for the sale, etc., of a ground rent, to give the court full information as to whether the ground rent is redeemable or irredeemable, and that, it seems, can only be done by attaching to the petition a copy of the deed reserving the ground rent or of the material portions thereof. 54-55 SQUARE AND ADJUST LINES. 57 fectly clear, and there is no reason why a distinction should be drawn between the case of a sale and the case of an extinguish- ment, it being assumed that the price is proper and it is to the in- terest and advantage of the parties to dispose of the ground rent. In the case of the holder of the land, the question arises whether the act authorizes an extinguishment on his petition. If the owner of the rent voluntarily joins in, some of the circumstances mentioned in the act being present, then the case seems to be the same as if the petition were originally presented by the holder of the rent. If, however, the holder of the rent objects to the ex- tinguishment, it does not seem that the act confers any jurisdiction authorizing the court to compel an extinguishment. Security and Form of the Decree. 54. The security obviously need only cover the proportion of the purchase money received in cash, in which case the decree would authorize a conveyance reserving a certain sum as ground rent to be extinguished upon payment of the sum fixed and order security in double the amount of the balance of the purchase money. Under this form of decree the party making the sale would have to make further application to the court when the time arrived for the extinguishment, or where it was desired to sell the ground rent, and then give further security for the balance of the purchase money equalling the capital sum of the ground rent. If preferred, however, the decree may require security in the full amount of the consideration, and then authorize a sale reserving the ground rent, and at the same time authorize an extinguishment of the same at any time in the future. One decree would cover both acts, and there would be no further necessity for making another application to the court. 49 Square and Adjust Lines Between Adjoining Owners. 55. Trustees, guardians, committees, married women and corporations are authorized to make and take conveyances by deed acknowledged in open court without public sale in order to square and adjust lines between adjoining owners. This practically con- (49) It does not seem to be necessary to expressly authorize an extin- guishment in the case where the security ordered in the first place is suf- ficient to cover the whole purchase money and there is a covenant in the deed calling for extingushment upon payment of the capital sum. Ken- nelly's Est., 17 Phila. 99 (1884), s. c. 41 L. I. 114. 5 58 PURCHASE OF REAL ESTATE. 56 fers jurisdiction to make an exchange of real estate, and there seems to be no necessity here for security, and the act expressly provides that the deed may be made without public sale. 60 Purchase of Heal Estate. 56. The act also authorizes trustees, guardians, commit- tees, married women and corporations to purchase other real estate when needful adjoining 52 to that already owned by any such party or useful to the business thereupon carried on or when necessary to protect any security or rent held on property exposed to judicial sale, 53 provided that no corporation shall be so authorized to purchase beyond its charter license. This clause in the act seems to be merely declaratory of the existing law, and no case has been found of the application of its provisions. It is always proper for a fiduciary to purchase real estate necessary to protect any encumbrance held on property exposed to judicial sale. The authority to purchase real estate has also been ex- pressly conferred by the act of April 13, i854. 84 A corporation can always, of course, make any such purchase without any order of court, and as to that the provisions of the (50) In Miller's Est, 4 D. R. 328 (1895), s. c. 16 Pa. C. C. 449, there was a petition for confirmation of an exchange which was refused, as there was objection by some of the parties in interest. The court seemed to regard the case as analogous to an investment authorized under the Act of April 13, 1854, P. L,. 369, Sec. 2. (52) The word "adjoining" does not appear in the text of the act but should be supplied to make sense. (53) In Fell's Est., 14 Phila. 248, 38 L. I. 6 (1880), the executor bought property under foreclosure of a mortgage, and then presented a petition for a ratification of the sale of the same, the purchaser being doubtful about his power to convey. It was held, in an opinion by Penrose, J., that the court probably had jurisdiction under the Price Act to authorize a sale where real estate shall have been purchased, but that it was not necessary to consider the provisions of the act as the court had jurisdiction to au- thorize the sale as the subject matter was personal property. (54) Section 2. P. L. 369. "That it shall and may be lawful for any trustee, committee, guardian, or other person acting in a fiduciary capac- ity, to invest trust moneys in ground rents, or other real estate, by leave of the proper court, under proceedings as provided in the act to which this is a supplement : Provided, That it shall be the opinion of the court, that such investment will be for the advantage of the estate, and no change be made in the course of succession by such change of investment, as regards the heirs or next of kin of the cestui que trust." 57-58-59- LOCATION OF RIGHT OF WAY. SUBDIVIDE TRACT. 59 act are clearly superfluous. 55 The proviso that no such corpora- tion shall be so authorized to purchase beyond its charter license is also superfluous because the court would have no power to make such a decree in the face of the act limiting the amount which a corporation shall hold. Change location of Right of Way. 57. Trustees, guardians, committees, married women and corporations may also make and take or join with owners of other undivided interests in making and taking conveyances by deed acknowledged in court and without a public sale in order to change in part or in whole the route and location of any right of way or passage extending over and upon adjoining or other lands, 56 and it is to be in the discretion of the court in such cases whether security shall be required. It does not seem neces- sary to require any security in any such case unless money is paid over as part of the exchange. No case has arisen under this clause. Lay Out and Vacate Streets. Subdivide Tract. 58. The act also provides that it shall be the duty of the court, where the premises may admit of or require it, to lay out roads, streets and alleys, and to vacate such as shall not have been paid for or received into actual use by the public, if found to be inconvenient, and to make an unprofitable division of the property. The court has also authority to order the premises, if necessary, to be so sub-divided as to command the highest price and greatest rents. These clauses of the act will be rarely invoked but will no doubt be found useful and necessary, partic- ularly in cases where it is proposed to dispose of a large tract of ground near a city. These provisions merely seem to give the court broader discretion in authorizing disposition of the property, and hardly seem to call for any further comment. Who May Present Petition. 59. The act says "such sale, mortgaging, leasing or con- veyance on ground rent may be decreed on the petition of any trustee, guardian, committee or person interested/' The ques- tion, who is a party in interest, is of some importance. The fact that the petitioner is a party in interest is a jurisdictional fact (55) See 24, ante. See 82, post. (56) By the provisions of the act of April 18, 1864, P- L. 462, Sec. I. 60 WHO MAY EXECUTE DECREE. 60 and must appear on the record and should be averred in the petition. 57 It was intimated by Paxson, C. J., 58 that where there is a de- vise to A. for life with contingent remainders, the executor of the testator is not the proper person to present a petition for a sale under the Price Act to bar the contingent remainders, al- though it is probable that this irregularity would not be serious after the final decree. It is clear that where there is a trust, the trustee is the proper person to apply, 59 and that the cestui que trust may petition for an order authorizing his trustees to mort- gage. 60 Generally the petition will be presented by the party having the legal title. 61 Who May be Appointed to Execute the Decree. 60. It seems that under Sec. 4 the decree need not be car- ried out by the person who presented the petition. The court has some discretion as to this, and where the petitioner is inter- ested in the estate and the interests are undivided, it is sometimes desirable to appoint a third party to make the sale. In such case the petition for the sale or mortgage, &c., may incorporate a prayer for the appointment of a trustee to carry out the decree, and the court will at the same time as authorizing a disposition appoint a trustee to carry it out. 62 (57) In Gumbert's App., no Pa. 496 (1885), the sale was set aside be- cause, inter alia, the interest of the petitioner applying to have the sale confirmed was not set out and the interest of the paties applying to have it set aside did appear. (58) In Westhafer v. Koons, 144 Pa. 26 (1891). (59) See Moorhead v. Wolff, 123 Pa. 365 (1889), s. c. 23 W. N. C. 167, 36 Pitts. L. J. 352, 46 L. I. 261. (60) Carswell's Pet, i Phila. 521 (1854), 12 L. I. 14. (61) See remarks of Clark, C., in Spencer v. Jennings, 123 Pa. 184 at 196, as to who may petition, and that petition must be presented by those actually interested in the land. In Corr's Estate, 29 Pa. C. C. 276 (1903), s. c. 12 D. R. 788, there was a devise to a school conducted by a church, which was held to be in easement of the church in which the title vested and by whom the petition was properly presented. (62) For a further discusson as to who is to execute the deed in case of Orphans' Court sales, see 234, post. In Ulrich's App., 2 Penny. 455 (1882), an administrator sold for the payment of debts, land the title of which was in the name of a third party, in trust for the decedent, and upon a bill in equity being filed in the common pleas against the third party, a decree was directed compelling him to make a conveyance to the pur- chaser. 62 LEGAL DISABILITIES. 61 CHAPTER 4. legal Disabilities of the Holder of the Title. Preliminary 62 Minority Preliminary 63 Necessity of distinguishing proceedings under other acts ... 64 Notes, Act of 1832, March 29, P. L. 190. Act of 1836, June 16, P. L. 682. Act of 1851, April 3^ P. L. 305. Act of 1853, April 18, P. L. 503. Notice 65 Undivided interest Preliminary discussion 66 Necessity of joinder of other parties 67 Gilmore v. Rodgers 68 Pierce's Estate 70 Proceedings by owner of undivided interest sui juris where there is a minor's interest 71 Sale of undivided interest of a minor to another tenant in common 72 Reasons for sale of an undivided interest 73 Guardian appointed in one county, land in another 74 Foreign guardian 75 Lunatics and habitual drunkards 76 Act of 1836, June 13, P. L. 589 77 Notice in case of lunatics 78 Weak-minded persons 79 (Note on other acts relating to lunatics.) Coverture Married women 80 Married men 81 Corporations Preliminary 82 Capacity to convey 83 Holdings in excess of the amount prescribed by law 84 Religious, beneficial and charitable corporations 85 Religious, beneficial and charitable associations, 86 Preliminary. 62. In this chapter we have gathered together those clauses which are designed to authorize a disposition of the title notwith- standing some legal disability on the part of the owner, or in the language of the act, of a party interested. A case may arise 62 IvEGAi, DISABILITIES. 63 where there is some defect in the title in addition to the disability of a holder thereof. In such case, of course, there will be two grounds of jurisdiction. The discussion in this chapter will relate solely to the case of legal disability. The act provides generally, in addition to the specific instances enumerated, that the court may act in any case where a party interested is under a legal dis- ability to convey. This clause was probably introduced to cover any case which might have been inadvertently omitted. It might be that under this clause a husband with a wife who is an habitual drunkard or absent and unheard from for seven years or who has abandoned him might obtain relief, these cases not being spe- cifically provided for in the act. 2 Preliminary Discussion of Minority. 63. The act provides that such sale, etc., may be decreed "whenever real estate shall be held for or owned by minors." This phrase as worded seems to cover the case where the legal title is vested in the minor and the case where the land is held in trust for the minor. As, however, the case of property held in trust is fully provided for in another clause of the section, and the objects of the trust are immaterial in considering that clause, 3 so much of this provision as relates to property held in trust for a minor will be discussed under the heading of trusts, and the immediate discussion will be limited to the case of a sale, etc., of the legal title of a minor. 3a (2) See 81, post. (3) See 134, post. (3a) A guardian has power to make an ordinary lease so jurisdiction under the act is unnecessary except in special cases depending on the na- ture of the lease. See 48, ante. As to guardian joining in amicable partition, see 162, post. Sec. 7 provides that guardians may purchase other real estate needful (adjoining) to that already owned by any such party or useful to the busi- ness thereupon carried on, or when necessary to protect any security or rent held on property expose,d to judicial sale. It seems that a guardian already has power to purchase real estate necessary to protect any security, &c., and that therefore in such case the provisions of the act are unneces- sary. It is clear, however, that authority would be required for the guard- ian to purchase other real estate. It is not usual, however, for a guardian to carry on business for a minor, and since this clause seems to relate to a purchase of adjoining real estate necessary to carry on a business, it is not likely that this clause will be frequently invoked in the case of a 64 MINORITY. The interest of a minor may be (a) in the entire property, (b) undivided, and in each case may be (i) an estate in fee, (2) a life estate, (3) a remainder contingent or vested, (4) an execu- tory devise, (5) an estate for years. The act authorizes a sale, etc., in any of these cases. 4 It is important to accurately ascertain the exact quantum of the interest of the minor because if a mistake is made and the interest supposed to be less than it really is, no advantage of the mistake can be taken to defeat the title of the purchaser after confirmation, deed delivered and expiration of the time allowed for an appeal. 5 Necessity of Distinguishing Proceedings Under Other Acts. 64. The chief difficulty in practice under this provision arises from the fact that proceedings for the sale of a minor's interest may be had under prior acts, 6 and there is tendency to confuse the proceedings, the petition being sometimes so worded that it cannot be ascertained which act is invoked. 7 Since the jurisdiction to make the decree depends entirely on statute, it is obvious that unless the petition clearly refers to some one of the acts, that the proceedings will be null and void. As the provisions minor's interest. By Sec. 7, it is also provided that guardians may make and take conveyances by deed acknowledged in court without public sale in order to square and adjust lines between adjoining owners. Guardians may, by the supplemental Act of April 18, 1864, P. L,. 462, Sec. i, make and take or join with owners of other undivided interests in making and taking conveyances by deed acknowledged in court and without a public sale, in order to change in part or in whole the route or location of any right of way or passage existing over and upon adjoining or other lands, the re- quirement of security in such cases to be in the discretion of the court. (4) For a case of the authorization of the sale of remainder interests, see Packer's Est., 7 Phila. 473 (1869), s. c. 26 L. I. 380, 3 Brewst. 527. (5) Gilmore v. Rodgers, 41 Pa. 120 (1861), s. c. 9 Pitts. 1,. J. 209, sub. nom. Gilmore v. Rogers, 19 t,. I. 28. (6) Act March 29, 1832, P. L. 190, Act June 16, 1836, P. L,. 682, Act April 3, 1851, P. L. 305. (7) E. g., see Kreimendahl v. Newhauser, 13 Super. Ct. 606 at 608 (1900). Where the peitition is under the act of March 29, 1832, P. L,. 190, the addition of an avertment that the sale is to bar contingent remainders, etc., which do not exist, does not bring the case within the act of 1853. See Wagner's App., 89 Pa. 303 ( 1879) It was contended in this case that there was no conversion because the sale was under the act of April 18, 1853, P. L. 503, as to which see 189, post. 64 LEGAL DISABILITIES. 64 of the Price Act as to the devolution of the purchase money are different from those in all the other acts, it is important to clearly fix the jurisdiction. 8 For convenience of reference, the provisions of the several acts are set out in the note, so the reader may easily observe the distinctions between them. 9 (8) For a discussion of the special provisions relating to the devolution of the proceeds of the sale of the interest of a minor, see 190, post. (9) By Act of March 29, 1832, P. L,. 190 Sec. 31, the orphans' court having jurisdicton of the account of the guardian may authorize a sale or mortgage of the estate of a minor A. On application of the guardian setting forth (1) That the personal estate of the minor is insufficient (a) For his maintenance and education. (b) The improvement and repair of other parts of his real estate. (2) That the estate of a minor is in (a) Such a state of depreciation and decay or (b) So unproductive and expensive that it would be to the interest and advantage of the minor to sell it. (3) Orphans' court of county where real estate is situate to have same jurisdicton. B. By Sec. 33, a guardian must (1) Exhibit to the court inventory and appraisement of real and personal estate. (2) File full and correct statement of all real estate. (3) No authority to sell to be granted until the guardian shall have filed a bond with sufficient securiety to be approved by the court. (4) No real estate shall be disposed of contrary to the terms of any marriage settlement. (5) The mansion house or the most profitable part of the estate shall be reserved to the last. (6) The court may refer the case to an examiner. (7) Must give notice to minor. (8) Sale public now private by act of May 9, 1889, P. L. 182. (9) Where real estate is situate in another county, court having jurisdiction of the account of the guardian must make a pre- liminary order as to the necessity of the sale or mortgage. By Act of June 16, 1836, P. L. 682, Sec. i, Guardian may make public (may be private by Act of May 9, 1889, P. L. 182), sale of minor's real es- tate under order of Orphans' Court where (i) The whole or any part of the real estate of any minor is in (a) Such a state of dilapidation and decay, or (b) So unproductive and expensive 64 MINORITY. NOTICE. 65 (2) That it would be to the interest and benefit of the minor to make the sale (3) Purchaser to take the same interest minor had (4) Before sale approved, guardian to file a bond with sufficient surety to be approved by the court. The Act of March 16, 1847, P. L. 474 provides " 2. The orphans' court in and for any city and county of this commonwealth, in which vacant ground belonging to the estate of any minor may be situated, may, upon application of a guardian, setting forth that the said vacant ground is unproductive and expensive, and that it would be to the interest and benefit of such minor, that the said ground should be let on ground-rent, it shall be lawful for said orphans' court to make a decree authorizing the guardian to let the same, or any suitable part thereof, on ground-rent, and make and execute the proper and necessary deeds and conveyances therefor, reserving thereout such a yearly rent as to the said court may seem reasonable and just, to be secured in the usual manner, and making the principal or consideration-money, to become payable after the period at which the said minor shall become of full age." By Act of April 3, 1851, P. L. 305, Orphans' Courts have power to author- ize the sale of real estate within their respective counties. (1) Upon application of guardian, the interest of a minor, when to the interest of the minor. (2) Upon application of tenants for life upon whose estate inter- ests of minors depend, when to the interest of the minor. Trustee to be appointed to make sale. (3) Sec. 2 provides, upon application made, day to be appointed for hearing, of which thirty days' notice to be given to all par- ties in interest, legally and beneficially, to guardians of minors, and if application by the guardian to the minors themselves or their next of kin, if any residing in the county. Sec. 3 regulates the manner of giving notice to be in the manner prescribed by 52-53 of the Act of March 29, 1832, P. L. 190. Sec. 4, every application to be in the form of a petition suf- ficiently describing the lands and the names of the persons interested. Guardian of minor to be appointed if the minor shall appear on the day of hearing by guardian, next friend, or next of kin, the appointment of the court to be void. Sec. 5 provides, before any sale shall be confirmed, bond to be filed with two or more sureties in double the amount of the sale, to be approved by the court, and that no sale is to be void because of any misapplication of the proceeds of the sale or because of an erroneous decision by the court that the sale was to the interest of the minors or cestui que trust interested. By the Price Act, courts may authorize a sale, mortgage, lease, con- veyance on ground rent, exchange, parition, etc., of the estate of a minor 66 LEGAL DISABILITIES. 65 Notice. 65. Where the minor has no guardian, a guardian must be appointed in the regular way, of which proceeding the minor or next of kin must have the usual notice. 10 If the minor or next of kin fail to apply for a guardian, it seems that the court may appoint of its own motion on notice, otherwise the jurisdiction under the act might be defeated. Where the property is held in trust for a minor cestui que trust, necessity for the appointment of a guardian is not so apparent. Since, however, in all cases of proceedings under the act relating to a trust, notice to the cestui que trust is probably required, it seems that even here the court would require the appointment of a guardian and notice to him. 11 The guardian, however, of the minor need not give notice to anyone when petitioning for sale, etc., and notice need not be given to the minor ; his guardian acts for him and receives the notice. The guardian is clearly the one to make the petition except in the case hereinafter noted, where a minor owns an undivided interest. (1) When to the interest and advantage of the minor. (2) When it may be done. (a) Without injury or prejudice to any trust, charity, or purpose for which the same is held, (b) Without the violation of any law which may confer an immunity or exemption from sale or alienation. (3) The court making order need not have jurisdiction over the ac- count of the guardian of the minor if it has jurisdiction over the land. (4) Need not give notice to minor; notice to guardian sufficient. (5) May be public or private sale. (6) Proceeds of sale devolve as real estate. (7) Guardian to file bond to be approved by the court. (8) By public or private sale lien of debts of a decedent not of record are discharged. (9) The title of the purchaser shall be a fee simple title, indefeasible by any party or persons having a present or expectant inter- est in the premises, and be unprejudiced by any error in the proceedings by the court. (10) Graham's Est, 14 W. N. C. 31 (1883). In this case the court made a decree that notice be given to minors over fourteen, and to next of kin of those under fourteen, to appear and apply for the appointment of a guardian, otherwise an application would be made to the court to appoint a guardian for them. (11) See 48, ante. 66, 67, 68, 7o UNDIVIDED INTEREST OF A MINOR. 67 Undivided Interest of a Minor. 66. The case where it is necessary to make a sale, etc., of the undivided interest of a minor is of frequent occurrence in practice. The undivided interest may be, as we have seen, (i) in fee, (2) in remainder, contingent or vested, (3) an executory devise, (4) a term of years. The undivided interest may be dis- posed of by itself or the proceedings may have in view the joining in by the minor in a sale, etc., with the other undivided interests. The decree will, of course, only relate to the undivided interest, and there is no jurisdiction under the act to compel a sale by other owners who are sui juris upon petition of the minor. Their joinder must be voluntary. 12 Necessity of Joinder in the Petition by Other Interests. 67. It is not necessary, under the act, for the owners of the other undivided interests to join in a petition. However, it is better when possible to have them do so because the joinder is strong inducement to the court to make the sale. 13 The court will frequently decline to confirm the sale unless the owners of the ether interests who are sui juris have joined in the petition. 68. In Gilmore v. Rodgers, 14 there was a private sale of an undivided interest authorized where the other parties did not join in the petition. 15 70. In Pierce's Estate, 16 a petition was presented by the guardian of a minor for the sale of his undivided interest. The reporter, in the syllabus, said the cases decided that in such case the petition should be joined in by the other parties. The pe- tition was, in fact, so joined in but the language of the court (12) For cases of sales of undivided interest of a minor, see Yard's Est., 15 W. N. C. 422 (1885), s. c. 17 Phila. 436, 42. L. I. 17. For a mort- gage of an undivided interest to raise money to pay debts of a decedent to which the interest of the minor was subject, see West v. Cochran, 104 Pa. 482 (1884), s. c. sub. nom. West v. Cochrane, 46 L. I. 330, 31 Pitts. L. J. 373- (13) Pierce's Case, 7 Phila. 475 (1869), s. c. 26 L. I. 13, sub. nom. Clothier's Pet., 3 Brewst. 254. In some jurisdictions all parties in interest are required to join in the petition by rule of court. (14) 41 Pa. 120 (1861; s. c. 9 Pitts. L. J. 209, sub. nom. Gilmore v. Rogers, 19 L. I. 28. (15) See Reed v. Palmer, 53 Pa. 379 (1866). (16) 7 Phila. 475 (1869), s. c. 26 L,. I. 13, sub. nom. Clothier's Pet., 3 Brewst. 254. 68 LEGAL DISABILITIES. 71,72 hardly warrants the statement of the reporter. Allison, P. J., adopted the statement in Gilmore v. Rodgers, 17 that the consent of those of age was persuasive evidence that the best price had been obtained and a circumstance to be considered. The court went on to say that the administrator of the decedent should join, the property being subject to the lien of debts of a decedent not of record (on this ground there was jurisdiction over the interest of the other heirs), but appeared to grant the petition without requiring the joinder of the administrator. The court made an order directing the guardian to sell the interest of the minors as guardian, and the interest of the other heirs of the decedent as their trustee. Since, however, the other heirs were apparently of age and fully competent to join in the deed them- selves and receive their share of the purchase money, there seems to be some objection to such a form of decree. The practice now is to authorize the guardian to join with the other parties in in- terest in making the deed upon receipt of the proportionate share of the purchase money due the minor. Proceedings by Owner of Undivided Interest Sui Juris where there is a Minor's Interest. 71. Where the owners of the other undivided interests who are sui juris are willing to sell, etc., and the minor or guardian is unwilling to join in the proposed disposition, it seems that there is no jurisdiction under the act. The court has no power in such a case to compel the minor or his guardian to join in, the only remedy being by partition proceedings. 19 These remarks only apply where the only ground of jurisdiction is the minority of the owner of the interest. Where there are grounds of juris- diction extending over the whole title, as where all the interests are subject to the lien of debts of a decedent not of record, it seems that the court may compel the non-consenting undivided interests to join in the sale. Sale of Undivided Interest of a Minor to Another Tenant in Common. 72. It is frequently desirable for the minor to sell his share to another tenant in common who is desirous of acquiring the whole of the property, and in such a case, where it is expedient, the court will confirm a sale of this kind. (17) 41 Pa. 120 (1861). (19) See 22 ante. 73 74 GUARDIAN IN ONE COUNTY, LAND IN ANOTHER. 69 In Loughery's Estate, 20 the testator provided that it was his wish, 21 that certain of his properties (mentioning them) should be purchased by some of his other children at a price agreed upon. A price was agreed upon, and some of the parties in interest being minors, the court entered a decree directing the executors and guardians to execute and deliver the necessary deeds upon security first being entered. The petition was for "sale and delivery of deeds," and does not state by whom it was presented. The case is obscurely reported but clearly authorizes the proposition that a sale will be ratified by the guardian of an undivided interest to another tenant in com- mon. 22 Reasons for Sale of an Undivided Interest. 73. It will always be to the interest and advantage of the minor, as well as the other parties, to sell in order to avoid par- tition proceedings, and in this case an averment should be added that the price realized is as much as could be realized within the time usually necessary for the completion of partition proceed- ings. Guardian Appointed in One County, Land in Another. 74. Where the guardian is appointed in one county, and the land belonging to the minor lies in another county, the appli- cation under the act for leave to sell must be made to the Orphans Court of the county where the land lies, 23 and no preliminary application need be made to the court which appointed the guar- dian. 24 And if in such case the application is made to the court of the county where the guardian is appointed, the petition will be refused. 25 (20) 12 D. R. 386 (1903). (21) The equitable conversion here was immaterial. (22) See also Burk's Est., 15 Pa. C. C. 9, s. c. 3 D. R. 384 (1894), where a sale was confirmed after reference. (23) Morrison v. Nellis, 115 Pa. 41 (1887), s. c. 19 W. N. C. 20, 44 L. I. 187, 34 Pitts. L. J. 274, 14 Lane. 1,. R. 96. (24) See Orwig's Est., 7 Pa. C. C. 71 (1889), s. c. 46 L. I. 99, 19 Phila. 158, case of a mortgage. (25) Seiger's Est., 19 W. N. C. 404 (1887). Petition for decree author- izing a lease. 7o LEGAiv DISABIUTIES. 74 Under Sec. 3, it is apparently not necessary for the guardian to give security in more than one county. 26 It is the duty of the guardian to render his account to the court in which security was entered. If security has been en- tered only in the court where he was appointed, and the court of the county where the land lay authorized the sale or mortgage upon certificate of security having been entered in the other county, he seems to be under no obligation to render an account in any court except that of his appointment. If, however, as sometimes happens, he gives additional security in the county where the land lies, then it seems clear that he must render an account to the court of that county before his obligation under the bond can be discharged. In Packer's Est., 27 the guardian of a minor appointed in Phila- delphia County applied to the Court of Berks County for the sale of the interest of the minor as remainderman in land in that County and gave security there for the principal money. A successor to this guardian was appointed in Philadelphia County. The decree in Berks County was to hold the amount of the prin- cipal money during the lives of the life tenants, pay them their share of the interest, and after their death to account for the same according to law. It was held that the Orphans' Court of Philadelphia County would not make an order, on the first guardian to pay over the money in his hands to his successor appointed in Philadelphia County because he was trustee under the court in Berks County for all parties in interest and bound to account in that court. Pierce, J., said that the person authorized under the Act of 1853 to sell the real estate does not simply sell it as executor, committee or guardian but by virtue of the appointment of the court he becomes clothed with a new trust in which he represents the interests of all parties concerned, and is to make application of the purchase money according to the trust and decree of the court under whose direction the sale was to be made. By the Act of May 21, 1901, 28 where the land is in two or more counties, the orphans' court of either county shall have power to decree a sale or mortgage of the minor's interest for (26) For a discussion of this point, see 184, post. (27) 3 Brewst. 527 (1869), 7 PhUa. 473, 26 L. I. 380. (28) P. Iy. 272. See Appendix A post. 75 FOREIGN GUARDIAN. 71 the payment of debts or other purposes. Notice, where required, to be given in both counties, and certified copies of the proceed- ings to be filed in the orphans' court of each county, and if pur- chase money obligation is taken, the same to be recorded in each county. It is doubtful how far the words "other purposes" in this act refer to the cases provided for in the Price Act or whether its provisions are to be confined solely to sales for the payment of debts. It is to be observed that the jurisdiction is confined to the Orphans' Court, and in that respect at least being not co- extensive with the provisions of the Price Act. Foreign Guardian. 75. It appears that a foreign guardian may sell under the Price Act when the certificate required by the act has been pro- duced showing that the guardian has given adequate security to the court having jurisdiction over him. 29 The certificate required by the provisions of the Act of April 21, i856, 30 should also be filed. It is to be observed that the act upon which the decision was based provides for the removal of the property of the minor. There is some doubt, therefore, whether it is proper to construe the Price Act so as to authorize a sale by a foreign guardian. Since, however, the court has full jurisdiction over the land, and may appoint whom it pleases to make the sale, there seems to be no reason why a foreign guardian should not be authorized to sell, etc. The practice on this point is not clear, and some courts refuse to recognize the right of the foreign guardian to sell, etc. Lunatics and Habitual Drunkards. Provisions of the Price Act. 76. The act also authorizes the sale, etc., of the land of a (29) Goldsmith's Est., 13 Phila. 389 (1880), s. c. 37 L. I. 465. (30) P. L. 495, as amended by Act of May 13, 1889, P. L. 190. This act provides that a foreign guardian may sue for and recover property of his non-resident ward upon satisfactory proof by certificates according to act of congress that he has given security in double the value in the domicile, the benefit of which shall only extend to citizens of any state where similar acts have been or shall be passed ; thirty days' notice to resi- dent executor, administrator or guardian to be given and the court may reject the application when they think it is not to the interest of the ward. 72 LEGAL DISABILITIES. 76 lunatic or habitual drunkard so duly found by inquisition. 32 The last phrase "so duly found by inquisition," etc., obviously ap- plies to the lunatic as well as to the habitual drunkard. The pe- tition should always be made by the committee of the lunatic who is the proper party interested, 33 and may also be made by the persons who would probably be entitled to the real estate after the death of the lunatic or habitual drunkard and by mem- bers of his family when the committee decline to proceed. The committee, however, should make the sale, sign the deed and file the bond, give the security and receive the purchase money. It is clear that the court cannot exercise this jurisdiction until the inquisition proceedings have been duly concluded in the Common Pleas in favor of the lunacy 34 or habitual drunkenness. The case of a trustee for a lunatic cestui que trust does not seem to come under this provision because the trustee may pro- ceed under the clause relating to trusts without reference to the character of the cestui que trust. 34a The property of the lunatic or habitual drunkard may also be disposed of under other acts which must be carefully distinguished. (32) Committees of lunatics (by Sec. /) may make and take convey- ances by deed acknowledged in court without public sale in order to square and adjust lines between adjoining owners; may make and take conveyances to perfect the partition of real estate held in joint tenancy, coparcenary or in common with others ; may purchase other real estate needful (adjoining) to that already owned by any such party or useful to the business thereupon carried on, or when necessary to protect any security or rent held on property exposed to judicial sale. Committees also, by supplement of April 18, 1864, P. L. 462, Sec. i, may make and take or join with owners of other undivided interests in making and taking conveyances by deed acknowledged in court and without a public sale, in order to change in part or in whole the route and location of any right of way or passage existing over and upon adjoining or other lands, the requiring of security in such case to be in the discretion of the court. (33) For a case of a decree authorizing a sale on ground rent, see Kennelly's Est, 17 Phila. 99 (1884), s. c. 41 L. I. 114. (34) Application of Fidelity Trust Co., 16 Phila. 645 (1882), s. c. 40 L. I. 484. (34a) See 134 post. For a case of an attempted sale by trustee for a lunatic cestui que trust, see Hirst's Est., 147 Pa. 319 (1892), where the sale was held void because there was no notice to the cestui que trust or committee. 77> 78 LUNATICS AND HABITUAL DRUNKARDS. 73 Act of 1836. 77. Under the Act of June 13, i836, 35 land of a lunatic may be sold, by proceedings in the common pleas, for the pay- ment of his debts, the maintenance of his family, and the educa- tion of his minor children, and it must appear on the face of the petition that notice has been given to the wife, if any, of the lunatic, and to his or her next of kin. 36 Under this act, how- ever, the court could not decree a private sale, jurisdiction as to which is now conferred by the Act of April 27, 1903." It is important to remember the provisions of the Act of 1836, be- cause the Act of 1853 cannot be used to authorize a sale for the purposes set out in the Act of i836. 88 The same act also provides for the case of a lunatic vendor or vendee under articles of agreement and for specific perform- ance in such cases. The common pleas equitable jurisdiction over lunatics is limited by statute, and must be exercised in ac- cordance with the provisions of the act. 39 Notice in the Case of Lunatics. 78. There is some doubt as to the notice which should be given in the case where the committee of a lunatic proceeds under (35) P. L. 589, Sees. 22-24. This act provides that the Court of Common Pleas may order public (now private) sale or mortgage Of the real estate or such part of the real estate of a lunatic or habitual drunkard as the court may deem expedient, if personal estate insufficient for his support upon petition of the committee to court having jurisdiction of the account. Application supported by oath to be accompanied with (a) Inventory of real and personal estate (b) Statement of debts due (c) Estimate of the annual sum probably necessary for support and maintenance of the lunantic, his family, and education of his children, if any. Notice to be given wife or next of kin. Section 28 provides for case where land is situate in another county. (36) Bennett v. Hayden, 145 Pa. 586 (1892) ; Mitchell v. Spaulding, 20 Super. C. 296 (1902). (37) P. L. 325. (38) Bennett v. Hayden, 145 Pa. 586 (1892). (39) Halderman's App., 104 Pa. 251 (1883) ; Halderman v. Young, 107 Pa. 324 (1885). 6 74 LEGAL DISABILITIES. 79 the Price Act for the sale, etc., of a lunatic's estate. There is nothing in the act which provides for notice to the heirs of the lunatic or to his next of kin, and it seems, since the lunatic is the owner in fee, and there is therefore no one interested but him- self, that there is no occasion to give notice to his heirs. Since, however, the Act of June 13, i836, 40 providing for the sale of the land of a "lunatic especially directs that notice shall be given to the wife, if any, of the lunatic, and to his or her next of kin,* 0a the difficulty is in determining whether this provision of the Act of 1836 is to be followed in conducting proceedings under the Price Act. There is no authority upon the proposi- tion, and it seems as if under the strict construction of the pro- visions of the Act of 1853 that there is no occasion whatever to give notice to the wife, if any, or the heirs of the lunatic or his next of kin. It is better practice, however, to give such notice, and the court may well require it in any case. Property of a Weak-Minded Person. 79. Under the Act of May 28, 1907 , 41 the court may author- ize a guardian of a weak-minded person to sell, mortgage, lease or convey on ground rent any part or all of the real estate of the ward. 42 (40) P. L,. 589, 22-24. (40a) The proceedings under the Act of 1836 are accordingly void if no such notice be given, Patchin v. Seward Coal Co., 226 Pa. 159 (1910). (41) P. L. 292, amending the Act of June 19, 1901, P. L. 574, Sec. 2, which amended the Act of April 28, 1899, P. L. 112, which amended Sec. 6 of the Act of June 25, 1895, P. L,. 300. The provisions of the act follow the Price Act very closely, and are given in full in the appendix. See Act of April 27, 1909. P. L. 185, providing for a case where a weak- minded person resides out of the county, following Price Act, expressed as a supplement to the Act of June 25, 1895, P. L. 300. (42) There are several other acts of minor importance relating to lunatics, which are as follows: Act of April 16, 1849, P. L. 663, Sec. i, relates to confirmation by court of Common Pleas of sale of standing timber on land of a lunatic or habitual drunkard. By the Act of June 26, 1895, P. L,. 381, it is provided that in all pro- ceedings or actions at law or in equity now pending or hereafter to be brought, where the defendant is a lunatic, the court may appoint a com- mittee ad litem. The Act of April n, 1866, P. L. 780, seems to provide for a sale by the Common Pleas in the case of a husband or wife of a person non compos mentis, but it is very ambiguous, so that it is diffi- 80 MARRIED WOMEN. 75 Married Women. 80. Since a married woman cannot, at common law, convey her real estate without the joinder of her huband in the deed, it follows that she might be considerably embarrassed with regard to the disposition of her property when her husband is unable to join in the deed. Two cases of this kind are provided for in the act : ( i ) where the husband has abandoned her for two years, (2) where he has been absent and unheard of for seven years. 43 cult to state whether it provides for the sale of the interest of the hus- band or wife free of the claim for dower or curtesy, or whether it pro- vides for the sale of the interest of the lunatic husband or wife. No case on this act has been found. Act of March 28, 1879, P. I/. 14, Sec. i, provides that the wife of a lunatic may release her dower in land which has been conveyed by the committee of the lunatic under order of court. By Act of May 24, 1887, P. L,. 202, the overseers of the poor of a county, township or borough may mortgage or sell or dispose of by public or private sale, the real estate of an insane pauper unmarried and without children chargeable upon them, with the consent of the Court of Quarter Sessions. (43) Several other cases in which a married woman may convey with- out the joinder of her husband are provided for as follows: By Act of May 4, 1855, P. L. 430, Sec. 2, where a husband, from drunkenness, profligacy, or other cause, shall neglect or refuse to provide for his wife or shall desert her, she shall have the rights of a feme sole trader and may therefore convey her real estate without the joinder of her husband, Wilson v. Coursin, 72 Pa. 306 (1872), and it is not necessary for her to be decreed a feme sole trader. The only effect of the absence of the decree is put upon the party claiming under her deed the burden of showing affirmatively the existence of the facts necessary to bring her within the terms of the law, Elsey v. McDaniel, 95 Pa. 472 (1880). It would be very unsafe to take such a title without the previous decree of the court declaring her a feme sole trader, as it might be subse- quently impossible to prove the existence of the facts necessary to sus- tain the conveyance. It is probable also that the wife may make a mort- gage under the provisions of this act. No decision as to this has been found. A married woman, trustee, may convey the trust estate without joinder of her husband as if she were a feme sole, see Act of April 22, 1891, P. L. 25, Sec. i. By Act of July 9, 1897, P. L,. 212, a married woman, living separate from her husband under articles of separation duly exe- cuted and recorded, in which the husband has released all interest in the real estate of his wife, may convey such real estate or any other as if she were a feme sole without the joinder of her husband. By Act of June 3, 1911, P. L. 631, a married woman may convey to her husband as if she were a feme sole trader. This act declared unconstitutional as to prior conveyances in Buchanan v. Corson, 51 Super. Ct. 558 (1912); see Howells v. Wery, 40 Pa. C. C. 586 (1913). 76 LEGAL DISABILITIES. 81 The petition should set forth the sale and ask for permission to convey without the joinder of her husband owing to one or other of the circumstances specified. A married woman may, under the provision of Sec. 7, make and take conveyances by deed acknowledged in court without public sale in order to square and adjust lines between adjoining owners ; may make and take conveyances to perfect the partition of real estate held in joint tenacy, coparcenary or in common with others; may purchase other real estate needful (adjoining) to that already owned by any such party or useful to the busi- ness thereupon carried on, or when necessary to protect any se- curity or rent held on property exposed to judicial sale. By the supplement of April 18, i864, 44 a married woman may make and take or join with owners of other undivided in- terests in making and taking conveyances by deed acknowledged in court and without a public sale, in order to change in part or in whole the route and location of any right of way or passage existing over and upon adjoining or other lands. Security in such case to be required in the discretion of the court. These provisions are unnecessary when the husband can join in, or the wife may act without his joinder under any of the acts of assembly referred to. It is, of course, obvious that a wife may purchase real estate without the joinder of her husband, and so much of the act, therefore, as relates to that, is clearly unnec- essary. 44 * The act does not seem to provide for the case of a woman with a lunatic husband. 45 Married Men. 81. The act provides for the case of a man whose wife is (44) P. L,. 462, Sec. i. (443) See 24, ante. (45) The Act of May 25, 1878, P. L. 154, provides as follows: "That from and after the passage of this act, any married woman whose husband has been duly found to be a lunatic by a court of competent jurisdiction within this commonwealth, and who owns lands as her separate estate in this commonwealth, in fee simple or otherwise, may dispose of the same by deed or otherwise, or bind the same by mortgage, as fully and completely as she could if she were a feme sole, without her husband joining in or con- senting to said deed or mortgage, subject nevertheless to the rights of the husband under the intestate laws of this commonwealth: Provided, That the Court of Common Pleas of the proper county may, upon the petition of the committee of the husband, authorize the sale of his rights to or interest in such real estate." 8 1 MARRIED MEN. 77 a lunatic or a minor. 45a It is not necessary to proceed under the act in the case of a husband with a wife under age, since the Act of March 22, i865, 45b by which her execution and ac- knowledgment of a deed of his real estate is valid notwith- standing her minority. In the case of a man with a lunatic wife, there is no requirement that she should be so found by inquisition and he can petition for permission to convey without the joinder of his wife, setting forth the fact of her lunacy, and upon that being shown, the court can authorize the sale without other pro- ceedings. Since in this case the wife is entitled to dower at common law, security should be entered for the protection of the estate of the lunatic wife, if she should survive her husband. If the husband is abandoned by his wife or she is absent and un- heard of for seven years, or is a habitual drunkard, the case is not provided for and the husband would not be able to dispose of his property. 46 As any one of these misfortunes may easily happen to a married man, the act seems to be defective in so far as it does not provide for such contingencies. 461 (45a) The case of a married man with an insane wife is provided for by the Act of October 28, 1851, P. L. (1852) 725, Sec. 7, which reads as follows : "That when any married woman in this commonwealth hath become insane, it shall be lawful for her husband upon application to the Court of Common Pleas of the proper county to select and appoint three discreet and intelligent persons, one of whom shall be a practicing phy- sician, who shall make an examination, personal or otherwise, of such alleged insanity, and report the facts to the court, and if the said court be fully satisfied that the said married woman is insane, and approve the said report, the same shall be filed of record in said court, and the husband shall thenceforth, upon giving good and sufficient security to the commonwealth for the faithful performance of his trust, have full power to transact all business relating to the management or disposition of his or her real and personal estate, in as full and ample a manner as he might or could do if his said wife was sane, and gave her full con- sent thereto." (45b) P. L. 30. (46) See J 62, ante. (46a) An absent husband who is shipwrecked or by sickness or other casualty unable to maintain himself, may sell or mortgage so much of his real estate as shall be necessary to relieve him and bring him home again to his family, Act Feb. 22, 1718, i Sm. L. 99, Sec. 3. The act does not tell us how a shipwrecked husband, cast away, for instance, on the South Sea Islands, could mortgage or convey his Pennsylvania real estate so as to raise the money to get home. 78 LEGAL DISABILITIES. 82, 83 Corporations. 82. Corporations are referred to in several places in the act apparently authorizing them to petition for a sale, etc. Where a corporation is trustee and proceeds as trustee, its character as a corporation disappears in its character as a trustee, and it is in the same position as an individual trustee. Where, however, it is not a trustee but is merely acting with respect to the corporate prop- erty, several questions arise, as follows : ( i ) as to the corporate capacity to convey, (2) as to defects in title unconnected with the character of the corporation, (3) holdings in excess of the amount fixed by law, (4) charitable, religious, etc., associations. Corporation has Capacity to Convey. 83. So far as the capacity of a corporation to convey is concerned, the provisions of the act seem unnecessary because a corporation has power as a corporation to freely dispose of all its real estate unless restrained by statute or some provisions of its charter. This conclusion is further strengthened by the pro- vision of the act in Sec. 2, that nothing in the act contained shall be taken to affect or impair any rights or powers otherwise ex- isting in any person or corporation to sell. 47 If there is a defect in the title, then of course the corporation will proceed because of the defect, just as an individual would, and not because it is a corporation. A few of the statutes conferring corporate capac- ity to convey are referred to in the note. 48 (47) See 24, ante. (48) Iron and other manufacturing and mining corporations may mort- gage their property, Act June n, 1867, P. L. 1372, Sec. i. Mining com- panies incorporated under the Act of 1854, April 21, P. L,. 437, may sell real estate by board of directors, subject to consent of a majority of the stockholders obtained at a special meeting, Act of March 27, 1865, P. L. 34, Sec. i. Directors of mining companies incorporated under the Act of July 18, 1863, may not sell any mine or mines without the consent of a majority of the stockholders (1871) May 8, P. L. 265, Sec. 2. Real estate companies may hold, sell and convey real estate, Act April 17, 1876, P. L,. 30, Sec. 10. Title companies may purchase and sell real es- tate, Act May 9, 1889, P. L. 159, Sec. i, Cl. 8. Corporations now under Act of April 29, 1874, P. L. 73, Sec. i, Cl. 4, and its supplements, have power to "hold, purchase and transfer such real and personal property as the purposes of the corporation require, not exceeding the amount limited by its charter or by-laws." All corporations may mortgage real estate, Act May 21, 1889, P. L,. 257, Sec. i. Insurance companies may receive, 83 CORPORATIONS. 79 Corporations may, by Sec. 7, make and take conveyances by deed acknowledged in court without public sale in order to square and adjust lines between adjoining owners ; may make and take conveyances to perfect the partition of real estate held in joint tenancy, coparcenary or in common with others; may purchase other real estate needful (adjoining) to that already owned by any such party or useful to the business thereupon carried on, or when necessary to protect any such security or rent held on property exposed to judicial sale. Provided, that no corporation shall be so authorized to purchase beyond its charter license. 49 By the supplement of April 18, i864, 50 corporations may make and take or join with owners of other undivided interests in making and taking conveyances by deed acknowledged in court and without a public sale, in order to change in part or in whole the route and location of any right of way or passage existing over and upon adjoining or other lands, security to be required in such case in the discretion of the court. These provisions seem unnecessary, as a corporation may perform any of these acts under its ordinary corporate powers. hold and convey real estate in certain cases under Act of May 28, 1907, P. Iy. 296. By Act of April 15, 1891, P. L. 15, Sec. I, amending "Act of June 25, 1885, P. L. 178, which amended the Act of April 20, 1874, P. L. no, Common Pleas may authorize public or private sale of real estate belonging to a corporation which has been dissolved upon petition of a shareholder or corporator, with notice to all parties in interest and by ad- vertisement as the court may direct. Sale to be made by a trustee to be appointed who shall give security in double the amount of the probable value of the land. Proceeds to be distributed as the effects of the cor- poration and also court may decree conveyances in specific execution of a contract in manner aforesaid. (49) A series of statutes have been passed authorizing corporations to hold property purchased at judicial sale. Each act authorizes corpo- rations to hold real estate theretofore bought for a further period of five years, and so long as the legislature continues to pass these acts, there seems to be no occasion to resort to the court under the clause in the Price Act. The validating statutes are as follows : Act of June 10, 1911, P. L. 871, which applies only to banking companies and excepts rail- road rights of way; Act of April 15, 1903, P. L,. 200; Act of April 20, 1897, P. L. 28; Act of May 18, 1893, P. L. 88; Act of May 26, 1887, P. L. 274; Act of May 22, 18831, P. I* 41 ; Act of May 27, 1878, P. L. 96. See Act of June 15, 1911, P. L,. 955. (50) P. L. 426, Sec. i. 8o LEGAI, DISABILITIES. 84 Corporate Holdings in Excess of the Amount Prescribed by Law. 84. It is provided in Sec. 5, that where a corporation shall own real estate beyond that which is authorized, 51 and no pro- ceeding to procure a forfeiture shall have been commenced, it may have a sale confirmed under the act so as to bar the right of the commonwealth to forfeiture. The petition must, how- ever, as in the case of a petition to bar contingent remainders, set forth an explanation of the title and the purpose to defeat the right of the commonwealth to forfeiture. 52 Under this pro- vision, a corporation of this character, able to hold real estate (51) The Act of May 15, 1913, P. L. 214, provides "That all corpora- tions within the Commonwealth of Pennsylvania, incorporated for pur- poses not for profit, under any general or special law of the Common- wealth of Pennsylvania, or which may hereafter be incorporated under the authority of the same, have, and shall have, the right to own, hold, use, and enjoy real estate, within this commonwealth, of the clear yearly rental value or income of fifty thousand dollars, any limitation con- tained in the charters of such corporations to the contrary notwithstand- ing. Section 2. All acts or parts of act inconsistent with this act are hereby repealed." This act seems to supersede as to real estate several earlier acts, for instance, the Act of July 15, 1897, P. L. 283, Sec. 2, providing that corporations not for profit should not hold real estate in excess of the clear yearly value of $20,000. By Act of April 22, 1889, P. L. 42, the clear yearly value of the real and personal estate of literary, religious, charitable or beneficial societies, congregations or corporations was fixed at $30,000. See Act of April 26, 1855, Sees. 4, 8, and 12, P. L. 328. Confer Act of Feb. 20, 1854, P. Iy. 90, Sec. 3, by which the court is directed in granting the charter to limit the clear, yearly income other than from real estate. See Foulke, Rule against Perpetuities in Penna., (1909) Sec. 657. The proceedings for forfeiture are under the Act of April 26, 1855, P. L. 328, Sec. 9. By the Act of June 6, 1893, P. L. 324, any religious, educational, literary, social or charitable corporation may obtain the consent of the Court of Common Pleas to an increase in the amount of their holdings. See Kortright's Est., 237 Pa. 143 (1912), s. c. 21 D. R. 248. (52) It seems that in such a case a corporation may sell, independently of the act, but the title of the purchaser will be defeasible on proceed- ings by the commonwealth just as the title of the corporation was. In Leazure v, Hillegas (1821), 7 S. & R. 313, it was held that the Bank of North America, which by its charter was authorized to hold, purchase and sell lands, but were restrained by its charter as to amount, might sell by a good title land which they had purchased in excess of the amount, but that the title of the purchaser was defeasible by the commonwealth just as the title of the grantor was. 85 CORPORATIONS. 81 only of a limited amount, may find it desirable to proceed for the sale of the property. Religious, Beneficial and Charitable Corporations. 85. Where the title to land is vested in a religious, charit- able, or beneficial corporation, it seems clear that the corporation can convey, mortgage or deal with the title as a corporation with- out the aid of the court as well as any other corporation. 53 An unfortunate notion seems to have obtained, however, that such a corporation cannot dispose of its title by virtue of its corporate capacity but must obtain the authority of the court by proceed- ings under the Price Act. 54 Traces of this notion are to be found in the books 55 and cases have arisen in practice where the parties have, under its influence, invoked the jurisdiction of the court to confirm a mortgage or sale, etc., by such a corporation, 56 al- though proceedings under the act seem to be unnecessary as such a corporation has a right to sell unless restrained by statute or charter, 58 or there is a prohibition of a sale by the donor. The Act of May i, iQO/, 59 authorizing the division of charit- able corporations, provides in Sec. 5, that the court (C. P.) may authorize such conveyances of property as may be necessary to carry the division into effect. (53) See 83, ante, as to corporations. (54) The provisions of the act are, "that such sale, etc., may be de- creed when the title is held for religious, beneficial or charitable societies or associations incorporated or unincorporated or for or by any other corporation." (55) See remarks of Mitchell, J., in Nauman v. Wiedman, 182 Pa. 263 at 266 (1897), s, c. 40 W. N. C. 509, 37 Atl. Rep. 863, 14 Lane. L. R- 3<>5; Seif v. Krebs, 239 Pa. 423 (1913). (56) In Corr's Est, 29 Pa. C. C. 276 (1903), s. c. 12 D. R. 788, there was a devise to the school of a certain church, which the court said was in ease of the church and vested the title in the church, and hence the petition was properly presented in the corporate name of the church, and a petition apparently for confirmation of a private sale, was confirmed. See Church's Pet., I Lack. L. N. 89 (1887), C. P., Church's Pet., 166 Pa. 42 (1895); Dictum, Cushman v. Church, 188 Pa. 438 (1898), Clayton, P. J., in the court below, at p. 445, s. c. 6 D. R. 607 (1907). (58) Phillips v. Church, 225 Pa. 62 (1909). Sulzberger, J., in the court below, said that the church had a common law right to sell unless re- strained by statute or charter. (59) P. L. 140. 82 LEGAL DISABILITIES. 86 Religious, Beneficial and Charitable Associations. 86. The act provides for the sale, etc., where the property is held by or for religious, beneficial and charitable associations. Where the property is held in trust for such an association, the jurisdiction of the court is conferred by the clauses relating to trusts. The only difficulty which arises is where, if such a case could arise, the title is in the association. It seems, how- ever, that in such case the legal title cannot vest in an associa- tion. 60 If any case should arise where a conveyance has been made to such an association or an attempt been made to vest the title in them, then there would be a proper case to invoke the jurisdiction of the court. The petition then should be by the chief officers of the association duly authorized at a proper meet- ing of the association in accordance with the by-laws, and then if the court finds the sale to be to the interest and advantage of the parties, the officers or such persons as may be directed may make the sale and vest a good title in the purchaser. (60) See Foulke, Rule Against Perpetuities, etc., in Penna. (1909), sec. 723- LIMITATIONS OF AND LIENS UPON THE TITLE. 83 CHAPTER 5. Limitations of and Liens Upon the Title. Estates tail Preliminary 90 Not necessary to resort to act 91 Proceedings under act may not bar vested remainders 92 As to purchase money 93 Requisites of petition 94 Mortgage of an estate tail 95 Lease of an estate tail 96 Contingent remainders Preliminary 97 Provisions of the act 98 Distinction between equitable and legal remainders 99 Contingent remainders and ultimate vested remainders 100 Requisites of petition 101 Notice 102 Remainders to a class Preliminary definition of remainders to a class 103 Formerly supposed that act provided for remainders to a class 104 Price Act did not provide for remainders to a class 105 Acts of 1897 providing for remainders to a class 106 Equitable remainders to a class 107 Disharge of purchase money from remainders Preliminary 108 Legal remainders 109 Equitable remainders no Mortgage of property which is subject to contingent remainders in Executory devise 112 Lien of debts not of record Preliminary 113 Provisions of the act 114 Act of 1832 to be distinguished 115 Grenawalt's Appeal 116 Rower's Appeal 117 Pierce's Estate 118 Orwig's Estate 1 19 Yard's Estate 120 Spencer v. Jennings 121 Burkhardt's Estate 122 West v. Cochran 123 Distinction between Price Act and earlier acts 124 Private sale discharging lien of debts 125 84 LIMITATIONS OF AND LIENS UPON THE TITLE. 90, 91 No jurisdiction under the act where the lien of debts has expired 126 Distribution of the proceeds of the sale 127 Act applies to executors selling under a power 128 Modified fees 129 Estates Tail. Preliminary. 90. The act provides that such sale, etc., may be made in the case of an estate tail. All estates tail are now turned into estates in fee under the provisions of the Act of April 27, I855, 1 and it is therefore unnecessary to resort to this provision except in the cases of old estates tail, some of which are perhaps still in existence. It appears from the remarks of Mr. Price, 2 that the act was intended to furnish a method of proceeding similar to a common recovery. 3 Not Necessary to Resort to Act to Bar an Entail. 91. The jurisdiction under the Price Act is rarely used be- cause it is so much easier to bar the entail by a deed executed (1) P. L. 368, sec. i. For a more detailed discussion of this act and of the history of estates tail, see Foulke, Rule Against Perpetuities, etc., in Penna., (1909) Sees. 23, 24. No reference is made in that discus- sion to the provisions of the Price Act for unfettering entails. The Act of 1855 does not apply to estates tail created by the will of a testator dying before the passage of the act, but does apply to an estate created by will dated before the act, where the testator has died after the act; Reinhart v. Lantz, 37 Pa. 488 (1861). For other cases of estates tail created before the act, see Price v. Taylor, 28 Pa. 95 (1857) ; Morris v. Fisher, 8 D. R. 161 (1899); Kinsel v. Ramey, 87 Pa. 248 (1878); Titzell v. Cochran, 7 Sad. Cases, 15 (1887). An estate tail descends in Pennsylvania as at common law; Guthrie's App., 37 Pa. 9 (1861), ap- parently overruling some earlier cases to the contrary. A judicial sale of an estate tail or a decree in partition will operate as a common re- covery under the Act of April 15, 1859, P. L. 670, Sec. i. See Curtis v. Longstreth, 44 Pa. 297 (1863). (2) Price on the Act for the Sale of Real Estate, (1874), PP- i 59- (3) Act of Jan. 27, 1749-50, i Sm. L,. 203, provides for a common recovery to bar entails. By Act of April 10, 1851, P. L. 505, Sec. 5, cer- tain defective deeds are confirmed, and the Act of June 20, 1883, P. L,. 130, Sec. i, Provides that any person claiming under a tenant in tail by conveyance or judicial sale, may bar the entailment in like manner as the tenant in tail. 92, 93 ESTATES TAIL. 85 under the provisions of the Act of January 16, 1799,* which ob- viates the necessity of proceedings in court and the giving of security. Such a deed clearly bars all contingent and vested re- mainders limited on the estate tail, whereas it is not clear whether proceedings under the act would have the same effect where the remainders are vested. 5 Proceedings "Under Act May Not Bar Vested Remainders. 92. The remainders after an estate tail may be vested or contingent. It is clear that the proceedings under the act will destroy contingent remainders since they are expressly provided for without reference to the nature of the estate upon which they are limited. 6 There is some doubt whether the proceedings under the act destroy vested remainders limited after an estate tail. They are not expressly provided for and the act only speaks of barring destructible contingent remainders. 7 Mr. Price seems to be of the opinion that the vested remainders would not be destroyed. 8 The question is not likely to arise, as the estate tail may be barred by the deed executed under the statute, 9 which clearly destroys the vested remainder. Since, however, a vested remainder may thus be barred by proceedings independently of the act, there seems to be no constitutional ob- jection to making the statute provide for the destruction of vested remainders after an estate tail. . As to Purchase Money. 93. No case has been found deciding whether the purchase money substituted for the estate tail is also turned into an abso- lute estate and to be entirely paid over to the former tenant in tail as if he were owner in fee. Such would be the result of the (4) 3 Smith's Laws, 338, Sec. i. For instance of such a deed, see Eichelberger v. Barnitz, 9 Watts 447 (1840) ; Cochran v. Cochran, 127 Pa. 486 (1889) ; Boyd v. Wingate, 13 W. N. C. 56, s. c. 14 L. Bar. 205 (1883); Linn v. Alexander, 59 Pa. 43 (1868). (5) Implied entailment barred after twenty-one years' possession by deed under Act of May 21, 1874, P. L. 221, Sec. i. (6) See 97, post. (7) Price on the Act for the Sale of Real Estate, (1874), p. 10. Query: What is the distinction between a destructible and an indestructible con- tingent remainder? (8) Price on the Act for the Sale of Real Estate, (1874), p. 98. (9) See 91, ante. 86 LIMITATIONS OF AND LIENS UPON THE TITLE. 94, 95, 96 barring of an entail under the statute. It is provided in Section 5 that such sale shall have the effect of any other proceeding or conveyance now authorized by law, and strictly conducted to a final conclusion to bar any estate tail, and in such case shall vest in the tenant in tail whether minor, femme covert or otherwise, who after such proceeding might have become entitled to the absolute fee simple, the absolute right to the purchase money, provided the petitioner shall set forth the title and the purpose of the sale. Sec. 6 provides that the purchase money or mortgage, ground or other rent reserved shall in all respects be substituted for the real estate and applied for the use and benefit of the same per- sons having a future, etc., interest, except only such remainders after an entailment or contingent remainder as shall have been barred or defeated, as aforesaid. Mr. Price 10 says that the purchase money will be discharged of the limitations in contingency when that purpose is set out in the petition and passed on by the court. Requisites of Petition. 94. The petition should be made by the tenant in tail, and the purpose of barring the entail should be set out in the peti- tion, 11 and be provided for in the decree of the court. 12 Mortgage of an Estate Tail. 95. Where there is a proceeding to mortgage an estate tail, it is apprehended that the proceeding will result in giving the mortgagee an encumbrance upon a title which, for the purpose of the mortgage, would be considered a fee simple, and upon a sale under the mortgage, the purchaser would obtain a fee simple. What effect such a decree would have upon the estate tail remaining in the tenant in tail, and whether if a mortgage were paid off the title would be affected, are questions not pro- vided for in the act, and hardly likely to arise. Lease of an Estate Tail. 96. Where there is a lease of an estate tail, it is probable that the tenant in tail would have no occasion to resort to the (10) Price on the Act for the Sale of Real Estate, (1874), p. 99. (n) Price on the Act for the Sale of Real Estate, (1874), p. 100. (12) Price, Act for the Sale of Real Estate, (1874), p. 10. 9798 CONTINGENT REMAINDERS. 87 court, as he could make an ordinary lease by virtue of his author- ity as tenant in tail. Preliminary Discussion of Contingent Remainders. 97. Where property is subject to contingent remainders, it is practically inalienable because it is not possible to find a pur- chaser who will pay the market price if he takes it subject to the remainders, and it is very difficult for the party who holds subject to the contingent remainders and the purchaser to agree on a sum which will represent the interest of the life tenant, as the contingency will happen to the advantage of one or the other, and neither wants to run the risk of a detriment to himself or permit the other to reap the advantage of the contingency turn- ing out in his favor. The learned reader is reminded at this point that contingent remainders in Pennsylvania are destroyed by the surrender merger or natural expiration before the hap- pening of the event of the preceding particular estate, 13 upon which they depend, and also upon a common recovery suffered by the tenant of the preceding particular estate, that it is doubtful whether they are destroyed by forfeiture of the preceding estate for treason or for violation of a restriction imposed by a pre- vious owner of the title, and that they are not destroyed by a conveyance of the preceding estate by a lease and release, by a Pennsylvania deed in the ordinary form under the Act of 1715, or by a conveyance by the cestui que trust. 14 Provisions of the Act as to Contingent Remainders. 98. The act provides that such sale, etc., may be made where property is subject to contingent remainders. This proviso was inserted in the act in order to permit the sale, etc., where property is subject to contingent remainders, and furnishes a means of bringing such property into the market and making it as salable as if there were no such remainders limited thereon. The provision is clearly designed to provide for the destruction of the contingent remainders by an ordinary conveyance made under order of the court, as prescribed in the act. (13) Which in Pennsylvania can, except only in rare instances, be nothing but a life estate. (14) See Foulke, Rule Against Perpetuities, etc., in Penna., (1909) Sec. 62. 88 LIMITATIONS of AND LIENS UPON THE TITLE. 99 The contingent remainders must really exist, and the aver- ment in the petition if their existence will not bring the case within the clause of the act unless the facts correspond. Con- sequently, in Wagner's Appeal, 15 it was held, where the sale had taken place, and it turned out that there were no contingent re- mainders, that the act did not apply and there was a conversion of the interest of a minor. A few instances of cases of sales to bar contingent remainders are collected in the note. 16 In Murray's Estate, 17 there was a gift of the residue in three shares, each share for a child for life with contingent remainders over. A portion of the real estate was sold after the death of one of the life tenants, and it appears that at that time the in- terests were undivided. If this is so, the petition was correct in stating the purpose of barring contingent remainders and ex- ecutory devises because there were probably contingent remain- ders limited after the estates of the other life tenants, but if the sale was of a part which had been set aside and divided into a third, then there were no contingent remainders to bar, because the life tenant being dead, the remainders were all vested in his chil- dren, and the sale was therefore a sale of the interest of a minor and not a sale to bar contingent remainders. Distinction Between Legal and Equitable Remainders. 99. The contingent remainders may be legal or equitable. If equitable, the trustee having the custody of the legal title may dispose of the same under the clauses of the act relating to trusts, 18 and in such case the circumstance that the equitable re- mainders are contingent seems to be immaterial. In a number of cases, however, the courts have authorized a sale by a trustee and sustained the jurisdiction exercised chiefly on the ground that the equitable remainders were contingent. 19 If the court may (15) 89 Pa. 303 (1879). (16) Keim's App., 125 Pa. 480 (1889). Life tenant petitioned for the order of sale and was appointed trustee to make it; see High's Est, 136 Pa. 222 (1890); Grindrod's Est., 140 Pa. 161 (1891); Brooke's Est., 214 Pa. 46 (1906), affirming 15 D. R. 137 (1905), raises a question of construc- tion whether there were vested remaindermen who could object to the sale. (17) 234 Pa. 520 (1912). (18) See 136, post. (19) Moorehead v. Wolff, 123 Pa. 365 (1889), 23 W. N. C. 167, 36 Pitts. L. J. 352, 46 L. I. 261. Confer Rhoades's Est., 4 W. N. C 527 (1877). ioo, ioi CONTINGENT AND ULTIMATE VESTED REMAINDERS. 89 authorize the sale by the trustee where the equitable remainders are vested, 20 then it seems that in the case of a trust, it is not necessary to proceed on the ground that the remainders are con- tingent. In this case the jurisdiction to be exercised on the ground that the property is subject to a trust. Contingent Remainders and Ultimate Vested Remainders. 100. The question arises whether in the case where there are contingent remainders followed by ultimate vested remain- ders the proceedings under the act will bar the vested remainders. If a vested interest cannot be divested without the consent of the owner, there seems to be room to argue that there is no dis- tinction between a vested interest and a vested interest subject to be divested. The question has not been decided by the Su- preme Court, and in one case in the lower court it was held that the act authorized a sale. Such a remainderman has really no greater right than a con- tingent remainderman because his remainder is in fact contingent, although not so regarded owing to the ancient principles of the feudal law. 22 Requisites of Petition. 101. The petition asking for the exercise of this jurisdic- tion should set out the title, show the contingent remainders, and specify that it is the purpose of the proceeding to pass a title clear and discharged from the limitations. 23 If the pe- tition fails to properly set out the object of the proceedings, there is some doubt whether the purchaser, who has in good faith ac- (20) See 136, post. (21) In Gamble's Est, 9 D. R. 691 (1900), there were ultimate vested remainders which were said to be defeasible as liable to be divested by the falling in of the contingent remainders, and the sale was nevertheless ordered notwithstanding the objection of the ultimate vested remainder- men. The petition was by the life tenant. (22) See Foulke, Rule Against Perpetuities, etc., in Penna., (1909), Sec. 39, et. seq. (23) McCaffrey v. Gibney, 223 Pa. 368 (1909). No executory devise here although the court seemed to think so. See Diet. Strong, J., in Smith v. Townsend, 32 Pa. 434 at 442 (1859) ; Westhafer v. Koons, 144 Pa. 26 (1891). As to what is a proper averment, see remarks of Mestrezat, J., in Swift v. Harbison- Walker R. C., 228 Pa. 584 (1910) at 587. 7 90 LIMITATIONS OF AND LIENS UPON THE TITLE. 102, 103 cepted the title under the decree of the sale and paid the pur- chase money, will be protected. 2 * Notice. 102. Where the sale is made for the purpose of divesting contingent remainders, a distinction should be made between the two kinds of contingent remainders so far as the question of notice is concerned, (i) those where the remainder is limited to an ascertained person subject to a condition precedent, (2) those where the remainder is limited to an unascertained person. Where the remainderman is ascertainable he must be notified, otherwise his title will not be divested by the proceedings. It seems that in such a case he cannot attack the decree, but is rele- gated to an action of ejectment against the land. 25 Where the remainderman cannot be ascertained, a trustee should be ap- pointed to represent him. 26 Preliminary Definition of Remainders to a Class. 103. Where there is a remainder to a class of persons, as children, etc., which class is likely to increase, and there is one member of the class in existence, there is in that member a vested interest the value of which is uncertain until all the mem- bers of the class are ascertained. The common, although some- what inaccurate phrase applied to such a state of affairs is, that there is a vested remainder liable to open and let in after-born children. These remainders lie midway between vested and con- tingent remainders, but within the evil of contingent remainders because the property is inalienable so long as there is any possi- bility of an increase in the membership of the class, and the con- tingent remainder to children, will exist in the eye of the law even though the mother is past the age of child-bearing. 27 (24) In Westhafer v. Koons, 144 Pa. 26 (1891), it was held that the purchaser at the sale could refuse to take the title. See 220, post, on Orphans' Court sales. (25) Grindrod's Est., 140 Pa. 161 (1891). (26) See the remarks of Swartz, P. J., in the court below in Grind- rod's Est., 140 Pa. 161 at 164 (1891). Trustee of contingent equitable remainders in possee to a class appointed in Moorehead v. Wolf, 123 Pa. 365 (1889), 2$ W. N. C. 167, 36 Pitts. L. J. 352, 46 L. I. 261, and in Mc- Caffrey v. Gibney, 223 Pa. 368 (1909). (27) Westhafer v. Koons, 144 Pa. 26 (1891). 104, 10 5> IQ 6 REMAINDERS TO A CLASS. 91 Formerly Supposed that the Act Provided for Remainders to a Class. 104. It was for a long time apparently supposed that the provision in the act nevertheless covered the case, and in several instances sales to bar such remainders were authorized. 28 Mr. Price 29 was of the opinion that the case of a remainder to a class was provided for by the act as a devise or grant for special or limited purposes. Price Act Did Not Provide for Remainders to a Class. 105. When the question came before the Supreme Court, in the case of Keller v. Lees, 30 the court said that the remainder became vested as soon as a child was born, and therefore the case was not within the act. If, however, the interest of one child was vested, that was enough, under the law as it then stood, to prevent the sale. The other remainders could not be divested and the one remain, because it could not be determined until the termination of the life estate, what the share of each in the land would be. It is suggested that this was the proper ground for the decision. 31 Acts of 1897 Providing for Remainders to a Class. 106. In consequence of this decision, the Act of June 14, i897, 32 amending the Price Act, and the Act of June 15, i897, 33 (28) See Westhafer v. Koons, 144 Pa. 26 (1891) ; Fox's Est., 18 Pa. C. C. 114 (1896), s. c. 2 Lacka. Law Notes, 292; sub nom. Greenwalt's Est, 5 D. R. 314, 2 Dauphin Co. 358; in this case the court, Simonton, P. J., indulged in an elaborate discussion of the nature of a remainder to a class, and concluded that it was in fact contingent. The remaindermen were all minors which might alone have justified the sale. "We also think that . . . the court would have jurisdiction to order the sale prayed for under the clause which provides that such sale may be or- dered in all cases where estates have been or shall be devised or granted for special or limited purposes." Camber's Est, i W. N. C. 85 ( 1874) ; the petition was by the life tenant, and the question was not discussed, the decision being placed on the ground of necessity to sell to pay for municipal improvements, as to which see 30 ante. Moorehead v. Wolf, 123 Pa. 365 (1889), s. c. 23 W. N. C. 167, 36 Pitts. L. J. 352, 46 L. I. 261. (29) Price on The Act for the Sale of Real Estate, (1874) p. 108. (30) 176 Pa. 402 (1896). (31) See Crawford v. Forest Oil Co., 208 Pa. 5 (1904). (32) P. L. 144, Sec. i, which provides for the sale, etc., whenever prop- erty is subject to vested remainders which are liable to open and let in after-born children. (33) P. L. 159, which authorizes the sale, etc., of lands which have 92 LIMITATIONS of AND LIENS UPON THE TITLE. 106 were passed authorizing a sale, etc., in the case where there is a remainder to a class. The Act of June I4th expressly amends the Price Act and limits the jurisdiction to the case of remainders to children. The Act of June i5th is an independent act follow- ing the phrases of the Price Act and confers the jurisdiction only on the Orphans' Court. It is therefore possible to proceed in the Common Pleas in a proper case where there is a limitation to children but in all other cases of a remainder to a class the proceedings must be in the Orphans' Court, otherwise the re- mainder cannot be barred. Each act confirms all sales there- tofore made in the case specified. The Act of June i5th very curiously enough ratifies sales therefore made in both the Com- mon Pleas and Orphans' Court. It is to be observed, however, that if in any case no member of the class is born, the remainder is entirely contingent, and a sale will be proper under the Act of 1853 as it stood before the amendment. 3 * been or shall be devised or granted for life or the life of another and with remainder limited to a class of persons some or all of whom may not be in being at the time of the decree. For text of the act see ap- pendix A. (34) In the following cases a sale was authorized to bar remainders to a class: Smith's Est., 207 Pa. 604 (1904), where there was a petition by life tenants of io-i2th of the property and some of the remaindermen in esse, wh)>h was resisted by tenant for life of two-twelfths and the other remaindermen. Sale was decreed. The contingent remainders were to children or grandchildren. In Loucks's Est., 203 Pa. 278 (1902). there was a petition by the life tenant, remainder to children, sale de- creed. In Hinkson v. Lees, 181 Pa. 225 (1897), the testator by will dated 1841 devised to A. for life, and after his death to his lawful children and their heirs and assigns subject to a certain annuity, but if A. should die without leaving lawful issue to survive or such issue who shall not attain the age of twenty-one years, then to the lawful children of B. subject to his life, and if they survive him and live to the age of twenty-one years, or their lawful issue, to hold the same to them, their heirs and assigns, but if B. should die without leaving lawful issue, as aforesaid, then to the children of C. in equal shares, their heirs and assigns. The land embraced in the devise was sold under the Price Act by X. as trustee to bar any contingent remainders or executory devises, and the con- troversy arose over the distribution of the fund. It was held that the chil- dren of A., when born, took a vested remainder liable to be divested, and the children of B. took nothing until the happening of the contingency, and when that failed, their interest entirely dropped out. 107, IQ 8 DISCHARGE OF PURCHASE MONEY. 93 Equitable Remainders to a Class. 107. Where there are equitable remainders to a class, the' doubt as to the jurisdiction under the act does not exist because a trustee may be authorized to sell under the clauses of the act relating to trusts even if there are vested equitable remainders. 35 As to the Discharge of the Purchase Money from the Contingent Re- mainders. 108. It is doubtful whether the proceedings under the act discharge the purchase money from the grasp of the contingent remainders. 36 (35) See 136 post. See Owens' Pet., 3 D. R. 328 (1894), which was a case of a sale by a trustee where there were vested equitable remainders. (36) The act provides, Section 5, "... and every such sale and every conveyance in fee simple upon ground rent, shall have all the ef- fect of any other proceeding or conveyance now authorized by law and strictly conducted to a final conclusion, to bar any estate tail, and to de- feat contingent remainders, and in such case shall vest in the tenant in tail, or particular tenant, whether minor, feme covert or otherwise, who after such proceeding or conveyance might have become entitled to the absolute fee simple title, the absolute right to the purchase money, and the ground rents reserved, and such sales and conveyances on ground rent shall also bar any right of the commonwealth to forfeit real estate that may have been held by or for any corporation beyond what has been authorized, if no proceeding to procure a forteiture shall have been com- menced before petition filed for a sale or letting on ground rent; Pro- vided, that the petition shall set forth an explanation of the title, and of the purpose to bar the entail defeat the contingent remainder or the right of the commonwealth to have inquisition for any estate defeasible as aforesaid; And provided, That the purchase money or rent reserved shall be a lien on the premises sold or let, until fully paid according to the decree of the court." Section 6. That the purchase money, or mortgage money, ground or other rent reserved, shall in all respects be substituted for the real es- tate sold, mortgaged, or let, as regards the enjoyment and ownership thereof, after the payment of liens, and shall be held for or applied to the use and benefit of the same persons, and for the same estate and in- terest, present or future, vested, contingent, or executory, as the real estate sold, mortgaged, or let, had been held, except only such remainders, after an entailment or contingent remainders, as shall have been barred or defeated as aforesaid, and those entitled to a present interest in such real estate, shall receive the interest of the proceeds or rents thereof, unless expressly directed to accumulate : Provided, That no principle monies raised by sale or mortgage, as aforesaid, shall be expended for any other purpose than for the payment of liens upon or the improve- ,94 LIMITATIONS OF AND LIENS UPON THE TITLE. 109 It is perfectly clear and well-settled that the sale under the act when properly conducted discharges the title in the hands of the purchaser from the contingent remainders. It remains to consider whether the purchase money which is substituted for the land is, in like manner, freed from the grasp of the contin- gent remainders. The question is important because if the con- tingent remainders are destroyed as to the purchase money, the life tenant of the preceding estate, where there are no ulterior vested interests, will have his estate enlarged into a fee by the operation of the sale, whereas if the contingent remainders are not destroyed, he will be in the same position as he was in before the sale, so far as the quantum of his interest is concerned. The question does not appear to have been decided by the Supreme Court, and in view of the large interests which no doubt have frequently been at stake, it is somewhat surprising that no con- troversy has arisen. We must distinguish in the discussion be- tween legal remainders and equitable remainders. Legal Remainders. 109. We have seen that in the case of an executory devise, the title of the executory devisee is not destroyed by the sale under the act, probably because before the act was passed his interest was indestructible by any act of the tenant in fee without his consent, and the act makes no provision for destroying it. In the case of a contingent remainder, the law, before the act was passed, was different. A common recovery completely de- stroyed the contingent remainders so that the right of the con- tingent remainderman was lost forever, and the tenant of the preceding estate had his interest enlarged to a fee. There there- fore was, and probably still is, a way open by which the tenant of the preceding particular estate can destroy the remainders and give himself a fee. Mr. Price 87 says that, as he understands the act, it is not to ment of the same real estate when mortgaged, or other real estate when held for the same uses and persons, unless the same be required for the maintenance or education of parties having the like interests vested or expectant, and can be equally and equitably so applied, and without diminution of the capital that may of right become the property of parties having unbarred interests or title in remainder, or by executory devise. (37) Price on the Act for the Sale of Real Estate, (1874), p. 10. ICQ DISCHARGE OF PURCHASE MONEY. 95 be used merely for the purpose of enabling the owner of the particular estate or defeasible title to get one for himself in fee, as was the practice under a common recovery, but to give the purchaser a fee simple title and security for those in remainder, except as to those who could consume the fee of right, and that estates tail and destructible contingent remainders may be barred if such purpose be explained in the petition and be sanctioned by the court without accountability for the price to those in re- mainder. Mr. Price further 38 points out that the Act of 1853 has the effect of a common recovery upon the title, but does not, like a common recovery, forfeit any estate but saves the interests in re- mainder. He further says 39 that the question whether the pur- chase money will be discharged of the limitations in contingency will depend upon whether that purpose is clearly set forth in the petition passed upon by the court. And 40 that unless the particular tenant shall consent to do justice to those in remainder or having executory interests, the court will not decree a sale. It seems, therefore, that Mr. Price had not formed a very definite opinion as to whether the contingent remainders were utterly destroyed or not by the proceedings under the act. The language of the act, however, seems to provide that when the contingent remainders are barred and defeated as to the title, they are barred and defeated as to the purchase money also. This ques- tion was expressly raised in High's Estate, 41 but not decided, the fund represented by the sale having been distributed and passed out of the power of the court and the decision going off on other grounds. Cases have arisen where real estate was sold under the Price Act to bar contingent remainders, and the fund was distributed as if the remainders had not been discharged. 42 There are a-lso some remarks to be found in the books which seem to countenance the view that the remainders are not in any peril by the proceedings under the act. 43 (38) Price on The Act for the Sale of Real Estate, (1874) p. 100. (39) Price on The Act for the Sale of Real Estate, (1874) p. 99. (40) Price on The Act for the Sale of Real Estate, (1874), pp. 102, 103. (41) 136 Pa. 222, see p. 234 (1890). See Keim's App., 125 Pa. 480 (1889). (42) Hinkson v. Lees, 181 Pa. 225 (1897). (43) See the remarks of Green, J., in Moorehead v. Wolff, 123 Pa. 365 at 373 (1888), s. c. 23 W. N. C. 167, 36 Pitts. L. J. 352, 46 L. I. 261. "There 96 LIMITATIONS OF AND LIENS UPON THE TITLE. 109 We have noticed all there is to be found in the books on the subject, and it will therefore clearly appear that no statement can be made as to the law. The chief argument on the question arises on the constitutionality of the act. It seems to be essen- tial, in order that the act shall come within the provisions of the constitution, that the purchase money be substituted for the land, and those having an interest in the land before the sale shall have the same interest in the purchase money after the sale. In answer to this argument, it may be said that a contingent remainder was barrable by a common recovery before the act was passed, the constitutionality of which has never been doubted because it existed as a well defined proceeding for cen- turies before the constitution was ever adopted. There is a broad distinction, therefore, on this ground, between the case of a contingent remainder and the case of other interests in the land, and the Supreme Court might well decide that the provisions of the Price Act would authorize the court, when the purpose was set forth in the petition, to enter an order not only destroying the contingent remainders so far as the land was concerned, but also barring them from any interest in the fund. Since, however, they must be notified, the chances are that objection would be made on their behalf, and the court could then very properly, if the circumstances of the case warranted such a proceeding, make an order paying a portion of the purchase money to the con- tingent remainderman, and giving the balance to the tenant of the preceding particular estate absolutely ; thus, in effect, forcing a compromise between the parties as to the distribution of the fund. Such a compromise would be difficult to calculate, and it is quite likely that if faced with such an order, in a majority if the cases the parties would be content to let matters take their natural course and have the purchase money await the happening of the event specified. are certain contingent remainders created by the will the mere 'existence of which would prevent any sale of the property for an adequate price unless they can be defeated by the order of the Orphans' Court; but as the sixth section of the Act of 1853 provides that the purchase money shall be substituted for the land and protects all interests in the land, these remainders are in no peril, but can be amply secured by orders re- specting the purchase money." See Murray's Est., 234 Pa. 520 (1912), Mestrezat, J., at p. 523. no, in, ii2 EXECUTORY DEVISE. 97 Section 2 of the Act of June 15, i897, 4 * expressly provides that the purchase money shall be held for the use and benefit of the same persons and estates, vested, contingent or executory, as the land sold, etc., had been held. It is therefore clear at least that in the case of proceedings under this act in the case of a remainder to a class, the purchase money is not discharged from the contingent remainders. Discharge of Purchase Money from Equitable Contingent Remainders. 110. Where there are equitable contingent remainders, the question does not arise, because the trustee will hold the pro- ceeds just as he did the land upon the same trusts. There was no way before the act was passed, under the law, to divest such remainders from the trust fund although they might have been divested from the land where the sale by the trustee was ap- proved by the chancellor. Mortgage of Property Subject to Contingent Remainders. 111. Property subject to contingent remainders may be mortgaged as well as sold by proceedings under the act. The effect of the decree will be to give the mortgagee a title free of the contingent remainders and the purchaser at the sheriff's sale held under proceedings on the mortgage will take a similar title. When the mortgage is paid off, the title of the mortgagee free of contingent remainders, will disappear, and the title in the mort- gagor will be in the same condition that it was in before the mortgage was authorized, and the contingent remainders will re- main in full force and effect. Executory Devise. 112. An executory devise is of very frequent occurrence, but the jurisdiction vested by the act in this case, to authorize the sale, etc., of property which is subject to an executory devise, is rarely invoked. Since an executory devise can, properly speak- ing, be created only by will, the jurisdiction will in this case be entirely in the Orphans' Court. This distinction, however, has probably been lost sight of in Pennsylvania, and cases will no doubt occur where the Common Pleas will take jurisdiction in the case. The petition should be presented by the owner of the (44) P. I,. IS9- 98 LIMITATIONS OF AND LIENS UPON THE TITLE. 112 fee which is subject to the executory devise, and set out the pur- pose of barring the executory devise, and if the executory de- visee is in being and ascertained he should be notified of the pro- ceedings.* 5 The sale may be made by the owner of the fee which is sub- ject to the executory devise, or the court may appoint a third party. Security should be given to secure the interest of the executory devisee. This is necessary because executory devises retain their grasp on the purchase money as there was no power before the passage of the act in the owner of the fee to destroy or bar them as there was in the similar case of a contingent re- mainder. 46 Mr. Price 47 says that before the act, executory devises and interests were not alienable or barrable, and the query arises, in view of this remark, whether the act is intended to make the executory devise alienable. It seems clear, however, that execu- tory devises were alienable, 48 and there is, therefore, no occasion to resort to the act in such a case. Where an executory devise was limited after an estate tail, it was destructible by a common recovery or by the process which took the place of that action in Pennsylvania. 49 In such case, therefore, where there is a sale under the act, there is room to argue that the executory devise (45) In the following cases, the estate was subject to an executory devise and ordered sold: Greenawalt's App., 37 Pa. 95 (1860), see Greena- walt v. Greenawalt, 71 Pa. 483 (1872), where the petition was by owner of the fee, executory devisee objecting. In Moore's Estate, 9 Phila. 326 ( J 873), s. c. 30 L. I. 176, where the minor had an estate in fee subject to an executory devise, and upon application of the executory devisee, an order of sale which had been issued on petition of the guardian was re- voked, the court said: "It is enough to say that it would be unwise to sell the real estate of a minor in a case where a serious question of title may be raised. It might deter bidders and result in a sacrifice of the property. We think there is such doubt as to this title and therefore revoke the order of the sale." It was not clear what act the petition was presented under. If under the Act of 1853, the sale would have been proper. The court did not consider this point apparently, it being as- sumed that the interest of the minor was contingent upon his arrival at the age of twenty-one years. This erroneous view of the limitation prob- ably led to the error in the decision. (46) Price on The Act for the Sale of Real Estate, (1874) p. 9. (47) Price, The Act for the Sale of Real Estate, (1874) p. 9. (48) Foulke, Rule Against Perpetuities in Penna., (1909) Sec. 79. (49) Foulke, Rule Against Perpetuities in Penna., (1909) Sec. 79, n. 6. ii3 LIEN OF DEBTS OF A DECEDENT NOT OF RECORD. 99 is destroyed and the proceeds of the sale belong absolutely to the owner of the estate tail. This question, however, will only arise in the case of an old estate tail, as under the Act of April 27, 1855,* all estates tail are turned into estates in fee. Preliminary Discussion of Lien of Debts not of Record. 113. Under the statutes making the land of a decedent liable for his debts, it was frequently difficult for his heirs or de- visees or anyone else interested in the land to find a purchaser, and this difficulty was, at the time the act was passed, of a greater practical inconvenience than at present, as at that time the lien was for five years, 52 whereas it is now only for two. 63 This provision was designed to furnish a means whereby the owner could convey the land clear of the lien of the debts. 04 (50) P. L. 368, Sec. i. (52) Act of February 24, 1834, P. L. 70, sec. 24. By Sec. 42 provides that : Real estate of a decedent sold by executor or administrator under order of Orphans' Court in proceedings in partition shall not be liable in the hands of the purchaser to the debts of the decedent where the sale is made after the expiration of two years from the granting- of letters. Where sale is within two years, lien of debt is not discharged, Wilson's App., 45 Pa. 435 (1863); Bricker's Est., 22 Super. Ct. 12 (1903). (53) Act June 8, 1893, P. L. 392. (54) To meet the difficulty, (lien of decedent's debts) we have statu- tory remedies provided of late years. The Act of April 18, 1853, enumer- ated as one of the occasions for authorizing a sale by the court, "where a decedent's estate is subject to the lien of debts not of record." Not long after the passage of this act the question arose whether a private sale ordered by the court would discharge the lien of the debts. The grounds for the doubt were, first, that it was contrary to the analogies of the legislation of this State, to destroy the rights of creditors by a judicial sale without notice to them at least by advertisement ; and second, the language of the act itself, which provided that "by every public sale, all liens should be discharged." In order to remove this doubt, an act was passed in 1867 which expressly authorized this result in a private sale. This has been much opposed, and at a previous session, a bill to the same effect had been vetoed by the Governor under the advice of the then Attorney General, Mr. Meredith. It certainly exposes the rights of creditors to great risk, and even if the provision as to security is care- fully enforced by the court, yet the facility which it offers for sham sales at an undervalue for the benefit of those interested in the estate, cannot be overlooked. It is clear that no such sale should ever be allowed, unless the executor or administrator is made a party as the representative of creditors. Indeed under the terms of the act, which require notice to all persons having any present or expectant interest in the property this ioo LIMITATIONS OF AND LIENS UPON THE TITLE. 114, 115 Provisions of the Act. 114. The act provides that the sale, etc., may be authorized "whenever a decedent's real estate is subject to the lien of debts not of record." 55 As pointed out by Penrose, J., 56 the jurisdiction to authorize a sale free of the lien of the debts of a decedent is in the interests of free alienation, and in such a case the courts should not be astute to find reasons for refusing to relieve the owners from the difficulty. 57 Act of 1832 Distinguished. 115. This clause of the act has given some difficulty be- cause the Act of March 29, i832, 58 authorizes a sale for the pay- ment of debts in the manner and under the circumstances therein specified, and the profession seems, strangely enough, to find some difficulty in distinguishing between the two acts. The distinction is clear. Under the Act of 1832, the sale is for the payment of debts, and it must, therefore, be shown that there are debts to pay. Under the Act of 1853, the sale is merely to relieve from the lien of debts actual or possible, and it makes no difference, therefore, whether there are any debts in point of fact or not. 69 The motion, however, that the Act of 1853 authorizes a sale for the payment of debts took a firm hold on the professional mind, and seems hard to kill. 60 The difficulty has been that the pro- seems absolutely necessary to the validity of the sale, even if we do not go further and say that direct notice to the creditors by advertisement is also requisite. Henry Wharton, Lien of Decedent's Debts in Penna., 6 W. N. C. 545 at 549 (1879). (55) For a criticism of the use of the word "decedent," see remarks of Henry Wharton, 6 W. N. C. 545 (1879). Whatever error there is in tHe meaning of this word or its pronunciation, usage has made it impos- sible to get rid of the error. (56) In Orwig's Est, 19 Phila. 158, 46 L. I. 99 (1889), 7 Pa. C. C. 71. (57) Jermon v. Lyon, 81 Pa. 107 (1876). (58) P. L. 190. (59) In Green's Est., i Del. Co. 521 (1883), there was a petition for order to sell lands of the decedent which were subject to the lien of debts not of record. Order to sell granted. Court said that it was not necessary to show in fact that there were debts not of record. The ex- istence of the statutory liability was sufficient to give the court juris- diction under the Act of 1853. (60) Act of March 29, 1832, P. L. 190, Sec. 31 : The Orphans' Court which possesses jurisdiction of the account of an executor or adminis- trator, shall have power to authorize a sale or mortgage. ii5 LIEN OF DEBTS OF A DECEDENT NOT OF RECORD. 101 ceedings under the earlier act of 1832 were sometimes irregular, and it was sought to justify them under the provisions of the Price Act, which, however, the Supreme Court clearly said could not be done. 61 (A) On application of executor or administrator setting out (1) That personal estate is insufficient to (a) pay debts and provide for education and maintenance of minor children (b) or pay debts. (B) Or of any person interested. (2) That on final settlement of the administration account it appears that (a) there are not sufficient personal assets to pay balance due from estate of the decedent. (C) The executor or administrator must (1) Exhibit to the court inventory and appraisement of all per- sonal estate. (2) File full and correct statement of all real estate. (3) File a list of debts. (4) No authority to sell to be granted until the executor or administrator shall have filed a bond with sufficient security to be approved by the court. (5) No real estate shall be disposed of contrary to the terms of any marriage settlement. (6) The mansion house or the most profitable part of the es- tate shall be reserved to the last. (7) The court may refer the case to an examiner. (8) Sale to be public upon twenty days' notice by advertise- ment in at least one newspaper published in the county, if there be one; if none, then in an adjoining county and by handbills affixed in at least three of the most public places in the vicinity of such estate. (9) Where real estate is situate in another county or in the same and another county, the Orphans' Court having jurisdiction of the accounts shall be satisfied with the propriety of the sale, and if so satisfied, shall issue an order authorizing the Orphans' Court of the county where the lands lie to, on petition of administrator or executor, make an order for a sale or mortgage, return of sale to be made to the Orphans' Court of the county where the real estate lies, whereupon the same shall, if approved by the court, be con- firmed. (61) Jacoby v. McMahon, 174 Pa. 133 (1896) Dean, J., at 136, s. c. 189 Pa. i (1898). See opinion of Clark, J., in Spencer v. Jennings, 114 Pa. 618 (1888), at 625, that the Act of 1853 does not authorize a sale for the payment of debts. 102 LIMITATIONS OF AND LIENS UPON THE TITLE. 116, 117, 118 In order that the reader may more clearly understand the cases to which that act applies, we shall now notice a few of the decisions. 116. In Grenawalt's Appeal, 63 the owner in fee of the prop- erty, who was also the executor of the decedent, petitioned for authority to sell, setting out that the sale was for (i) the pay- ment of a legacy, (2) the discharge of debts against the estate, (3) the purpose of repair and improvement. It appeared that the legacy was not a charge on the real estate, and the court held that it was proper to authorize the sale for the second and third purposes. The language of Thompson, C. J., 63 very strongly countenanced the doctrine that there is jurisdiction under the act to sell for the payment of debts. The decision was clearly cor- rect on the facts, as the fee was subject to an executory devise, and there was, therefore a case coming within another provision of the act. 64 117. The same notion, that the act authorized a sale for the payment of debts, was obviously entertained by the reporter in preparing the syllabus 66 in Hower's Appeal, although, strangely enough, there is nothing whatever in the case to which the state- ment can be referred. 66 118. In Pierce's Est., 67 the court, in an opinion by Allison, P. J., said that in the case of a sale by a guardian of a minor, where the land was subject to the lien of decedent's debts not of record, it was necessary to join the personal representa- tive of the decedent so that the title of the purchaser would be free from liens. Since, however, the act authorizes the sale free from liens for that very purpose, and there is no provision di- recting the joinder of the personal representative, a sale by the personal representative for the payment of debts would, under this proviso, be improper. It seems pretty clear that the learned judge was laboring under a misapprehension as to the construc- (62) 37 Pa. 95 (1860), s. c. Luz. L. Obs. 243; sub. nom. Greenwalt's App., 17 L. I. 404. (63) See 30, ante. (64) See in, ante, executory devise. (65) 55 Pa. 337 (1867). (66) See also remarks of Rice, P. J., in Kiskaddon v. Dodds, 21 Super. Ct. 351 at 357, 3.58 (1902). (67) 7 Phila. 475 (1869), s. c. 26 L. I. 13, sub. nom. Clothier's Pet., 3 Brews. 254. 1 19,120,121 LIEN OF DEBTS OF A DECEDENT NOT OF RECORD. 103 tion of the act, and that this is so is further shown by the cir- cumstance that this practice has been disregarded and the courts do not require the joinder of the personal representative. 119. In Orwig's Estate, 68 the heirs of the decedent pe- titioned for leave to mortgage under the Act of 1853, and it was held that the mortgagee would take a title free of the lien of debts not of record. It did not appear that the mortgage was for the purpose of raising money to pay debts, and one of the owners in the case was a minor, which would of itself sustain the jurisdiction of the court. 120. In Yard's Estate, 69 the guardian of a minor had a sale of his ward's interest confirmed under the Price Act, the land being at the time subject to the lien of the debts not of record of the father of the minor. 121. In Spencer v. Jennings, 70 an administratrix made a mortgage under order of the court, to raise money to pay debts not of record, and it was held that the mortgage was void, as the court was without jurisdiction to make the de- cree. The heirs were minors but that circumstance was im- material as the petition was presented by the administrator and not by the guardian. Trunkey, P. J., n said that a petition by an executor or administrator for authority to sell for the payment of debts, must be presented under the provisions of the Act of March 29, 1832, 72 and the clause in the Price Act 73 providing that nothing contained in the act shall be taken to repeal or im- pair the authority of any other act of assembly relating to sales, prevented the repeal of the Act of 1832. The circumstance that the petition was presented in the wrong county was immaterial in this aspect of the case. Petition was presented in the county where the land lay, which is proper under Act of 1853, but not proper under the Act of 1832, under which petition must be pre- sented to the court having jurisdiction of the accounts. (68) 7 Pa. C. C. 71 (1889), s. c. 19 Phila. 158, 46 L. I. 99- (69) 15 W. N. C. 422 (1884), s. c. 17 Phila. 436. (70) 114 Pa. 618 (1886), s. c. 19 W. N. C. 10, 42 L. I. 230, 34 Pitts. L. J. 243; affirmed on re-argument in 123 Pa. 184 (1889), s. c. 23 W. N. C. 43, 46 L. I. 158, 36 Pitts. L. J. 227. See 139 Pa. 198 (1891). (71) At p. 624. (72) 31 P. L. 190. (73) See 20, 24, ante. 104 LIMITATIONS OF AND LINS UPON THE TITLE. 122, 123 On reargument, 74 the court, Clark, J., seemed to draw the dis- tinction that there was no jurisdiction when the petition was presented by an administrator, but that if the minor had an in- terest in the land and presented a petition setting forth that it was subject to the lien of debts not of record, there would be jurisdic- tion to order a sale. 122. In Burkhard's Estate, 76 the executrix of a decedent who died domiciled in Philadelphia County, presented a petition to the Orphans' Court of Schuylkill County to confirm a private sale of a certain lot in Pottsville, so that it would be clear of the lien of the debts of the decedent not of record. The petition set out that it was proposed to use part of the proceeds in payment of a mortgage on decedent's property in Philadelphia, and the court very properly held that there was no jurisdiction. 123. In West v. Cochran, 76 the administrator d. b. n. c. t. a. had presented a petition in the usual form to sell for the pay- ment of debts, upon which an alias order to sell had been made, under which the administrator had made a sale of a portion of the real estate, return of which sale was before the court for confirmation, whereupon the widow and guardian of the minor children of the decedent filed exceptions to the confirmation of the sale, upon which a rule to set aside the sale was granted and which, with the exceptions, remained undetermined. In this state of the record, the guardian of the minor presented a petition under the Price Act, setting forth that it would be to the interest and advantage of the minor to mortgage the real estate and use the proceeds to pay off the debts, and then appropriate the in- come from the property to the liquidation of the mortgage. The court held that the order directing the execution of the mortgage was correct. The decision is clearly sound, as the act authorizes the sale, etc., of a minor's estate whenever it is to his interest and advantage to do so. The propriety of the course adopted in this case was so obvious, that the circumstances that incidentally the proceeds of the mortgage were used to pay the debts and thus carry out a purpose contemplated by the earlier acts, and which had been decided were not within the provisions of this (74) 123 Pa. 184. (75) I Mona 474 (1889), affirming 6 Pa. C. C. 374 (1889). (76) 104 Pa. 482 (1884) ; sub. nom. West v. Cochrane, 41 L,. I. 330, 31 Pitts. L. J. 373- 124, 125 LIEN OF DEBTS OF A DECEDENT NOT OF RECORD. 105 act, was not material. The language of Green, J., however, does not meet the real point in the case and seems to revert to the un- sound position taken by Thompson, C. J., in Grenawalt's Appeal. 77 Distinction Between Price Act and Earlier Acts. 124. The distinction is now clearly drawn that the provision in the act covers the case where it is desired to sell land which is liable to the lien of debts, as where the parties interested are unable to make a good title because of the lien of debts, the dis- tinction being 78 between a sale to discharge the lien of debts not of record and a sale for the purpose of raising a fund to pay these debts. The principle that this proviso does not authorize a sale by an executor or administrator for the payment of debts has been followed in several other cases collected in the note. 79 The juris- diction under the Act of 1853 is irrespective of the state of the accounts or the account of personal estate, and is designed solely to furnish a means of disposing of the title which is subject to the lien of debts. Private Sale Discharges Lien of Debts not of Record. 125. A doubt was raised whether a private sale under the (77) 37 Pa. 95 (1860). See 30, ante: "All the facts required by the Act of 1853 to give jurisdiction to the Orphans' Court to make the order to mortgage were present and were substantially set out in the pe- tition. There is no express language in the act, nor are there any words producing a necessary inference that an order to raise money to pay debts can only be ganted to an executor or administrator, nor is there any pro- hibition, express or implied, against the granting of such an order to a guardian. On the contrary, the letter of the act expressly authorizes the court to grant to a guardian an order to sell, lease or mortgage, the real estate of minors, 'whenever a decedent's real estate is subject to the lien of debts not of record.' We could not deny the power except by implication against the proper and natural meaning of the words of the statute, and this we cannot do," Green, J., in West v. Cochran, 104 Pa. 482 at 489 (1884), sub. nom. West v. Cochrane, 41 L. I. 330, 31 Pitts. L. J. 373- See remarks of Clark, J., on this case in Spencer v. Jennings, 123 Pa. 184 (1889) at 196. (78) As put by Hanna, P. J., in Lambrecht's Est, 22 W. N. C. 24 (1888); Trunkey, J., in Spencer v. Jennings, 114 Pa. 618 (1886), s. c. 19 W. N. C. 10, 44 L. I. 230, 34 Pitts. L. J. 243. (79) Miller v. Spear, 21 W. N. C. 554 (1887); Lambrecht's Est, 22 W. N. C. 24 (1888) ; confer Bloodhart's Est., 2 Pa. C. C. 476 (1886). 8 io6 LIMITATIONS OF AND LIENS UPON THE TITLE. 126 act discharged the lien of debts of a decedent, and although Mr. Price 80 was of the opinion that the private sale would discharge the lien of the debts, the doubt was sufficiently strong to necessi- tate the intervention of the legislature. Accordingly it was pro- vided by the Act of March 23, iSo"/, 81 that a private sale dis- charged the liens. 82 No Jurisdiction where Lien of Debts has Expired. 126. Where, however, a stranger paid the debts of the de- cedent, and petitioned for an order of sale under the Price Act, the court dismissed the petition, 83 as there had been no action brought by the creditors within the statutory period to preserve the lien of debts, and the stranger, therefore, paid claims which could not be asserted against the land. Non constat, however, that if the debts had been a lien on the land, he could have been permitted to succeed in the petition. In Crawford's Estate, 8 * there was a sale under the Price Act upon petition by the widow and heirs to relieve from the lien of debts not of record, which was made within two years after the decedent's death but not confirmed before the expiration of the two years. The two years expired on August 16, 1907 ; the alias order was issued June 15, 1907; the property was sold July 18, 1907; return of the alias order was on September 16, 1907, and upon exceptions to the confirmation being filed by the purchaser, the action of the court below confirming the sale was reversed on appeal, as the purchaser would take no title. (80) Price on the Act for the Sale of Real Estate, p. 132. See remarks of Henry Wharton, 6 W. N. C. 545 (1879). (81) P. L. 43- The exact words are as follows : "Section 2. That private sales, made by order of court, under the said act of the eighteenth of April, one thousand eight hundred and fifty-three, shall discharge the prem- ises sold from the lien of the debts of the decedent, except debts of record, and debts secured by mortgage: Provided, That the security, required by said act, shall have been duly entered." (82) The executor, trustee or administrator, or any person interested, may petition the proper court for a decree directing that the real estate of the decedent shall be held and enjoyed free and clear of any lien of debts not of record. Act of June 8, 1893, P. L. 392, Sec. 2, 3. (83) Moyer's Est, 11 Pa. C. C. 528 (1884), s. c. I D. R. 600, 9 Lane. L. R. 203, 3 North. Co. 189. There is a misprint in the county court report in this case: citation should be petition at end of report, and there is a misprint of 1863 for 1853. (84) 221 Pa. 131 (1908). 127, 12 8, 129 MODIFIED FEES. 107 Distribution of Proceeds of Sale. 127. The creditors of a decedent are, of course, to receive payment out of the proceeds first, 85 which where there are no debts, may be awarded directly to the heirs, 86 or the executor, trustee or devisee or person holding the title to the land. In such a case, however, security must be ordered to protect any possible creditors. Act Applies to Executors Selling Under a Power. 128. The act applies where the title to the land is held by an heir, devisee, trustee or executor, and whether there is or is not power to sell the land. An executor selling under a power of sale in a will may have the sale ratified under this provision of the act so that the pur- chaser will take a title free from the lien of debts, 87 although the exercise of such a power will relieve from the lien of debts. It seems that a purchaser may insist upon the executor resorting to the court in this case in order that the title may be relieved from the doubt which may exist as to whether the power of sale is sufficiently worded as to discharge the lien of debts. 88 Modified Fees. 129. A modified fee is a variation of the fee simple estate, and appears on several forms, e. g., conditional fees, estates tail, base fees, qualified fees, and determinable fees. 89 Of these the estate tail is separately provided for and has already been discussed. 90 Of the others, the only one which really arises in Pennsylvania is the case of the determinable fee. A determin- able fee exists where there is a limitation to a grantee and his heirs until the happening of a specified contingency, the con- (85) Yard's Est, 17 Phila. 436 (1885), s. c. 15 W. N. C. 422, 42 L. I. 17. But debts which have lost their lien cannot be paid out of the pro- ceeds, cfr.. Commonwealth v. Pool, 6 Watts 32 (1837). (86) Green's Est., 5 Pa. C. C. 605 (1888), s. c. 19 Phila. 55, 45 L. I. 174, 5 Lane. L. R. 217 (87) Wainwright's Est., n Phila. 147 (1876), s. c. 33 L. I. 280, 3 Law Times, O. S. 95. Confer Donnelly y. Byers, 234 Pa. 339 (1912). (88) For a further discussion of this, see 59 Univ. of Penn. Law Re- view, p. 597. (89) Foulke, Rule Against Perpetuities in Penna., (1909) 21. (90) See 90, ante. io8 LIMITATIONS OF AND LIENS UPON THE TITLE. 129 tingency being such that it may never happen or so long as an existing state of things shall endure the state of affairs being such that it may endure forever. In all these cases the donor has a possibility of reverter after the fee which is a vested interest. 91 The act provides that such sale, etc., may be made where prop- erty is devised or granted for special or limited purposes. This clause may have been designed to cover the case of a determin- able fee. The difficulty, however, in exercising the jurisdiction under the act as to a case of this kind lies in the circumstance that this possibility of reverter is a vested interest, and conse- quently it seems impossible to exercise the jurisdiction without the consent of that interest. 92 It was decided in Saxton v. Mitchell, 93 that the possibility of reverter was a vested interest against the consent of the owner of which the court would have no jurisdiction to direct a sale under a special act of assembly. In Gumbert's Appeal, 94 land had been conveyed to certain Presbyterian and Lutheran societies for the only use and purpose of a church and churchyard and burying place and for supplies of the gospel against the grantor, his heirs and assigns forever. It did not appear whether the societies were incorporated or how the title was taken. The ground was subsequently abandoned after a church had been built thereon as a place of worship, but still con- tinued to be used as a place for the burial of the dead. The so- cieties were subsequently dissolved and on petition of one Jacob Kepple, who alleged that he was the only surviving member of the council of the church which had been erected on the ground, the court ordered a sale of the property under the Price Act, (91) Foulke, Rule Against Perpetuities in Penna., etc., (1909) 30. (92) See remarks of Archibaald, J., in Church's Pet., i L,ack. L. N. 89 at 98 (1887). (93) 78 Pa. 479 (1875). In this case the testator, who died in 1857, provided as to a certain tract of twenty acres of land, as follows: "... which I hereby reserve forever for the use of the members of the Methodist Episcopal Church to hold their camp meetings on." An attempt was made to sell the land under the Act of 1853. The court held that the act did not apply, and a special act of the legislature was passed in 1871. The case came up on an application of the parties authorized under the special act for the appointment of a trustee and an order of sale. The court held that this act was unconstiutional and dismissed the application on the objection of the heirs and legatees of the testator. (94) no Pa. 496 (1885). 129 MODIFIED FEES. 109 and appointed a trustee to make the sale, who delivered the deed to the purchaser. On exceptions being filed by a number of persons who were members of the congregation which had wor- shipped at the church constructed on the ground or who had relatives buried in the graveyard who did worship at the church, the court set aside the sale and ordered the deed to the purchaser delivered up and cancelled on the ground that the petition was made by a person not in interest. The court further said that this was a case of a grant for a special purpose, and that as long as the burial use continued, the ground could not revert to the heirs of the donor. The case, therefore, does not really touch the question of the right of the owner of the possibility of re- verter to object to the sale. No case has arisen involving the application of the clause of the act, and it seems doubtful whether the jurisdiction is constitutional as against the objection of the owner of the possibility of reverter. no TRUSTS. 130 CHAPTER 6. Trusts. Preliminary discussion 130 Jurisdiction of equity independent of the act 131 Act of 1851, April 3, P. L. 305 132 Jurisdiction now probably limited by the act 133 Provisions of the act as to trusts. Nature of cestui que trust immaterial 134 Where trustee has power which cannot be exercised 135 Vested equitable remainders 136 The Petition 137 Notice to and consent of the cestui que trust 138 Sole and separate use 139 Disposition of equitable title of cestui que trust 140 Sale by trustee to cestui que trust 141 Proceeds of the sale 142 Trusts for a charity 143 Preliminary Discussion. 130. A trustee has power as dominus of the legal title to dispose of, pledge or deal with it at law. Since all persons deal- ing with him who have notice of the trust are subject to the claim of the cestui que trust, it follows that he is practically helpless so far as any disposition of the legal title is concerned, unless the consent of the cestui que trust can be obtained, which is not always possible, or unless there is a power in the instru- ment creating the trust. The case where a trust is superimposed on the legal title will therefore frequently present an obstacle to free alienation or administration of the trust estate either of which may be to the interest and advantage of the cestui que trust. A trustee has power, indeed it is his duty, to rent the trust prop- erty, 1 and he may make an ordinary lease without any special power, and in such case the lessee will not be in any danger from the equitable title. If, however, an improvement lease or a lease for a long term of years is proposed, the interest of the lessee may conflict with that of the cestui que trust, and some special authority may be necessary. This case of a lease has been al- (i) See remarks of Ludlow, J., in Sharp's Pet, 6 Phila. 153 (1866), s. c. 23 L. I. 412. 131, i3 2 > J 33 JURISDICTION OF EQUITY. in ready discussed, 2 and our attention in the rest of this chapter will therefore be confined to the case of some form of transfer of the legal title. Jurisdiction of Equity Independently of the Act. 131. The chancellor had ample power, however, to author- ize a sale by a trustee, and would protect the purchaser, if nec- essary, by an injunction preventing the cestui que trust from proceeding against the land. This jurisdiction was frequently exercised in England. The limited nature of the jurisdiction of courts of equity in Pennsylvania precluded 3 a general resort to this remedy, 4 although cases of trusts for charity are to be found in the books where this jurisdiction was in point of fact exercised, although not so understood by the court. 5 Act of 1851. 132. By Act of April 3, 1851," the Orphans' Court have power to authorize a sale of real estate within their respective counties, upon application of the trustee, where lands are held in trust under a will for any person or corporation, and it is to the interest of the cestui que trust, the trustee to make the sale. No case has been found of a proceeding by a trustee under this act. It confers jurisdiction only on the Orphans' Court, and the Price Act was passed so soon after it that it has been generally overlooked. Jurisdiction of the Court now Limited by the Act. 133. The jurisdiction of the court to authorize a sale, etc., is now probably limited by the provisions of the act, and the courts have no further power to authorize a sale under their (2) See 48, ante. (3) Mr. Price, The Act for the Sale of Real Estate, p. 9, says " and generally a trust fixed upon the real estate without an express power of sale was considered to make the land inalienable until the trust expired." (4) For a further discussion of this subject, see Foulke, Rule Against Perpetuities in Penna., etc., (1909) 758. (5) See Foulke, Rule Against Perpetuities in Penna., etc., (1909), 758. Griffiths v. Cope, 17 Pa. 96 (1851) ; Barr v. Weld, 24 Pa. 84 (1854) ; Brendle v. Congregation, 33 Pa. 415 (1859) ; Seebold v. Shitler, 34 Pa. 133 (1859). (6) P. I,. 305- ii2 TRUSTS. 134 inherent equity jurisdiction. 8 This proposition is illustrated by the case of Seif v. Krebs, 9 in which case the testator gave certain property in trust for a hospital without giving the trustees power of sale. The trustees undertook to sell, and in a case stated be- tween them and the purchaser as to the marketability of the title, it was decided that the title was not marketable, as they had no power to convey and that they must proceed under the Act of i853- 10 Provisions of the Act. Nature of the Cestui due Trust Immaterial. 134. The various clauses of the act describing the cases of a trust where the court may authorize the disposition specified, when taken together embrace every instance of a trust of real estate, and make it clear that so far the jurisdiction of the court is concerned, the character of the cestui que trust is immaterial. We may therefore simplify matters by saying that in every case of a trust of real estate, the nature of the cestui que trust being immaterial, the court may, in a proper case, authorize the dis- position specified in the act. 11 These clauses relating to trusts (8) See Foulke, Rule Against Perpetuities, etc., in Penna., (1909) p. 465- (9) 239 Pa. 423 (1913). (10) Part of the argument in this case turned on the question of con- struction, whether there was a power of sale in the will. (u) The various clauses of the act and its supplements are as fol- lows : Sec. 2. Where real estate shall be held for minors, lunatics, habit- ual drunkards so duly found by inquisition; for the sole and separate use of married women; for religious, beneficial or charitable societies or associations, incorporated or unincorporated; for or by any other cor- poration; by trustees for any public or private use or trust; generally in all cases where estates have been or shall be devised or limited in trust for special or limited purposes. Sec. 7. Trustees, etc., may make and take conveyances by deed ac- knowledged in court without public sale in order to square and adjust lines between adjoining owners; may make and take conveyances to per- fect the partition of real estate held in joint tenancy, coparcenary or in common with others; to purchase other real estate when needful (ad- joining) to that already owned by any such party or useful to the busi- ness thereupon carried on, or when necessary to protect any security or rent held on property exposed to judicial sale. By the Act of April 18, 1864, P. L. 462, Sec. I. Trustees, etc., may make and take or join with owners of other undivided interests in making and taking conveyances by deed acknowledged in court and without a public sale in order to change in part or in whole the route and location J 35> l $6 VESTED EQUITABLE REMAINDERS. 113 have, except in the case of a trust for a charity, given very little difficulty, the case to which they apply being so clear. Very few cases, therefore, have arisen for decision. 12 The practical effect of the proceeding under the act is to cut out the claim of the cestui que trust against the land. Without the proceedings, he would have an election to follow the land or the proceeds. Where Trustee has Power which cannot be Exercised. 135. These clauses of the act must furthermore be read in connection with those relating to powers, 13 under which a trustee with a power of sale may proceed under the act, notwithstanding the existence of certain circumstances specified. 14 Where there is no power of sale, the trustee will proceed under the clauses we have just referred to. 15 Vested Equitable Remainders. 136. It frequently happens that under the limitations of the instrument creating the trust, the equitable remainders after the life estate are vested. The question then arises whether the court has jurisdiction to authorize a disposition of the title by the trustee against the consent of these equitable remaindermen. 17 Where the remainders are purely equitable, the courts will have power to make a decree nevertheless. The right of the cestui que trust is in personam ad rem, 17a and it has never been sug- gested that the right in rem in such case may not be divested from the res and transferred to the purchase money without the consent of the cestui que trust. Where, however, under the limitations the ultimate remainders of any right of way or passage existing over and upon adjoining or other lands. To be in the discretion of the court whether to require security in such case. (12) A few cases of sales of a trust estate are as follows: Rhoades's Est, 4 W. N. C. 527 (1877) 5 Owens' Pet, 3 D. R. 328 (1894) ; Brooke's Est, 214 Pa. 46 (1906), s. c. 15 D. R. 137. (13) See 145, post. (14) See 147, post. (15) See n. n 134 ante. (17) We have already discussed the case of vested legal remainders, and pointed out that no disposition of the title can be authorized against their consent. See 12 ante. (173) That is, a right against the trust res and against the trustee personally. ii4 TRUSTS. 137 are legal and vested, as where the statute of uses applies, the case is different and there is grave doubt whether the courts would have power to make a decree disposing of the legal title against the objection of the remaindermen. 19 The Petition. 137. The petition may be made by the trustee or by the cestui que trust. 20 The better practice, where the parties are in harmony, is for the trustee to proceed, in which case notice must be given to the cestui que trust. If the trustee refuses or neg- lects to act, the cestui que trust may take the matter in his own hands, sell, mortgage or lease the property subject to the approval of the court, and then present his petition for a decree confirming the sale, etc. If the court confirms, it will probably direct the trustee to carry out the terms of the contract. 21 In Dorrance's Est., 22 there was an estate devised in trust to A. for life, with remainders over. Upon petition of a life cestui que trust for an order directing the trustee to make a mortgage of part of the trust estate to pay for past improvements made by the life tenant who had an option under the will to use and occupy the home farm, which option the life tenant had exercised, the petition was granted directing the trustee to make the mort- gage. Not clear whether the mortgage was of the part occupied by the life tenant or of the other part of the trust estate. The life tenant cestui que trust had made the expenditures without the approval of the court or the consent of the trustee. 23 (19) See 12, ante, as to vested interests. See 138, post, as to consent of the cestui que trust. ,(20) For instance of petitions by cestui que trust, see Sharp's Pet., 6 Phila. 153 (1866), s. c. 23 L. I. 412; Dorrance's Est., 9 York 69 (1895). The language of the court in McClurg"s Est., 22 Pitts. L. J. 133 (1875), that the cestui que trust may not petition, may be disregarded and confined to the case before them, in which there had been no trustee appointed. The cestui que trust should show reason for the non-petitioning of the trustee. (21) In Goddard's Est., 198 Pa. 454 (1900), aff. 9 D. R. 703 (1900), it did not appear who made the petition, probably by the trustee. (22) 9 York 69 (1895). (23) Confer, Dorrance's Est., 13 D. R. 664 (1904), where the question arose as to the right of the cestui que trust to compensation out of the fund. 138 NOTICE; TO AND CONSENT OF THE CESTUI QUE TRUST. 115 Notice to and Consent of Cestui due Trust. 138. Where the proceedings are by the trustee, notice must be given to the cestui que trust, or if more than one, to all of them. If the cestui que trust is a lunatic, notice must be given to the committee or else no title will pass under the proceed- ings. 2 * If the cestui que trust is under disability, provision must be made by the appointment of a guardian or committee. Where the cestui que trust is a married woman, it is probable that her husband must be notified, and if she joins in the petition, he should sign also. 25 If the proceeding is by the cestui que trust, it is clear, although there is no authority for the statement, that notice must be given to the trustee, and if the court grants the petition, the trustee will ordinarily be directed to proceed and make the sale. The consent of the cestui que trust is almost indispensable. 26 A distinction may be drawn as to the necessity of consent be- tween a life tenant and one having a contingent interest in re- mainder. Less regard is generally paid to the contingent re- mainders in such case, and the consent of the life cestui que trust is usually regarded as sufficient. In Leedom v. Lombaert, 26a there was a mortgage by a testa- mentary trustee under order of the Orphans' Court without notice to the remaindermen cestui que trust who were minors and with- out guardians. The mortgage was made to raise money to im- prove the real estate. In proceedings under the mortgage it was held that the trustee could not set up in defence the lack of notice to the remaindermen. The court had jurisdiction of the trust, the trustees and the subject matter, and the decree could not be (24) Hirst's Est., 147 Pa. 319 (1892). (25) See 19, ante, as to notice. (26) Hollins's Est., 16 D. R. 441 (1907). See, however, Goddard's Est., 198 Pa. 454 (1901), aff. 9 D. R. 703 (1900), where the objection of a cestui que trust claiming to have an appointment set aside was disre- garded as premature. The courts will very rarely decree a sale where the cestui que trust refuses to consent. A case may arise, however, where one or several, by a refusal, prevent a proper disposition of the legal title. The only difficulty as to consent which arises in such a case is where the equitable remainders are vested. See 99, ante. As to when notice will be presumed, see Smith v. Schwarz, 209 Pa. 79 (1904); Mc- Guirk v. Friel, 9 Del. Co. 22 (1906). (26a) 80 Pa. 381 (1876). ii6 TRUSTS. 139,140 impeached collaterally. Furthermore, the mortgagor alone made defence. The cestuis que trust who received no notice did not de- fend and it did not appear that they were not fully secured by the security entered by the trustee. Sole and Separate Use. 139. There was no occasion to insert any special provision as to the sole and separate use because the peculiarity of that case of a trust lay in the nature of the cestui que trust and the equitable title, and the incapacity of the cestui que trust concern- ing the same. Mr. Price says 27 that before the act the title of married women, limited to her sole and separate use, could not be conveyed unless there was express power to that effect from which it might appear that this section was designed to enable the cestui que trust to convey her equitable interest. At that time the distinction between the legal title and equitable interest was imperfectly apprehended. There is no occasion to sup- pose that the act relates to the equitable interest, to the convey- ance of which the cestui que trust is amply competent except when expressly restrained by a valid clause in the instrument creating the trust, as in the case of a sole and separate use. 28 Sale of Equitable Title of Cestui Que Trust. 140. There is no basis for the notion that the court has jurisdiction to authorize a sale, etc., of the equitable title of the cestui que trust, and no case has been reported of any such de- cree. In the case of a sole and separate use and spendthrift trust, the cestui que trust is incapacitated from making a convey- ance under the terms of the instrument creating the trust. The act, however, contains no clause authorizing the interposition of (27) Price, the Act for the Sale of Real Estate, p. 9 (1874). (28) By Act of May 11, 1874, P. L. 131, Sec. i, where trustees under deed of a fee simple sole and separate use, without restraint on aliena- tion prior to Jan. i, 1870, upon request or direction of the cestui que trust, sold in good faith for a valuable and full consideration, which was paid to the cestui que trust and without leave of court, and the pur- chaser entered into possession and erected valuable improvements, and sold to any other persons, the courts may, upon petition by any person interested, approve the sale with like effect as if sold under previous authority of the court and direct the proper person to execute a deed with or without security, as the court may direct, notice to be given to all parties personally or by publication, as the court may direct. 141, 142 SALE BY TRUSTEE TO CESTUI QUE TRUST. 117 the court in such a case. There is no law conferring an im- munity from alienation because the disability is imposed by the donor in creating the trust and is therefore not a law. 29 This is true also of a sole and separate use because the incapacity of the cestui que trust is the result merely of a rule of construc- tion. 30 The act was passed to promote facility in dealing with real estate, and since the trustee is fully empowered to act, there is no necessity, from this point of view, for resorting to the act in order to authorize the cestui que trust to dispose of his equi- table interest, and in all cases where there is no restraint, he has full power to make such an assignment. Sale by Trustee to Cestui due Trust. 141. There is no reason whatever why a trustee should not be authorized to convey, mortgage or lease to the cestui que trust. Of course no such deal should be permitted to disturb the trust where there are other parties in interest. A petition for a sale by the trustee to a cestui que trust was presented in Sharp's Pet., 31 but the court declined to grant the prayer as it was not considered, upon the evidence, advisable. The case arose on exceptions to master's report, master having reported in favor of this sale. The exceptions were sustained. The remarks of Ludlow, J., that the objection to the granting of the petition was that if the petition was granted, the cestui que trust would then become the owner of the estate devised to him in trust, and could convey it to whomsoever he saw fit, overlook the fact that the trust would be transferred to the proceeds of the sale, and it was utterly immaterial, so far as that was concerned, if the price was adequate, whether the property was retained or sold. Proceeds of the Sale. 142. The proceeds of the sale are to be held upon the same trusts, and subject to the same limitations, as the land which was sold, and are not to be paid over to the cestui que trust unless he is the sole party in interest and the limitations of the trust permit. Where a testator devises a farm to a trustee for the life of her nephew, with remainder to his children, and directs (29) See 38, ante, on immunity from alienation. (30) See Foulke, Rule Against Perpetuities, etc., in Pennsylvania, (1909) Chap. 24. (31) 6 Phila. 153 (1866), 23 L. I. 412. ii8 TRUSTS. 143 that the nephew shall have the right to occupy the farm and buildings "so long as he should continue to cultivate the same according to the rules of good husbandry, and keep the place in good order and repair," and the land is subsequently sold under the Price Act, the children of the nephew are not entitled to have the proceeds of the sale distributed directly to themselves. In such a case the trustee must invest the proceeds and pay the income to the life tenant. 33 Trust for a Charity. 143. It seems necessary, although the act provides, as we have seen, in effect for every case of a trust, irrespective of the nature of the cestui que trust, to notice separately the case of a trust for a charity. The peculiar nature of a charitable trust has caused no small confusion in every branch of the law in which it appears, and it has frequently been supposed that a charitable cestui que trust called for the application of some special rule of law when it appears on careful reflection that no such neces- sity exists. The subject under consideration has been involved in some confusion. We may first notice that the trust may be for (i) a charitable corporation, (2) a definite or indefinite charitable object, (3) what are sometimes classed under charit- able objects, to- wit, indefinite non-charitable objects. The act, however, makes special provision only for a sale, etc., in the case of a trustee for religious, beneficial or charitable associa- tions incorporated or unincorporated, and all other cases of a charitable trust are left unprovided for unless they are included which they must be in the case of trustees of any public or pri- vate use or trust. The nature of the cestui que trust has no bearing on the jurisdiction of the court to order a sale, but may have a very important bearing in fact on the question of the ex- pediency of the sale. In Mercer Home, Fisher's Appeal, 84 there was a devise of certain land in trust for a charitable corporation to be formed. The corporation was formed, and the executors of the testator conveyed the land to the corporation. The corporation petitioned (33) Penn-Gaskell's Est, (No. 2) 208 Pa. 346 (1904) ; Goddard's Est., 198 Pa. 454 (1900), aff. 9 D. R. 703 (1901). (34) 162 Pa. 232 (1894). See 34, ante. 143 TRUST FOR A CHARITY. 119 for leave to sell part of the land at private sale under the Price Act, and the petition was granted. 35 Where, however, the title is in trustees for a church or charity, the case is the same as any other trust and proceedings must be instituted under the act for the sale, etc., unless there is express power thereto in the instrument creating the trust. Where the trustees of a church held land in trust for certain charitable purposes, and a conveyance was made without pre- vious resort to the court under the act, it was held it would not convey a marketable title. 36 In Burton's Appeal, 37 the trustees for a church were authorized to sell land held in trust for the church, 38 and it was held that the discretion is in the court, and the vote of the congregation is not essential or binding but may be considered as a fact bear- ing on the expediency of the sale. In Sellers Church's Pet., 39 land conveyed to trustees for the use of the members of a religious denomination as a place of worship forever, was decreed to be sold free from the trust, the purchase money being invested in other property held for the same uses. (35) For instances of the exercise of this jurisdiction, see: Stallman's App., 38 Pa. 200 (1861). Sale of lot devised in trust for use as a burial lot forever, Funck's Est, 16 Super. C. 434 (1901). See vague case of Church v. Gray, 198 Pa. 321 (1901) ; Church's Pet., I Lack. L. N. 89 (1887). (36) Nauman v. Weidman, 182 Pa. 263 (1897), s. c. 40 W. N. C. 509, 37 Atl. Rep. 863, 14 Lane. L. R. 305. (37) 57 Pa. 213 (1868). (38) As to the discussion in this case of immunity from alienation, see 34, ante. (39) 139 Pa. 61 (1890). 120 POWERS. 145, 146 CHAPTER 7. Powers. Preliminary discussion. Division of powers 145 Provisions of the act 146 Powers of sale Provisions of the act as to 147 Time not arrived for exercise 148 Unreasonably withhold consent 149 Powers of appointment 150 Division of Powers. 145. Powers are of several kinds, and for the purposes of this discussion may be divided into three classes : (1) Powers vested in a fiduciary, as a trustee or executor, which includes powers ancillary to a continuing trust, and a mere power in trust the distinction between the two not being material for the purposes of this discussion. (2) Powers of appointment. (3) Powers in a legal owner to do something with the prop- erty not incident to his estate, as power in a life tenant to sell in fee. Provisions of the Act as to Powers. 146. The act makes no separate provision for these kinds of powers but simply speaks of powers of sale, and in one in- stance powers of appointment. 1 (i) The words of the act are as follows: Such sale, etc.., may be de- creed whenever real estate shall be held. . . . "By trustees for any . . . and although there may exist a power of sale but the time may not have arrived for its exercise or any preliminary act may not have been done to bring it into exercise or the time limited for its exercise may have expired or any one or more persons required to consent or join in its execution may have become non compos mentis or have removed out of the state or died or should refuse to act or unreasonably withhold con- sent, also when there has been or shall be a defective appointment in any deed or last will and testament and the necessary power is not given to the executor, devisee or appointee to make sale and conveyance of real estate." The clause providing that every power to sell in fee simple real estate created by deed or will shall be taken to confer an authority to re- serve, sell and convey ground rents, is discussed in 51, ante, referring to conveyances on ground rent. 147 POWERS OF SALE. 121 Since the language follows and relates to the previous clause describing trusts, it is clear that the jurisdiction conferred by the act is to be limited to the case of a trust, and, therefore, a power of sale purely executorial in its nature, can derive no assistance from the court under this act. 2 The act provides that such sale, etc., may be decreed when a power of sale has been reserved and the power cannot be exer- cised for certain reasons enumerated in the act. This language may apply to a power in a trustee or a power annexed to a legal estate, as a power in a life tenant. The word "reserved" of course, plainly implies that the power has been held out by some- thing granted, and is therefore properly applicable only to a power reserved to a donor or grantor, and would not cover a power conferred upon a trustee or a grantee of a legal estate or devisee under a will. The language of the act has never been so narrowly construed as this, and it seems to be generally as- sumed that these words contemplate all cases of powers granted to trustees under deeds or wills or to tenants of legal estates. The case where there is no power of sale at all, curiously enough, is not specifically mentioned in the act, and is only inferred from those clauses conferring power to direct a sale in the case of trusts. 24 Provisions of the Act as to Power of Sale. 147. The particular instances in which a power of sale can- not be exercised and such sale, etc., may be decreed, are enumer- ated in tabular form in note. 3 All these cases are perfectly plain and no decision has been made as to any of them except the case (2) The case where there is a power of sale, and the question is whether the power shall be exercised involves a different question, for a case of which see Rogers's Est, 185 Pa. 428 (1898). (2a) See 135 ante. (3) Power of sale Time not arrived for its exercise Time limited for its exercise has expired Preliminary act not done to bring it into exercise Persons required to consent or join in its execution are Non compos mentis Removed out of the state Died Refused to act Unreasonably withhold consent. 9 122 POWERS o* SAIX 148, 149 where the parties required to consent or to join in the execution of the power unreasonably withhold consent. Time not Arrived for Execution. 148. The act also confers jurisdiction to authorize the sale, etc., where there is a power of sale but the time fixed for its ex- ecution has not arrived. But two cases have been found on the point, both in the lower court, and neither of them clear. There seems to be some doubt as to the jurisdiction conferred by this clause. If, as sometimes happens, there is any person in interest who has a vested right in the execution of the power at the time specified, then it seems that he can compel the postponing of the execution of the power until that time. In such a case the court, it seems, has no jurisdiction to direct the sale at a prior time against his consent. 4 Unreasonably Withhold Consent. 149. The phrase "unreasonably withhold consent" appears under that clause of the act relating to the various cases of powers of sale. It seems to be a proper construction that it only applies to the case where a power of sale is granted and the con- sent of someone is required to the exercise of the power, and that person unreasonably withholds consent. 5 (4) Price on The Act for the Sale of Real Estate, (1874) pp. 92, 93. Myer's Est, i D. R. 140 (1892), s. c. 11 Pa. C. C. 194, 30 W. N. C. 175. In this case the sale was committed to the discretion of the trustees upon the death of certain persons. The petition was presented during their life, and the court said that it had no power to order a sale. In Schaffer's Est, i Woodw 387 (1867), a petition was presented for an order of sale of a decedent's real estate in anticipation of the period ap- pointed by the testator for the sale of the same. The petition was referred to an auditor, and as all parties had not joined in the court said that an actual necessity for the sale must be shown in such a case. (5) When the testator requires that the sale be made with the con- sent of one or more persons, the validity of the exercise of the power is conditioned on that consent, which must be personal and cannot be given by anyone else. It seems that the statute of fraud applies and the consent must be in writing, Dictum, Kennedy, J., in Kling v. Hummer, 2 P. & W. 349 at 354 (1831), and that the consent is revocable up to the time of the delivery of the deed unless founded on a valuable considera- tion. Accordingly the assent was permitted to be withdrawn in Kling v. Hummer, 2 P. & W. 349 (1831). Consequently, if the person desig- nated dies, the power cannot be exercised; if given to two or more it 149 POWERS otf SALE. 123 The phrase "unreasonably withhold consent" applies only to the cestui que trust of a trust estate as pointed out by Ashman, J., in Kerner's Estate. So also it was said by Penrose, J., in Hollins's Est., 7 that it only applied to inseparable interests as cestui que trusts, and therefore the withholding of con- sent by a tenant in common who holds independently and can force partition, is immaterial. The position of the clause is such that it clearly relates to powers and not to any other case. The word "required" seems to refer to some previous instru- ment imposing the requirement and hardly expresses the joinder necessary from a party in interest under operation of law or a tenant in common. In can hardly be properly said that a tenant in common is required to join in a sale of the common property. The clause has rarely been before the court for con- struction. Freeman's Estate, 8 simply discusses whether on the facts the withholding of consent by one-eighth of the cestui que trust to a sale by a trustee was unreasonable. It was held that it was and sale was confirmed. 9 does not survive, and when one dies without the consent having been given, it cannot ever thereafter be exercised, Kling v. Hummer, 2 P. & W. 349 (1831). In Hackett v. Milnor, 156 Pa. i (1893), there was a direc- tion to an executor to sell with the consent and approval of three daughters. One daughter died, and a sale approved by the other two was held to pass a good title. In this case, however, under the limitations of the will, the two surviving daughters were practically the sole and absolute owners ot the property, and, of course, could not be deprived of their right to make a sale or consent to a sale because of the death of their sister. It is possible in this case to construe the will as meaning that the power of sale was to be exercised with the consent of the three daughters and the survivor, but the court did not place the decision on that ground. (6) 13 D. R. 311 (1904), s. c. 30 Pa. C. C. 175. (7) 16 D. R. 441 at 443. (1907.) The petition was presented by a trus- tee holding a one-fourth interest in trust, and the cestui que trust refused to consent. Penrose, J., said that the remedy of the other parties was by partition. See 22, ante. (8) 21 D. R. i (1911). (9) s. c. 181 Pa. 405 (1897). The sweeping language of Mitchell, J., at page 405, was pointed out and criticised by Ashman, J., in Kerner's Est., 13 D. R. 311 (1904), s. c. 30 Pa. C. C. 175, as countenancing unduly the doctrine that a sale may be made against the consent of one having a vested interest. 124 POWERS OF APPOINTMENT. 150 In Goddard's Est., 10 a petition was presented for an order to sell, and the party objecting had been excluded by a codicil and would only have an interest if the codicil were held invalid. He was not, therefore, required to consent. The language of Pen- rose, J., in the court below, in placing the jurisdiction on the clause of the Price Act providing for unreasonably withholding consent, seems beside the mark. In Spangler's Est., 11 there was a petition by the executors of a will for leave to lease with option to purchase, one party hold- ing one-ninth interest unreasonably withholding consent. It ap- peared that there was a power of sale in the will with the con- sent of this party, inter alia. A rule to show cause why contract of lease should not be made apparently on the one-ninth owner was made, who took the ground that the will authorized and directed a sale not a lease, that the lease would not be to the interest and advantage of the estate. The court refused to con- firm the sale, and said that the Act of 1853 did not apply. The clause as to unreasonably withholding consent being inapplicable because the respondent was under the terms of the will to con- sent to a sale, and therefore could not be required to consent to a lease. Powers of Appointment. 150. The statute confers jurisdiction in cases where there is a defective appointment in any deed or will, and the necessary power is not given the executor A devisee or appointee to make sale or conveyance of real estate. It is difficult to see what the framers of the statute had in mind in inserting this proviso. The appointee or devisee may take an estate for years, a life estate or fee. In the last case he has power to convey anyhow unless there is a modified fee, which case is separately provided for. 12 So also the case of a life estate is included under another clause unless there are vested remainders, 13 in which case no sale, etc., may be authorized unless the vested remaindermen are under some disability or voluntarily join in the sale, in which case the jurisdiction is conferred in another clause of the statute. 14 If (10) 198 Pa. 454 (1901), aff. 9 D. R. 703 (1900). (11) 12 York 20 (1898). (12) See 129, ante. (13) See 12, ante. (14) See 22, ante. 150 POWERS OF APPOINTMENT. 125 the appointment is to an executor, he may, under existing legis- lation sell whenever it is necessary to do so.\ We may conclude, therefore, that this clause is superfluous and unnecessary.^ There is no reported case arising under the clause, and it is doubtful if it has ever been resorted to in practice. 15 Mr. Price 16 seems to think that this clause confers the juris- diction usually exercised by equity to remedy defective execu- tions of a power, and to give the judicial remedy, etc., where the executor, devisee or appointee has not the power to cure such defect. It seems a strained construction of the words to extend them to the conferring of such jurisdiction as this. Upon the whole, the matter will have to be left in considerable doubt until the clause has been passed on by the Supreme Court. (15) See 24, ante. (16) Price on The Act for the Sale of Real Estate, (1874) p. 94 126 PERFORMANCE OF DECEDENT'S CONTRACT. 151, 152, 153 CHAPTER 8. Specific Performance of Decedent's Contract. Provisions of the act 151 Provided for by Act of 1834 152 Application of the Price Act doubtful 153 Provisions of the Act. 151. The court may also exercise the jurisdiction conferred "whenever a decedent shall have contracted by parol to sell real estate, and those interested do not think it expedient to plead the statute requiring contracts to be in writing to enable the pur- chaser to recover the real estate agreed to be sold." It is diffi- cult to determine the exact meaning of this provision. It covers only the case of a decedent vendor but does not specify whether the proceedings are to be instituted by the personal representa- tives or heirs of the deceased vendor or by the vendee. Case Provided for by Act of 1834. 152. Either case was provided for by the Act of February 24, I834, 1 which also covers the case of an oral contract. 2 The existing legislation seemed to fully cover the point, which is per- haps the reason why so few cases have arisen under this pro- vision. Under the Act of 1853, the petition must be presented in the county where the lands lie, whereas, under the Act of 1834 and its supplements, the petition is to be presented in the court having jurisdiction of the account of the executor or adminis- trator even if the land lies in another county. 3 Application of the Price Act Doubtful. 153. The application of the Price Act to the case of the parol contract of a decedent is very doubtful. It is not easy to see how the words of the act are capable of practical application. (1) Sees. 15, 1 6, 17, 18, P. Iy. 70, as re-enacted by the Act of April 28, 1899, P. L. 157, for a discussion of which see 58 Univ. of Pa. Law Review, p. 465. For a recent case upon this act, see Gable v. White- side, 242 Pa. 188 (1913). (2) McKee v. McKee, 14 Pa. 231 (1850). (3) M'Farson's App., n Pa. 503 (1849). 153 APPLICATION of PRICE ACT DOUBTFUL. 127 Mr. Price says 4 that the clause enables the court to decree spe- cific execution of the parol contract where the parties desire it, notwithstanding the statute of frauds requiring contracts for the sale of real estate to be in writing. A few cases have arisen on the act to which the attention of the learned reader will now be directed. In the case of Merrell v. Merrell, 6 the vendor conveyed the title to a third person, the vendee being in possession and having made payments on account. The third person died, having de- vised the premises to B. in trust for C., a minor. The vendor brought ejectment, and it was properly held that the case was not within the Act of 1834 nor within the Act of April 18, 1853, and therefore the plaintiff was entitled to bring ejectment, and the contention of the defendant that the plaintiff's remedy was exclusively in the Orphans' Court under these two acts could not prevail. It was argued that the case was within the Price Act because the devise was upon trust and the person interested was under disability to convey because of the minor. It was not a proper proceeding for the Price Act because the action was eject- ment, and it was a mere dictum that the Orphans' Court had no jurisdiction because the proceeding was in the Common Pleas. 6 In Anders's Estate, 7 where the executors petitioned for permis- sion to convey under the oral contract ; the petition was defective and was refused. The court said that it was doubtful which act the petition came under. The petition did not set out the contract with sufficient particularity. It was by the executors but the devisees under the will were not notified. 8 (4) Price on The Act for the Sale of Real Estate ( 1874) , page 97. (5) 5 Pa. C. C. 531 (1888), s. c. 5 Kulp 125, 6 Lane. L. R. 17. (6) See remarks of Rice, P. J., in this case on this clause of the act, at 533, that the case of a parol contract of a decedent was not within the mischief to be remedied by the Price Act. (7) 4 W. N. C. 382 (1877). (8) See also Lindsay's Pet., 2 Del. Co. 197 (1878). 128 PARTITION. 154,155 CHAPTER 9. Partition. Preliminary 154 Provisions of the act 155 Jurisdiction under the act as to partition proceedings 156 Jurisdiction under the act as to amicable partition Preliminary discussion 157 Wilson's Estate 158 Hirsh's Estate 159 Thomas's Estate 160 Hunsworth's Estate 161 Conclusion as to jurisdiction 162 Security in case of partition 163 Partition. Preliminary. 154. Partition is the process by which the owners of undi- vided interests in the same property divide the property amongst themselves, which they may do either by selling the property and dividing the proceeds or by dividing the property itself so that each one becomes the entire owner of an aliquot part or portion of the property instead of an undivided interest in the whole. They may effect this by a voluntary united action, which is generally referred to as amicable partition, or, where they are not agreed, by instituting the proceedings provided by law, which will then be a partition involuntary as to some. Of course they cannot unite in a voluntary amicable partition unless they are all sui juris. A case may arise where one or more of the undivided interests are vested in a person under legal disability, or vested in a trustee who has no power to join in a partition. The usual power of sale vested in a trustee is not generally regarded as sufficient to enable him to join in a voluntary parfition. In each of these cases, however, the owner of the undivided interest may make a sale of his interest to another tenant in common, by which a partition will be practically accomplished. Provisions of the Act. 155. The Price Act contains two clauses conferring juris- 156, 157 JURISDICTION AS TO PARTITION PROCEEDINGS. 129 diction on the court in cases of partition, 1 and there is consid- erable doubt as to just what jurisdiction is vested by the words of the statute. We may discuss the subject under two clearly defined headings of amicable voluntary partition and involun- tary partition proceedings in equity or at law. Jurisdiction Under the Act as to Partition Proceedings. 156. It seems that the clause in Sec. 2 2 was inserted in order to provide for the case where in partition proceedings in equity the partition could not be consummated owing to the dis- ability of one or more of the parties. The attention of the learned reader is called to the distinction which existed at that time between partition proceedings at law and partition proceed- ings in equity. Where the proceedings were at law, the judg- ment of partition operated to vest the title in the parties in sev- eralty. Where the proceedings were in equity, the chancellor had no jurisdiction to dispose of the legal title, and it was nec- essary for the parties to the proceedings to execute deeds carry- ing out the decree of the court. If in such case any one or more of the parties were unable to convey, the proceedings would be held up perhaps indefinitely. Now, however, by the provisions of the Act of March 14, I&57, 3 it is provided that the judgment of partition in equity shall have the same effect as at law and now no conveyances are necessary. This clause of the act, there- fore, may be regarded as obsolete. Preliminary Discussion of Amicable Partition. 157. Sec. 7 seems to cover the case where the jurisdiction is really needed, and that it where one or more of the owners (1) These are as follows: In Sec. 2 it is provided that the court shall have jurisdiction to decree a sale, etc., "whenever in proceedings in par- tition in equity it shall appear that real estate cannot be divided without prejudice to the interests of the owners." In Sec. 7, it is provided "that it shall be lawful for trustees, guardians, committees, married women and corporations in all the cases aforesaid, under the decree of the court as aforesaid, and with the like effect and indemnity to them in acting there- under, to make and take conveyances, by deed, acknowledged in court, without public sale, in order to square and adjust lines between adjoining owners, to make and take conveyances, to perfect the partition of real estate held .in joint tenancy, coparcenary, or in common with others." (2) See Price on the Act for the Sale of Real Estate (1874), p. 120. (3) P. L. 97, 3- 130 VOLUNTARY AMICABLE PARTITION. 158, 159 of an undivided interest are under some legal disability and can- not therefore join in a voluntary amicable partition. The cases are as follows: 158. In Wilson's Estate,* there was a petition presented for the sale of real estate by certain trustees and a guardian, set- ting forth that the petitioners were seized, as trustees, as ten- ants in common of certain undivided interests, and they de- sired to make an amicable partition, and to that end proposed to join in one conveyance to a trustee who would then convey back to the various parties the several purparts agreed upon. The case was referred to an examiner, who said that the court had no jurisdiction under the Act of 1853 to entertain the prayer of the petition, the jurisdiction being confined to the case where it was necessary to perfect partition, i. e., where proceedings in partition had been commenced and for some reason defectively exercised, and to the case where it appeared that the real estate could not be divided without prejudice to the interests of the owners, etc. The Master's opinion was adopted by the court without comment. 159. In Hirsh's Estate, 5 the testator by his will gave the remainder of his estate upon certain trusts, and at the time of his death was seized of a certain undivided interest in real estate. An amicable partition was agreed upon between the parties, and the trustees under the will accepted one of the purparts and pre- sented a petition for leave to make and execute the proper deeds in settlement, and the court held that there was ample jurisdiction under the Act of 1853 to entertain the petition; that the word "perfect" did not imply they could only act in cases where par- tition had already been begun because the court had that power in those cases before the passage of the act, 6 and the preamble clearly shows that it was passed to effect free alienation of es- tates, and it was obviously its intention to enable the parties to avoid the expense and delay of partition proceedings; that Wil- son's Estate, 7 was so meagrely reported that it was of no value as an authority, and the prayer of the petition was granted. (4) 2 W. N. C. 631 (1876). (5) 17 W. N. C. 28 (1885), s. c. 17 Phila. 512, 42 L. I. 454- (6) Overlooking in this the difficulty which then existed in the case of partition proceedings in equity. See 156, ante. (7) 2 W. N. C. 631 (1876). i6o, 161, 162, 163 VOLUNTARY AMICABLE PARTITION. 131 160. In Thomas's Estate, 8 a mutual sale and exchange of the interests of tenants in common was approved. It was prac- tically a case of partition. 161. In Hunsworth's Estate, 9 the testator directed his exe- cutors to divide his residuary estate into two parts, each of which he gave to certain life tenants with contingent remainders over. The two life tenants made a partition of the real estate, and the petition was filed under the Act of 1853 ( it does not ap- pear by whom) to, as stated by the learned judge, "effect the division of the estate and bar contingent remainders so each half should be free from the remaindermen of the other half." A decree was made confirming the division of the estate as prayed for, with the approval of a trustee to be appointed to represent certain possible unborn children, contingent remaindermen. The circumstance that there is an undivided interest does not of itself authorize a sale under the act. Each tenant in common may sell separately, and a guardian of the minor co-tenant may proceed under the act. The co-tenant sui juris cannot compel a sale of the other interests under the act. The remedy is in par- tition. See remarks of Clark, J., in Spencer v. Jennings. 10 Conclusion as to Jurisdiction in Case of Amicable Partition. 162. It seems clear, therefore, that in any case where there is a legal disability on the part of any one or more co-owners, the proper court may authorize them to make or join in partition, and in every case where any of the defects in title mentioned in the act prevent the consummation of a partition, the jurisdiction under the act may be exercised, the disability removed and the partition perfected. It seems, therefore, as if the Act of May 23, 1913," authorizing the guardian of minors upon approval of the court to join in partition is merely the duplication of one of the provisions of the Price Act. Amount of Security in Partition. 163. The amount of security to be given in these cases will be subject to somewhat different considerations than in the case (8) ii D. R. 290 (1902). (9) 22 D. R. 544 (1913). (10) 123 Pa. 184 (1888) at 195-196. See 22, ante. (11) P. L. 345- 132 VOLUNTARY AMICABLE PARTITION. 163 of a sale or a mortgage. Where money passes as part of the division, security should be ordered in double the amount but where no cash is paid, there seems to be no necessity for the party joining in the partition to give substantial security because he merely receives in substitution for an undivided interest in cer- tain properties an entire interest in another property. Security here, if entered at all, should be merely a nominal amount ; per- haps the bond of the party joining in the partition would be sufficient. 165, 166 CEMETERIES AND BURIAL GROUNDS. 133 CHAPTER 10. Cemeteries and Burial Grounds. Price Act seems to provide for all cases 165 Other legislation concerning cemeteries 166 Conclusion as to cemeteries 167 The petition 168 Price Act seems to Provide for all Cases. 165. Land may be conveyed in trust for a cemetery or burial ground, or the use as a cemetery or burial ground may be fixed on the land by way of a modification of the fee. Land may also be conveyed to a church or duly incorporated cemetery com- pany, and the burial use fastened upon it by the charter. The act seems to provide for the sale, etc., of the land in all cases where there is a trust under the clauses relating to trusts. 1 Where there is a modification of the fee under the clause relat- ing to land conveyed for special or limited purposes, 2 or where there is a corporate charter under the clause relating to corpora- tions. 3 Other Legislation Concerning Cemeteries. 166. The courts 1 authorized by existing laws to decree sale and conveyance of real estate may 4 order and decree a private sale of a portion of the real estate held by trustees of religious societies, congregations or church organizations, to an associa- tion or corporation for the exclusive purpose of a cemetery or place of sepulchre for the dead. Trustees, etc., of a church, etc., owning real estate used as a burial ground may sell the same by proceedings in the Common Pleas. 5 (1) See 134, ante. For a case of a sale of land in Philadelphia devised in trust for a burial ground where the interments had been stopped by the board of health, see Young's Est, 224 Pa. 570 (1909). The surplus pro- ceeds, after providing for the removal of the bodies, was distributed among the heirs of the testator. (2) See 129, ante. (3) See 83, ante. For an instance of this, see Funck's Est., 16 Super. Court, 434 (1901). (4) By Act of March 24, 1877, P. L. 39, Sec. i, notice to be given to all parties interested as the court shall direct, and deed to be acknowl- edged as required by existing laws. (5) Act of May 23, 1887, P. L. 168. 134 CEMETERIES AND BURIAL GROUNDS. 167, 168 Any incorporated or unincorporated church, cemetery or burial association may, when for certain reasons desirable to change the location, purchase ground in the vicinity, remove the dead, and sell in fee simple the old cemetery grounds. Proceedings for the removal of the dead to be in the court of quarter ses- sions. 6 The court of quarter sessions has jurisdiction, where burial grounds are vested in trustees of any church or religious society, to direct removal of the dead and sale of the ground. 7 A borough having title to a burial ground may, upon petition of the lot holders, transfer the same and the control to an in- corporated cemetery. 8 Conclusion as to Cemeteries. 167. We may therefore conclude that there is ample juris- diction under the Price Act to make a sale, etc., of any ground used as a cemetery, and that there are a number of other acts duplicating the provisions of the Price Act. Since, however, these other acts are confined to certain specific cases, it may some- times be desirable to proceed under the Price Act which seems to cover every case. The Petition. 168. The petition should be presented by the holder of the legal title to the burial ground, church, cemetery or trustees, as the case may be. It is probable also that a lotholder in a ceme- tery would be a person in interest and entitled to present a pe- tition. It is possible also that a relative of a person buried in the cemetery would have sufficient interest to present a petition. The amount of interest here, however, is so slight that no statement can be made as to whether it is sufficient to sustain the petition. When the property is sold, the purchase money should, of course, be held for the same uses and trusts as the land was before and paid out under the order of the court. (6) See Act May 26, 1891, P. L. 118, as amended by Act of June 6, 1893, P. L. 325, as amended by Act of June 7, 1895, P. L. 181. Confer, similar Act of June 25, 1913, P. L. 551. (7) Act May 19, 1874, P. L. 208, supplemented by Act of May 13, 1876, P. L. 159, supplemented by Act of April 18, 1877, P. L. 54, supplemented by Act of May 12, 1887, P. L. 96, supplemented by Act of June 16, 1891, P. L. 3!> amended as to Sees, i and 2 by Act April 29, 1909, P. L. 291. (8) Act of April 23, 1909, P. L. 155. 169, 170 ABSENTEES. 135 CHAPTER ii. Persons Absent and Unheard from for More than Seven Tears. Preliminary 169 Provisions of the act 170 The circumstances from which the law will presume decease ... 171 Notice to the absent one 172 The petition 173 Act of 1913 174 Preliminary. 169. The case where the owner of land drops out of sight and is never heard of again frequently causes great difficulty. Such an occurrence will leave the title to the land in a very un- satisfactory condition and when the absent person holds in com- mon will often inflict great inconvenience on the other tenants in common. The common law rule was that a person was pre- sumed to be deceased if he was absent and unheard of for more than seven years. A title resting on such a presumption, without something on the record to show that the presumption had been made out, would hardly be worth buying. It is very important, therefore, in the interests of free alienation of property, that the case be provided for in some way by a statute which would ef- fectually guard the right of the absent one and, at the same time, enable the property to be disposed of. 1 Provisions of the Act. 170. The act provides that in those cases where "the owner of real estate may have been absent and unheard from for seven years, under those circumstances from which the law would pre- (i) The administration and distribution of personal property in such case is provided for by the Act of June 24, 1885, P. L,. 155, supplemented by the Act of May 28, 1913, P. L. 373. For a discussion of these statutes, the public policy involved and the constitutionality thereof, see Cunnius v. School District, 198 U. S. 458 (1905), 25 Sup. Ct. Rep. 721, 49 L. ed. 1125, affirming 206 Pa. 469, which reversed 21 Sup. Ct. 340, s. c. 25 Pa. C. C. 17. See discussion of this case, Gest on Drawing Wills and Settlement of Estates in Penna. (1909), p. 78, et seq. 136 ABSENTEES. 171, 172 sume his or her death," 2 the disposition authorized may be made. This clause provides that where the court is satisfied that the presumption has been made out, a sale, etc., may be decreed, se- curity being entered to protect the interests of the absent owner. 8 The doubt as to the constitutionality of this proviso has already been referred to. 3a We shall now assume that it is constitutional. The Circumstances from which the law will Presume Decease. 171. These circumstances are an unexplained absence. If there is no reason why the absent owner should have gone away or failed to communicate with his family or friends, the circum- stances exist under which the law will presume his decease. If on the other hand, it appears that there are reasons why he should have gone away, or why he should have remained away without communicating with his family or friends, the circum- stances are such that the law will not presume his decease. Thus, if an individual leaves the jurisdiction under accusation of a crime, there is ample reason for his going away, and under such circumstances the law will not presume his decease. Notice to the Absent One. 172. Furthermore, some effort must be made to locate and communicate with the absent owner. This is generally done by inserting an advertisement in papers which he might be likely to see, supplementing by such personal inquiries as may be thought advisable. The question of what effort must be made depends entirely on the circumstances of each particular case and the (2) The time of the presumed death is at the expiration of the seven years, probably from the date last heard from. Freeman's Est, 18 D. R. 194 (1009). The circumstances may indicate that death occurred earlier, Harmstead's Est., 18 D. R. 786 (1909). (3) For a case where a sale was authorized, see Freker v. Berg, 193 Pa. 442 (1899) ; in this case a non-resident heir had been absent for thir- teen years, and service upon him or his next of kin was made by adver- tisement, as required by the court. The petition was by executor and the sale by him under a power. It was not clear what interest the non- resident had. Query : Why did not the executor sell under the power with- out an order of court? In Charlton's Est, 12 Phila. 102 (1878), s. c. 35 L. I. 194, one tenant in common apparently had a sale confirmed, the other tenant in common being absent and unheard of for seven years. (33) See ii, ante. 172, 173 NOTICE TO THE ABSENT ONE. 137 length of the absence and will be governed largely by such orders as the court may make relative thereto. 8 It seems under the case of Cunnius v. School District, 6 * that the advertisement should be addressed to the absent person and perchance that he is deceased, to his heirs and devisees, other- wise should it subsequently appear that he was deceased at the time of the advertisement, there would have been no notice to the heirs or devisees, who would then have been the owners. 7 Notice to the heirs is not essential although it is desirable to have them, or as many of them as can be reasonably communi- cated with, join in the petition merely as persuasive evidence of the propriety of the sale. The jurisdiction under the act is based on the presumption of death, and although the presumption may be that the death occurred many years beofre, where the proceed- ings are taken a considerable time after the lapse of the seven years, yet the title to the premises in question remains in the absent one until the deed is delivered in the proceedings under the act. 8 Petition. 173. The petition should be presented by the person who would inherit the property, or where there is an undivided in- (6) In Ulrich's Est, 14 PhiJa. 243 (1880), s. c. 38 L. I. 5, the report was referred back to the examiner to take further testimony. The court, Hanna, P. J., said that it was not enough to show that the person in question had left and not been heard from, but that the testimony must go further and show that some attempt had been made to find him and communicate with him at the place he was believed or known to have gone. In Taylor v. Hoyt, 15 Atl. Rep. 892 (1882), s. c. 2 Mona. 206, one heir presented a petition for authorization of a sale without notice to the absent one. There was no attempt made to notify him and no notice by publication, and it was held that the title of the purchaser under the sale authorized would not avail him as against the absent person in an action of ejectment. The case is rather blindly reported, and it is difficult to tell just what the facts were. It was argued in this case that no attempt need be made to notify the absentee because the law presumes him dead by his absence. The act says, however, "absence for seven years under circumstances from which the law will presume decease," and those cir- cumstances apparently are something more than a mere absence. (6a) 198 U. S. 458 (1905), 25 Sup. Ct. Rep. 721, 49 L. ed. 1125, affirming 206 Pa. 469, which reversed 21 Sup. Ct. 340. (7) For this suggestion, I am indebted to my learned friend, T. W. Jopson, Esq., of the Philadelphia Bar. (8) See 225 post. IO 138 ABSENTEES. 174 terest by some one or all of the other tenants in common. Se- curity must be entered and the court will in due course, after sufficient time has elapsed, depending on the circumstances of the case, order a distribution of the purchase money. Since the Price Act provides that the purchase money shall be held for the same interests as were divested from the land by the proceedings under the act, it follows that the purchase money must be held only for the absent one or his heirs or devisees. If it is distributed at all in his absence, it is probably to be distributed under the Act of June 24, 1885.** Act of May 28, 1913. 174. It is provided by the Act of May 28, 1913, that in the case where the owner of property, has been absent more than seven years, the court may upon proceedings as therein provided, enter a decree that the presumption of the death of the person has been established, whereupon the real estate of the absent per- son shall devolve as if he had actually died intestate, and that the decree shall be recorded in the office of the recorder of deeds of the proper county; security to be given as required by the court. It is difficult to see what this act is intended to cover and there is grave doubt as to its constitutionality. It pro- vides for the case where the owner of the entire interest in the property is absent and unheard of, and his heirs wish to take possession of the property and enjoy the fruits of ownership. Where there is an undivided interest, the other tenants in common may receive the rents, and there does not seem to be the same ne- cessity for such legislation. (&i) P. L. iSS, as supplemented by the Act of June 28, 1913, P. L. 373. (9) P. L. 369- 177, 1 78 SECURITY. 139 CHAPTER 12. Security. Preliminary, provisions of the act 177 Cases where bond is required 178 Amount of the bond 179 Sureties on the bond 180 Cost of obtaining security 181 Time of filing bond 182 Necessity of filing 183 Guardian's security where land lies in another county 184 Where party making sale resides in one county and land is in another 185 Provisions of the Act as to Security. 177. The provisions of the act as to the giving of security are of vital importance. Several questions arise: (i) as to the amount of the bond, (2) as to the sureties, (3) as to the time of filing, (4) as to the necessity of filing. 1 Cases Where the Bond is Required. 178. The bond is expressly required by the provisions of Sections 4 and 10 of the act to be filed in all cases of a sale or (i) The provisions of the act are as follows: "Sec. 4. And Provided Further, That no sale or sales shall be ordered or made under the provisions of this act, in any case, until security, to be approved by the Court of Common Pleas or Orphans' Court, be given in at least double the value of the interest proposed to be sold." "Sec. 6. ... and before any decree shall be executed, the person or persons entrusted to execute the same, shall give adequate security to the commonwealth, to be approved by the court, conditioned for the faith- ful execution of the trust and proper application of all moneys to be received, according to the trust and decree of the court, which security shall enure to the benefit of all parties interested, and such security being so given, no purchaser or lessee shall be bound to see to the application of the purchase money or rents, or be in any manner liable to be affected by the former trusts or limitations upon the premises." "Sec. 10. That the directions given in the sixth section of this act in regard to the security to be given in cases of sales, morgage, or letting of real estate, and the condition of the bond or security therein prescribed, shall apply to all cases of sales or mortgage, of real estate by order of the courts of this commonwealth." 140 SECURITY. . 179 mortgage, and by Section 6 it is provided that before any decree shall be executed, the person or persons, etc., shall give adequate security to the commonwealth. It is clear, therefore, that in every case of a sale, mortgage or conveyance on ground rent, there is a necessity of having a bond filed. In the case of a lease there is no special requirement for a bond except in so far as Sec. 6 requires a bond to be filed in all cases before the decree of the court can be executed. In many cases where a lease is authorized no security is practically necessary because the party holding the legal title either owns it, and is therefore entitled to the rents, or has already given security. It is provided in Section 7 that the court may authorize con- veyances to square and adjust lines between adjoining owners, perfect partition and authorize the purchase of adjoining real estate or the purchase of real estate to protect any security or rent held on property exposed to judicial sale under the decree as aforesaid, and with like effect and indemnity to them in acting thereunder, which perhaps means that in these cases a bond also should be filed. There does not seem to be any necessity, how- ever, for a bond to be filed in case of partition of real estate ex- cept to cover owelty or in the case of squaring and adjusting lines, or in the case of a purchase of real estate, and the practice seems to be not to require a bond in these cases. The Act of April 18, i864, 2 provides that conveyances may be made to change in part or in whole the route or location of any right of way or passage existing over and upon adjoining and other lands, and that it is to be in the discretion of the court whether to require security in any such case. This provision seems very clear and it is not probable that in a case of this kind the court would require any security at all. 3 Amount of the Bond. 179. The provisions of the act as to the amount of security required, are conflicting. Sec. 4 provides for security in at least (2) P. L. 462, Sec. i. (3) The Act of Feb. 24, 1834, P. L. 70, Sec. 43, provides that no executor or administrator shall have power to execute a decree of the Orphans' Court for sale of real estate without giving security to the Orphans' Court having jurisdiction of his accounts. The provisions of the Price Act seem to be partially a re-enactment of this statute. This act does not fix the amount of the security as the Price Act does. i8o SURETIES ON THE BOND. 141 double the value of the interest to be sold, and Sec. 6 provides for the giving of adequate security. It has been decided that the security need not necessarily be in double the amount of the sale, but that the court may order more than double the amount, in its discretion. 4 The purchase price is almost universally regarded as fixing the value of the interest for the purpose of determining the amount of the security. Judges will sometimes order security in less than double the amount, and a purchaser, out of a superabun- dance of caution, may sometimes object. The decree may easily be amended in such a case so as to increase the security to the amount required. Perhaps the best general rule is to always fix the security in double the amount, and if the circumstances of the case so require, the amount may be increased beyond that sum. Some counsel leave the amount of the security blank in the decree so the judge may fill in the amount. There is no ob- jection to filling in double the amount in preparing the decree in all cases and this will save the judge some trouble in filling up the decree. The amount of the security can always be calculated because the amount of the purchase price must always be certain and set out in the petition. Some counsel merely insert in the decree "Security in double the amount." This is a very loose practice and not to be sanctioned. The decree should read "Se- curity in the sum of dollars," and the amount of the se- curity could be actually set out in figures so there may be no controversy about it. Where the interest is undivided, the amount of the bond should only cover the undivided interest in the purchase money and not the whole amount received for the property. Sureties on the Bond. 180. The act makes no requirement as to the number and character of the sureties, which is regulated generally by the discretion of the court. Corporate security is usually regulated under rules of court, and where individual surety is offered they must qualify as to responsibility under the rules of the court. Exceptional cases may perhaps arise where the court will dis- pense with sureties altogether and accept the bond of the party (4) Thorn's App., 35 Pa. 47 (1860). Price on The Act for the Sale of Real Estate, (1874) p. 139. 142 SECURITY. 181 authorized to act. Thus, where there is a perpetual trust for a charity, and the cestui que trust is a charitable corporation the court may, with the consent of the cestui que trust, authorize the trustees of the property making the sale to file their own bond and accept that as sufficient security. Where the disposition is made by a trust company, which has obtained the approval of the court to act as surety, the prac- tice in Philadelphia County is to direct them to give their own bond in double the amount of the proceeds of the sale. In the case of an individual, where the cash received is merely nominal, or where all parties in interest are sui juris and agree, a bond without sureties will be proper. It sometimes happens that a guardian will join in the sale where the undivided interest of a minor is an infinitesimal amount, sometimes so small that it will be entirely consumed to pay the costs of the proceedings. There is, in such case, no reason to require any sureties, and the bond of the guardian may be accepted as sufficient. This part of the act, giving discretion to the court in the matter of security, it a very wise provision and assists materially in the practical appli- cation of the statute. Cost of Obtaining Security. 181. The cost of obtaining security may be credited in the account as a charge against the fund under the provisions of the act of June 24, i895. 6 A number of questions arise frequently as to the rights of the parties interested in the fund to proceed against the sureties on the bond. The law as to this does not depend on any prin- ciples peculiar to the Price Act, and therefore we will not con- sider them at all. A few cases are collected in the note. 5a (5) P. L,. 248, Constitutionality affirmed in Clark's Est., 195 Pa. 520 (1900), reversing 10 Super. Ct. 423, which affirmed 7 D. R. 9 (1897), s. c. 20 Pa. C. C. 439. (5a) Commonwealth v. McDonald, 170 Pa. 221 (1895); Stewart v. Moody, 4 Watts 169 (1835) ; Sawyers v. Hicks, 6 Watts 76 (1837) ; Com- monwealth v. McGovern, 4 Super. Ct. 598 (1897) > Commonwealth v. Winters, 4 W. N. C. 346 (1877), s. c. 12 Phila. 226, 34 L. I. 338; Com- monwealth v. Hilgert, 55 Pa. 236 (1867) ; Miles v. Commonwealth, 2 Walk. 64 (1884) ; Commonwealth v. American Bonding Co., 25 Super. Ct. 145 (1904) ; Commonwealth v. Trust Co., 16 Super. Ct. 570 (1901) ; Commonwealth v. Messinger, 237 Pa. I (1912) ; Commonwealth v. Magee, 24 Super. Ct. 329 (1904). 1 82, 183 FILING OF THE BOND. 143 Time of Filing Bond. 182. Notwithstanding the words of the act, "No sale shall be ordered or made until security be given," it is sufficient if the bond is filed at any time before the confirmation of the sale. 6 Where the practice is 7 to make the decree read that the sale is confirmed upon giving security, the giving of security fulfills the condition, and the sale becomes immediately confirmed without any further action of the court, except such action of approving the surety as may be necessary. Where the record shows that the bond has been approved by two associate judges and filed, no further evidence is necessary, and parol evidence that it was not so approved is inadmissible to contradict the record. 8 As to the Necessity of Filing Bond. 183. It was held that the provisions as to giving security contained in some of the earlier acts were merely declatory, and the filing was not essential when the court confirmed the sale, 9 and that the omission of the bond could only be set up upon ap- peal from the decree and not in a collateral action. Thus, in the case of Dixey's Excrs. v. Lanning and Sill, 10 there was a sale to the plaintiff by the administrator for the payment of debts under the Act of 1832. The administrator, however, did not give (6) Greenwalt's App., 37 Pa. 95 (1860) ; Thorn's App., 35 Pa. 47 (1860). Purchaser excepted to the confirmation of the sale on the ground that the security was not filed before the sale was ordered or made, which exceptions were overruled, and decree made that the sale be con- firmed on the filing of security. Brook's Est., 3 Phila. 516, s. c. 16 L. I. 372 (1859). (7) As in Philadelphia County. (8) Leedom v. Lombaert, 80 Pa. 381 (1876). (9) In Lockhart v. John, 7 Pa. 137 (1847), a sale was made and con- firmed without security, and it was held that the Orphans' Court could not five years later set aside the first sale because no security given, and divest the title of the purchaser as against purchaser at second sale properly confirmed. The action was ejectment by the second purchaser against the first. So also in Potts v. Wright, (1876) 82 Pa. 498, s. c. 34 L. I. 148, 24 Pitts. L. J. 125, 5 L. Times O. S. 35, 9 Lane. Bar 14, the decree was held valid in an action of ejectment by purchaser at the ad- ministrator's sale for payment of debts notwithstanding the failure to file a bond. (10) 49 Pa. 143 (1856). 144 SECURITY. 183 the security which was ordered by the court, although sale was confirmed apparently in the same decree which ordered the sale. The subject of the sale was a ground rent, and the owner of the ground, it was held, could not set up the failure to give bond as a defect in the plaintiff's title which would prevent the latter from recovering the ground rent. It has not been decided whether the filing of the bond is nec- essary under the provisions of the Act of 1853. The language of Kennedy, P. J., in the court below, in Kreimendahl v. Neu- hauser, 12 seems to countenance the doctrine that if the court confirms the sale, the giving of security is not essential to the validity of the title of the purchaser. It may, however, be strictly argued that the giving of security is essential in all cases where there are interests to protect, because those interests have been divested of their grasp of the land by the proceedings under the act, and unless they are given some substantial equivalent for the land, there is room to doubt the constitutionality of the act. The court, therefore, must see that there shall be sufficient security given so that the entire purchase money will, beyond a doubt, be forthcoming at the proper time. It would be very unsafe to take a title under proceedings under the act unless a bond has been filed, and the better practice is to see that the bond has been filed before paying the purchase money. The general practice is, where a sale is confirmed, for the court to confirm upon security being filed. Filing the se- curity therefore, is necessary to the taking effect of the decree, and this obviates any question as to whether the filing is neces- sary. It is clear that in the case of a private sale the security must be filed or the lien of debts of a decedent not of record will not be discharged. 13 The act in Sec. 6. provides that such security being so given, no purchaser or lessee shall be bound to see to the application of the purchase money or rents, or be in any manner liable to or affected by the former trusts or limitations upon the prem- (12) 13 Super. Ct. 606 at 609 (1900). This was a case of an action of ejectment against the purchaser, the sale not being confirmed. Judg- ment was entered for the plaintiff. See 248, post. (13) See Act of March 23, 1867, P. L,. 43, Sec. 2. 184 SECURITY IN ANOTHER COUNTY. 145 ises. 13a It seems clear, therefore, that even if the title will pass without a bond being filed, the purchaser will in such case be bound to see to the application of the purchase money. If no bond is filed and the sale is unconfirmed, no title will pass by the deed. In Kreimendahl v. Neuhauser, 14 there was an order confirming a private sale upon security being entered. The security was never entered, and it was held there was no decree of confirma- tion. The court below said that security must be entered and a report that it had been done made with the return of sale. The language of Kennedy, J., in the court below, must be confined to the case of a sale, public or private, upon a previous order, and the learned judge may have so intended. Is not applicable to the case of a confirmation of an already completed sale. It is the duty of the court to order security when required by the parties and failure to do so will be ground for reversal on ap- peal. No purchaser can be compelled to take title where no bond has been filed, even if the sale is confirmed. In all cases where the court confirms the sale already made, the better prac- tice is to make the decree recite that the sale is confirmed upon security being entered in such a sum. The decree is then of no effect until the security is entered. It behooves the purchaser in all such cases to see that the bond has in fact been entered be- fore paying the purchase money and accepting the deed. It is better conveyancing to recite in the deed the fact that security has been entered. Guardian's Security Where land Lies in Another County. 184. There is a special provision as to security by the guard- ian in Section 3, 15 under which clause it is clear that the court of the jurisdiction over the land need not order security if the (133) Price on The Act for the Sale of Real Estate, (1874) p. 137. (14) 13 Super. Ct. 606 (1900). (15) The provision is as follows: "That in case of the appointment of a guardian by the court, and the payment over of money to him or of the payment of money to any former guardian, the court shall take adequate security for the faithful application of such money, and before the pay- ment of any money to any guardian not within the court's jurisdiction, the court shall be duly notified that adequate security has been given to the court having jurisdiction over him, whether within or without this com- monwealth. 146 SECURITY. 185 court appointing the guardian has required sufficient security and due notice thereof has been given to the court ordering the sale. Where Party Making Sale Resides in One County and Land is in Another. 185. Where the party who is to give security and execute the deed lives in one county and the land lies in another county, the security may be entered and approved in the court of the county where the party lives, 16 and upon such approval being made, a certificate thereof shall be forwarded to the court of the county where the lands lie, and such certificate shall be suf- ficient security as if it had been filed and approved directly in the court making the decree of sale. This provision is a very wise one because the question of personal responsibility and the quali- fication of sureties is a matter which can be best determined by the court having jurisdiction over the parties, and an op- portunity should be given to responsible persons to qualify in their own court and not run the risk of being refused in the court of a distant county where they are not known. 17 (16) The Act of March 23, 1867, P. L. 43, Sec. 2, supplementary to the Price Act, provides "the security required by said act may be approved by the proper court of like jurisdiction of the county in which the grantor or one of them is resident, and be certified under the seal of such court to that wherein the sale was decreed, and such certificate shall be copied on the records thereof." (17) See 16, ante. 187 PURCHASE MONEY. 147 CHAPTER 13. Purchase Money. Purchase money takes the place of land sold 187 Account of proceeds 188 Devolution of the purchase money Preliminary, provisions of the act 189 As to interest of a minor, etc 190 Interest of a lunatic, habitual drunkard, married woman 191 Interest of a person sui juris 192 Effect of equitable conversion 193 Mortgage money 194 Rents 195 Proceeds of conveyance on ground rent 196 Purchase Money Takes the Place of Land Sold. 187. The purchase money takes the place of the land sold in all respects, and upon this circumstance the constitutionality of the fact to a large extent depends. 1 All interests in the land and limitations thereof take effect upon and apply to the purchase (i) The act provides in Sec. 6 as follows: That the purchase money, or mortgage money, ground or other rent reserved, shall in all respects be substituted for the real estate sold, mortgaged or let, as regards the enjoyment and ownership thereof, after the payment of liens, and shall be held for or applied to the use and benefit of the same persons, and for the same estate and interest, present or future, vested, contingent, or executory, as the real estate sold, mortgaged, or let, had been held, except only such remainders, after an entailment or contingent remainders as shall have been bared or defeated as aforesaid, and those entitled to a present interest in such real estate, shall receive the interest of the pro- ceeds or rents thereof, unless expressly directed to accumulate : Provided, That no principal moneys raised by sale or mortgage, as aforesaid, shall be expended for any other purpose than for the payment of liens upon or the improvement of the same real estate when mortgaged, or other real estate when held for the same uses and persons, unless the same be required for the maintenance and education of parties having the like interest vested or expectant, and can be equally and equitably so applied, and without diminution of the capital that may of right become the prop- erty of parties having unbarred interests or title in remainder or by exec- utory devise, and it shall be the duty of the court to decree the proper application of all purchase or mortgage moneys and rents, which the aid of an auditor, when deemed necessary, to the discharge of liens and to parties interested, as and when they may be entitled. 148 PURCHASE MONEY. 187 money in the same manner and to the same extent as they did to the land which was sold. 2 Thus, where property is sold under the act, the question of the conflicting rights of the parties en- titled under the limitations will not be permitted to interfere with the sale. 3 And where all the interests in the land are acquired by one person, and the trust limited comes to an end, he is en- titled to have the fund in the hands of the trustees paid over to him. 4 Where the sale is by trustees, the proceeds of the sale are to be invested on the same trusts as the land which was sold. 5 In ordering a sale under the act the court may direct the purchase money to remain charged on the premises for the benefit of the widow during life. 6 It must be remembered that where the cestui que trust has a claim upon a title which is sold, he may follow the title and as- (2) The special case of a contingent remainder is discussed, 97 ante. Where the guardian of a minor sells his ward's interest at private sale and the land is subject to the lien of debts of the ward's father not of record, the guardian must pay the proceeds of the sale to the administrator of the father for distribution to the creditors, Yard's Est., 15 W. N. C. 422 (1885), s. c. 17 Phila. 436, 42 L. I. 17. Blake's Est, 134 Pa. 240 (1890) was a case of a distribution of the proceeds of real estate sold under the Price Act, and illustrates the principle that the proceeds are to be disposed of the same as the land. The controversy was over the order of payment of debts and legacies. Fulton's Est., 51 Pitts. L,. J. 257 (1904); Foster's App., 74 Pa. 391 (1874). (3) Goddard's Est., 198 Pa. 454 (1901), affirm. 9 D. R. 703 (1909), party objecting to sale set up the invalidity of an appointment; it was held the question was premature as it could be settled on the distribution of the proceeds. (4) Owens' Est., 15 Pa. C. C. 196 (1894), s. c. 3 D. R. 331; Bru- baker's App., 65 Pa. 317 (1871). As to attachment of an interest in the purchase money in the hands of the trustee, see Hoopes v. Price, 17 Phila. 98 (1884), s. c. 41 L. I. p. 114. In Hepburn's App., 65 Pa. 468 (1870), there was a married woman's trust of real estate created by deed. The trustees sold the property under order of the court, [the reporter in the syllabus says, under the Act of 1853] and the husband having died, she was entitled to terminate the trust in the proceeds the same as she would in the land, the court relying on the provision in the act to the effect that no change in the right of the cestui que trust shall result from any change in the nature of the property terminating the trust. (5) Trust for burial ground, Funck's Est., 16 Super. Ct. 434 (1901) dictum. (6) Helfrich v. Weaver, 61 Pa. 385 at 386 (1869). 1 88 ACCOUNT of THE PROCEEDS. 149 sert his claim as against the purchaser unless the latter has bought for value without notice, in which case the equitable claim will be discharged and thrown upon the proceeds of the sale. 7 Thus the cestui que trust of the land standing in the name of the decedent and sold as his estate under the Act of 1853, may fol- low the proceeds and assert his claim thereto in the Orphans' Court which will have jurisdiction to determine the same. 8 The proceeds of a sale or mortgage are to be substituted for the real estate and can be applied to the payment of debts not of record only upon decree of the Orphans' Court having jurisdiction of the executor's or administrator's account, and upon it appearing that the personal estate is insufficient. 9 Account of the Proceeds. 188. The person who has received the purchase money is bound to file an account at the proper time, 10 which account may be finally confirmed by consent of all parties in interest, or audited, if necessary. Where the property sold is part of a con- tinuing trust, the proceeds are generally accounted for in the next account of the trustees, and it is not necesary to file a separate account unless specially directed by the court or the proceeds comprise the only fund of which there is to be an accounting. 11 Where money arising from sale of land under the act has been awarded to the trustees for the widow of the testator for life, (7) For a further discussion of this point, see 222, post, as to title passed at the sale. (8) McCarron's Est, 15 W. N. C. 485 (1884). In this case there was a petition for issue to the Common Pleas, which was refused, the court holding that the provisions of the Act of April 20, 1846, P. L,. 411, Sec. 2, do not apply to a controversy over the proceeds of a sale under the Price Act. (g) Trunkey, J., in Spencer v. Jennings, 114 Pa. 618 at 326 (1887), s. c. 19 W. N. C. 10, 44 L. I. 230, 34 Pitts. L. J. 243. (10) The provisions of the act are as follows: Sec. 7. All persons en- trusted with moneys raised under this act shall be authorized to file their accounts in the court whence their authority was derived, and upon such notice as the court may order to parties interested, or after being audited, if deemed necessary, or by consent of all parties interested, such accounts may be finally confirmed, and upon payment of the balance, as may be decreed by the court, such accountants may be fully discharged from the trust. (n) In Blake's Est., 134 Pa. 240 (1890), there was apparently a sep- arate account of only one fund. 150 PURCHASE MONEY. 189, 190 and at her death to his children, the fund is to be accounted for by the trustees and not by the guardian, even though the same persons fill both offices. 12 Provisions of the Act as to Devolution of the Purchase Money. 189. A sale of real estate under judicial process necessarily and in fact changes the nature of the property from real estate to personal property. 13 The act, however, provides as follows: "And provided, that no purchase 14 or sale 15 by authority of this act, shall change the course of descent or transmission of any property changed in its nature by virtue thereof, as respects per- sons who are not of competent ability to dispose of it." The act, therefore, provides, that where there is in fact under its pro- visions a change from real estate to personal property, neverthe- less the property shall be considered as of its original nature for certain purposes and as to certain persons. Interest of a Minor. 190. It is clear that where the minor dies under twenty-one, after the sale under the act, the proceeds devolve as if they were real estate. 16 The provisions of the act as to conversion only (12) Can's Est., 17 D. R. 297 (1908). See also McClurg's Est., 4 D. R. 655 (1895). (13) This subject has been discussed. See article Equitable Conver- sion in Penna., 58 U. of P. L,aw Rev., p. 455. (14) An investment in real estate under the Act of April 13, 1854, P- L. 368, Sec. 2, remains personal property, see Davis's App., 60 Pa. 118 (1869); Woodward's App., 38 Pa. 322 (1861). (15) The words "lease, mortgage and conveyance on ground rent" are omitted from the act. See 195, post, as to rents, 194, post, as to mortgage money, and 196, post, as to conveyance on ground rent. (16) Holmes's App., 53 Pa. 339 (1867); Eckert's Est., 12 Phila. 93 (1878), s. c. 5 W. N. C. 45i, 35 L. I. 193; Hough's Est., 3 D. R. 187 (1893) ; Murray's Est., 234 Pa. 520 (1912). In Belle v. Mateer's Est., 19 D. R. 929 (1910), the minor died after the sale under twenty-one, leaving a husband and an infant daughter who died three weeks later, and it was held that the proceeds remained real estate notwithstanding the second devolution, and were distributed as the real estate of the infant. In Ray's Est., 24 Pa. C. C. 366 (1899), s. c. 17 Montg. 15, 48 Pitts. L. J. (O. S.) 244, 14 York 145, a guardian sold real estate of his ward under the Price Act; the minor died and the guardian paid the money to the minor's administrator who accounted for it as money; the minor left a surviving husband and child; on distribution, the heirs claimed the estate as land; a judgment creditor of decedent claimed that it was personalty. Held 190 DEVOLUTION OF INTEREST IN PURCHASE MONEY. 151 change the law in the case where the minor dies after the sale. Where he dies before the sale, he dies seized of real estate and the proceeds go to those entitled to the same at the time of his death, and hence apparently devolve as real estate. The pro- visions of the act in this respect are merely declatory of the ex- isting law. 17 that the estate was distributable as personalty to judgment creditors and heirs. Doty, P. J., relied on the circumstance that the money had been paid to the administrator. This case is obscurely reported, as it did not appear what creditor was claiming or whether the minor died over twenty- one. The payment by the guardian to the administrator would not divest the right of the husband of the child who could follow the fund into the hands of the administrator. The case appears to be open to objection and contrary to the weight of authority. "And again, in the second proviso to the 7th section, the language is, 'that no purchase or sale by authority of this act shall change the course of descent, or transmission of any property changed in its nature, by virtue thereof as respects persons who are not of competent ability to dispose of it.' This provision is general, although it appears in a section relating principally to the powers of trustees, guardians, committees, mar- ried women and corporations. Strictly it is not a proviso to anything preceding it; it is an independent provision, which, by usage in our legis- lation, is often introduced by way of proviso. It is not possible to dis- regard these provisions in the act, and declare that notwithstanding the conversion of the minor's estate was complete under the act in his life- time and at his death, it passed as personalty. The act does not mean this. The sale was not made for the purpose of raising money for him. Before making the order, the court were satisfied that the change from land to money substituted for the land, would be best for his interest, and it was that which moved the court to make the order. We must therefore hold that this change did not change the character in which the substitute is to pass to those entitled. It must pass as land: Greenawalt's App., I Wright 95. So thought the auditor and court. "It seems to me, that the last clause in the second proviso to the 7th sec- tion, quoted above, is misunderstood by the learned counsel, if 1 under- stand them. They seem to read it as applying to the party claiming the descent, while it is quite manifest it only applies, in a case like this at least, to the party whose property has been changed by the sale. In other words, as Mrs. Holmes was competent to dispose of the substitute for the land, it seems to be thought that that part of the proviso has no application to the case. It is quite certain, however, that this is incorrect ; its application is to the son whose estate was sold while he was a minor and incompetent to dispose of it. Had he been of age, he might have dis- posed of the proceeds as money and not land." Thompson, J., in Holmes's App., 53 Pa. 339 at 342 (1867). (17) Confer Foster's App., 74 Pa. 391 at 399 (1874), which was a case 152 PURCHASE MONEY. 191, 192 The proceeds of the sale of an absolute interest of a minor will be transmitted to the domciliary guardian notwithstanding the circumstance that if the minor dies under age, the proceeds will devolve as real estate upon persons resident in the county where the land lay, and they will therefore be under the necessity of prosecuting their claim in a foreign court. The court will, how- ever, embody in the order for transmission a notice to the domi- ciliary court of the nature of the fund. 18 Lunatics, Habitual Drunkards and Harried Women. 191. No case has arisen as to the devolution of the pro- ceeds of the sale of the interest of a lunatic, habitual drunkard or married woman. Since the act provides that no purchase or sale shall change the descent or transmission of property as re- spects persons who are not of competent ability to dispose of it, it seems clear that in these cases also the proceeds of the sale would devolve as real estate. 19 So far as married women are concerned, we must remember that the law has changed since the Price Act has passed, and now under the married woman's property acts, a married woman has full power to dispose of her legal estate. The question will there- for arise whether the same rule is to be applied to her now as would have been applied to her when the act was passed. The disability imposed upon a married woman, however, with re- spect to her sole and separate use, still remains, and in such case it seems as if the provisions of the act should apply. Effect of Sale upon Devolution of Proceeds of Owners Sui Juris. 192. The law probably is that where the owner of the property is sui juris, the sale under the act produces a conver- sion just as in any other case, the wording of the exception being apparently confined to the case of a minor or person under legal of a sale of a decedent's interest in partnership real estate. See also Diller v. Young, 2 Yeates 261 (1797). Ferree v. Commonwealth, 8 S. & R. 312 (1822), where there was an order of sale in partition under which sale was made in 1809, and the heir died in 1807, and it was held that the proceeds were payable as if real estate. (18) Gray's Est., 52 Pitts. L. J. 195 (1005). The case arose on a pe- tition by the domiciliary guardian to have the fund transmitted to him. (19) See Hirst's Est, 147 Pa. 319 (1892), semble, that the sale of an interest of a lunatic will not produce a conversion. ! 93> J 94 EQUITABLE CONVERSION. 153 disability. The proceeds are therefore considered as personal es- tate, and are not the subject of lien, and can only be reached by at- tachment. 20 Equitable Conversion. 193. Suppose the testator directs a sale in such terms as to effect an equitable conversion and the trustee sells the property under the Price Act, and there is a minor interested, and a ques- tion arises as to devolution of his interest if he dies after the sale. The question is whether the act will impress the character of real estate on the purchase money, to which the character of personal property has already been affixed by the directions of the testator. This question was raised but not decided in Mur- ray's Estate, 21 and there does not seem to be any other case in which it has been referred to. It seems clear that a prohibition of alienation imposed by a former owner of the title will not prevent the court from direct- ing a sale under the provisions of the act. 21a Since the act ex- pressly provides in the cases specifically referred to that the pro- ceeds of the sale shall be considered as real estate, it seems that upon the same principle a direction to convert would be unavail- ing as against the provisions of the act Mortgage Money. 194. A mortgage being a pledge of the legal title, rests on different principles because the money borrowed must be repaid. It seems clear that the land devolves just as if the mortgage had never been created, and that the burden of paying it off falls upon whoever is the owner when the mortgage is due. It is therfore necessary to make an order where a mortgage is created, pro- viding for an adjustment of the equities between the life tenant (20) Dictum, Penrose, J., in Homer's Est., 20 Pa. C. C. 458 (1897) at 460, s. c. 7 D. R. 63, 15 Lane. Law Rev. 335. In Weaver's Est., 2 Lane. L. R. 114 (1884), the proceeds of a sale under the Act of 1853 were dis- tributed as personalty to the legal representatives of a party in interest who died after the sale. It did not appear, however, whether the de- cedent was a minor; if so, decision is open to objection. The point was not discussed. (21) 234 Pa. 520 (1912). (2ia) See 38, ante. II 154 PURCHASE; MONEY. 195, 196 and the remainderman, 22 which generally contemplates the crea- tion of a sinking fund for the payment of the mortgage out of any increased rentals which may be derived from the land. Since no one is entitled to the proceeds of the mortgage, the same being necessarily spent either in the payment of debts or the improve- ment of the land, and the burden only of paying off the mortgage following the title, it seems clear that no question of conversion is presented in such a case. 23 Bents. 195. Where property is leased, the rents belong to the owner of the property, and where the lease is made under the provisions of the Price Act, there does not seem to be any reason for a different rule. If a minor should die after a lease has been made, the rents would, of course, be paid to the persons upon whom the real estate of the minor would devolve because the property remains of the same nature as it was before. There does not seem to be any reason, therefore, to apply any particular rule to the case of the distribution of rentals arising from a lease made the provisions of the act. Conveyance on Ground Rent. 196. The proceeds of a sale on a conveyance on ground rent are, it seems, personal property the same as in the case of an or- dinary sale, and therefore subject to the same rule as heretofore noticed. The ground rent, however, is real property and will devolve as such, and in this case there seems to be no exception as to the case of a minor because the words of the act providing for the retention of the quality as real estate apply only to the pro- ceeds of the sale, and a ground rent reserved cannot in any sense be said to be the proceeds of a sale, at least not until the ground rent is finally extinguished or sold. 24 (22) See 28, 45, ante. (23) In Smith's Est., 53 Pitts. L. J. 136 (1905), a mortgage was made by a trustee under order of the Orphans' Court to raise money to con- struct a building on the premises. The property being subsequently sold at an increased price much greater than the cost of the building, there was no detriment to the remaindermen, and consequently rents which had been set aside as a sinking fund were directed to be paid to the life tenants. (24) See language of Penrose, J., in Shephard's Est., 8 Pa. C. C. 520 at 522 (1890); Hirst's Est., 147 Pa. 319 (1892). 197 TITLE OF THE PURCHASER. 155 CHAPTER 14. Title of the Purchaser. Preliminary discussion of provisions of the act 107 Act presupposes a title to be sold 198 Provisions as to title to be read in connection with general prin- ciples affecting Orphans' Court sales 199 Preliminary Discussion of the Provisions of the Act. 197. The act provides that the title of the purchaser under such sale, mortgage, conveyance on ground rent shall be in fee simple, indefeasible by any person having a present or expectant interest therein, and unprejudiced by any error in the proceedings, and that by a public sale the premises shall be discharged from N all liens. The provision is given in the note. 1 It is to be observed that this clause only applies to a sale, mort- gage and conveyance on ground rent, and omits any provision as to the other disposition of the title authorized, to-wit: ex- change, lease, partition, adjusting and squaring lines, releasing a right of way over adjoining lands. In the case of a lease, of course there is not the same necessity for such a provision. A lessee, for instance, would not be affected by liens. In the other cases, there is, however, as much reason to protect the title acquired under the proceedings. No reason has been as- signed for this omission from the act. These clauses must be read in connection with and in sub- ordination to the other provisions of the act. They do not mean, although standing by themselves they might be so con- strued, that the title is good against the world, but that the title is good as against the persons having an interest under the cir- cumstances prescribed by the act, and whose interests are divested by the sale, etc., that is to say, any person under any of the disabilities mentioned in the act will be barred by appropriate pro- (i) Sec. 5. That the title of purchasers under all such sales, mort- gages, or conveyances upon ground rent, shall be a fee simple title, and indefeasible by any party or persons having a present or expectant interest in the premises, and be unprejudiced by any error in the proceedings of the court, and by every such public sale the premises sold shall be dis- charged from all liens. 156 TITLE OF THE PURCHASER. 198 ceedings, and any person having an interest arising out of any of the defects in title mentioned in the act will in like manner be barred. Where, however, the proceedings cannot be brought within any of the cases provided for in the act, the court has no jurisdiction, its decree is void and confers no title, and the purchaser can be ejected from the premises by a party having the real interest. 2 The title is indefeasible only as against those persons who are within the divesting words of the act. As to all others, the proceedings under the act are null and void. The indefeasibility as to such persons depends on the validity of the act in divesting their interests, and the validity of the act in this respect depends on certain general principles of consti- tutional law and public policy, which we have already referred to. 2a The act means that where the title vests under a will or deed, that it is indefeasible by those claiming under the will or deed, and where the title descends under the intestate laws, that it is indefeasible against those claiming under the decedent, and where there is an inherent defect in the title, as minority, lunacy, en- tails, that the title is cured of the defect. Act Presupposes a Title to be Sold. 198. The Act of 1853 presupposes a title to be sold, and when there is any controversy as to the existence of or the valid- ity of the title, the act cannot be invoked to settle the controversy. In Hower's Appeal, 3 the administrator petitioned for confirma- tion of a private sale made by the heirs because the estate was subject to the lien of judgments and other debts not of record. The petition was answered by parties claiming an interest in the land hostile to the intestate, and as there was, therefore, a dis- pute as to the title, the court declined to ratify the sale. 4 In Burke's Estate, 5 there was a petition for the sale of minor's (2) See Chapter 16 on Collateral Attack. (2a) See introduction. See n, ante. (3) 55 Pa. 337 (1867), as to the error in par. I of the syllabus, see 117, ante. (4) Where there is a doubt as to the title so that the property might be sacrificed, the court will upon petition vacate the order of sale, Moore's Est., 9 Phila. 326 (1873), s. c. 30 I,. I. 176, 5 Leg. Gaz. 165; Bridesburg Land Co.'s Pet., 7 Phila. 436 (1870), s. c. 27 L. I. 317. See 222, post, on title passed by the sale. (5) 15 Pa. C. C. 9 (1894), s. c. 3 D. R. 384. 199 GENERAL PRINCIPLES OF ORPHANS' COURT SALES. 157 interest, and the court said that the question whether the title of the minor was good or bad was immaterial to be considered in the proceedings, that it was a question for the purchaser to consider. The language of Penrose, J., in Corr's Est., 6 that the act con- fers authority to decide every question, including that of title, affecting the rights of the parties having a present or expectant interest, is perhaps too broad and to be confined to the question of determining who have an interest and are to be joined. 7 Provisions of the Act to be Read in Connection with General Principles Applicable to Orphans' Court Sales. 199. These clauses in the act are, to a certain extent, merely declaratory of the existing law as to Orphans' Court sales, al- though they should undoubtedly be inserted in the averments of every petition and the provisions of every decree under the act. While the same principles apply to a mortgage and a conveyance on ground rent, it must be remembered that they are only a species of alienation and governed by the same principles. Few cases have arisen as to them, and our reference to the cases will there- fore be almost exclusively to the cases of a sale. Strictly speak- ing, there cannot be a title under the proceedings until the sale is confirmed, the deed delivered, and the purchase money paid. 8 The title of the purchaser may be drawn in question either by proceedings to set aside the sale or in a collateral proceeding. Until the title vests in the purchaser, all subsequent proceedings may be attacked on various grounds by the purchaser or any party interested. The true bearing of the provisions will be more apparent if we refer to some decisions on Orphans' Court sales in general in addition to those arising strictly under the act. (6) 29 Pa. C. C. 276 at 277, 12 D. R. 788 (1903). (7) Confer, Kline's App., 39 Pa. 463 (1861), where the property sold for the payment of debts was subject to a resulting trust but nevertheless the sale was confirmed as the sale was of the title of the decedent, and the cestui que trust could pursue his remedy against the purchaser at the sale. Objection was made by the cestui que trust and not by the pur- chaser, the latter asking to have the sale confirmed. See 222, post, as to title passed by the sale. (8) See 225, post. 158 ORPHANS' COURT SALES. CHAPTER 15. Orphans' Court Sales. Preliminary 200 Nature of Orphans' Court sales 201 Confirmation of sale 202 Jurisdiction of the Common Pleas over Orphans' Court sales ... 203 Sales under a power to be distinguished 204 Proceedings for a sale 205 Order of sale controls subsequent proceedings 206 Method of objecting to the sale 207 Where court has no jurisdiction 208 Dicta as to Orphans' Court sales 209 Statute of frauds 210 Price of the sale Preliminary. Must be adequate 211 Setting aside for inadequacy 212 Security for a higher bid. Distinction between public and private sales 213 Decree of confirmation conclusive as to price 214 Fraud 215 Parties who may object to the sale 216 The purchaser Preliminary 217 Refusal to carry out terms of the sale 218 Purchaser should defend by objecting to confirmation 219 Liability of the purchaser after confirmation 220 Liability after deed delivered and purchase money paid 221 Title passed by the sale , . . . 222 Purchaser obtaining possession 223 Rights of the various parties pending completion of the sale Preliminary 224 Title of the heir or devisee 225 Incidence of rights and liabilities between parties 226 Destruction of buildings by fire 227 Apportionment of interest on encumbrances 228 Title of the purchaser Preliminary 229 Judgments against 230 Rights against third parties 231 Devolution 232 Alienation 233 Deed Who is to execute 234 Endorsing decree on deed 235 Acknowledgment and recording 236 Must conform to the decree of the court 237 200, 20i, 202 NATURE OF ORPHANS' COURT SALES. 159 Preliminary. 200. The jurisdiction under the Price Act is most fre- quently invoked for the authorization of a sale and generally by proceedings in the Orphans' Court. In the exercise of this jurisdiction, the court will follow the law generally applicable in such sales, and it is therefore useful to point out some of the principles governing Orphans' Court sales, and refer to some of the cases decided under other acts, but which are nevertheless in point when the proceeding is under the Price Act. Nature of Orphans' Court Sale. 201. An Orphans' Court sale, it must be remembered, is a sale by the court, the party making the sale and delivering the deed being merely an agent, 1 and at all times subject to the con- trol of the court which, in the exercise of its jurisdiction as a court of equity 2 will govern the proceedings to the end that jus- tice may be done to all parties, and at the same time the various statutory requirements complied with. Indeed most of the juris- diction conferred by the act is merely statutory enactment of the equitable jurisdiction generally exercised by the chancellor, con- sequently the general principles of equity will prevail. Confirmation of gale. 202. The confirmation of the sale is the final act of the court accepting the offer of the purchaser, and is therefore nec- essary to the validity of the title in all cases. Formerly, under some of the old acts, it was held that a sale would be valid even without such confirmation after fifteen years. 3 In such a case now the court would probably proceed to confirm the sale with notice to all parties, and if the case arose in a collateral proceed- ing, suspend judgment until the sale could be confirmed. 4 (1) See remarks of Smith, P. J., in Ross's Est., 18 D. R. 429 (1908) at 431- (2) See remarks of L,owrie, J., in Loomis v. Loomis, 27 Pa. 233 at 236 (1856), "And it (Orphans' Court) sits as a court of equity and in a rude way uses the forms of a court of equity when it orders land to be sold for the payment of debts." (3) Watt v. Scott, 3 Watts 79 (1834). Ejectment. (4) See Chap. 16 on Collateral Attack. 160 ORPHANS' COURT SALES. 203 Jurisdiction of the Common Fleas Over Orphans' Court Sales. 203. It is clear under the statutes authorizing the Orphans' Court to mak'e sales of real estate, that the sole jurisdiction to make the sale is in the Orphans' Court and that the Common Pleas have no jurisdiction over Orphans' Court sales. They may not entertain a bill to restrain an executor from selling under order of the Orphans' Court. 5 The Common Pleas may, how- ever, restrain proceedings on a mortgage on the ground that the proceedings in the Orphans' Court authorizing the mortgage were invalid. 8 The decree of the Orphans' Court confirming the sale is conclusive on the Common Pleas, 7 which may, after the sale has been confirmed, entertain a bill in equity for specific per- formance, 8 or take jurisdiction of an action of assumpsit to re- cover the purchase money or render a decision upon a case stated to determine the marketability of the title. 10 The Orphans' Court may under its equity powers make a decree of specific perform- ance against the purchaser at the sale. 11 This jurisdiction, how- ever, is limited to the cases where the court has jurisdiction. Thus, if there are undivided interests in the property, and some of them are under age, and as to those a decree confirming the sale is made in the Orphans' Court, the Orphans' Court can only enforce specific performance of the contract of sale by the guard- ians, and if, therefore, the other undivided interests who are sui juris have joined in the contract of sale the remedy against the purchaser must be pursued in the Common Pleas, as a remedy is joint and cannot be severed by proceedings in the Orphans' Court as to some and proceedings in the Common Pleas as to others. 12 (5) Loomis v. Loomis, 27 Pa. 233 (1856). The Common Pleas may, however, entertain a bill in equity as to a sale by an executor under a power in a will, McClane v. McClane, 207 Pa. 465 (1904). (6) Morgan's App., no Pa. 271 (1885). (7) Mercer Home, Fisher's App., 162 Pa. 232 (1894). (8) Brock v. Steel Co., 203 Pa. 249 (1902). Common Pleas, however, has no jurisdiction for specific performance where the sale has not been confirmed, Mussleman's App., 65 Pa. 480 (1870) ; Bickley's Adm. v. Biddle, 33 Pa. 276 (1859). (9) See 220, post. (10) See 220, post. ( 1 1 ) See 220, post. (12) Claypoole's Est, 15 Pa. C. C. 283 (1894), s. c. 3 D. R. 455. 204, 20 5 SALES UNDER A POWER DISTINGUISHED. 161 Sales Under a Power to be Distinguished. 204. Where the sale is made by an executor or trustee under a power in the instrument creating the trust, the Orphans' Court, in the exercise of its general equity jurisdiction, may control the sale. The case, however, is not that of an Orphans' Court sale because the sale is made by the executor or trustee and not by the court. These casesj* therefore, are to be distinguished and excluded from the discussion although sometimes governed by the same principles. 13 Proceedings for Sale. 205. Proceedings in the Orphans' Court for the sale of real estate fall into two classes: (i) those where there is an appli- cation for an order of sale upon which an appropriate order is made followed by a sale, a return thereof to the court, confirma- tion of the sale followed by execution and delivery of the deed and payment of the purchase money ; (2) Where the sale is made subject to the approval of the Orphans' Court and petition made for the confirmation of the sale already made, followed by decree of confirmation and consummation of the sale, as in the other cases. Either course may be adopted. The second method is the modern and more direct proceeding, and applies as well to a public as a private sale and secures the rights of all parties. All the questions which can be raised on the petition for an order or a return of sale can be raised as well on a petition for con- firmation of a sale already made. Cases may arise, however, where it is advisable to petition for a preliminary order, as where the parties are not agreed, or there is some doubt as to the pro- priety of the sale. These questions can be settled on the presen- (13) The following are cases of sale under a power: Cobleigh's Est, 23 Super. Ct. 271 (1903) ; Hancock's Est, 9 D. R. 231 (1900), s. c. 23 Pa. C. C. 592; Miller's App., 84 Pa. 391 (1877); McClane v. McClane, 207 Pa. 465 (1904); Reel's Pet., 32 Pa. C. C. 200 (1906); Morgan's Est, 9 Pa. C. C. 119 (1890); Rigg v. Schweitzer, 170 Pa. 549 (1895), s. c. 37 W. N. C. 152, was a case of a bill in equity in the Common Pleas to declare void a sale by an executor under a power on the ground that the executor had really bid on the property through an agent. The bill was dismissed as the grounds of allegation were not proved. Handbest's Est., 15 D. R. 234 (1906); Brittain's Est, 28 Super. Ct. 144 (1905); Barndt's Est., 23 D. R. 226 (1914). 1 62 ORPHANS' COURT SALES. 206, 207 \J tation of the petition and some unnecessary expense perhaps avoided. 14 Order of Sale Controls Subsequent Proceedings. 206. In a case of a preliminary order for sale, the rights of the purchaser and the party making the sale are determined by the order of sale made by the court, which may not be varied without the consent of the court, but where there has been a vari- ance in the subsequent proceedings, it will be cured by the decree confirming the sale. Any variance of the terms in the advertise- ment is unauthorized and will be of no effect except that the court may, in confirming the return of the sale in a proper case, accept the terms of the advertisement. 15 Method of Objecting to the Sale. 207. The parties interested may object to the order of sale, file exceptions to the return, object to the confirmation, file excep- (14) As to the jurisdiction of the Orphans' Court to ratify afterwards that which it might have confirmed in advance, see 21, ante. (15) In Jayne's Est, 2 W. N. C. 536 (1876), there was a petition of a purchaser to set aside the sale. The order of sale decreed that the prem- ises should be sold subject to two certain mortgages. The advertisement was that the mortgages might remain. It was held that the purchaser was not entitled to relief as it was his duty to look to the order of sale and not to the advertisement. In Jacobs' App., 23 Pa. 477 (1854), the administrator varied the terms of the sale prescribed by the Orphans' Court and the sale was confirmed as altered. The court said, however, that the confirmation would cure the variation, and then decided the case on the ground that the sale conferred no title because of the altered terms. In Backenstoss v. Stahler's Admrs., 33 Pa. 251 (1859), there was an administrator's sale in partition, and the conditions of the sale were that all grain except a certain amount should remain on the ground and be the property of the vendee. A verbal an- nouncement was made at the sale that all the grain except every fourth bushel was reserved. The deed was made without reserving the growing crops, and the administrator brought trover against the purchaser and the court held that if the purchaser agreed to the verbal reservations, he was bound and judgment for the plaintiff was confirmed, going on the ground that the order of the court related exclusively to realty, and the reservation was to personalty and therefore outside the jurisdiction of the Orphans' Court order. In Randolph's App., 5 Pa. 242 (1847), administrator altered the con- ditions of sale by agreeing to continue in force a lien which would other- wise have been discharged by the sale. 208, 209, 210 JURISDICTION. STATUTE of FRAUDS. 163 tions thereto, proceed to set aside a confirmation already made, and in exceptional cases proceed to set aside the sale even after the delivery of the deed and payment of the purchase money. The rights of the different parties at various stages of the proceed- ings must be considered. The parties interested are: the pur-\ chaser, the party making the sale, the persons interested in the N estate, the title of which is sold, and the creditors, if any. Where Court has no Jurisdiction. 208. Where the court has no jurisdiction to make the sale, the proceedings may be dismissed at any time on that circum- stance being made to appear by proper proceedings by any party in interest. 16 Dicta as to Orphans' Court Sales. 209. Where there is a controversy after the sale is com- pleted over the proceeds of the sale, any remarks of the court as to the validity of the sale seem to be dicta, as the parties are estopped to question this validity so long as they claim the pur- chase money, and anyone not claiming can proceed to set aside the sale notwithstanding the remarks of the court. 17 Statute of Frauds. 210. The statute of frauds does not apply to an Orphans' (16) In Butt's Est., 20 Lane. L. R. 41 (1902), a rule for an alias order of sale for the payment of debts was refused as the lien thereof had expired. In Kurtz's Est., 16 Lane. L. R. 205 (1899), a petition, to vacate an order to mortgage real estate for payment of debts was sustained and the order revoked and petition dismissed, as the lien of debts had expired. In Souder's Est., 20 Lane. L. R. 231 (1903), exceptions were filed to pro- ceedings for a sale of real estate, which were dismissed because not supported by affidavit or proof and not filed until after sale had been confirmed. The administrator had petitioned for a sale for payment of debts, the administrator having been appointed in Chester County. The court said that the Orphans' Court of Chester County had juris- diction of the account and alone had power to determine the necessity of the sale, and that question could not be inquired into by the Court of Lancaster County where the land lay, and which must order a sale ac- cording to the decree of the court of Chester County. (17) A few of these cases are as follows: Funston's Est., 24 Pa. C. C. 135 (1900) ; Yard's Est., 17 Phila. 436 (1885), s. c. 42 L. I. 17, 15 W. N. C. 422; Crosson's Est., 6 Pa. C. C. 14 (1888); Bindley's App., 69 Pa. 295 (1872). 164 ORPHANS' COURT SAI.ES. 211,212 Court sale, and the purchaser cannot set up in defence that the contract was not in writing when sued for the purchase money. 18 Sale Must be for an Adequate Price. 211. Since the court makes the sale, it obviously has power to determine the price at which the property shall be sold, and to accept or reject any offers which are made. The controlling principle is that the price must be adequate, that is, must repre- sent as nearly as possible, under the circumstances, the full value of the property. The court has in the exercise of its equitable jurisdiction power to make such orders and decrees as may be necessary to secure a sale at an adequate price. Setting Aside for Inadequacy of Price. 212. Although there has been some doubt as to the power of the Orphans' Court to set aside a sale on the ground of in- adequacy of price alone, 19 it is now clear that wherever it ap- pears that the price is inadequate, the court will refuse to con- firm the return, refuse to confirm the sale, or where the sale has been confirmed, open the confirmation and set aside the sale, provided the application is made in time. 20 (18) King v. Gunnison, 4 Pa. 171 (1846). Although this case is gen- erally cited as an authority for this proposition, it does not appear that the defendant set up the point in defence. (19) See Ryan's Est., 8 Pitts. I,. J. 25 (1860) ; Cromrath's Est, I Wood 103 (1862) ; Ringler's Est., i Wood 214 (1864). (20) In these cases, before sale was confirmed, the court set it aside and ordered another sale: Hamilton's Est., 51 Pa. 58 (1865). In this case there was an administrator's sale in partition. The administrators and heirs made an arrangement for a higher bid, and the administrator in his return set out that the property could be sold for a higher price. One of the heirs formally notified the administrator that the price was too low and offered more. The court set aside the sale without notice to the purchaser and on an alias order the property was sold to another party at a higher price. The first purchaser petitioned to have the second sale set aside and the first sale confirmed. The petition was dismissed which was affirmed on appeal without deciding the right of a successful bidder to appeal from a decree of the court setting aside the sale and ordering another one. The purchaser stood in no relation of confidence and was not entitled to raise the question of lack of notice. In McCar- roll's Est., 2 W. N. C. 248 (1876), there was a petition by administrator to set aside a sale, setting out that since the sale a higher offer had been made. The court made a decree that upon the offeror giving security to 213 PRICK OF THE SALE. 165 Security for a Higher Bid on He-Sale. Distinction Between Public and Priyate Sales. 213. The court may, however, in order to discourage friv- olous objections, require some assurance that the property will bid for and purchase the property at not less than a certain price, the sale would be set aside and an alias order of sale issued. In Brown's App., 68 Pa. 53 (1871), there was a private sale by an executor and trustee under the Price Act for $5,250. Petition one month later filed by executor and trustee setting out that an offer of $6,400 had been made, and that sale had not been consummated. A new order of sale was made authorizing the acceptance of the new bid on terms of reimbursing the former vendee for expenses incurred in becoming a purchaser. In Grew's Est., 14 D. R. 224 (1905), s. c. 31 Pa. C. C. 530, 6 Lack. Jur. 166, there was a petition by an heir to set aside sale in partition. At a former sale there was a bid of $425., subject to a gro.und rent, but no sale was effected and on the second sale the property was sold for $100. The petition was granted, bond having been filed. In Herr's Est., 12 Pa. C. C. 622 (1893), excep- tions to confirmation of administrator's sale were filed by an heir on the ground of inadequacy of price. A bond was filed conditioned for an ad- vance bid of 10% on re-sale. Sale was set aside and re-sale ordered. In McBride's Est, 23 Pa. C. C. 544 (1900), s. c. 9 D. R. 216, a petition for re-sale was filed apparently before confirmation, accompanied by a bond of proposed purchaser conditioned for a bid of over 10% ad- vance. It did not appear who filed the petition. Re-sale was ordered. The court may refuse to confirm a particular sale. Thus, in Allen's Est., ii Phila. 48 (1875), s. c. 32 L. I. 417, where a sale in partition had been made and the purchaser presented a petition to confirm the sale, the court refused to confirm and made an order and decree setting aside the sale, as it appeared that the sale was made at a grossly inadequate price. In Breil's App., 24 Pa. 511 (1855), an administrator's sale had been made and no terms of sale prescribed in the order. A decree was made confirming the sale on certain terms, although it appeared that the property was sold at 20% of its value. On appeal, the confirmation was set aside, the Supreme Court saying that the court could have approved the terms nunc pro tune but could disapprove and refuse to confirm for that reason alone. As to the 10% in Phila. County, see McRee's Est., 6 Phila. 75 (1865), 22 L. I. 389, sale under proceedings in partition. Petition of pur- chaser fofr order on trustee to execute and deliver deed granted, although the property had increased in value since the sale ; Scott's Est., 4 Phila. 178 (1860), 27 L. I. 4- In Murphy's Est., 15 Phila. 530 (1882), 39 L. L 118, a petition was presented by a creditor to vacate decree of confirmation of sale of real estate, which petition was dismissed on the ground that the sum named by the petitioner as the purchase price was not in advance of ten per cent, over the former sale. Breese's Est, 2 Kulp 62 (1875), sale set aside, bond filed. Metz's Est., 14 York 136 (1900) ; Ranck's Est., n Lane. L. R. 233 (1893), bond not in proper form. In these cases the court 166 ORPHANS' COURT SAI^S. 213 bring more at the second sale, and the practice generally it to re- quire security that the property will bring an advance of at least ten per cent, upon a resale. 21 This principle is equally applicable where the objection be made before or after the sale is confirmed. The purchaser at the sale which is set aside should be protected." A distinction is to be drawn here between the case of a public sale and the case of a private sale. Where a public sale is set aside and a new public sale ordered, it is obviously necessary to have some security that the bid will be forthcoming at the next sale, otherwise the property might bring a sum less than it brought at the first sale. Where, however, the sale is private, and the application is for confirmation of that sale, and an offer is made of a higher price for the property, the same considera- tions do not apply. Here the offer may be accepted at once if it is deemed advisable, and there seems to be no occasion for re- quiring any security. In such a case the court can make a decree refused to interfere on the ground that the price was inadequate: Miller's Est, 5 Kulp 205 (1889) ; Wright's Est, 2 Kulp 442 (1878), exceptions to sale of real estate; no offer of a larger price. Forney's Est., 3 Kulp 29 (1883), exceptions to return of sale dismissed because exceptant failed to give security to pay the costs in case the property should bring less at a re-sale. In Carroll's Est, 2 Kulp 37 (1882), an application to set aside a sale was made (it did not appear by whom), which was refused, as there was no offer to return the deposit money or to bid more at a re- sale, and no security tendered to cover costs. In Funck's Est., 16 Super. C. 434 (1901), there was a petition of a trustee to sell land, joined in by all the heirs except two. The court made the decree awarding the sale. The objecting ones also made an offer to buy the property on certain terms which the court below rejected. It was held that the order of the court below would not be reviewed on appeal, as there was no abuse of discretion. In Clark's Est., 38 Pa. C. C. 302 (1911), the court found as a fact that the sale was made at a proper price ($2,300), mere offer of an un- successful bidder to bid $500 more on re-sale. Application was refused; and the first sale confirmed. In Snyder's Est., 29 Pa. C. C. 465 (1904), 7 Dauphin Co. 287, reported again in 30 Pa. C. C. 614, the petitioner failed to comply with the rule of court requiring security. Confer Chase v. Fisher, 239 Pa. 545 (1913), refusal to set aside receiver's sale, Grove's Est., 2 Woodward 182 (1867). In Acklin's Est., 237 Pa. 528 (1912), a party in interest petitioned to have the sale set aside two years after the purchase money had been paid and the deed delivered. Petition was re- fused. (21) See cases cited n. 20 ante. (22) In Scott's Est., 4 Phila. 178 (1860), 27 L. I. 4, the sale was set aside and the petitioner ordered to pay purchaser the expenses incurred. 214 PRICE of THE SALE. 167 setting aside the first sale upon the second purchaser entering into a binding agreement to purchase at the higher price with a direction to reimburse the first purchaser for the money outlay. 23 Decree of Confirmation Conclusive as to Adequacy of Price. 214. The decree confirming the sale is conclusive as to the price, consequently so long as the decree stands, nobody can be heard to say that the price is or ought to be other than the amount set out in the decree. Thus, where an administrator filed his account, having made a sale in partition, he cannot be surchanged because of the sale of the property at an undervaluation, the remedy in such a case being to apply to set aside the sale on the ground of inadequacy of price. 2 * Where, however, an executor or trustee sells under an express power, the rule is different. 25 If the party making the sale is (23) In Brown's App., 68 Pa. 53 (1871), the court set aside a private sale for $5,250 under the Price Act before confirmation because an offer was made of $6,400, all parties except the first purchaser agreeing. The court set aside the first sale and authorized acceptance of the second offer on terms of reimbursing the first purchaser. (24) Armstrong's App., 68 Pa. 409 (1871). In McPherran's Est., (No. i) 212 Pa. 425 (1905), an administrator purchased at his own sale by leave of court, and it was held that on filing his account, he could not be sur- charged with the profit obtained at a subsequent re-sale. In Schur's App., 17 W. N. C. 140 (1886), s. c. i Sadler 335, 2 Atl. 336, I Cent. 888, 4 East. 846, affirming Muller's Est., 16 Phila. 382, 41 L. I. 274, it was held that a party interested could not ratify sale, and at the same time claim it was void because of fraud. If a sale is confirmed, the decree fixing the price of the sale must be accepted. In Hazlett's Est., 137 Pa. 587 (1890), there was an administrator's sale for payment of debts. Exceptions were filed by a creditor, the estate being insolvent, which exceptions were dismissed. Brown, P. J., in the court below said, "The administratrix is asking the sale to be confirmed and if she has wrongfully refused a higher bid for the property by reason of which the exceptant's claim against the estate, if a valid one, is impaired, he has his remedy against her in the settle- ment of his accounts or possibly by an action." These remarks, however, unless understood as confined to a case of fraud, seem to be against the weight of authority and may be disregarded as unsound. In McRees' Est., 6 Phila. 75 (186$), 22 L,. I. 389, a sale in partition was confirmed. The purchasers at the sale petitioned for an order on the trustee ap- pointed to make the sale to make and execute a deed, which petition was granted, the fact that the property had advanced in value since the sale being immaterial. (25) Dundas's App., 64 Pa. 325 (1870). i68 ORPHANS' COURT SAI^ES. 215, 216 guilty of fraud, the rule appears to be otherwise and he may be surcharged on filing his account. 26 Fraud. 215. The sale may be set aside or confirmation refused if it appears that any fraud has been practiced. 27 Parties Who May Object to the Sale. 216. The validity of the sale may be challenged by other parties interested by exceptions to confirmation or petition to open sale. 28 (26) In Sheridan's Est., 10 Kulp 157 (1900), an executor was sur- charged with the difference between the price at which the sale had been made and the value of the property, it appearing that he knew that it was worth more and failed in his obvious duty to ask to have the return of the sale set aside, consequently was subject to the surcharge. (27) Mitchell v. Kintzer, 5 Pa. 216 (1847); Corbett's Est., 10 D. R. 59 (1900); Myer's Est, 9 Pa. C. C. 439 (1891), defence of fraud by executor in buying at his own sale. Here the deed was delivered but no rights of third parties were effected. Armington's Est., i Phila. 444 (1852), 10 I,. I. 115. It is, of course, clear that a secret agreement be- tween lien creditors, by which they are not to bid at an Orphans' Court sale of real estate is void and cannot be enforced between the parties, Barton v. Benson, 126 Pa. 431 (1889). The rights of creditors cannot be affected by any agreement between the administrator and purchaser after the sale, Fish's Est, 16 Phila. 373 (1884), s. c. 41 L. I. 263. In Brittain's Est, 28 Pa. Super. C. 144 (1905), there was a sale by an executor under a power which was set aside by the Orphans' Court after execution and delivery of deed on grounds of fraud at the sale. The references to the Act of 1853 are a dictum entirely uncalled for by anything in the case. Tanner's Est, 218 Pa. 361 (1907), guardian's sale set aside on petition of the minor because guardian bought at his own sale. (28) In the following cases, relief was afforded on the grounds indi- cated: Hannum's App., 2 Penny. 103 (1882), adminstrator's sale. Petition to open sale presented by lien creditor and granted on the ground that the administrator bought at his own sale, although no actual fraud. In Ike's Est., 200 Pa. 202 (1901), the sale had been made and exceptions to the confirmation of the sale dismissed, and the widow petitioned for an issue to try the validity of the note, which petition was refused. But party claiming under title adverse to the decedent cannot have the sale set aside on the ground that it would be a cloud on the title. He must fight out the question with the purchaser. Bodder's Est., No. I, 13 D. R. 471 (1904), s. c. 30 Pa. C. C. 417. Heir or devisee, however, cannot object except on the grounds of (i) inadequacy of price, (2) that there was no jurisdiction to make the sale, confer Smith's Est., 188 Pa. 222 217, 2i8 LIABILITY OF PURCHASER. 169 Preliminary Discussion as to Purchaser. 217. The purchaser is bound by his bid and may not trifle with the court by refusing to carry out the bargain, and the remedy by way of specific performance will be used against him if necessary. On the other hand, it is desirable to encourage bid- ders at such sales, and consequently the rule of caveat emptor will not be rigorously enforced so as to work on injustice. The purchaser, however, is not to be allowed to escape from his bargain because of trifling errors and defects of whicR he had notice. The court furthermore always will, if application be made at the proper time, relieve against a bona fide mistake. Refusal of Purchaser to Carry Out the Terms of the Sale. 218. If the purchaser refuses to perform his part of the contract and carry out the terms of the sale, the court may grant an alias order of sale, 29 and if the sale has been confirmed, set the confirmation aside. The purchaser will then be liable for any (1898). Carswell's Pet., I Phila. 521 (1854), s. c. 12 L. I. 14, petition by cestui que trust for order on trustee to make a mortgage. Trustees exceptions were dismissed. As to exceptions by remaindermen, see Gamble's Est., 9 D. R. 691 (1900) ; Loucks's Est., 203 Pa. 278 (1902) ; Smith's Est., 207 Pa. 604 (1904). In Drayton's Est., 6 Phila. 157 (1866), s. c. 23 L. I. 133, an examiner had reported in favor of granting the petition of a guardian of a minor for an order of sale under the Act of 1851. Petition was presented by the heirs ex parte materna of the minor to vacate the order on the ground that the sale would produce a conversion of the minor's interest, and therefore change the course of descent to the detriment of the petitioners. Petition dismissed on the ground that the sale was under the Act of 1851 and would not produce a conversion. The heirs of a de- cedent should always have an opportunity to show that the debts for the payment of which the sale is ordered are unjust or not well founded, consequently when they are not parties to the proceedings establishing the debt, they may have the proceedings for the sale set aside or suspended until they have an opportunity to contest the debt, Murphy's App., 8 W. & S. 165 (1844); Dean's App., 87 Pa. 24 (1878). As to standing of a judgment creditor of an heir to object, see Gheen's Est., 12 Phila. 123 (1878), s. c. 35 L. L 234, confer Gheen's Est., 5 W. N. C. 319 (1878), perhaps the same case. In Derr's Est., 203 Pa. 96 (1902), where trustees had invested in real estate under the order of the Orphan's Court made under the Act of April 13, 1854, P. L. 368, a petition by the cestui que trust fifteen years later was dismissed. (29) Jayne's Est, 2 W. N. C. 536 (1876). 12 170 ORPHANS' COURT SALES. 219 loss at a resale unless the terms of the sale are varied so as to put the bidders in a less advantageous position. 30 Purchaser Should Defend by Objecting to the Confirmation. 219. Where there is any error in the proceedings or any irregularity affecting the title of the purchaser, the proper prac- tice is for him to file exceptions to the confirmation, 31 or if the sale has been confirmed, to petition to have the confirmation set aside. 32 (30) Banes v. Gordon, 9 Pa. 426 (1848), purchaser was not held liable because the terms of the first sale were one-half cash and the balance in one year, security by bond and mortgage, and the terms of the second sale were cash. Confer, Paul v. Shallcross, 2 Rawle 326 (1830). Kelly's Est., 17 D. R. 647 (1908), petition by person interested to have decree of confirmation of sale set aside, which was granted. The purchaser at the sale not making a deposit, the auctioneer re-sold the property instead of offering it to the next highest bidder, in consequence of which the property was sold at a smaller price. Rule otherwise in case of sheriff's sale; see Hotchkiss v. Homan, 25 Pa. C. C. 314 (1901). (31) Purchaser must object before the confirmation, Confer Dull v. Slater, 31 Super. C. 488 (1906). (32) In these cases the purchaser was afforded relief upon proper pro- ceedings by the court opening the decree confirming the sale, or refusing to confirm return to order of sale. Hammiirs Est., 234 Pa. 438 (1912), public sale in partition. Defence that the purchaser had been induced to bid upon the belief that the representations of the auctioneer would be rati- fied by the trustee and that they were not so ratified. Purchaser, however, had to pay cost because of his negligent conduct. McCaffrey v. Gibney, 223 Pa. 368 (1900), guardian's sale had failed to bar contingent remainders. Decree partially vacated and second sale to the same purchaser at the same price directed. Bodder's Est., 31 Pa. C. C. 46 (1904), s. c. 14 D. R. 53, petition to set aside sale. Misleading statements at the sale, the purchaser would only obtain a law suit. See Bodder's Est. (2), 30 Pa. C. C. 417 (1904), s. c. 13 D. R. 471 (1904). Veihdorfer's Est., 26 Pa. C. C. 317 (1900), petition by purchaser to set sale aside. Advertisement of the sale contained exaggerated misrepresentations as to the value of the property and as to material fact, thereby misleading the purchaser. Wiltberger's Est., 18 Phila. 232 (1887), s. c. 44 L. I. 431, 4 Pa. C. C. 184, misdescrip- tion and misrepresentation as to fact that a street had been widened. Petition of purchaser to rescind confirmation of sale; petition granted. DeHaven's App., 106 Pa. 612 (1884), misrepresentation by administrator made at the sale as to the title of the land sold. Petition granted. Sale set aside. Objections had been raised by other parties, and sale confirmed in such proceedings. Purchaser not thereby prevented from taking pro- ceedings attacking the sale. Updike's Est., 18 D. R. 982 (1909), was a 220 LIABILITY of PURCHASER. 171 Liablity of Purchaser After Confirmation. 220. Where the sale has been confirmed, the liability of the purchaser to pay the purchase money becomes fixed, and since he has a remedy by attacking the confirmation of the sale, the case of a petition by a purchaser at an administrator's sale for the pay- ment of debts, to revoke order for sale of decedent's real estate on the ground that the lien of debts had expired. Decree authorizing sale re- voked. The court said a court of equity will grant relief before the de- livery of the deed and the payment of the purchase money. Hostetter's Est, 222 Pa. 197 (1908), was a petition to open confirmation of admin- istrator's sale. The administrator and purchaser had agreed in advance of the sale to submit the validity of the title to the determination of the court in a case stated. Held that the purchaser had no standing to contest the sale until he had taken steps to have a case stated submitted to the determination of the court and then the court should fix a time within which a case stated should be submitted. In Schwartz's Est., 12 Phila. 71, s. c. 35 L. I. 153 (1878), the sale was set aside as the prop- erty was subject to an encumbrance and the auctioneer did not announce the existence of the mortgage, and it was held that as the purchaser was misled, he was entitled to relief; as the administrator was at fault in not having the proper announcement made, he was directed to pay the costs. In Whiteman's Est., 13 Phila. 249 (1879), s. c. 36 L. I. 286, there was a petition by a trustee appointed in partition to compel payment of the purchase money or set aside the sale. The sale was set aside on purchaser paying the costs, it appearing that the sale had been adver- tised free of encumbrances, and there was a private right of way across the property, the existence of which was unknown. In Pennock's App., 14 Pa. 446 (1850), exceptions by purchaser to confirmation of adminis- trator's sale for payment of debts were sustained on the ground that the administrator employed puffers at the sale, by reason of which the pur- chaser paid a sum in excess of the real value. The exceptions were dismissed in the court below, which was reversed on appeal, overruling the case of Steel v. Ellmaker, n S. & R. 86 (1824), which was a case of a sale of goods at auction, where it was decided that the seller might fairly employ an agent to bid the property up at the sale to a limited price without making it publicly known. Horn's Est, 10 York 156 (1896), accord. In Schug's App., 14 W. N. C. 49 (1883), s. c. 41 L. I. 45. there was an administrator's sale for payment of debts which was returned and confirmed. A rule by the purchaser to show cause why confirmation of sale should not be struck off was taken on the ground of (i) puffing at the sale, (2) mistake of 25% in the number of acres sold. The court below discharged the rule, which was reversed on appeal, and the sale set aside, and the administrator ordered to refund to the purchaser the money paid on account, the fact that the puffing was not authorized by the administrator being immaterial. In Dively's Est., i Lane. L. R. 359 (1884), there was a trustee's return to order of sale, and exceptions 172 ORPHANS' COURT SALES. 220 general rule is that he cannot set up any defence to the payment of the purchase money, to which rule there are certain excep- tions which will be noted. Proceedings may be taken in the Orphans' Court against the purchaser for specific performance under the general equity were filed by the purchaser on the ground of false and fictitious bidding at the sale, which were sustained and sale set aside at the cost of the estate. New order of sale to issue. In Penn Square Bldg. Assn.'s App., %i l /2 Pa. 330 (1876), there is a dictum that where a purchaser at a sale purchased for full value in ignorance of the law or fact that a certain mortgage was not discharged by the sale, the court before confirmation has power to and probably will grant him relief. For a case where such relief was granted, see Johnson's Est., 15 Phila. 543 (1882), s. c. 39 L,. I. 160. In Moulton's Est., 15 Phila. 579 (1882), s. c. 39 L. I. 412, decree confirming sale vacated on petition, probably of the purchaser, that the handbills misstated the amount due on an encumbrance subject to which the property was sold. In King's Est., 2 Leh. Val. L. R. 229 (1886), exceptions to return of sale by a purchaser were sustained, it appearing that there was a cloud on the title, and that the purchaser had been led to believe that the title was unquestioned. In Bopp's Est., 18 York 161 (1905), the purchaser's petition to have the sale set aside was granted, it appearing that the pe- tition had been presented under the Act of June 12, 1893, P. L. 461, and was irregular because it was not the joint petition of the widow and heirs. In Lerch's Est. 2 Leh. Val. L. R. 348 (1886), exceptions by the purchaser were sustained, it appearing that the interest sold was an un- divided one instead of an entire interest in the property. In these cases the purchaser was denied relief: Murtland's Est., 16 Phila. 222 (1883), s. c. 40 L. I. 120, petition by purchaser to vacate sale was refused, the misdescription alleged being insufficient to justify setting aside the sale. In Boyle's Est., 2 Kulp 169 (1882), exceptions to the report of the examiner in the matter of enforcing sale of real estate were dismissed, five years having elapsed from the time of the sale and the purchaser having, in the meantime, been in possession ; it was held that he could not set up a misunderstanding of his rights. In Gillespie's Est., 10 Watts 300 (1840) there was an administrator's sale and decree made confirming sale and appeal therefrom. A would-be purchaser who had not obtained the property objected on the ground of irregularity and that administrator had adjourned the sale. It was held that the admin- istrator could so adjourn for not more than twenty days; that the pe- titioner was guilty of laches, and all the other parties thought the sale was fair and to their interest and advantage. It does not seem that a stranger who is anxious to obtain the property has much standing to object to the sale which has been made. See Hamilton's Est., 51 Pa. 58 (1865). In Miller's Est., 8 York 7 (1893), exceptions by purchaser to return of sale were sustained. 22o LIABILITY OF THE PURCHASER. 173 power of the court or the parties may submit a case stated in the Common Pleas for the determination of the court, 33 or an action of assumpsit may be brought in the Common Pleas for the pur- chase money or the balance due. 34 (33) F r instance of case stated, see Reed v. Palmer, 53 Pa. 379 (1866). (34) In the following cases the sale had been confirmed by the court, and in an action for the purchase money, it was held that the purchaser could not interpose the defence specified, his liability to pay becoming ab- solute on the confirmation of the sale. In most of these cases it appeared that the deed had been delivered and accepted. In none of them, at least was there any indication to the contrary : Fahrig v. Schimpff, 199 Pa. 423 (1901), administrator's sale, defence of vendee that he bought for the administratrix personally, and was only to be accountable to her for what he realized on a re-sale. Miles v. Diven, 6 Watts 148 ( J 837), administrator's sale, defence of misrepresentation by administrator and mistake in quantity of land sold. Vandever v. Baker, 13 Pa. 121 (1850), administrator's sale, defence of misrepresentation by declaration of the crier as to encumbrances. Crier had no authority to make a con- tract or vary the terms of the sale. Dawson and Springer v. Ewing, 16 S. & R. 371 (1827), administrator's sale, defect in title of the de- cedent of which they had no notice, and failure of administrator to give bond. Bashore v. Whisler, 3 Watts 490 (1835), administrator's sale, de- fence of title outstanding in third person of which notice had been given at the sale. King v. Gunnison, 4 Pa. 171 (1846), administrator's sale. Defence that title was in a third party. Sackett v. Twining, 18 Pa. 199 (1852), administrator's sale in proceedings in partition. Defence of deficiency in quantity of acres. Purchaser failed to have a re-survey before confirmation, which right was reserved to him by the terms of the sale. In Donnelly v. Byers, 234 Pa. 339 (1912), executor's and trustees' private sale under power ratified by Orphans' Court as a sale for the payment of debts. Defence of purchaser that land was subject to claim of creditors of the decedent, all of whom were barred from claiming against the real estate. Language of Mestrezat, J., too broad. In Richter v. Fitzsimmons, 4 Watts 251 (1835), there was an action for purchase money by the administrator. Sale confirmed and deed offered to purchaser who refused to pay the purchase money. The purchaser had objected to confirmation of the sale, and the court had overruled the objections. He now apparently presented the same objections and also some others. It was held that the decree was final, under the statute. In Fox v. Mensch, 3 W. & S. 444 (1842), sale by adminis- trator. Defence that there was only a reversionary interest sold in- stead of an interest in fee. In Robb v. Mann, II Pa. 300 (1849), there was an administrator's sale for payment of debts and an action on the case for the balance of first instalment of purchase money, the sale having been confirmed and deed tendered to purchaser who refused it and had gone into possession; the defence was raised that the machinery and apparatus of a stone distillery situate on the premises and sold with 174 ORPHANS' COURT SALES. 220 Where, however, the court is without jurisdiction and no title will pass under the decree, the purchaser will not be compelled to pay the purchase money and may set up the defence in an ac- tion therefor, 35 or in a proceeding for specific performance. it had been removed between the time of the sale and the confirmation thereof, which defence was overruled. The court said that the loss should fall on the purchaser who had an inceptive title to the land and a remedy against the person who took away the property. In Gilmore v. Rodgers, 41 Pa. 120 (1861), s. c. 9 Pitts. L,. J. 209, sub nom. Gilmore v. Rogers, 19 L. I. 28, a guardian sold under order of court, the undivided interest of the minor, and in a suit against the pur- chaser on the purchase money obligation, the defendant set up in defence the following defects in the proceedings: (i) mistake as to the amount of the interest of the minors, it appearing that they had five-sevenths when they were supposed to have had, and settlement made on the basis of their owning, one-half; (2) mistake in the acreage; (3) circumstance that the owners of the other undivided interests did not join in the pe- tition; (4) that the private sale of an undivided interest was not author- ized by the act; (5) that the record was irregular in that there was no return to the order of sale until after two entire terms of court had intervened, and the report of the guardian was not signed or sworn to. Judgment for plaintiff. In McCaffrey v. Gibney, 223 Pa. 368 (1909), an action of assumpsit was brought to recover balance of purchase money, judgment was entered for the plaintiff. The defence that the sale failed to bar contingent remainders, and that it was void because a ratification of a previous private sale, was overruled. (35) O'Brien v. Wiggins, 14 Super. Ct. 37 (1900), was an action of assumpsit to recover purchase money by administrator who had had a private sale for the payment of debts confirmed by the court. Defence was that the sale did not divest the lien of certain judgments entered against the intestate in his lifetime. Judgment for the defendant as the court held the judgments were not discharged. The Act of 1853 did not apply because by the Act of March 23, 1867, P. L. 43, the lien of debts of record are saved from discharge by private sales. The Act of May 9, 1889, P. L. 182, only authorizes a private sale where under existing laws the court had power to decree a sale, and therefore the validity of the sale must be decided by the provisions of the prior act. That the pe- tition was under the Act of March 29, 1832, P. L. 190, a public sale under which discharged the lien of judgments, and therefore a decree under the Act of 1889 upon a private sale would have the same effect, but that the case was not properly conducted under the Act of 1832, because it did not have the averment that the personal estate of the de- cedent was insufficient for the payment of his debts nor an inventory of the personal estate, a correct statement of the real estate, or an account of the debts of the decedent. The court based its decision expressly on 221 LIABILITY OF PURCHASER. 175 Liability of Purchaser After Deed Delivered and Purchase Money Paid. 221. Where the deed has been delivered and purchase money paid, the purchaser must remain content with the title he has acquired as he has had an opportunity to present any de- fence in court. The court even here, however, will interfere upon grounds of mistake and fraud although being very careful to respect any intervening rights of third parties. 36 the ground that the facts set forth in the petition were insufficient to confer jurisdiction on the Orphans' Court to decree a sale. In Westhafer v. Koons, 144 Pa. 26 (1891), there was a case stated to determine the validity of the title derived under Orphans' Court proceed- ings, and it was held that the purchaser could refuse to take the title because there was a failure to set out in the petition the circumstance that the proceedings were to bar contingent remainders, and therefore the remainders were not barred. In Keller v. Lees, 176 Pa. 47 (1896), there was an action of as- sumpsit for the purchase money, and the defendant was allowed to set up, to relieve himself from payment, that the sale failed to bar remainders to a class, as there was no jurisdiction under the act to make a decree in such a case. In these cases, a bill in equity was filed for specific performance and the purchaser was allowed to set up the defence specified. Howe's Est, 14 Pa. C. C. 574 (1894), s. c. 3 D. R. 267, purchaser permitted to resist petition for specific performance because the auctioneer stated that the ground rent on the property was redeemable when it was irredeemable. In Taylor's Est., 17 D. R. 692 (1908), the court refused to make a decree since the title of the purchaser would be unmarketable owing to irre- deemable ground rents. Confer, dictum in Bickley's Admr. v. Biddle, 33 Pa. 276 (1859). In Miller v. Spear, 21 W. N. C. 554 (1888), there was an administrator's sale for payment of debts, and on a bill in equity in the Common Pleas for specific performance a decree was entered for the purchaser because the sale was private, and the statute only author- ized a public sale, and therefore no title would be conferred. The pur- chaser was denied relief in Brock v. Steel Co., 203 Pa. 249 (1902), where in a bill in equity for specific performance in the Common Pleas, decree was entered for the plaintiff. The purchaser set up a defence as to ir- regularities in the form of the petition. (36) Where a guardian has sold under order of the Orphans' Court a tract of land for 200 acres which in fact contained only 32 acres, the purchaser on application to the court two years after the date of the deed could have the sale set aside, deed back the land and obtain a resti- tution of the purchase money, Johnson's App., 114 Pa. 132 (1886). In Nimick's Est., 179 Pa. 591 (1897), the court upon petition seven years after the deed was delivered, corrected the deed by setting aside the conveyance and directing the conveyance to be made in proper form. 176 ORPHANS' COURT SALES. 222 The Title Passed by the Sale. 222. The Orphans' Court can only authorize the sale, etc., of the title derived under the deed or will or acquired by pur- chase in the manner prescribed in the act, and all other interests remain unaffected unless they are such interests as cannot be as- serted against a purchaser for value without notice, and the pur- chaser at the sale can bring himself withing that definition. 37 The deed was made by mistake to certain individuals as surviving part- ners as tenants in common, when it should have been made to them as surviving partners. Where there was a mistake in the case of a sale by a guardian of the interest of a minor, which mistake was participated in by the purchaser, the court held, the deed having been delivered, that the mistake could not be corrected ; and as the time for the correction of the error had long since elapsed, the vendor could not set up the defence in an action on a bond for the purchase money, Gilmore v. Rodgers, 41 Pa. 120 (1861). Tubb's Est., 4 D. R. 325 (1894), sale for payment of debts. Discovery of old deed showing that the decedent had a one-eighth instead of the whole. Rule by purchaser to set aside after delivery of deed but before pay- ment of purchase money, was granted. Administrator consented to rule which was opposed by one creditor. Confer also Duncan's Est., I W. N. C. 14 (1874). In these cases the rights of third parties had intervened : Landreth v. Howell, 24 Super. C. 210 (1904), in this case there was a mistake of 10 per cent, in acreage in a master's deed in partition, and the money had been distributed. It was held that the purchaser, who brought assumpsit against one of the parties who had received the fund, could not have relief. In Wylie's Est., 7 D. R. 748 (1898), an administrator's sale for the payment of debts was confirmed, and a deed delivered to purchaser. The sale was set aside on petition of a judgment creditor because the court had been misled as to the encumbrances on the property. The de- cree expressly protected the rights of the purchaser. (37) In McCormick's App., 57 Pa. 54 (1868) there was a sale of the legal title of a partner for the payment of his debts, and it was held that the sale passed only his interest as partner in the land. Dictum case arose on distribution of the proceeds. Kline's App., 39 Pa. 463 (1861), administrator's sale for payment of debts was duly confirmed. Before deed delivered, widow petitioned to vacate sale, claiming a resulting trust in the land in her favor. Petition refused as proof of trust was insufficient. The purchaser was willing to have sale confirmed and as only title of decedent was sold, the widow had a right to maintain an ejectment. In Bodder's Est., No. I, 30 Pa. C. C. 417 (1904), the property of a de- cedent was sold for the payment of debts, and a claimant under a deed from the decedent in his lifetime petitioned for an order to set aside the sale, which was refused, the court saying that his remedy was by ejectment, and that the purchaser at the sale only bought the title of the decedent. 223 PURCHASER OBTAINING POSSESSION. 177 Any title which could be successfully asserted against the title sold will be unaffected by the sale, and any title which was un- availing against the title sold will be equally unavailing against the purchaser. It seems also that the deed passes all the land intended to be sold, and the omission of part of the property in the description is immaterial where the case arises in a collateral action forty years after the sale. 38 So also where the title sold is subject to a right of way, the purchaser takes subject to the easement, 39 and a claim by adverse possession against the title sold may be set up against the purchaser at the sale. 40 George v. Trust Co. 41 was an ejectment by a daughter against the estate of her mother to recover an interest in land, of which the plaintiff's father had died intestate, and which had been sold by his administrator, under order of Orphans' Court, to his widow, the defendant. The daughter claimed that her interest as heir of her father was not divested by the sale. Judgment was entered for the defendant as the plaintiff was estopped. Purchaser Obtaining Possession. 223. It was provided by the Act of April 9, i849, 42 that the purchaser of real estate sold under order of the Orphans' Court should have the right to recover possession after confirmation of the sale and execution and acknowledgment of the deed in the same manner as was provided in relation to purchasers at sheriff's sale. 43 (38) McGhee v. Hoyt, 106 Pa. 516 (1884), s. c. 41 L. I. 399. (39) In Overdeer v. Updegraff, 69 Pa. no (1871), there was an ad- ministrator's sale for payment of debts of property which was subject to an apparent continuous and necessary easement imposed by the de- cedent in his lifetime for the benefit of other properties. The alley was not mentioned in any of the court proceedings but was reserved in the con- ditions of sale and in the deed. It was held that the purchaser took subject, the case arising in an action by the servient tenement against the dominant tenement for trespassing on the easement, Tomlison v. Trenton, N. H. & L. St. Ry. Co., 31 Pa. C. C. 81 (1905). (40) Harrington v. Stivanson, 210 Pa. 10 (1904). (41) 234 Pa. 300 (1912). (42) P. L. 524, Sec. 16. (43) For cases of a proceeding under this act, see Merritt v. Whitlock, 200 Pa. 50 (1901), where it was held that the Act of May 24, 1878, P. L. 134, providing that one justice of the peace could act where two were 178 ORPHANS' COURT SALES. 224 The Act of April 20, 1905," purports to provide a remedy by which purchasers at judicial sales may obtain possession and ex- pressly repeals the latter part of Sec. 16 of the Act of April 9, The act of 1905 is of doubtful constitutionality since the title does not appear to give notice of all its contents, and there is therefore some doubt as to the remedy which a purchaser at Orphans' Court sale now has for obtaining possession. Of course, if the proceedings are under the Act of 1905, and the defendant raises no question as to the constitutionality, the purchaser may obtain his remedy under that act, and if it should be subsequently declared unconstitutional in another proceeding, it would not af- fect him as he would be in possession of that which was his own. If, however, the defendant should raise the question of consti- tutionality and the act be declared unconstitutional, then the pur- chaser would have to begin over again under the Act of April 9, 1849." Rights of the Various Parties Pending Completion of the Sale. 224. Since the actual sale, the confirmation thereof by the court, and the payment of the purchase money and delivery of the deed are not simultaneous acts but are separated by some little intervals of time, questions frequently arise as to the rights of the parties in the meantime. The case differs from that of an ordinary vendor and vendee in that the sale is made by the court which may withdraw at any time, even after the consum- mation of the sale. The general law therefore governing the re- lation of vendor and vendee will be subject to some variation. We must therefore consider (i) The title of the heir or de- visee, (2) The incident of rights and liabilities between the heir or devisee and the purchaser, (3) The title of the purchaser as to which latter it will be necessary to distinguish (a) the lien of before required, did not effect the Act of 1849, supra, and the proceedings were therefore void because held before only one justice. Potts v. Wright, 82 Pa. 498 (1877), s. c. 34 L. I. 148, 24 Pitts. L. J. 125, 5 Law Times O. S, 35, 9 Lane. Bar 14. (44) P. L. 239. See Act of April 8, 1905, P. L. 121. (45) P. L. 524- (46) P. L. 524, Sec. 16. In the case of Young v. McCamant, 241 Pa. 232 (1913), proceedings were sustained under the Act of April 20, 1905. P. L. 239, without any question being raised as to its constitutionality. 225, 22 6 RIGHTS PENDING COMPLETION of THE SALE. 179 judgments, (b) rights against third parties, (c) devolution of the title. Title of the Heir or Devisee. 225. The title of the heir or devisee is not divested until the confirmation of the sale and the execution and delivery of the deed. The purchaser, therefore, is not entitled to possession until such consummation of the sale, and the heir or devisee may as- sert his title in ejectment even though the purchase money has been paid and the sale confirmed. 47 If the heir or devisee dies before the delivery of the deed, even after confirmation, he dies seized of real property and his interest devolves as such. 48 Al- though the heir or devisee is entitled to possession and judgment will be entered for him, the court will, to avoid circuity of action, direct the judgment to be vacated if the defendant shall settle with the executor or person making the sale and receive the deed within a reasonable time. 49 There is therefore no alienation until confirmation, consequently insurance policies are not avoided, and an administrator may sue on the policy to the use of the vendee for loss occurring between the sale and the confirmation. 60 The Incidence of Rights and Liabilities Between the Parties. 226. The general rule in equity is that the vendee is the owner of the property sold from the time of making the agree- ment of sale, and the vendor is merely entitled to the purchase money and the burdens and benefits of ownership are adjusted between them accordingly. The only circumstance which varies (47) Leshey v. Gardner, 3 W. & S. 314 (1842); Greenough v. Small, 137 Pa. 132 (1890). (48) Erb v. Erb, 9 W. & S. 147 (1845) ; Biggert's Est, 20 Pa. 17 (1852). A. fortiori where the heir dies before the sale is made, Ferree v. Comm., 8 S. & R. 312 (1822). (49) Stevenson v. Scott, 188 Pa. 234 (1898). See Smith's Est., 188 Pa. 222 (1898). (50) Farmers Mutual Ins. Co. v. Graybill, 74 Pa. 17 (1873). The purchaser is not entitled to the rents accruing after final confirmation and before execution of the deed, Strange v. Austin, 134 Pa. 96 (1890), aff. 7 Pa. C. C. 128 (1889). In this case the tenant had paid the rent to the purchaser and it was held that this did not discharge his debt to the heir. Purchaser is not entitled to recover the rents from the accountant, Law's Est, 7 Pa. C. C. 605 (1890). 180 ORPHANS' COURT SALES. 227 the case of an Orphans' Court sale is the fact that the court which makes the sale has power to withdraw when an individual would be bound to proceed. But few cases have arisen on this point, and the law is probably the same in each case. In Kayser's Est., 51 certain trustees made a sale subject to the approval of the Orphans' Court, and the question was as to the liability of the purchaser to pay a municipal lien. The agree- ment called for a good and marketable title, clear of all encum- brances, and both parties were ignorant at the time of the con- templated improvement. The contract for building the sewer was made by the city on May 1 1 ; the agreement of sale was made May 21 ; the work begun May 27 ; order of sale made June 15; work completed June 14; deed executed and entered June 23. The court held that the equitable title of the purchaser vested in him May 21. The lien was from the time of the doing of the work, which was on June 14, subsequent to the date of the agreement of sale, but before the execution and delivery of the deed. The title was free of encumbrance at the time of making the agreement, and the burden, therefore, was to be borne by the purchaser, and the money to pay the claim, which had been re- tained, was held to be payable to the vendor. Destruction of Buildings by Fire. 227. It is not quite clear as to who is to bear the loss if the improvements on the premises sold are destroyed by fire pending the completion of the sale. It was decided in Demmy's App., 52 that it was inequitable in the case at bar for the purchaser to bear the loss caused by fire, although not necessary to decide that point, and that the remarks of Rogers, J., in Robb v. Mann, 53 that the loss would be borne by the purchaser, should be disre- garded. (51) 9 D. R. 360 (1900). (52) 43 Pa. 155 (1862). The sale was made Sept. 24, 1859, but owing to objections of the widow and heirs, confirmation was delayed until after the fire which was on March 3, 1860. It was held that the purchaser could refuse to take the property. (53) ii Pa. 300 (1849) at 305. A third party took away certain prop- erty on the land, the sale having been made January 31, 1846, the pur- chaser took possession April I, 1846, the sale was confirmed May 12, 1846, and the property taken away before April i, 1846. It was held the purchaser had a remedy against the third party. 228 RIGHTS PENDING COMPLETION OF THE SALE. 181 The occurrence of the fire is no ground for setting aside the sale. 54 There is a dictum of Bittenger, P. J., 55 that the purchaser must stand the loss of buildings destroyed after the confirmation of the sale. The general rule in case of an agreement of sale is that the vendee is the owner in equity the moment the agreement of sale is signed, and therefore if the buildings are destroyed by fire pending the consummantion of the transaction, the loss is his and he is entitled to the proceeds of insurance policies, if any. 58 While the decisions we have referred to are not altogether clear, it seems probable that the same rule will apply in the case of Orphans' Court sales. Apportionment of Interest on Encumbrances. 228. It seems clear that at the settlement if any ^gncumX brances on the property remain, that the interest thereon should be apportioned as of the date of settlement. While there is some doubt on this point as to the case of a ground rent because a ground rent is not ordinarily apportionable, it does not seem that the doubt should prevail because the considerations as to the apportionability of the ground rent do not apply to the trans- action between a vendor and vendee. 57 (54) Farabee's Est, 29 Pa. C. C. 334 (1904). In this case there was a rule by the purchaser to lift an absolute confirmation of sale. A fire had occurred in the premises before absolute confirmation. The petition was dismissed as the court said that the purchaser could protect himself by retaining part of the purchase price, and if there was any desire to test the question, suit could be brought in the Common Pleas for the bal- ance of the purchase money and the question decided there. (55) In Bopp's Est., 18 York 161 (1905). (56) Reed v. L,ukens, 44 Pa. 200 (1863). (57) In Law's Est., 6 Pa. C. C. 647 (1889), there was a petition by a purchaser to revoke an order of sale on the ground that the testamentary trustee who had made the sale insisted on the purchaser paying the accru- ing interest on a certain mortgage. The petition was dismissed, the trustee ibeing directed to make an allowance at the settlement with the purchaser of the arrears of interest on the mortgage, otherwise the decree of confirma- tion would be vacated. See remarks of Penrose, J., in Terry's Est., 13 Phila. 298 (1879), s. c. 36 L. I. 461. This case arose on the audit of account by ad- ministrator who had sold under order of court for the payment of debts. It .does not appear under what act. The property had been sold subject t a grpjmd re/it and a mortgage. It was held that the purchaser took 182 ORPHANS' COURT SALES. 229,230 Title of the Purchaser. Preliminary. 229. The purchaser takes an equitable title to the land. Questions arise as to (i) the lien of judgments, (2) his rights against third parties, (3) the devolution of the title where he dies pending the completion of the sale. Judgment Against Purchaser. 230. Judgments will frequently be entered against the pur- chaser pending the consummation of the sale, and the question will arise whether they are a lien upon his interest before he takes title. The cases are as follows: In Holmes' App., 58 there was a sale under order of court for payment of debts. The purchaser paid the purchase money. Ex- ceptions to the confirmation were filed by various parties in in- terest pending which certain judgments were entered against the purchaser. Subsequently the exceptions were dismissed and deed was made to the purchaser. At a subsequent sale in partition of the purchaser's title after his death it was held that these judgments were first liens on the title, the same as in the case of a private agreement for sale of land. In Jacobs' App., 59 there was an administrator's sale in parti- tion under order of the Orphans' Court. One-half of the pur- chase money was to be paid April i, 1849, and the rest to be se- cured and deed to be made when the other one-half was to be paid. The sale was confirmed Nov. 20, 1848, the one-half due April i, 1849, was not paid, the purchaser made final settlement May 19, 1849, an d deed was delivered to him on that day, and he gave a judgment bond for the balance of the purchase money. A judgment was entered against the purchaser on April 4, 1849. The property was subsequently sold under execution on the pur- chase money judgment, and it was held that it should be first paid out of the proceeds of the sale. The court said that the sale was a public sale for cash, and the extension of the time of payment was subject to the two encumbrances, (the syllabus refers to the Act of March 23, 1867; no reference thereto by court,) therefore, accountants should not have credit for arrearages of ground rent and interest on mortgage which had been allowed in the settlement. (58) 108 Pa. 23 (1884). (59) 23 Pa. 477 (1854). 231 JUDGMENT AGAINST PURCHASER. 183 contrary to the order of the court and void, and therefore the pur- chaser could not at that time enforce the terms of that sale, con- sequently he had no title. It is to be observed that the sale had been confirmed by the court before the judgment by the purchaser was entered, and therefore the terms of the sale were valid be- cause ratified by the court. In Thompson v. Rogers, 60 a purchaser at an administrator's sale which had been confirmed, and who was in default in his payments, made a parol sale of the land to A., who paid the ad- ministrator the rest of the money. In the mean time, a judgment had been entered against the purchaser and his interest was sold under execution on the judgment to B. The administrator then made a deed to the purchaser and A., as tenants in common. A. brought ejectment against B. It was held that A. had no title on which he could recover either under the parol agreement with the purchaser or under the deed from the administrator, as that deed was not made to the party to whom the sale was confirmed. The judgment was recovered before the payment of any pur- chase money by A. In this case, of course, A. had no title at all, and the decision does not really touch the effect of the judgment, which could only be raised in a controversy between B. and the purchaser at the sale. It seems that under these cases the judg- ment binds whatever title the purchaser has, and if, therefore, he is in default he has no title, and the judgment does not bind, whereas, if he has fulfilled the terms of the agreement, he has an equitable title which ripens into a legal title when the deed is delivered and the lien of the judgment dates back to the date of agreement of sale. Rights of Purchaser Against Third Parties. 231. After deed delivered, the purchaser becomes the owner, as in every sale, and entitled to all rights as such, and be- fore the delivery of the deed, he is a vendee and may assert his rights in certain cases against third parties. 61 (60) 67 Pa. 39 (1870). (61) Thus, in Tomlinson v. Trenton and New Hope, etc., R. R. Co., 31 Pa. C. C. 81 (1905), it was held that the purchaser could maintain a bill in equity against a railroad company to restrain unlawful entry on the land after the confirmation but before the delivery of the deed. In Robb v. Mann, II Pa. 300 (1849), there was an action by administrator against purchaser for instalment of purchase price, and there was a dictum that 184 ORPHANS' COURT SALES. 232, 233, 234 Devolution of Purchaser's Title. 232. The title of the purchaser, for the purpose of devolu- tion under the intestate laws, dates back to the time of the con- firmation of the sale. In Frick Coke Co. v. Laughead, 62 there was an administrator's sale for payment of debts in 1812. The purchaser went into possession, paid part of the purchase money, and died intestate. The balance of the purchase money was paid by his administrators who took the deed to themselves as admin- istrators for the use of the heirs of the decedent. It was held in ejectment between those claiming under the heirs of the pur- chaser that the title was in him, and that he was the perquisitor for the purpose of tracing descent, the title relating back to the confirmation by the court. Alienation of Purchaser's Title. 233. It seems perfectly clear that the purchaser may freely dispose of his title with the consent of the court. The reason the consent of the court is necessary is because the sale can only be consummated by delivery of the deed to the purchaser and the delivery of the deed to another party will confer no title. 623 Who is to Execute Deed. 234. The deed is executed under the order of the court and by the hand of the court acting merely through the instrumentality of the person appointed to make the sale. Therefore, any per- sonal disqualification of the person making the sale is immaterial, as, for instance, the circumstance that a guardian is a lunatic. 63 The deed is to be executed by the person directed to make the sale. 64 A number of statutes have been past providing for the case of the death, insanity, removal, etc., of the person directed the purchaser could maintain action on the case and not trespass against third parties who took away a building between the making of the sale and delivery of the deed. (62) 203 Pa. 1 68 (1902). (62a) See 237, post. (63) Grier's App., 101 Pa. 412 (1882), s. c. 40 L. I. 90, 30 Pitts. L. J. 224, Diet. (64) In Backenstoss v. Stahler's Admrs., 33 Pa. 251 (1859), where there was an administrator's sale under proceedings in partition, the purchaser took a deed from the widow and heirs, and it was held that it would have the same effect as if made by the administrator. 234 WHO Is TO EXECUTE DEED. 185 to execute the deed. Since the insanity of the person executing the deed is immaterial there seems to be no occasion for the statute unless the incapacity is sufficient to interefere with the actual execution of the deed. So also where there are several trustees directed to make the sale, the survivors may execute, and where the person acting buys at his own sale, the decree will be executed by the clerk of the court. 65 (65) Section i. Be it enacted, etc., That in all cases where a sale of the real estate of a decedent shall be made by executors or administrators, or guardians, under an order of the Orphans Court, if one or more of such executors or administrators, or guardians, shall die or be discharged before a conveyance is made to the purchaser, it shall and may be lawful for the surviving executor or executors, administrator or administrators, as the case may be, to execute and deliver to the purchaser a deed of conveyance for the estate so sold, on the purchaser's full compliance with the terms and conditions of the sale. Section 2. That in all cases where a sale of the real estate of a de- cedent hath heretofore been made by executors or administrators, or guardians, under an order of the Orphans' Court, and one or more of such executors or administrators, or guardians, hath or have died before a conveyance hath been made to the purchaser, it shall and may be lawful for the surviving executor or executors, administrator or administrators, or guardians, as the case may be, to execute and deliver to the purchaser a deed of .conveyance for the estate so sold, on the purchaser's full com- pliance with the terms and conditions of sale; that where authority is or shall be given by decree of court to trustees, or other persons, to sell real estate, and any such trustees or other persons authorized, shall have died, resigned or ceased to act, before a sale is effected or a deed exe- cuted, in all such cases sales may be effected and a deed executed by the surviving or succeeding trustee or trustees, or other persons, with as full effect, in all particulars, as if effected or executed by the persons acting in the trust, or other office, at the time a sale was originally decreed. Every deed made in pursuance of and agreeably to the provisions of this act, shall vest the property, therein described, in the grantee, as fully and effectually as if the same had been made by all the persons who may have sold any such estate circumstanced as aforesaid. Act of May i, 1861, P. L. 431- Section i. Be it enacted, etc., That whenever any Orphans' Court or Court of Common Pleas, having authority under existing laws to decree a sale of real estate, shall issue an order to any executor, administrator, guardian or trustee, either specially appointed for the purpose or other- wise, to sell such real estate, and shall confirm such sale, and such admin- istrator, executor, guardian or trustee shall die before the execution of a deed to such purchaser, the proper court shall have power, on the petition of the purchaser, to direct the clerk of such court to execute and deliver to the purchaser the necessary deed of conveyance for such real estate, 13 186 ORPHANS' COURT SALES. 235 Endorsing Decree on Deed. 235. It was formerly the practice among many convey- ancers to have a certified copy of the decree endorsed on the on his full compliance with the terms and conditions of sale, paying into court the moneys payable and delivering to the clerk the securities re- quired by the said terms and conditions, which moneys and securities shall remain subject to the disposition of the court, and said deed shall be valid and available to such purchaser, as fully as if it had been executed and delivered by the proper administrator, executor, guardian or trustee under existing laws. Section 2. That whenever any Orphans' Court or Court of Common Pleas, having jurisdiction to decree a sale of real estate, shall issue its order to any administrator, guardian, executor or trustee, specially ap- pointed for the purpose, or otherwise, to sell such real estate, and shall in any case within its jurisdiction give authority to any administrator, executor, guardian or trustee to bid at such sale, and said court shall confirm the sale of said real estate to such administrator, executor, guard- ian or trustee, the said court may make an order directing its clerk to execute a deed for said real estate to such purchaser, who shall account for the amount of such purchase money, in the settlement of his ac- counts with the register of wills, to said Orphans' Court or Court of Com- mon Pleas, as the case may be. Section 3. That whenever any Orphans' Court or Court of Common Pleas, shall have heretofore made an order for its clerk to execute a deed in any of the cases mentioned and provided for in the first and sec- ond sections of this act, and such deed shall have been accordingly exe- cuted and delivered, such deed shall be valid and available to the pur- chaser to vest in him the right, title and interest of the person as whose land the said real estate had been sold. Act of May 22, 1878, P. L. 83. Where real estate is ordered sold in proceedings in partition and (i) there shall be no executor or administrator to execute the order, (2) ex- ecutor or administrator shall neglect or refuse to execute, the court may appoint some suitable trustee to make the sale who shall proceed as execu- tor or administrator would : Act of February 24, 1834, P. L. 70, Sec. 44. The Act of April 19, 1901, P. L. 83, provides: Section i. Be it en- acted, etc., That in any proceedings at law or in equity, in any of the courts of this Commonwealth having jurisdiction, if the said court shall order a conveyance to be executed by either of the parties to the said proceed- ing or his or her interest in any lands or tenements to any other party or person, and the party so ordered shall neglect or refuse to comply with the said order and make the said conveyance, or shall die, flee the jurisdiction, or become insane without having complied therewith, it shall be lawful for the said court to order and direct that such conveyance be made by the sheriff, prothonotary or clerk, or by a trustee specially appointed for that purpose; and the said conveyance having been duly executed by the said sheriff, prothonotary, clerk or trustee, and acknowledged in open 236 ACKNOWLEDGMENT AND RECORDING OF DEED. 187 deed. 66 The advantage of this was that if the Orphans' Court record should be destroyed or lost, the decree itself or the record thereof would bear evidence of the action of the court. This practice has fallen into disuse, and the deed under the decree now generally merely recites the proceedings in the Orphans' Court, and it is very seldom that a certified copy of the decree is asked for. There is no harm in having it done, but there does not seem to be any particular advantage in going to the extra expense and trouble. Acknowledgment and Recording of Deed. 236. The Price Act requires the deed or mortgage to be acknowledged in court. 67 There seems to be no reason why the deed or mortgage should be acknowledged before the court or why the general law as to acknowledgment of deeds and mort- gages should not apply. It has been accordingly provided by the amendment of April 22, I9O3, 68 that the deeds, mortgages or leases made in pursuance of the provisions of the act may be ac- knowledged by a justice of the peace, notary public or other of- ficer having authority under the laws of the state to take ac- knowledgments or deeds and other instruments of writing therein. The only obscurity here is as to the meaning of the word court, shall be good and effective to convey the interest of the recusant, neglecting, deceased, persons fleeing the jurisdiction, or insane party, to the extent ordered by the court, the same as if it had been duly executed and delivered by such party personally: Provided, That this shall not prevent the said court from punishing the contempt of the said party by fine and imprisonment, if deemed necessary: Provided further, That no such order shall be made, in case of the decease of such party, until notice shall have been given to his or her heirs and legal representatives, by process duly served, if resident within the Commonwealth, or, if not, by publication and copy mailed to the last known address of the same, ac- cording as the court shall order and direct. Section 2. This act shall apply to any proceeding in which the court shall have heretofore ordered such conveyance to be executed, as well as to any in which it shall hereafter be ordered. (66) See Jermon v. Lyon, 81 Pa. 107 (1876), see bottom of p. 108. (67) The provisions of the act are as follows: Sec. 4. Such sales, etc., shall be under the direction and subject to the approval of the court before which the deed shall be acknowledged, and be certified under seal to have been acknowledged. (68) P. L. 241, see Appendix A., n. 64. This act amends and extends certain previous amendments which are cited in the appendix. 1 88 ORPHANS' COURT SALES. 237 "therein." Does it apply to the lands and tenements or does it apply to officers taking the acknowledgments within the state. If the latter, then it is clear that no deed or mortgage executed under the provisions of the act may be acknowledged outside of the state. If the word "therein" only refers to the real estate it seems that such instruments may be acknowledged in accord- ance with the law generally prevailing with respect to acknowl- edgments outside of the state. The case does not often arise be- cause the party making the deed generally is the one who gives the security and is therefore right at hand to make the acknowl- edgment in the county or within the state. Although the Price Act does not so provide, it is clear that the deed is to be recorded in the recorder's office of the county where the lands lie. Deed Must Conform to the Decree of the Court. 237. The deed must conform to the decree of the court, whether an order of sale or a confirmation as to premises, terms and purchaser. The return of the sale or the order of sale may be amended before deed is delivered by substituting another pur- chaser, as was done in Brennan's Estate, 09 and, in "like manner, where a sale has been confirmed, there is no doubt that in a proper case the court will amend the decree before the delivery of the deed. If a deed is made to a person other than the pur- chaser specified in the decree, no title will pass. 70 Since, how- ever, the jurisdiction of the court only extends to real estate, any reference to personal property in the deed is to be determined by principles other than those applicable to an Orphans' Court sale. 71 (69) 220 Pa. 232 (1908). (70) Thompson v. Rogers, 67 Pa. 39 (1871). (71) In Backenstoss v. Stahler's Admr., 33 Pa. 251 (1859), there was an administrator's sale under proceedings in partition, and it appeared that there was a reservation of the growing crops made at the sale but no reservation of them in the deed. The administrator subsequently brought trover against the purchaser for the growing crops and it was held that he could recover since the purchaser had consented at the sale to the reser- vation, and since that reservation was as to personal property, it was competent for the parties to make a variation without obtaining the con- sent of the Orphans' Court thereto. 240, 241 COLLATERAL ATTACK. 189 CHAPTER 16. Collateral Attack. Preliminary 240 Former law as to decrees of the Orphans' Court 241 Present law as to decrees of the Orphans' Court 242 Decree valid notwithstanding irregularities .- 243 Decree may be impeached by party in interest without notice ... 244 Decree conclusive of facts set out in the record 245 Party in interest who had notice cannot impeach 246 Where record does not show that the court had jurisdiction, the decree may be impeached 247 Fact that there is no decree may be set up in a collateral action 248 Parol evidence to vary or explain proceedings 249 Fraud 250 Mistake i Preliminary 251 Unilateral 252 Mutual 253 Statement of the law in Pennsylvania as to collateral attack upon Orphans' Court sales 254 .Preliminary Discussion of Collateral Attack. 240. The Price Act provides that the title of the purchaser shall be indefeasible by any person having a present or ex- pectant interest, and be unprejudiced by any error in the pro- ceedings. This provision of the act must be read in conjunction with the general law governing the validity of Orphans' Court sales, and in the light of the principle that the Orphans' Court is a court of limited jurisdiction and outside of this jurisdiction its decrees have no force whatever. 1 The true application of this section may therefore best be discovered by considering together the cases on collateral attack on Orphans' Court decrees whether arising under the Price Act or some other act. These cases may be arranged under the following headings : Former law as to Decrees of the Orphans' Court. 241. The decrees of the Orphans' Court were formerly con- sidered to be of a nature inferior to the decree or judgment of a (i) See 13, ante. 190 COLLATERAL ATTACK. 242, 243 court of record, and consequently were frequently examined and set aside on very slight grounds in collateral proceedings. 2 Present Law as to Decree of the Orphans' Court. 242. The Act of March 29, i832, 3 establishes the Orphans' Court as a court of record, and provides that its proceedings and decrees as to all matters within its jurisdiction shall not be re- versed or avoided collaterally in any other court but shall be liberal to reversal anly on appeal, since which act the early rule no longer obtains. The decree of the Orphans' Court may, how- ever, still be set aside in a collateral proceeding, and it is of great importance to know what the law is on this subject. Decree Valid Notwithstanding Irregularities. 243. The decree of the Orphans' Court authorizing a sale will be held conclusive in an action of ejectment notwithstanding irregularities in the proceedings for the sale. 4 (2) The early view is illustrated by the case of Huckle v. Phillips, 2 S. & R. 4 (1815), where an action of ejectment was brought by the heirs of a decedent against defendant claiming under Orphans' Court sale, which action was brought twenty-five years after the sale. The judge left it to the jury to say (which was affirmed on appeal) whether there was sufficient ground for the exercise of the equitable jurisdiction of the court in ordering a sale on the ground of insufficiency of debts, and to raise money to educate a minor child. See also Lessee of Snyder v. Snyder, 6 Binney 483 (1814). As to proof of Orphans' Court sale, see Rahm v. North, 2 Yeates 117 (1796), suit for purchase money; Huckle v. Phillips, 2 S. & R. 4 (1815) ; M'Donald v. Campbell, 2 S. & R. 473 (1816). (3) P. L. 190, Sec. 2. The provisions of the act are as follows : "The Orphans' Court is hereby declared to be a Court of Record, with all the qualities and incidents of a Court of Record at common law; its pro- ceedings and decrees, in all matters within its jurisdiction, shall not be reversed or avoided collaterally in any other court, but they shall be liable to reversal, modification, or alteration, on appeal to the Supreme Court, as hereinafter directed." (4) Decree held conclusive in these cases : Klingensmith v. Bean, 2 Watts 486 (1834), sale made after the term to which the order was re- turnable. Dixcy's Exrs. v. Laning & Sill, 49 Pa. 143 (1865), failure to enter bond. Lockhart v. John, 7 Pa. 137 (1847), failure to enter bond. Painter v. Henderson, 7 Pa. 48 (1847), where there was an error in partition proceedings, to-wit, assignment of land to widow at valuation when act of assembly allowed assignment to heirs only. Fox v. Winters, 4 Rawle 174 (1833), no final account confirmed. Snyder v. Markel, 8 Watts 416 (1839), accord. See, however, L/essee of Larimer v. Irwin, 243 IRREGULARITIES. 191 In Potts v. Wright, 5 there was an administrator's sale under pluries order of the Orphans' Court and the purchaser, brought ejectment against the heirs twenty years after the sale. The heirs contended in defence (i) fraud between administrator and purchaser of which there was no proof, (2) adverse posses- sion of defendant, (3) Orphans' Court had no jurisdiction to decree an alias or pluries order to sell until decree of con- firmation of first sale was set aside. (This point not passed on in Supreme Court.) (4) Administrator filed no bond. Judg- ment for defendant in court below was reversed on appeal, the Supreme Court saying all irregularities were cured by the decree which could not be impeached. In West v. Cochran, 6 a mortgage of minor's interest in real estate was made by guardian. In an action of ejectment by the mortgagee it was held that the mortgage was valid under the Act of 1853, even though a prior order to an administrator c. t. a. to sell the same premises was opened and undetermined, and even though the guardian's petition contained no description of the real estate and no list of creditors was annexed, as this omis- sion was supplied by reference to the prior proceedings. The interest of the minor was subject to debts of a decedent, and the mortgage was to raise money to pay off these debts. In Templeton v. Lehigh & Wilkes-Barre Coal Co., 7 the plain- tiffs, who claimed under the decedent, brought an action of eject- ment against the purchaser at an administrator's sale under a pri- vate Act of April 2, 1853, P. L. 285. The purchaser was a rail- road company who had bought a right of way. Although no re- lease or deed for the right of way was found, judgment was en- tered for the defendant. Suit was brought here fifty years after the sale, and the court said that the fact that no deed was de- livered was immaterial, the money having been paid. 4 Binney 104 (1798), contra, criticized by Duncan, J., in McPherson v. Cunliff, ii S. & R. 422 (1824), and explained by Tilghman, C. J., in Huckle v. Phillips, 2 S. & R. 4 at 7 (1815). (5) 82 Pa. 498 (1876), s. c. 34 L. I. 148, 24 Pitts. I,. J. 125, 5 Law Times O. S. 35, 9 Lane. Bar 14. (6) 104 Pa. 482 (1884), s. c. sub. nom. West v. Cochrane, 41 L. I. 330, 31 Pitts. L. J. 373- (7) 50 Super. Ct. 341 (1912). 192 COLLATERAL ATTACK. 244 Party in Interest Without Notice May Impeach. 244. The law is also clear that a party in interest who has had no notice of the proceedings may impeach the decree in a collateral action. This principle applies to the Common Pleas as well as to the Orphans' Court. In McPherson v. Cunliff, 8 where the decedent died leaving children supposed to be legitimate, and, on that assumption, guardians were appointed who made an Orphans' Court sale for support and maintenance. Twenty years later one of the illegiti- mates discovered the legitimate children and procured a convey- ance of their interest, and it was held that he could not recover in ejectment against the purchaser. Non constat, however, that they could not have recovered. The plaintiff obtained the con- veyance for a very small sum and the lot had valuable improve- ments put there by the defendant, and it is clear that it was in- equitable and unjust for him who had been a party to the sale to contest its validity on the ground of a right which he had after- wards acquired. In McKee v. McKee, 9 a petition was presented by a purchaser to decree specific performance of a parol contract for the pur- chase of land made with the decedent, which petition might be construed as under the Act of February 24, i834, 10 The decree of the court was not in accordance with the provisions of the statute and no notice was given to the heirs of the decedent. The purchaser took no title and consequently the heirs of the intestate succeeded in an action of ejectment against him. 11 In Taylor v. Hoyt, 12 there was an action of ejectment, by a tenant in common who had been absent and not notified of the proceedings, against a purchaser at the sale, proceedings being under the Price Act, and judgment was entered for the plaintiff. In Spencer v. Jennings, 13 ejectment was brought by heirs against purchaser at sheriff's sale who had bought under pro- ceedings on a mortgage executed under order of the Orphans' Court. The proceedings to mortgage had been intended to be (8) ii S. & R. 422 (1824). (9) 14 Pa. 231 (1850). (10) P. I,. 70. (11) See 58 U. of Pa. Law Rev. 455. (12) 15 Atl. Rep. 892 (1888), s. c. 2 Mona. 206. (13) 114 Pa. 618 (1886), s. c. 19 W. N. C. 10, 44 L. I. 230, 34 Pitts. L. J. 243, 123 Pa. 184 (1889), 139 Pa. 198 (1890). 244 NOTICE. 193 under the Act of 1853 but were not correctly drawn either under that act or the Act of 1832. The mortgage which was for $700. was foreclosed and the widow received over $2,000 from the proceeds of the sale after paying the amount of the mortgage. The mortgage was executed by the widow individually, and the Orphans' Court proceedings were merely referred to in the body of the mortgage. The court said that if the court had no juris- diction upon the petition of the administratrix, which it did not have, it had no jurisdiction to appoint a guardian ad litem, and the children were therefore not in court, consequently had no notice of the sale, and their interest was not properly divested. This is the real ground of decision. Furthermore, the minors re- ceived no benefit of the sale and the widow ran away with nearly the entire proceeds. 14 In Grindrod's Estate, 15 where a sale had been made to bar contingent remainders, a minor who had failed to receive notice petitioned to have the sale set aside on that ground, and the pe- tition was refused, the court saying that the remedy was by ejectment against the purchaser. In Perrine v. Kohr, 16 ejectment was brought by legitimate chil- dren against purchasers at partition sale under proceedings insti- tuted by illegitimate children, and of which the plaintiffs, the le- gitimate children, had no notice. Proceedings were in the Or- phans' Court and judgment was entered for the plaintiffs. The record did not disclose the illegitimacy of the petitioners in the Orphans' Court proceedings. In Mitchell v. Spaulding, 17 ejectment by purchaser at sale by committee of a lunatic under proceedings in the Common Pleas. 18 No notice was given to the next of kin, and it was held that the sale was void and no title passed. After thirty years, however, the record of the proceedings being lost, notice to the contingent remaindermen will be presumed and judgment will be entered for the defendant in an action of ejectment by them against the purchaser's title. 19 (14) See remarks of Clark, J., in 123 Pa. 124 (1895). (15) 140 Pa. 161 (1891). (16) 20 Super. Ct. 36 (1902). (17) 20 Super. Ct. 296 (1902). (18) Under the Act of June 13, 1836, P. L. 592, Sees. 22, 24. (19) Smith v. Schwarz, 209 Pa. 79 (1904). This was an action of ejectment by contingent interests barred by the sale against the pur- 194 COLLATERAL ATTACK. 245 So also proceedings in partition in the Orphans' Court are void as against parties who have had no notice, which defect may be set up in collateral action of ejectment, 21 and the proceedings will be opened and the decree set aside on proper application. 22 In Bennett v. Hayden, 23 there was a sale of the real estate of a lunatic under the Act of June 13, i836, 2 * which was void for want of notice to the heirs of the lunatic, and it was held that the widow and heirs could succeed in an action of ejectment against the purchaser. Decree Conclusive of Facts Set Out in Eecord. 245. The decree of the Orphans' Court, furthermore, is conclusive of all facts set out in the decree or necessarily found by the entering thereof, and no evidence can be introduced in the collateral proceeding to impeach the decree on that ground. This principle is illustrated by as number of cases, as follows : In Selin v. Snyder, 25 there was ejectment by the heirs of a decedent against a purchaser at Orphans' Court sale. The rec- ords show that all administrators had petitioned for the sale, and it was held that evidence could not be introduced to impeach the record and show that one of the administrators was never con- sulted and never consented to the sale of the land, and therefore the action of ejectment failed. In Morrison v. Nellis, 26 ejectment was brought by the heirs against defendant claiming under the purchaser at an Orphans' Court sale. The sale was by the guardian, the petition setting out the nature of the title to the minor's interest in one-half of the lot, that it would be to the interest of said minors to sell the same, that a co-tenant had offered a certain sum which the pe- chaser. The papers in the case had been lost, and it was presumed that notice was given and that the proceedings were regular. See McGuirk v. Friel, 9 Del. Co. 22 (1906), where the record did not show legal notice, but the court found there was actual notice. Ejectment brought twenty years after the sale. (21) Messinger v. Kintner, 4 Binney 97 (1811) ; Richards v. Rote, 68 Pa. 248 (1871). (22) Swan's Est, 238 Pa. 430 (1913). (23) 145 Pa. 586 (1892). (24) P. L. 589, Sees. 22, 24. (25) 7 S. & R. 166 (1821). (26) 115 Pa. 41 (1887), s. c. 19 W. N. C. 20, 44 L. I. 187, 34 Pitts. L. J. 274, 14 Lane. L. R. 96. 245 DECREE CONCLUSIVE OF FACTS IN RECORD. 195 titioner regarded as a reasonable price, and better, under the cir- cumstances, than could be obtained at private sale. Judgment was entered for the defendant, the sale passing a good title. The question whether the sale was actually for the interest of the minor was for the Orphans' Court, and their judgment there- on was conclusive. In Sager v. Mead, 27 ejectment was brought by heirs of the intestate against the purchaser at Orphans' Court sale sixteen years after the sale, which was for the payment of debts of the decedent. The contention was that the sale was not necessary and that the land was sold for less than its actual value. The allegations were not proved and judgment was for the defendant. It is apprehended that in this case, even if the allegations were proved the heirs could not succeed. The decree of the court was conclusive as to these points. In Grubb v. Galloway, 28 there was an administrator's mort- gage for the payment of debts, and an averment in the petition (i) that the decedent died within the time fixed for the lien of the debts, which averment was false, (2) of the existence of debts. It was held in subsequent proceedings by the mortgagee upon the mortgage that the decree was a .conclusive adjudication of the fact of death within the time prescribed, and that the decree could not be attacked on the ground that the schedule of debts in the petition exhibited such looseness or irregularity as to put the mortgagee upon inquiry as to the actual facts. It ap- peared, however, that the amount of money borrowed on the mortgage was not needed to pay the debts, and the proceeds of the mortgage were used, with the consent, knowledge and par- ticipation of the mortgagee, in paying claims which were invalid against the decedent. Mitchell, J., who delivered the opinion in the Supreme Court, paid no attention to these circumstances, and on this ground the decision is open to serious objection. The heirs had no notice, which notice was not required by statute, and the Supreme Court went on the ground that the decree of the Orphans' Court was a conclusive adjudication that the debts were the debts of the decedent, and that the mortgagee was justi- fied in relying on that in paying out the money. 29 (27) 171 Pa. 349 (1895). (28) 203 Pa. 236 (1902). (29) See 45, ante. 196 COLLATERAL ATTACK. 245 In Swift v. Harbison-Walker R. C., 30 the title had been ac- quired by deed. Proceedings were under the Price Act in the Common Pleas. A bill was filed by parties evidently having con- tingent remainders against the purchaser at the sale. It does not appear how the title could be drawn in question in this proceed- ing in equity. Leaving that aside, the plaintiffs had no standing because the contingency upon which they were to take had not yet happened so that even if the sale were void they would have no claim. The case was one of a sale to bar contingent remain- ders. The court also said that the case arising 25 years after the decree of sale, it must be assumed, in the absence of anything to the contrary disclosed, that the court performed the duties of investigation imposed by the act and required the petitioners to comply with the provisions of the statute. In Gallaher v. Collins, 31 an action of ejectment was brought by the purchaser at Orphans' Court sale for the payment of debts against son of the decedent in possession. Defendant claimed that the sale was void because there were no debts, as he had arranged to take up the debt for payment of which the sale was made. His arrangement, however, was made without knowledge of the parties that it was to have such an effect, and he had failed to object to the confirming of the sale of which he had notice. Judgment was entered for the plaintiff. In Cierlinski v. Railways, 32 ejectment was brought by the guardian of a minor child for land which had been set out to the widow as part of her exemption. Defendant claimed under the widow's title. Judgment was entered for the defendant. The widow had remarried and thus lost her right to the exemption, and the fact of her remarriage was set in the petition for ex- emption. The Orphans' Court decree was conclusive of all facts, the determination as to her remarriage was final and conclusive. Under this case, if the court should erroneously find the date of the death of the decedent, that fact would be conclusive and the heirs would have no remedy. In Patchin v. Seward Coal Co., 33 a sale was made under the order of the Common Pleas of Westmoreland County of land (30) 228 Pa. 584 (1910). (31) 7 Watts 552 (1838). (32) 225 Pa. 312 (1909). (33) 226 Pa. 159 (1910). 246 PARTY IN INTEREST WITH NOTICE. 197 in that county upon petition of the committee of a lunatic resi- dent of Clearfield County where he had been declared a lunatic, and the committee was appointed, to which court petition was first presented for an order to sell. The sale was for the pay- ment of debts and the maintenance of the family of the lunatic. Ejectment was brought seventeen years after the sale by the heirs of the lunatic against the purchaser's title, and it was held that judgment should be given for the defendant. The irregu- larities which were said to exist, and which might justify setting the sale aside could not be set up in a collateral proceeding, and evidence was need inadmissible to show that notice had not been given as alleged in the record. Party in Interest who had Notice Cannot Impeach. 246. Where a party in interest has had notice of the pro- ceedings, it is his duty to object to any defect therein, and if he fails to do so, he cannot afterwards take advantage of such de- fect in a collateral proceeding, and particularly is this so when he has received the benefit of the sale. In Maple v. Kussart, 34 a husband and wife were seized of an estate by entireties, and the husband made a will disposing of the entire estate, directing a sale thereof, and died. The entire estate was sold by the executors under the order of the Orphans' Court, there being no one named to execute the power, thus ig- noring the estate by survivorship in the widow. The widow, however, received her share of the proceeds of the sale in ac- cordance with the terms of the will and encouraged the sale. In ejectment by her heirs after her death, against the title de- rived at the sale, a verdict for the defendants was affirmed. The court put the case on the ground of estoppel and the receipt of the purchase money. In Jacoby v. McMahon, 35 there was a sale by an administrator for payment of debts at private sale 36 which was otherwise reg- ular. The proceeds of the sale were applied to the payment of the debts and other land relieved from the lien. It was held that the heirs could not after eight years succeed in ejectment against the purchaser at the sale. The court relied largely on the cir- (34) 53 Pa. 348 (1867). (35) 174 Pa. 133 (1896), s. c. 189 Pa. I (1898). (36) See the Act of June 12, 1893, P- L. 461. 198 COLLATERAL ATTACK. 247 cumstance that the son and heir was in court and did not object, and received the benefit of the proceeds of the sale. In Phillips v. Crist, 37 the executor who had sold the land of the decedent at an Orphans' Court sale, brought an action of ejectment against the purchaser apparently in his own right. It was held that he was estopped by his representations at the sale and his deed to defendant from claiming in his own right any land within the lines of the deed. Where Record does not Show that the Court had Jurisdiction, the Decree May be Impeached. 247. In the case of an executor's or administrator's sale for the payment of debts, the law is clear, that if it appears from the facts in the petition that the debts have lost their lien or it does not clearly appear that there are debts or that the lien is still subsisting, the sale will confer no title on the purchaser, and the purchaser or those claiming under him cannot set up the de- cree in an action of ejectment against them by the heirs or de- visees. 88 In Halderman v. Young, 39 the Common Pleas appointed a committee of a lunatic under the Act of April 20, i869, 40 which act did not confer jurisdiction over the property of the lunatic. 41 The committee thus appointed sold the lunatic's real estate under order of court, and it was held in an action of ejectment by the former lunatic against the purchaser at the sale that the decree was valid and no title conferred. The court said that the case was not helped by the Act of April 28, i8^6, 42 which only applies to cases of irregularity in appointment or want of proper qualifica- (37) 33 Super. Ct. 445 (1901) S. (38) Torrance v. Torrance, 53 Pa. 505 (1866) ; Smith v. Wildman, 178 Pa. 245 (1896), s. c. 194 Pa. 294 (1900) ; Smith v. Ribblett, 233 Pa. 300 (1912). In Truby v. Steele, 45 Super. Ct. 152 (1911), the sale was valid even though the lien had expired, as there were administration expenses to be paid. (39) 107 Pa. 324 (1885). (40) P. L. 78. (41) See Halderman's App., 104 Pa. 251 (1883). The appointment was void and could not be helped by resorting to the general equity powers of the Common Pleas over persons non compos mentis because those powers can only be exercised in accordance with the statute. (42) P. L. 50. 199 tion and not therefore to the defect in the case at bar, which was a total want of jurisdiction. The Fact that there is no Decree May be Set tip in a Collateral Action. 248. The circumstance that there is no decree may, of course, be set up in a collateral action. Thus, in Barger v. Cassidy, 43 an administrator presented a petition for a mortgage to pay debts of the intestate. The court made an order for the mortgage but no decree of confirmation. The administrator gave a bond and warrant of attorney with the mortgage, upon which judgment was entered and the land sold, and in ejectment by the purchaser it was held that his title was void except as to the title of the administrator in her own right. The special order to mort- gage did not confer power to confess judgment. 44 In Kreimendahl v. Neuhauser, 45 there was a guardian's sale of a minor's undivided interest under Act of 1853. The order of sale had been made but no bond had been filed, and the guard- ian had made no return to the order of sale, and there was, there- fore, no confirmation thereof. The minor, furthermore, never received any of the proceeds of the sale, the guardian having never accounted therefor. The minor, on coming of age, brought ejectment against the purchaser and recovered. In this case there really was no decree to impeach, the sale having been carried out bfore the Orphans' Court proceedings were completed. In Morgan's App., 46 an administratrix had made a mortgage for the payment of debts, an order having been made authorizing the mortgage but no return to the order. Proceedings were begun upon the mortgage, and a bill in equity in the Common Pleas was filed by the administratrix and guardian of a minor child, and it was held that equity would intervene to prevent pro- ceedings on the mortgage but would not direct cancellation as the mortgagees could still apply to the Orphans' Court and have the mortgages confirmed upon notice to all parties and an ad- justment of all equities. Farol Evidence. 249. Parol evidence may be introduced to vary or explain (43) 4 Phila. 324 (1861), s. c. 18 L. I. 316. (44) See 47a, ante. (45) 13 Super. Ct. 606 (1900). (46) no Pa. 271 (1885). 200 COLLATERAL ATTACK. 250, 251 the proceedings when there is a latent ambiguity. Thus in Pringle v. Rogers, 47 there was an action of ejectment by devisee against the purchaser at the sale, and it was held that parol evidence was admissible to explain the description in the deed, the distances therein to be governed by the monuments on the ground, and the deed was corrected accordingly, in consequence of which a small strip of ground was found to have been left unsold al- though apparently included in the description in the deed, for which the plaintiff recovered judgment according to her interest under the will. Where, however, the record is plain, no evi- dence is admissible. In King v. Gas Coal Co., 48 there was an action of ejectment by devisees against defendant claiming under purchaser at Or- phans' Court executor's sale for payment of debts. The contro- versy was over what was conveyed by the executor's deed, and it was held that parol evidence was not admissible to explain the description in the deed because the language used was clear and left no doubt as to what property was sold or conveyed by the proceedings, there being property in existence to which the de- scription accurately applied. In the case of McGhee v. Hoyt, 49 the petition described the land correctly, and the deed incorrectly, the property having been sold by an administrator for the payment of debts. It was held in an action of trespass forty years after the sale that the description in the petition governed and the deed was to be considered as corrected accordingly. Fraud. 250. An Orphans' Court sale may always be impeached in a collateral action for fraud. 50 Mistake. Preliminary. 251. Mistake in an Orphans' Court sale may be of two kinds, unilateral, that is, where one of the parties has made a mistake not participated in by the other, and mutual, where both (47) 193 Pa. 94 (1899). (48) 204 Pa. 628 (1903). (49) 106 Pa. 516 (1884), s. c. 41 L. I. 399- (50) Snyder v. Snyder, 6 Binney 483 (1814) ; Selin v. Snyder, n S. & R. 319 (1824). 252,253 MISTAKE. 201 parties have made the same mistake. The mistake may be as to the title sold, the jurisdiction of the court, etc. Unilateral Mistake. 252. It seems clear, although no authority for the propo- sition has been found, that if one of the parties, say the pur- chaser, participates in the sale under some mistaken idea as to the title or the jurisdiction of the court, that he cannot be heard to set up that mistake in a subsequent collateral action. The force and effect of the decree must be determined by the record, irrespective of any mistaken idea of any of the parties as to the same. 51 Mutual Mistake. 253. Where both parties participate in the same mistake, the mistake is also unavailing as against a collateral attack, even where the parties seeking to set aside the decree of the court par- ticipate in the mistake. This follows from the principle that no jurisdiction can be conferred by consent. In Paul v. Squibb, 52 there was an estate by entireties, and the husband having died intestate, his administrators sold the prop- erty under the order of the Orphans' court for the payment of debts, and it was held that the title of the widow as survivor was not divested although she knew of the sale, and her heirs were allowed to recover in ejectment against the defendant claiming under the purchaser at the sale. All parties were ignorant of the real state of the title. As said by the court "she assented to a sale of her husband's title, not her own, of which she was ignorant." She had no share in the receipt of the purchase money, acquiring no benefit from the sale. The court had no jurisdiction to order the title of the widow sold because it was not liable for the debts. That jurisdiction would not have been conferred had the parties knowingly con- sented to the sale. A fortiori there was no jurisdiction where they unknowingly consented. The widow was not estopped be- cause she received no part of the purchase money. This case is to be distinguished from Maple v. Kussart, 53 because in that case (51) The purchaser may, however, obtain relief by attacking the decree of the court below. See 219, ante. (52) 12 Pa. 296 (1849). (53) 53 Pa. 348 (1867). 202 COLLATERAL ATTACK. 254 although the power which was exercised under direction of the court did not extend to the widow's title, yet she assented to the sale and received her share of the proceeds, and consequently was in the same position as if she had joined in the deed and con- veyed her title. Statement of the Law in Pennsylvania as to Collateral Attack Upon Orphans' Court Sales. 254. It seems from a consideration of the cases we have cited in the foregoing discussion that a decree of the Orphans' Court may be attacked in a collateral action only in one of two cases: first, where the record does not show that the case in which the court assumed to act was one of the cases provided for by a statute conferring jurisdiction upon the court. If the jurisdiction of the court in any such case depends upon the ex- istence or non-existence of certain facts, as, for instance, in the case of a sale for the payment of debts, the fact that the de- cedent has not been deceased for more than two years, that fact must appear on the record, otherwise the court has no jurisdic- tion. The other case is that where a party in interest who is entitled to notice has not received notice of the proceedings in the Orphans' Court. It is perfectly clear that a man's title may not be divested by judicial proceedings of which he has had no notice. Such a person may proceed afterwards to assert his title and the decree of the court authorizing the sale cannot be set up against him. The difficulty here is that since the Orphans' Court decree is conclusive of all facts set out in the record, a case may arise where the record will show a notice to an individual which notice was not in fact given, that is, the record will contain a false averment. Now the principle here is that the falsity of that averment cannot be shown, and in such a case the person who failed to receive the notice upon bringing an action to assert his title would be met with the decree of the court showing the notice, and his case would fail. There is an apparent injustice here which, however, disappears when we reflect that an Orphans' Court sale can always be set aside in a collateral action because of fraud. The case of a false averment as to notice will nearly always be a case of fraud, and the person whose title has been divested may obtain relief under this principle. 257,258 DISCHARGE oj? LIENS. 203 CHAPTER 17. Discharge of Liens by Sale Under the Act. General rule as to judicial sales 257 Distinction between Orphans' Court sales and sheriff's sales 258 Effect of public sale under the act 259 Effect of private sale under the act 260 Liens Mortgages 261 Judgments 262 Legacies 263 Collateral inheritance tax 264 Dower 265 Taxes 266 Debts of decedent 267 Arrears of interest on the lien 268 Ground Rents 269 Agreement of parties as to disharge of liens 270 Preliminary. General Rule as to Judicial Sales. 257. The sale under the provision of the act is a judicial sale and subject to the general rule applicable in such cases, which is that a judicial sale discharges all liens except (i) where liens are created by last will and testament as permanent pro- visions for wives and children, (2) where from the nature of the incumbrance it will not readily admit of valuation, and (3) where it is plain from the agreement of the parties that the en- cumbrance was intended to run with the land, 1 (4) where liens are specially saved by statute. The provisions of the act, there- fore, that by a public sale the premises shall be discharged of all liens, is merely declaratory of the existing law. 2 Distinction Between Sale Under the Act and Sale by the Sherff. 258. There is this distinction to be noted between a sale under the act and a sale by the sheriff under execution issuing out of the Common Pleas. In the latter case, the sale is always on some lien or encumbrance against the land, and there are (1) Levengood's Est, 38 Super. Ct. 491 (1909). (2) See Henry Wharton, 6 W. N. C. at 549. 204 DISCHARGE OF LIENS. 259, 260 several questions involved : ( i ) as to the discharge of liens sub- sequent to the one under which the sale is made, (2) as to the discharge of liens prior to the one on which the sale is made. A sale under the Price Act, however, is always ordered inde- pendently of and not under a lien, and the question, therefore, is which of the liens against the property at the time of the sale are discharged thereby. It must be remembered that the proceeds take the place of the land, and that the selling price of the prop- erty as a whole is considered as diminished to the extent of the encumbrances that remain and are not discharged. It is com- paratively easy, therefore, to make a settlement in every case where a purchaser buys in ignorance of the existing encum- brances which remain, and where the application is made in time, the court will by proper decree protect the purchaser. 3 Effect of Public Sale Under the Act. 259. The act provides that by every such public sale the premises sold shalLbs^ischaig.ed.^of alHiens. The open ques- tion is whether this language is to be literally applied or whether the effect of a public sale under the act is to be limited by the general rules relating to the effect of judicial sales in general and Orphans' Court sales in particular, and by the several statutes which may relate to any particular lien, which may have been adopted subsequent to the passing of the Price Act. Effect of Private Sale Under the Act. 260. The act contains no provision as to the effect of a private sale in discharging liens other than the clause that the sale shall discharge the lien of debts of a decedent except debts of a decedent of record and debts secured by mortgage.* It is clear that the court can not make a private sale have any greater (3) Where the liens are not discharged by the sale the purchaser will be protected by requiring them to be deducted out of the purchase money, Moorehead v. Wolff, 123 Pa. 365 (1889), s. c. 23 W. N. C. 167, 36 Pitts. L. J. 352, 46 L. I. 261. Dictum Penn Sq. Bldg. Assn. App., 81^2 Pa. 330 (1876), per curiam at 332. (4) See Act of March 23, 1867, P. L. 43, which provides as follows : "Section 2. That private sales, made by order of court, under the said Act of the eighteenth of April, one thousand eight hundred and fifty-three, shall discharge the premises sold from the lien of the debts of the de- cedent, except debts of record, and debts secured by mortgage : Provided, That the security, required by said act, shall have been duly entered. 26 1 MORTGAGES. 205 effect than a public sale, and therefore the only question as to a private sale is, whether it will have as great an effect as a public sale in discharging liens. No case on this point has been found. Every private sale is perhaps without exception reduced to a written agreement between the parties, which is usually expressed as being subject to the approval of the court in cases where it is necessary to have the sale confirmed. The effect of the sale, therefore, as to liens and encumbrances depends on the terms of the agreement and the nature of the liens and encumbrances, just as in the case of any other sale of real estate. 5 Our dis- cussion of the cases, therefore, will be principally confined to those of a public sale. It is convenient to arrange the discussion under the readings corresponding to the various liens which may arise. Mortgages. 261. If the mortgage is a debt of record of the decedent, it is not discharged by a private sale, 6 and this seems to apply whether the mortgage is a first or other lien. If the sale is public, it is discharged by the provisions of the Price Act uriless saved (5) This is illustrated by the decision in Kayser's Est., 9 D. R. 360 (1900), where there was an agreement of sale by trustees made on May 21, 1897, subject to the approval of the Orphans' Court. On May nth, ten days before the date of the agreement, the city had let a contract for building a sewer in the street in front of the premises. The work on this sewer was begun on May 27, the order of sale was granted on June 15, the work was completed on June 14, and on June 23 the deed was executed and tendered. The agreement called for a title clear of all en- cumbrances, and both parties were ignorant of the sewer lien. It was held that the lien began under the statute on June 14, 1897, at which time the vendee was in equity the owner, his title having been properly ac- quired under the agreement of sale, and that therefore the property was free of encumbrances when he acquired title, and the cost of the sewer was to be paid by the vendee. This is a decision similar to one which will be reached whether the sale was subject to the approval of the Orphans' Court or not. (6) Moorehead v. Wolf, 123 Pa. 365 (1889) s. c. 23 W. N. C. 167, 36 Pitts. L. J. 352, 46 L. I. 261. This was a case of a private sale under the Price Act. Of course, if the mortgage was not due, the parties had to make the agreement of sale subject to it, and if it was due, it could ef- fectually be discharged by paying it off at the settlement. See Penn Sq. Bldg. Assn. App., 8ij4 Pa. 330 (1876). 206 DISCHARGE OF I^IENS. 261 by the Act of May 8, 1901, 7 which may probably be considered as amending the Price Act. When the mortgage is due and pay- able it may in effect be discharged by agreement of the parties to pay it out of the proceeds at the settlement. In Jerman v. Lyon, 8 the property was sold in 1863 at public sale under the Price Act upon a petition by all the heirs of the deceased intestate, praying for leave to sell clear of all liens, (7) P. L. 141, amending the Act of May 19, 1893, P- L. no, which amended the Act of March 22, 1887, P. L. 6, and Act of March 23, 1867, P. L. 43, Sec. 3, saves the lien of a mortgage from discharge when it is prior to all other liens except Other mortgages Ground rent Purchase money due Commonwealth Not duly entered in court as a Municipal claims r .. . I lien at the date of the mortgage Assessments ) Taxes ~\ ,,..,,. / Whose lien though afterwards ac- Mumcipal claims y s . v_ ( crumg has by law priority to it Assessments ) by any judicial or other sale whatsoever, whether made by decree of the Orphans' Court decree of any other court any writ of execution or otherwise howsoever, with a proviso that the act shall not apply to mortgages on unseated lands or sales of the same for taxes. "For the effect of the last Act (March 23, 1867, P. L. 43), being to pre- serve the lien of the mortgage, upon any such sale, is that the bond cannot be treated as a general debt on the distribution of the fund pro- duced by the sale; indeed, standing alone it would not even authorize an application for a sale of the mortgaged property in the Orphans' Court. This is settled, and as the purchaser buys the land for just so much less, by reason of the mortgage, if this were all, the correctness of the de- cisions could not be questioned. Where, for instance, as is not infrequent, especially in the country, a man is the owner of a good deal of mortgaged land, but with a personal estate less than the mortgages, distribution is impossible till the mortgage has been sued out. In consequence of this the Act of 1867 has been repealed form time to time as to all the counties of this State, except Philadelphia and one other, where its consequences are not so injurious, and the interests of large investors are united in its favor; though even here it sometimes produces a deadlock. Henry Whar- ton, "Lien of decedent's debts in Pennsylvania," 6 W. N. C. 545 at 548- 549 (1879). (8) 81 Pa. 107 (1876). 262, 263 JUDGMENTS. LEGACIES. 207 and the sale was so made, but the purchaser took the conveyance subject to a mortgage which had been executed by the intestate, and the amount of which mortgage was deducted from the pur- chase money. The mortgage was sued out, and in an action of ejectment by the plaintiff, who was the purchaser at the Orphans' Court sale against the defendant who claimed under the sheriff's sale, judgment was entered for the defendant, the court saying that the sale under the Act of 1853 would have discharged the lien but the arrangement of the parties and manner of settlement prevented it. Judgments. 262. Where a judgment is against the decedent, it is a debt of record and consequently not discharged by a private sale under the act. Where the sale is public, the lien thereof is probably discharged. No decision on this point has been found. Since a judgment is always due and payable, the parties may, in case of a private sale, provide for the case by a covenant by the vendor to convey clear of encumbrance. 9 Legacies. 263. A legacy is discharged by a sale or mortgage under the Price Act. 10 In Randolph's Appeal, 11 there was an admin- istrator's sale for the payment of debts and the maintenance of children. The sale was confirmed at a certain price. The ad- (9) See 260, ante. Public sale under the Act of March 29, 1832, P. L. 190, discharges the lien of judgments against the decedent. Dictum in O'Brian v. Wiggins, 14 Super. Ct. 37 (1900), s. c. 17 Lane. L. R. 233, 14 York 54, affirming 8 D. R. 418, 22 Pa. C. C. 236, 16 Lane. L. R. 143. Where there are life estates and remainders under a will and a sale by executors under the will, the question as to whether judgments against the life tenants are discharge by the sale was not decided in Moorehead v. Wolff, 123 Pa. 365 (1889), 23 W. N. C. 167, 36 Pitts. L. J. 352, 46 L. I. 261. Judgments against a co-tenant are discharged by the sale in partition proceedings in the Orphans' Court, Mehrten's Est, 41 Pa. C. C. 169 (1913). In Smith's Est., 8 Lack. L. N. 308 (1902), there was a mortgage by an executor to pay debts under order of the court. A controversy arose over distribution of the proceeds of the mortgage, and it was held that a judgment omitted from the list of debts in the petition was not thereby deprived of its claim to payment out of the fund according to priority. (10) Lombaert's App., 99 Pa. 580 (1882). (11) 5 Pa. 242 (1847). 208 DISCHARGE OF LIENS. 264 ministrator varied the terms of the sale and agreed that certain legacies should remain charged on the land. It was held, never- theless, that the lien of the legacies was discharged by the sale notwithstanding the arrangement. The case arose on an attempt by a legatee to enforce his claim against a fund raised by a sub- sequent sheriff's sale of the property. 12 Collateral Inheritance Tax. 264. The lien of the collateral inheritance tax is probably discharged by an Orphans' Court sale, although there does not seem to be any very clear decision to this effect. In Penn Gas- kill's Est. (No. i), 13 there was a case where real estate had been sold under the Price Act, and the question was as to the com- mission to be charged by the trustees and the payment of the col- lateral inheritance tax. The question arose on audit of the ac- count of the proceeds of the sale, and the court held that the trustee was bound to pay the tax to discharge 'the lien, but that the amount so paid should be properly apportioned between prin- cipal and income. This case seems to decide that the sale dis- charges the tax ; because if it was not discharged, the trustee would not be authorized in paying it. 14 (12) See also Herr v. Groff, 34 Pa. C. C. 65 (1907), where it was held that a charge by will was divested by sheriff's sale. (13) 208 Pa. 342 (1904). (14) See also remarks of Walling, P. J., in Culbertson's Est., 38 Pa. C. C. 491 (1911) at 493, s. c. 20 D. R. 1081 (1911), as follows: "In our opinion, the Commonwealth is entitled to the relief sought. The admin- istrator is liable because he undertook to collect such collateral inheritance tax by sale of the land and he voluntarily paid the money over to the heirs without deducting the five per cent, due the state. The tax being against real estate, he would not be liable except that he undertook to collect it. Boyd's Est., 4 W. N. C. 510. The land having been sold at private sale, without any published notice, or other notice to the register of wills, or to the Commonwealth, such sale did not divest the statutory lien of the collateral inheritance tax. The statute provides that such tax shall remain a lien until paid. It might perhaps be divested by a judicial sale after proper notice. And a private sale of land for payment of debts pursuant to the Act of May 9, 1889, P. L. 182, to have the effect of a public sale under the Act of 1832, P. L. 190, must be advertised as said last-named act requires a public sale to be advertised. O'Brien v. Wig- gins, 14 Super. Ct. 37." 265,266,267 DOWER. TAXES. 209 Dower. 265. A dower charge is not discharged by Orphans' Court sale of the property out of which it issues. 15 Taxes. 266. Municipal taxes assessed prior to the date of the sale, although for the year in which the sale was made, are not dis- charged by a private sale by a trustee confirmed under the act. 16 The Act of May 22, i895, 17 provides that the lien of all taxes then or thereafter levied, etc., shall be divested by any judicial sale when the amount of the purchase money shall equal the amount of the taxes. Where the lien of taxes has expired by limitation, the purchaser at Orphans' Court sale acquires title free of the tax. 18 Debts of a Decedent. 267. The lien of debts of record of a decedent is discussed under the heading of the various recorded liens which may rep- resent the debt. If debts of the decedent are not of record, they are discharged by a public or private sale. 19 If the debts of the decedent are of record, they are expressly saved from discharge by a private sale. 20 (15) Dech v. Gluck, 47 Pa. 403 (1864); Dull v. Slater, 31 Super. Ct. 488 (1906). (16) In Steen's Est., 175 Pa. 299 (1896), aff. 17 Pa. C. C. 201, it was held that the city was not entitled to recover the amount of the tax out of the proceeds of the sale. This case proceeds upon the ground that the tax was a debt of record under the existing law and therefore saved by the Act of March 23, 1867, P. L. 43, which provides that a private sale under the Price Act shall discharge the lien of all debts of the decedent except debts of record, mortgages, etc. This leaves open the question as to taxes assessed against the premises after the date of the death. As the case arose before the Act of 1895, the court said that act did not apply. In McClurg's Est., 4 D. R. 655 (1895), the sale had been ordered divested of all liens and a claim of the City of Pittsburgh for the amount of a municipal lien for grading and paving was disallowed on audit of the trustees account of the fund, because the lien was not properly filed and therefore invalid. (17) P. L. in. (18) Phila. v. Reeder, 30 Pa. C. C. 375 (1904). (19) For a discussion of which, see 113^ ante. (20) See 125, ante. 210 DISCHARGE OF LIENS. 268 Arrears of Interest. 268. Arrears of interest on any lien are also saved from discharge as they are part of the debt. Where there is an ad- ministrator's sale for the payment of debts, interest on the lien runs to the delivery of the deed and payment of the money. 21 There appears to be a distinction as to the payment of arrears of interest between the case where the estate is insolvent and where it is solvent, as to the time to which the arrearages of interest are to be computed. In Yeatman's App., 22 there was an executor's sale for the payment of debts, the personal estate being insufficient, and on distribution of the proceeds, a holder of a mortgage executed by the decedent was allowed interest on the bond after the confirmation of the sale and until date of pay- ment, the estate being solvent and the bond being that of the dece- dent. In the case of Ramsey's App., 23 there was an administrator's sale for payment of debts under order of court and an auditor appointed to distribute the fund raised by the sale. Lien credi- tors were awarded interest to the return day of the order of the sale and not to the day of payment. This was evidently a case of insolvency, 24 and the court went on the ground that in- terest ceases in the case of sheriff's sale from the time of the return and the confirmation of the sale. Mercur, J., in Carver's App., 25 seems to think the court in Ramsey's App., 26 were under the impression that the money was paid on the return day, it appearing that the sale was confirmed on that day. In Campbell's Est., 27 there was a distribution of the proceeds of sale of a decedent's real estate for the payment of debts. It appeared that the bond bore interest between the confirmation of the sale and the filing of the administrator's account. The auditor distributed the principal to the judgment creditors in the order of their liens and the interest pro rata among the same creditors. The report was confirmed, the court saying it was (21) Ross's Est, 18 D. R. 429 (1908). Case arose on exception to adjudication. Report obscure. (22) 102 Pa. 297 (1883). (23) 4 Watts 71 (1835). (24) Rowe's Est., ii Kulp 32 (1904), accord. (25) 89 Pa. 276 (1879) at 277. (26) 4 Watts 71 (1835). (27) (No. i) 22 Super. C. 430 (1903). 269,270 GROUND RENTS. 211 an error to distribute the interest first to the satisfaction of a judgment not fully paid from the principal and the residue to a later judgment not reached. The estate was apparently insolvent. Decree is open to criticism. 28 Ground Rents. 269. It seems that a ground rent may not be discharged by an Orphans' Court sale. The ground rent is an estate in the land, and whether redeemable or irredeemable remains until re- leased by conveyance from the owner of the land. The arrear- ages of ground rent are probably subject to the same rule as in- terest on mortgages and other encumbrances, and may be dis- charged by a sale when the ground rent itself would not be. In Bickley's Adm. v. Biddle, 29 there was a bill in equity in the Common Pleas by an administrator against a purchaser at Orphans' Court sale for specific performance, the sale not hav- ing been confirmed. The bill was dismissed, the court saying the jurisdiction was exclusively in the Orphans' Court. The pur- chaser objected to a ground rent and building restrictions, the sale having been made clear of all encumbrances. The court said, by way of dictum, that he could not defend under the rule of caveat emptor. 30 The dictum is open to objection. Parties May in Certain Cases by Agreement Alter the Effect of the Sale as to Discharge of Liens. 270. The parties may by agreement make the sale subject to any lien or encumbrance which would otherwise be discharged or provide for the extinguishment of an encumbrance or lien which would not be discharged if the owner thereof consents. It is not lawful to sell as if there were no encumbrances, but the sale being made for the full value, it obviously makes no difference whether the encumbrances are allowed to remain and settlement made for the equity, or whether the whole purchase money is collected and the encumbrance paid off out of it. Thus, in Crosson's App., 31 the administrator settled with the (28) As to interest in case of assignee's sale, see Brownsville Bank's App., 96 Pa. 347 (1880); Tomlinson's App., 90 Pa. 224 (1879). (29) 33 Pa. 376 (1859)- (30) Howe's Est., 14 Pa. C. C. 574 (1894), s. c. 3 D. R. 267. (31) 125 Pa. 380 (1889), affirming 6 Pa. C. C. 14 (1888). See expla- nation of the misleading syllabus by Mitchell, J., in Kreamer v. Fleming, 191 Pa. 534 (1899) at 538. 212 DISCHARGE; OF LIENS. 270 purchaser deducting the liens, mortgages and ground rents. It was held, all parties having acquiesced, that the administrator would not be surcharged on the filing of the account with the amount of the encumbrances, although the court said the sale might well have been set aside. This illustrates the propo- sition that the decree as to price is conclusive, and where it ap- pears that at the settlement the equity in the property was set- tled for, it is sufficient. In the case of a mortgage for payment of debts under Act of March 29, i832, 32 the lien of prior mortgages may be dis- charged with the consent of the holders thereof. 33 Liens dis- charged by judicial sale may be saved where the sale is made on the express condition that the lien shall be a continuing charge. 34 (32) P. L. 190. (33) Laughlin's Est., 23 W. N. C. 544 (1889). (34) Nowry's Est., 20 Pa. C. C. 76 (1897), sheriff's sale. 271 APPEALS. 213 CHAPTER XVIII. Appeals. 271. The act provides 1 that appeals may be taken in all proceedings under the act to the Supreme Court. 2 Notice of the appeal must be given to the vendee, mortgagee or lesee, otherwise reversal of the decree will not affect his title, and twenty days shall be allowed in which to perfect the appeal. This provision obviously allows an appeal by the person carry- ing out the decree of the court or by any other person interested including the vendee, mortgagee or lessee. The effect of the provision as to the latter is that their title is not affected if the decree be reversed on an appeal by any other party after twenty days shall have elapsed from the entry of the decree and no writ- ten notice thereof be given. An appeal, therefore, in such case must be taken within twenty days of the date of the decree, or if after twenty days before the decree shall be carried into ef- fect, and in either case written notice must be given to the vendee, mortgagee or lessee, otherwise a reversal of the decree will have no effect on the title passing thereunder. It is always safer, therefore, when there is any doubt to wait twenty days after the decree before completing the sale, mortgage, lease or conveyance on ground rent. (1) "Sec. 8. That in all cases and proceedings under this act, appeals may be taken to the Supreme Court from the Orphans' Couprt, as now provided by law in other cases, and in the Court of Common Pleas, as provided in equity cases, in the respective counties of the State. Pro- vided, That if any decree be carried into execution before the appeal be perfected, and written notice thereof given to any vendee, mortgagee, or lessee, any reversal thereof shall not affect the right or title of such vendee, mortgagee or lessee, but the purchase or mortgage money or rents shall stand in lieu of the premises sold or mortgaged, or leased, so far as thus encumbered: Provided further, That before any decree be car- ried into effect to afford such indemnity, twenty days be allowed from its entry to take and perfect such appeal." (2) This provision is, of course, qualified by the legislation establish- ing the Superior Court and designating the cases in which appeals shall be taken to that tribunal. Act of June 24, 1895, P. L. 212, amended by the Act of May 5, 1899, P. L. 248, confer Act May 19, 1897, P. L- 67, as to practice in the matter of bail, costs and fees on appeal. 214 APPEALS. 271 For convenience of reference, a few cases have been collected in the note illustrating the various orders and decrees in the Or- phans' Court which are not appealable. 3 (3) Order directing sale not appealable, Grim's App., 33 Sup. Ct. 587 (1907) ; Bucknor's App., 4 Walk. 331 (1884) ; Snodgrass's App., 96 Pa. 420 (1880), overruling Hess's App., I Watts 255 (1832). Consequently, where property is sold pending the appeal from the order of sale, the purchaser will take a good title and may recover in ejectment, Robinson v. Clancy, 69 Pa. 89 (1871). Order directing an executor to make return to the court of an order of sale of real estate for the payment of debts, granted upon his application and upon decree confirming the sale to exe- cute and deliver to the purchaser a proper deed of the premises interlocu- tory not appealable by the executor, and his appeal was quashed on mo- tion by the purchaser, Walker's Est., 25 Super. Ct. 256 (1904). Probably a distinction is to be drawn where the order directs an executor to exercise a power under the will, as to making a sale. In such case an appeal was en- tertained in Douty's Est., 196 Pa. 432 (1900). In Badder's Est., 5 Super. Ct. 465 (1897), there was a petition to open decree of distribution of bal- ance arising from Orphans' Court sale of real estate by an executor. A certain sum of money had been awarded to a mortgage creditor who had given notice at the sale that the lien of the mortgage would be divested ; petition presented by guardian of minor children of the decedent com- plaining of this award to the mortgage creditor, and setting out that they had no notice of the sale. The court granted the petition and directed payment of the amount due the mortgage creditor to a guardian of the children. The case was reversed on appeal by the administrator. An ad- ministrator may appeal from a decree upon an account which is final as to him. Certain other matters are in the sound discretion of the court below, which is not to be interfered with except where there is an abuse of the discretion. The refusal of the district court to direct an executor to apply to the court for another order of sale, his return to the first being that the property could not be sold for a sufficient bid in consequence of an easement, Gamble v. Woods, 53 Pa. 158 (1866). Order opening decree of confirmation and setting aside sale, Williams's Est., 140 Pa. 187 (1891). Decree refusing to set aside sale of real estate on ground of inadequacy of price, Bowers's App., 84 Pa. 311 (1877). Bill of review by an heir ask- ing that the decree directing administrator's sale for payment of debts be rescinded and action of the court on the petition setting the sale aside, Haslage's App., 37 Pa. 440 (1861). The judgment creditor may not appeal from the action of the court below discharging a rule to show cause why the order of sale for payment of debts should not be vacated. If the judg- ment creditor had a lien, the order of sale was for his benefit, and the ap- propriate means of settling the estate; if not a lien creditor, he had no interest in the question, and could not be permitted to interfere in the pro- ceeding at all, Everman's App., 67 Pa. 335 (1871). Appeal lies from de- cree of confirmation of sale, Robinson's App., 62 Pa. 213 (1869). TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. 215 APPENDIX A. An Act. Relating to the Sale and Conveyance of Real Estate. WHEREAS, The general welfare requires that real estate should be freely inalienable, 1 and be made productive to the living owners thereof : AND WHEREAS, In matters which the judiciary is competent to hear and decide, it is expedient that the court should adjudi- cate them after a full hearing of all parties, rather than that they should be determined by special legislative acts upon an exparte hearing : 2 SECTION i. Be it enacted by the Senate and House of Rep- resentatives of the Commonwealth of Pennsylvania in General As- sembly met, and it is hereby enacted by the authority of the same, That in all cases where real estate shall have been acquired 21 by descent or last will, the Orphans' Court, and in all other cases the Courts of Common Pleas, 3 of the respective counties of this Commonwealth, shall have jurisdiction to decree 4 the sale ; 5 mort- (1) Obvious misprint. Should be "alienable." The preamble as it stands contradicts flatly the object of the statute. (2) See 10, ante, (aa) See 243, ante. (3) The Act of April 27, 1855, P. L. 368, Sec. 5, provides that "when- ever the estate shall have been derived partly by deed and partly by descent or will, either the Court of Common Pleas or the Orphans' Court may entertain jurisdiction of the proceedings to make sale or lease thereof.' The Act of April 21, 1856, P. L. 486, Sec. i, provides: Sec- tion i. Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the same, That in all cases where sales of the real estate of lunatics have been made under the Act of the eighteenth of April, one thousand eight hundred and fifty-three, entitled "An act relating to the sale and conveyance of real estate under a decree of the Court of Common Picas," the same shall be valid and effectual, notwithstanding such real estate may have been derived by descent or will. See 14, ante. (4) The Act of April 13, 1854, P. L,. 368, Sec. 3, provides: "In all cases wherein any of the courts of this Commonwealth might have author- ized any sale or conveyance, or letting on ground-rent or otherwise, and such sale, conveyance or letting may have been made without leave of such court, it shall be lawful for such court, if approving of such sale or 216 TEXT of THE PRICE ACT AND ITS SUPPLEMENTS. gaging, 6 leasing 7 or conveyance upon ground 8 rent of such real estate in the cases hereinafter described: 9 Provided, That any such court in the county where the premises shall be situated, shall be of opinion that it is for the interest and advantage of those interested therein, 10 that the same should be sold, mort- gaged, leased or let on ground rent, and may be done without injury or prejudice to any trust, charity, or purpose for which the same shall be held; 11 And provided, That the same may be done without the violation of any law which may confer an im- munity or exemption from sale or alienation. 12 Section 2. 13 That such sale, mortgaging, leasing or conveyance upon ground rent may be decreed when ever real estate shall be 13a held for or owned by minors, 14 lunatics, 15 or habitual drunk- conveyance or letting, to approve, ratify and confirm the same, with the same effect as if such decree had preceded such sale, conveyance or let- ting." This act, of course, applies to all proceedings and is not confined to those under the Price Act, Donnelly v. Byers, 234 Pa. 339 (1912). See 21, ante. (5) See 41, ante. (6) See 4.=?, ante. (7) See 48, ante. (8) See 50, ante. (9) See 13, ante, n. 18. (10) See 26, ante, (u) See 32, ante. (12) See 33, ante. (13) The Act of June 14, 1897, P. L. 144, Sec. i, re-enacts and amends this section, adding the phrases underlined and omitting the words in brackets. Confer Act of June 15, 1897, P. L. 159 post. (133) See 243, ante. (14) See 63s ante. See Act March 29, 1832, P. L. 190, Sec. 31; Act June 16, 1836, P. L. 682; Act March 16, 1847, P. L. 474, Sec. 2; Act April 3, 1851, P. L. 305. Act of May 21, 1901, P. L. 272, provides: Section i. Be it enacted, etc., That when application shall hereafter be made to the proper Orphans' Court, having jurisdiction of the accounts of any guardian, for leave to sell or mortgage the real estate of a ward, or any part of the same, for the payment of debts or for other purposes, and any part of said real estate is situated partly in each of two or more counties, by reason of a county line running through the same, the court shall have power to order and direct the sale or mortgage of the interest of the ward in the whole or any part of said tract of land, irrespective of the county boundary lines, and such sale when confirmed by the said court shall be as effectual to pass the title of such real estate to the purchaser as if the whole of said tract of land had been within the boundaries of the county having juris- TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. 217 ards, 16 so duly found by inquisition, for the sole and separate use of married women, 17 for religious, beneficial or charitable societies or associations, 18 incorporated or unincorporated, 18 or diction of the accounts of the guardian : Provided, That notices of said sale, as now required by law, be given in all the counties in which the land is situated, and that a certified copy of all proceedings in connection with said sale or mortgage, including the return of sale, be recorded in the Orphans' Court of each county in which said land is situated : And provided further, That any mortgage, judgment, bond or other obligation taken by such guardian to secure the purchase money, or any part thereof, by lien on such lands, shall be duly recorded or entered in each of the counties in which said lands lie, as now required by law. Section 2. The Orphans' Court of the several counties of this Common- wealth, in all cases where under existing laws the court has power to order the sale of real estate for the payment of debts of a ward and for other purposes, may decree and approve a private sale, if in the opinion of the court, under all the circumstances, a better price can be obtained at private than public sale, as where the interest shall be undivided or for any other sufficient cause. (15) See 76, ante. By Act of April n, 1866, P. L. 780, the husband or wife of a person non compos mentis may sell, mortgage, lease, or con- vey on ground rent, real estate under direction of Court of Common Pleas of proper county. (16) See 76, ante. (17) See 80, ante. (18) See 83, 86, ante. The Act of March 24, 1877, P. L. 39, Sec. i, pro- vides : "Section i. Be it enacted, That wherever the several courts of this Commonwealth are authorized by existing laws to decree the sale and con- veyance of real estate, and it appears to the court of the proper county, on application, that such real estate is held by trustees of religious societies, congregations or church organizations which are desirous of selling and conveying a portion of said real estate to an association or corporation, for the exclusive purpose of a cemetery or a place of sepulchre for the dead, it shall be lawful for said court to order and decree a private sale of said real estate, at such price and upon such terms and conditions as shall be agreed upon by said parties, notice of said application to be given to all parties interested as the court shall direct; the sale to be approved by the court and the deed acknowledged as required by existing laws." The Act of May 23, 1887, P. L. 168, privides : "Section i. Be it en- acted, etc., That the trustees, treasurer or other proper officers of any church, congregation, presbytery or other church organization, owning real estate used as a burying ground, may, whenever so desired by a ma- jority vote of such church, congregation or church organization, owner or owners as aforesaid, apply by petition to the Court of Common Pleas of the county, wherein such real estate may be located, for leave to abandon such burying grounds, remove and re-inter the bodies of deceased persons therein buried, and to sell such real estate in fee, clear of all restriction. 15 218 TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. for or by any other corporation, 10 or by trustees for any public or private use or trust, 20 and although there may exist a power of sale, 21 but the time may not have arrived for its exercise, 22 or any preliminary act may not have been done to bring it into exercise, 28 or the time limited for its exercise may have expired, 24 or any one or more persons required to consent or to join in its execution may have become non compos mentis, 25 or have re- moved out of the State, 26 or died, 27 or should refuse to act or unreasonably withhold consent; 28 also when there has been or shall be a defective appointment in any deed, or last will and testament, and the necessary power is not given to the executor, devisee or appointee To make^sale~and^ conveyance j5|_real es- jtate. 29 Also whenever the owner of real estate may have been absent and unheard from for seven years, under those circum- Upon presentation of such petition, the court shall make such order re- lating to publication and notice to parties in interest as may seem meet and proper, and, after final hearing of all parties in interest, may make such decree relating to the abandonment of such grounds for burial pur- poses, the removal of bodies therefrom and the sale thereof, as may be just and equitable ; and, when no person in interest can be found, said bodies to be removed and separately re-interred in some suitable burying ground, and each grave to be properly marked by head stone, et cetera, (provided such grave was so marked before removal,) by the trustees, treasurer or other proper officer or officers of the church, congregation, presbytery or other church organization, owning the real estate so used as a burying ground: Provided, That no such petition shall be granted ex- cept upon condition set forth in the decree, requiring the petitioners to purchase the rights of all lot holders in such burying grounds and to se- cure the consent in writing of the near relatives of decedents, whenever such relatives shall appear as parties to such proceedings : And provided further, That any party in interest may appeal from the decree of such court within thirty days." (19) See 82, ante. (20) See 134, ante. (21) See 147, ante. (212) See 148, ante. (23) See 147, ante. (24) See 147, ante. (25) See 147, ante. (26) See 147, ante. (27) See 147, ante. (28) See 149, ante. (29) See 150, ante. TEXT of THE PRICE ACT AND ITS SUPPLEMENTS. 219 stances from which the law would presume his or her death. 30 Whenever a husband shall own real estate having a wife who is a lunatic, 31 or a minor; 32 whenever a married woman owns real estate and her husband has abandoned her for two years, 33 or been absent and unheard from for seven years. 3 * Whenever a decedent shall have contracted by parol to sell real estate, 35 and those interested do not think it expedient to plead the statute requiring contracts to be in writing to enable the purchaser to recover the real estate agreed to be sold. Whenever a decedent's v real estate is subject to the lien of debts not of record. 36 When- ever real estate shall be entailed, 37 or contingent remainders, 38 or executory devisees, 39 or vested remainders which are liable to open and let in after-born children shall be limited thereon.* Or whenever in proceedings in partition in equity it shall appear that real estate cannot be divided without prejudice to the in- terests of the owners. 41 And also whenever real estate shall have been purchased* 2 or any ground rent been reserved* 3 and be held by any person acting in a trust or fiduciary capacity. And such decree may be made, whether such ownership or inter- (30) See 169, ante. Confer Act May 28, 1913, P. L,. 369, relating to estates of persons supposed to be deceased. (31) See 81, ante. (32) This clause practically obsolete since the Act of March 22, 1865, P. L. 30. which provides: "That the deed of conveyance, executed and acknowledged by a wife, in conjunction with her husband, of his real es- tate, shall be valid and effectual, notwithstanding the minority of the wife at the time of such execution and acknowledgment, and any such deed, heretofore made, shall be as valid as if the wife had, at the time, been of lawful age." ' (33) See 80, ante. (34) See 80, ante. (35) See 151, ante. (36) See 113, ante. (37) See 90, ante. (38) See 97, ante. (39) See 112, ante. (40) Clause in italics added by re-enactment of June 14, 1897, P. L. 144, Sec. 2. By Act of June 15, 1897, P- L. 159, "Lands . . . devised or granted for life or for the life of another, and with remainder limited to a class of persons some or all of whom may or may not be in being at the time of the decree." See 103, ante. (41) See 156, ante. (42) See 56, ante. (43) See 50, ante. 220 TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. est shall be held or enjoyed in severally, joint-tenancy, copar- cenary or in common with others, 44 and generally in all cases where estates have been or shall be devised or granted in trust or for special or- limited purposes, 45 or where any party inter- ested therein is under a legal disability to sell and convey the same; 46 Provided, That nothing in this act contained shall be taken to repeal or impair the authority of any act of Assembly, general or private, authorizing the sale of real estate by decree of court or otherwise, 47 nor to affect or impair any right or powers otherwise existing in any person or corporation 48 to sell, mortgage, lease, or let on ground rent, any real estate, (and every power to sell in fee simple real estate) 49 created by deed or will, shall be taken to confer an authority to sell and convey, 50 reserving a ground-rent or rents in fee, and the same to release and extinguish according to law and the stipulation of the deed, 51 and also to grant and convey such ground-rent or rents to any purchaser or purchasers thereof, free of all trusts. 52 SECTION 3. That such sale, mortgaging, leasing or conveyance upon ground rents, may be decreed on the petition 53 of any trustee, guardian, committee or person interested, clearly setting forth the facts needful for the information of the court under oath or affirmation, and if all proper parties shall not have voluntarily appeared as petitioners or respondents, the court shall fix a day 65 for parties to appear, and cause a citation to be served on all persons in being who shall not have appeared, and who shall have any present or expectant interest in the premises, warning them to appear, and that they shall be heard on the day de- signed, 56 and for those who cannot otherwise be served, cause advertisement to be made in manner most likely to afford notice, (44) See 22, ante. (45) See 129, ante. (46) See 62, ante. (47) See 20, ante. (48) See 83, ante. (49) Clause in brackets omitted from the re-enactment of June 14, 1897, P- L. 144, Sec. 2. Cfr. Sener v. Ephrata Borough, 176 Pa. 80 (1896). (50) See 51, ante. (51) See 51, ante. (52) See 51, ante. (53) See 59, ante. (55) See 18, ante. (56) Misprint for designated. TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. 221 and service made in any part of the United States and the ter- ritories thereof, with oath or affirmation of the fact, taken be- fore any judge or justice of the peace, and filed of record shall be good service, and guardians shall be served and appear for their wards, and if minors shall have no guardian, the court shall appoint a guardian for them; 57 committees shall be served and appear for lunatics and habitual drunkards, 58 and husbands shall be served and appear with their wives, except husbands who shall have abandoned their wives for two years, or been absent and unheard from for seven years, 59 and if parties make default in appearing, the court after investigation of the facts may proceed to make a decree in the premises; Provided, That in case of the appointment of a guardian by the court, and the payment over of money to him, or of the payment of money to any former guardian, the court shall take adequate security 60 for the faithful application of such money, and before the pay- ment of any money to any guardian not within the court's juris- diction, the court shall be duly notified that adequate security has been given to the court having jurisdiction over him, whether within or without this Commonwealth. 61 SECTION 4. That such sales, mortgages, leasing and letting on ground rent, shall only take place after full and careful in- vestigation by the court, aided when deemed necessary, by the report of a competent person, to be appointed by the court, 62 and shall be made by trustees, executors, administrators, guard- \/ ians, committees, or owners having a present vested interest, as the court may order, 63 and be under the direction and subject to the approval of the court before which the deed shall be ac- knowledged, 64 and be certified under seal to have been acknowl- (57) See 65, ante. (58) See 78, ante. (59) See 19, ante. (60) See 179, ante. (61) See 184, ante. (62) See 26, ante. (63) See 60, ante. (64) See 236, ante. Act of April 13, 1854, P. L. 368, Sec. i, provides : "Be it enacted by the Senate and House of Representatives of the Com- monwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the same, That in all cases of sales, mort- gages, leasing, and letting on ground rent, of any real estate authorized under the act to which this is a supplement, where the trustes, executors, 222 TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. edged, and all absolute sales in fee simple (except as hereinafter provided) shall be by public sale or vendue, and may be either administrators, guardians, committees, or other persons authorized to make such sale, mortgage or lease, shall reside out of the county where such real estate is situate, the deed, mortgage, or lease thereof, may be acknowledged before the Court of Common Pleas or Orphans' Court of any county of this state, where the person or persons executing the same may reside, and certified under the seal of such court to have been so ac- knowledged; and such certificate of acknowledgment shall be read in open court of the county where the real estate is situate, and entered upon the records thereof; and upon being so entered, shall have the same ef- fect as if the deed, mortgage or lease had been acknowledged before said court, as now required by law." By Act of April I, 1863, P. L. 187, per- sons executing deed a mortgage or lease who reside out of the State may acknowledge as provided by the Act of Dec. 14, 1854, P. L,. 724. The Act of March 23, 1867, P. L. 43, Sec. i, provides, "Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the same, That all deeds made to convey real estate, sold under an act passed the eighteenth day of April, eighteen hundred and fifty-three, entitled 'An Act relating to the sale and conveyance of real estate,' being acknowledged in court, and so certified to have been, by the clerk, or prothonotary, as required by said act, or supplements, may be recorded in the recorder of deeds office, without other acknowledgment." The Act of April 17, 1866, P. L. 108, providing as follows: "Section I. That in all cases where sales, mortgages, or leasings, of any real es- tate, have heretofore been, or shall hereafter be, made, under the pro- visions of an act of assembly, entitled 'An Act relating to the sale and conveyance of real estate/ approved the eighteenth day of April, one thousand eight hundred and fifty-three, and the deeds, mortgages, or leases, made in pursuance of such sales, mortgagings, or leasing, have been ac- knowledged before a justice of the peace, or other officer, having author- ity, under the laws of this Commonwealth, to take the acknowledgment of deeds, and other instruments of writing therein, such deeds, mortgages and leases, shall be as valid and effectual, to all intents and purposes, as if the same had been acknowledged before the court, and in the manner specified in said act." (For a case of a defective acknowledgment cured by this act, see Smyth v. Neill, i W. N. C. 43 (1874), was amended by the Act of April 22, 1903, P. L. 241, to read as follows: "Section i. That in all cases where sales, mortgagings or leasings of any real estate have heretofore been, or shall hereafter be, made, under the provisions of an act of assembly, entitled 'An Act relating to the sale and conveyance of real estate,' approved the eighteenth day of April, one thousand eight hundred and fifty-three, and the deeds, mortgages or leases, made in pur- suance of such sales, mortgagings or leasings, have been or shall hereafter be acknowledged before a justice of the peace, notary public, or other officer having authority under the laws of this Commonwealth to take TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. 223 entirely for cash, or partly on credit and partly for cash, 66 after full advertisement for at least twenty days, by hand-bills posted in at least Twenty of the most public places in the city or county where the premises shall be situated, and in at least two_news- papers, not less than three times in each : Provided, That if the court shall be of opinion that under the circumstances a better price can be obtained at private than at public sale, as where the interest be undivided, or for other sufficient cause, the court may the acknowledgments of deeds and other instruments of writing therein, such deeds, mortgages and leases shall be as valid and effectual, to all intents and purposes, as if the same had been or shall hereafter be ac- knowledged before the court, and in the manner specified in said act." The Act of April 23, 1909, P. L. 156, provides: "That hereafter it shall and may be lawful for county treasurers, county commissioners, executors, administrators, trustees, or other persons acting in any official or representative capacity, where now required or authorized by law to acknowledge deeds or other instruments before a justice of the peace, to acknowledge the same before a notary public or any other officer authorized by law to take acknowledgments of deeds; and any acknowl- edgments of deeds or other instruments, heretofore made as authorized hereby, are validated and made good and effectual : Provided, That this act shall not apply to any case heretofore adjudicated, or in which pro- ceedings at law or in equity are now pending." (66) The Act of March 22, 1859, P. L. 207, provides: "Section i. That in all sales of real estate under the order of the Orphans' Court authorized by the laws of this Commonwealth, the court decreeing the sale shall have power to direct the terms thereof for cash, not less than one-fourth of the purchase money at the time of the confirmation of the sale, and the balance in such instalments, and at such times as, in the opinion of the court, shall be for the interest and advantage of those interested therein, requiring security to be approved by the court in at least double the value of the interest proposed to be sold, before such sale shall be ordered or made : Provided, That the purchase money shall be a lien on the premises sold until fully paid, according to the decree of the court. "Section 2. That all sales of real estate heretofore ordered by the Or- phans' Court as aforesaid, wherein a longer time than one year shall have been directed for the final payment of the purchase money, shall be taken and deemed to have the same force and effect, and be as valid and binding as if the purchase money therein had been ordered and directed to have been paid within one year from the time of any such sale or sales : Provided, That this act shall not apply to the City of Phila- delphia. See 44, ante. 224 TEXT OF THE; PRICE ACT AND ITS SUPPLEMENTS. approve and decree a private sale, 68 and such mortgaging, leas- ing and letting on ground rent, shall be upon terms and at rates (68) See 41, ante. The following acts probably do not effect the Price Act, particularly since the amendment of 1913. The Act of May 9, 1889, P. L. 182, provides: "Section I. Be it enacted, etc., That from and after the passage of this act, the Orphans' Court of the several counties of this Commonwealth, in all cases where, under existing laws, the court has power to order the sale of real estate for the payment of the debts of decedents and for other purposes, may decree and approve a private sale, if in the opinion of the court, under all the circumstances, a better price can be obtained at private than at public sale, as where the interests shall be undivided, or for any other sufficient cause. "Sestion 2. All acts or parts of acts inconsistent with the provisions of this act, be and the same are hereby repealed. The Act of Juue 9, 1911, P. L. 724, as amended by the Act of June 12, 1913, P. L. 470, pro- vides, 'Whereas, the act of the General Assembly of Pennsylvania, ap- proved the 9th day of May, 1889, P. L. 182, entitled "An Act relating to Orphans' Court Sales," authorizing the Orphans' Court to decree and approve private sales of real estate for the payment of the debts of a decedent, and for other purposes, makes no provision for the notice to be given of such sales ; and, Whereas, Questions have arisen with regard to the sufficiency of the notice to creditors and others interested in such real estate, as to the title of such real estate sold, when so sold; now, therefore, "Section i. Be it enacted, etc., That before authorizing, decreeing or ap- proving a private sale of real estate, for the payment of the debts of the decedent, public notice thereof shall be given by advertisement printed in at least one newspaper, and in the legal periodical, if any, designated by the rules of court of the proper county, for the publication of legal notices, published in the county where such real estate is located, for at least twenty days prior to the date fixed by such order for author- izing, decreeing or approving such sale; and also by written or printed notices, one of which shall be posted at a conspicuous place on the real estate proposed to be sold, and at least three of such notices shall be posted at three of the most public places in the vicinity of such real estate. " 'Section 2. Before authorizing, decreeing or approving such sale the court shall require proof, by affidavit, to be filed in the proceeding, that the notice required by the first section hereof has been given. " 'Section 3. On the day fixed by such order and notice for authorizing, decreeing or approving such private sale, any creditor of such decedent, or party interested as heir, devisee or intending purchaser, may appear and object to such private sale on account of the price, and offer to give or pay a substantial increase therefor; and the court, at its discretion, may thereupon decree or approve such sale, or refuse to decree or ap- prove the same, and accept any substantially increased offer, and approve or decree such real estate to such new bidder, upon compliance with the TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. 225 to be approved by the court, 89 and the specific execution of the contracts of decedents upon the terms and at the price proved or admitted to have been agreed upon by the parties, 69a but no such private sale, leasing or letting on ground rent, shall be upon terms or at rates less favorable than others, who, of competent ability to contract and uniting in the sale of undivided interests, shall accept; 70 and it shall be the duty of the court in decreeing sales, leases and conveyances upon ground rent of real estate, to order the premises, if necessary, to be so subdivided 71 as to command the highest price or greatest rents, and for such purposes, where the premises may admit of or require it, shall have power to lay out roads, streets and alleys, and to vacate such as shall not have been paid for, or received into actual use by the public, if found to be inconvenient, and to make an unprofitable division of the property: 72 And provided further, That no sale or sales shall conditions of sale and giving security in accordance with the order of the court. " 'Section 4. All private sales of real estate of decedents heretofore made under and by virtue of decrees of Orphans' Court, under and in pur- suance of the said Act of May ninth, one thousand eight hundred and eighty-nine, shall and the same are hereby declared to be valid and ef- fectual to vest in the purchasers thereof the title of such decedents in the real estate so decreed to be sold : Provided, That adequate security, conditioned for the faithful application of the purchase money, shall have been given by such executors or administrators, as the case may be, in accordance with such decree.' " The Act of July 21, 1913, P. L. 871, validating sales under the Act of 1899, in certain cases provides as follows : "Sec. I. Be it enacted, etc., That all private sales of real estate of decedents, heretofore made by vir- tue of decree of the Orphans' Court, in pursuance of the act approved the ninth day of May, 1889, entitled, 'An Act relating to Orphans' Court sales,' which were not advertised in accordance with the provisions of said act as amended, are hereby declared to be valid and effectual to vest in the purchasers thereof the title of such decedents in the real estate so owned : Provided, That adequate security, conditioned for the faithful applica- tion of the purchase money, shall have been given by such executors or administrators, as the case may be, in accordance with such decree: Pro- vided, however, That this act shall not affect any litigation now pending in any court of this Commonwealth, under the act as amended." (69) See note 66 ante. (69a) See 151, ante. (70) See 22, ante. (71) See 58, ante. (72) See 58, ante. 226 TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. be ordered or made under the provisions of this act, in any case, until security, 73 to be approved by the Court of Common Pleas, or Orphans' Court, be given in at least double 14 the value of the interest proposed to be sold. 75 SECTION 5. That the title of purchasers 76 under all such sales, mortgages, or conveyances upon ground rent, shall be a fee simple title, indefeasible by any party or persons, having a pres- ent or expectant interest in the premises, 76 and be unprejudiced by any error in the proceedings of the court, 76 and by every such public sale the premises sold shall be discharged from all liens, 77 and every such sale, and every conveyance in fee simple upon ground rent, shall have all the effect of any other proceeding or conveyance now authorized by law and strictly conducted to a final conclusion, to bar any estate tail, 78 and to defeat contingent remainders, 79 and in such case shall vest in the tenant in tail, or particular tenant, whether minor, feme covert, or otherwise, who after such proceeding or conveyance might have become entitled to the absolute fee simple title, the absolute right to the purchase money, 80 and the ground rents reserved ; and such sales and con- veyances on ground rent shall also bar any right of the Com- (73) See 183, ante. (74) See 179, ante. (75) The Act of Feb. 24, 1834, P- L- 7, Sec. 43, provides that no executor or administrator shall have power to execute any order or decree of the Orphans' Court for the sale of any real estate or to receive the pro- ceeds of a sale made by authority of law without giving security to be ap- proved of by the Orphans' Court having jurisdiction of his accounts. The Act of March 23, 1867, P. L. 43, Sec i, provides, inter alia, that the security required by said act, may be approved by the proper court, of like juris- diction, of the county in which the grantor, or one of them, is resident, and be certified, under seal of such court, to that wherein the sale was decreed ; and such certificate shall be copied on the records thereof. (76) See 197, ante. (77) The Act of March 23, 1867, P- L- 43. Sec. 2, provides as follows: "That private sales, made by order of court, under the said Act of the eighteenth of April, one thousand eight hundred and fifty-three, shall discharge the premises sold from the lien of the debts of the decedent, except debts of record, and debts secured by mortgage: Provided, That the security, required by said act, shall have been duly entered." See 259, 260, ante. (78) See 90, ante. (79) See 97, ante. (80) See 108, ante. TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. 227 monwealth to forfeit real estate that may have been held by or for any corporation beyond what has been authorized, if no pro- ceeding to procure a forfeiture shall have been commenced 81 be- fore petition filed for a sale or letting on ground rent: Pro- vided, That the petition shall set forth an explanation of the title, and of the purpose to bar the entail defeat the contingent remainder 82 or the right of the Commonwealth to have inquisi- tion for any estate defeasible as aforesaid : 83 And provided, That the purchase money or rent reserved shall be a lien on the prem- ises sold or let, until fully paid according to the decree of the court. 84 SECTION 6. That the purchase money, or mortgage money, ground or other rent reserved, shall in all respects be substituted for the real estate sold, mortgaged, or let, 85 as regards the en- joyment and ownership thereof, after the payment of liens, and shall be held for or applied to the use and benefit of the same persons, and for the same estate and interest, present or future, vested, contingent, or executory, as the real estate sold, mort- gaged or let, had been held, 86 except only such remainders, after an entailment 87 or contingent remainders, 88 as shall have been barred or defeated as aforesaid, and those entitled to a present interest in such real estate, shall receive the interest of the pro- ceeds or rents thereof, 89 unless expressly directed to accumulate : 90 Provided, That no principal moneys raised by sale or mortgage, 91 as aforesaid, shall be expended for any other purpose than for the payment of liens upon or the improvement of the same real estate when mortgaged, or other real estate when held for the same uses and persons, unless the same be required for the maintenance or education of parties having the like interests vested or ex- (81) See 84, ante. (82) See 108, ante. (83) See 84, ante. (84) See 44, ante. (85) See 187, ante. (86) See 187, ante. (87) See 93, ante. (88) See 108, ante. (89) See 108, ante. (90) This clause must be read in subservience to Sec. 9 relating to accumulations, for a discussion of which see Foulke, Rule Against Per- petuities, etc., in Penna., (1909) Chap. 25. (91) See 47, ante. 228 TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. pectant, and can be equally and equitably so applied, and without diminution of the capital that may of right become the property of parties having unbarred interests or title in remainder, 92 or by executory devise, 93 and it shall be the duty of the court to decree the proper application of all purchase or mortgage moneys and rents, with the aid of an auditor, when deemed necessary to the discharge of liens and to parties interested, as and when they may be entitled, and before any decree shall be executed, 95 the person or persons entrusted to execute the same, shall give adequate 96 security to the Commonwealth, to be approved by the court, 97 conditioned for the faithful execution of the trust and proper application of all moneys to be received, according to the trust and decree of the court, which security shall enure to the benefit of all parties interested, and such security being so given, no purchaser 98 or lessee 99 shall be bound to see to the application of the purchase money or rents, or be in any manner liable to or affected by the former trusts or limitations upon the premises. SECTION 7. That it shall be lawful for trustees, guardians, committees, married women, and corporations, in all the cases aforesaid, under the decree of the court as aforesaid, and with the like effect and indemnity to them in acting thereunder, to make and take conveyances by deed, acknowledged in court, without public sale, in order to square and adjust lines between adjoining owners, 100 to make and take conveyances, to perfect the partition of real estate 101 held in join tenantcy, coparcenary, (92) See 108, ante. (93) See 112, ante. (95) See 182, ante. (96) See 179, ante. (97) See 177, ante. (98) See 183, ante. (99) Mortgagee is omitted, probably a printer's error, as there is just as much reason for protecting the mortgagee as for protecting the pur- chaser or lessee. Purchaser may perhaps be taken to include a grantee of a conveyance on ground rent. (100) See 55, ante. (101) See 157, ante. The Act of May 2& 1913, P. L. 345, provides: "Section I. Be it enacted, etc., That when real estate in this Common- wealth is held in common, and one or more of the co-tenants is or are minors, and all of the parties who are sui juris, together with the guard- ians of the estates of minors interested, desire to make amicable par- tition of said land and have agreed to a proper division of the same, it TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. 229 or in common with others, to purchase 102 other real estate, when needful, 108 to that already owned by any such party, or useful to the business thereupon carried on, or when necessary, to protect any security or rent held on property exposed to judicial sale : 104 Provided, That no corporation shall be so authorized to purchase beyond its charter license: 105 And provided, That no purchase or sale by authority of this act, shall change the course of descent or transmission of any property changed in its nature by virtue thereof, 106 as respects persons who are not of com- petent ability to dispose of it, 107 and all persons entrusted with moneys raised under this act shall be authorized to file their ac- counts 108 in the court whence their authority was derived, and upon such notice as the court may order to parties interested, or after being audited, if deemed necessary, or by consent of all parties interested, such accounts may be finally confirmed, and upon payment of the balance, as may be decreed by the court, such accountants 109 may be fully discharged from the trust. 110 shall be lawful for the Orphans' Court of the proper county, upon the petition of any guardian of the estate of any minor or minors interested, to authorize and empower the petitioner to join with the co-tenants of said minors in a proper deed or conveyance to effect such amicable par- tition. Provided, That the court shall be of opinion that it is for the in- terest and advantage of the estate of said minor that such partition should be made. (102) See 56, ante. (103) The word adjoining should be supplied here to make sense. (104) See 56, ante. This clause seems to be declaratory of the ex- isting law. (105) See 56, ante. (106) See 189, ante. (107) See 190, 191, ante. (108) See 188, ante. (109) See 188, ante. (no) The Act of April 18, 1864, P. L. 462, Sec. i, provides, "That it shall be lawful for trustees, guardians, committees, married women, and corporations, in addition to the powers conferred by the seventh section of the act to which this is a supplement, under the decree of the proper court, and with the like effect and indemnity to them in acting there- under, to make and take, or to join with owners of other undivided in- terests in making and taking conveyances, by deed acknowledged in court, and without public sale, in order to change, in part, or in whole, the route, or location, of any right of way, or passage, existing over, and upon, adjoining, or other lands : Provided, The court shall be of opinion, that is for the interest and advantage, of the owner, or owners, 230 TEXT OF THE PRICE ACT AND ITS SUPPLEMENTS. SECTION 8. That in all cases and proceedings under this act, appeals 111 may be taken to the Supreme Court from the Or- phans' Court as now provided by law in other cases, and in the Court of Common Pleas, as provided in equity cases, in the re- spective counties of the State: Provided, That if any decree be carried into execution before the appeal be perfected, 111 and writ- ten notice thereof given to any vendee, mortgagee, or lessee, any reversal thereof shall not affect the right or title of such vendee, mortgagee, or lessee, but the purchaser or mortgage money, or rents shall stand in lieu of the premises sold or mort- gaged, or leased, so far as thus encumbered: Provided further, That before any decree be carried into effect to afford such in- demnity, twenty days be allowed from its entry 111 to take and perfect such appeal. 112 SECTION 10. That the directions given in the sixth section of this act in regard to the security 113 to be given in cases of sales, mortgage, or letting of real estate, and the condition of the bond or security therein prescribed, shall apply to all cases of sales or mortgage of real estate by order of the courts of this Commonwealth: And provided, That no decree for the sale, mortgaging or letting of any real estate under the provisions of this act, shall be made except when the president of the court, or the law judge or judges thereof, shall be present, 114 and that the acts in relation to special courts, where the president judge shall be interested, related to parties in interest, or otherwise incapable of acting, shall apply to all such provisions. of the land, to which such right of way is appurtenant, that such change of route, or location, be made : And provided further, That it shall be in the discretion of the court, in such cases, to require security, or not, from the person or persons, aforesaid, making or taking, such convey- ances." (in) See 271, ante. (112) Section 9, relating to Accumulations, is omitted from the dis- cussion in this book. See Foulke, Rule Against Perpetuities, etc., in Penna. (1909), Chap. 25, p. 371, for discussion of it. (113) See 177, ante. (114) The law judge is presumed to be present, and his presence need not be affirmatively shown on the record, Morrison v. Nellis, 115 Pa. 41 (1887), Trunkey, J., at 46; s. c. 19 W. N. C. 20, 44 L. I. 187, 34 Pitts. L. J. 274, 14 Lane. L. R. 96. TEXT of THE PRICE ACT AND ITS SUPPLEMENTS. 231 Sale of Estates Amounting to Less than a Thousand Dollars. SECTION i. That from and after the passage of this act, when- ever any person shall die siezed of real estate valued at not more than one thousand dollars, and the parties in interest desire the same to be converted into money for distribution, it shall be lawful for the Orphans' Court of the proper county, in its discretion, upon the joint petition of the widow and heirs, and the guardians or committees of such as are minors or under disabilities, in whom the real estate of the decedent shall have vested, setting forth the description of the property, the desire to have the same sold and its estimated value duly sworn to, together with the affi- davit of two disinterested persons, stating that the real estate is not worth more than one thousand dollars, to order the exec- utor, administrator or trustee to make sale and proceed in all respects in the manner now provided by existing laws in cases of the sale of real estate for the payment of debts of a decedent, and the proceeds of such sale, after the payment of the expenses thereof, shall be distributed to and among those entitled thereto, the same as real estate. 116 Lease of Mining Lands. That whenever, under the provisions of the aforesaid Act of eighteenth of April, one thousand eight hundred and fifty-three, and the several supplements thereto, the courts of this Common- wealth or any of them, have power to decree a lease of lands for mining purposes, it shall be further lawful for the said courts to order and decree that such lands may be so combined and consolidated with other adjoining lands, as to form one tract in which the several persons or parties so combining and consoli- dating shall become seized of undivided interests, proportionate to their several divided interests before such combination and consolidation, and that the rents or royalties to be received under such lease shall be in the like proportions. 111 Sale for Distribution on Petition of Widow and Heirs. The Act of June 12, 1893, P. L. 46i, 118 i, provides: Section i. Be it enacted, etc., That whenever any person shall die seized of real estate and the parties in interest desire the same (116) Act of May 14, 1874, P. L,. 166. (117) Act of June 8, 1874, P. L. 277, Sec. i. , in- testate and unmarried, leaving to survive him the said Thomas Brown, and no other child or issue of a deceased child. (3) That the said yearly ground rent is described as follows: (Here insert description). (4) That your petitioner has sold the said yearly ground rent to Thomas L. Kane for the price of $10,000, by agreement of sale, copy of which is hereunto annexed marked "Exhibit A.," which sum is twice the capital sum specified in the deed reserving the ground rent as the amount to be paid for the extinguishment of the same. (5) That it will be to the interest and advantage of the said Thomas Brown that the said yearly ground rent should be sold for the price aforesaid, because the annual ground rent is now $300, being 6% on the said sum of $5,000, and the sum of $10,000 for which the ground rent is to be sold will upon being invested at the current rates of interest, produce an income of about $500 per annum, a difference in income which will be clearly to the ad- vantage of the said Thomas Brown. (50) See note 10, ante. FORMS OF PETITION AND DECREE. 267 (6) That the said ground rent is irredeemable, as appears by the covenant in the deed reserving the same, executed by to i , dated , recorded at in , a copy of which (deed or covenant) is hereunto an- nexed marked "Exhibit B." (7) That the said price of $10,000 is a better price than could be realized for the said ground rent at public sale. (8) That the said premises are assessed for taxation for the year , at $ , as appears by certificate of the Board of Revision of Taxes hereunto annexed, marked "Exhibit ." 51 (9) That the said sale may be made without injury or preju- dice to any trust, charity or purpose for which the same is held, and without the violation of any law which may confer an im- munity or exemption from sale or alienation. Your petitioner therefore prays your Honorable Court for a decree, under the provisions of the Act of April 18, 1853, P. L. 503," confirming the sale of the ground rent, and authorizing your petitioner to convey the same to the said Thomas L. Kane for the price agreed upon ; the title of the purchaser to be in fee simple, indefeasible by any party or persons having a present or expectant interest therein, and unprejudiced by any error in the proceedings of the court. And he will ever pray, etc. Decree. AND NOW, on the , on consideration of the foregoing petition and affidavits thereunto annexed, and on motion of Edward Tilghman, Esq., counsel for the petitioner, it appearing that it will be to the interest and advantage of the said Thomas Brown that the said yearly ground rent (here refer to ground rent), should be sold to Thomas L. Kane for $10,000, and it fur- ther appearing that the same may be made without injury or prejudice to any trust, charity or purpose for which the same is held, and without the violation of any law which may confer an immunity or exemption from sale or alienation, and that the said sum of $10,000 is a better price than could be obtained for the same at public sale, IT IS ORDERED AND DECREED that the said sale by William Burns, guardian, as aforesaid, be and the same is hereby confirmed, and the said William Burns, guardian, (51) This averment need only be inserted by local rule of court. (52) See note 14, ante. 268 FORMS OF PETITION AND DECREE. as aforesaid, is hereby authorized and empowered, upon receipt of the said sum of $10,000, and all arrearages of ground rent to the day of settlement, to convey the said yearly ground rent to Thomas L. Kane, the title of the purchaser to be in fee simple, indefeasible by any party or persons having a present or expectant interest in the said premises, and unprejudiced by any error in the proceedings of the court; the said William Burns first entering security in the sum of $20,000. Authority to Join in Amicable Partition. IN THE ORPHANS' COURT FOR THE COUNTY OF Term, 19 . No. . ESTATE OF DANIEL BROWN, DECEASED. To the Honorable the Judges of the said Court: The petition of William Burns, guardian of George Brown, owner of an undivided interest 53 in the premises hereinafter de- scribed, respectfully represents : (1) That Daniel Brown died on February 15, 1900, intestate, unmarried and leaving to survive him three children, Thomas Brown, George Brown and William Brown, of whom the said George Brown is now under the age of twenty-one years, and no other child or issue of a deceased child. (2) That your Honorable Court did on the day of , 19 , appoint your petitioner the guardian of the said George Brown. (3) That the said Daniel Brown was at the time of his death seized in fee of all those certain (here recite description of the various premises). (4) That your petitioner and the said Thomas and William Brown have agreed upon an amicable voluntary partition of the aforesaid premises, by which partition they have agreed that the said William Brown shall have the following premises (here in- sert description of William's premises) ; that the said George Brown shall have the following premises (here insert description of George's premises) ; that the said Thomas Brown shall have (53) See note 10, ante. FORMS OF PETITION AND DECREE. 269 the following premises (here insert description of Thomas' prem- ises). (5) That owing to the circumstance that the said George Brown is under the age of twenty-one years, he is unable to join in the said volunary partition, and this petition is therefore pre- sented to your Honorable Court under the provisions of the Act of April 1 8, 1853 P. L. 503," for a decree authorizing your peti- tioner as guardian aforesaid to execute a proper deed carrying out the aforesaid partition. (6) That it will be to the interest and advantage of the said George Brown and of all the parties in interest that the said par- tition should be made in order to avoid the expense and delay of partition proceedings. (7) That the same may be made without injury or prejudice to any trust, charity or purpose for which the same is held, and without the violation of any law which may confer an immunity or exemption from sale or alienation. (8) That the said premises are assessed for taxation for the year at the sum of $ , as appears by certificate of the Board of Revision of Taxes hereunto annexed marked "Exhibit ." 55 (9) That the said Thomas Brown and George Brown have signified their consent to the said partition by joining herein. Your petitioner therefore prays your Honorable Court to ratify and confirm the aforesaid partition, and authorize and empower him as guardian aforesaid to execute the necessary deeds to carry out the same so that the title of the parties in severalty thereunder shall be in fee simple, indefeasible by any party or person having a present or expectant interest in the premises, and unprejudiced by any error in the proceedings of the court. And he will ever pray, etc. Decree. AND NOW, the day of , A. D. , on con- sideration of the foregoing petition and affidavits thereunto an- nexed, and on motion of Rufus Choate, Esq., counsel for the peti- tioner, it appearing that it is to the interest and advantage of the said parties to make the said partition, and it further appearing that the same may be done without injury or prejudice to any (54) See note 14, ante. (55) This averment need only be inserted in cases where the certificate is required by local rule of court. 270 FORMS OF PETITION AND DECREE. trust, charity of purpose for which the same is held, and without the violation of any law which may confer an immunity or ex- emption from sale or alienation, IT IS ORDERED AND DE- CREED that the said partition be confirmed, and that William Burns, guardian of George Brown aforesaid, be and he is hereby authorized and empowered to execute the necessary deeds of par- tition, with the said Thomas and William Brown, and that the title of the said parties to the premises under the said deeds of partition shall be in fee simple, indefeasible by any party or per- sons having a present or expectant interest therein, and be un- prejudiced by any error in the proceedings of the court. Form of Petition for Ratification of Partition."-" Already Made. IN THE ORPHANS' COURT FOR THE COUNTY OF Term, 19 . No. . ESTATE OF DANIEL BROWN, DECEASED. The petition of William Burns, trustee under the will of Dan- iel Brown, deceased, and as such interested 57 in the premises here- inafter described, respectfully represents: (1) That Daniel Brown died on the I5th day of January, A. D. 1910, having first made and published his last will and testa- ment, a copy whereof is hereunto annexed marked "Exhibit A.," wherein and whereby he did divide his residuary estate into three parts, one part thereof he gave to his son, Thomas Brown ; one part to his son, George Brown, and the other one-third equal part to your petitioner, in trust for his daughter, Sallie, intermarried with Lewis Riley. (2) That the said Daniel Brown was at the time of his death seized in fee of all those certain (here insert description of premises). (56) It sometimes happens that through inadvertence parties under dis- ability have entered into an amicable partition, and the defect is subse- quently discovered, whereupon it will appear that the title of the several tenants in common under the partition deed will be defective. In such case the Orphans' Court may ratify and confirm the partition and remove the defect. (57) See note 10, ante. FORMS OF PETITION AND (3) That the said Thomas and George Brown and your peti- tioner having agreed upon a fair, just and equal partition of the aforesaid premises of which Daniel Brown died seized, by deed dated the i$th day of June, 1912, made an amicable voluntary partition thereof, which deed has been duly recorded in the Re- corder's Office in and for the County of , in Deed Book, , by which deed the following partition of the premises was made; that the said George Brown should have (here insert George's premises) ; that the said Thomas Brown should have (here insert Thomas's premises) ; that your petitioner as trustee under the will of Daniel Brown should have (here insert the trus- tee's premises). (4) That since the making of the said deed the said parties have entered into possession of the several purparts, and have remained in undisturbed possession thereof from that time to the present date. (5) That the said partition is an equal, fair and just one, to the interest and advantage of all parties, and does no injury to any trust, charity or purpose for which the same is held, and does not violate any law which may confer an immunity or exemption from sale or alienation. (6) That the said Thomas Brown and George Brown have been duly notified of this petition, as appears by their joinder herein, and the said Sallie Riley and Lewis, her husband, have signified their consent to the said partition by joining herein in like manner. (7) That the said premises are assessed for taxation for the year at $ , as appears by certificate of the Board of Revision of Taxes hereunto annexed, marked "Exhibit ." 68 (8) That your petitioner has since been advised that by reason of the fact that there is no power in the will of Daniel Brown conferring authority to make partition, that his joinder as trustee in, the aforesaid deed of partition is null and void and of no ef- fect. He therefore petitions your Honorable Court under the provisions of the Act of April 18, 1853, P. L. 5O3, 59 for a decree ratifying and confirming the aforesaid partition and your peti- tioner's joinder therein, and for a decree ratifying the same, and directing that the titles of the several tenants in common shall be (58) This averment need only be inserted by local rule of court. (59) See note 14, ante. 272 FORMS OF PETITION AND DECREE. in fee simple, indefeasible by any party or persons having a pres- ent or expectant interest therein and unprejudiced by any error in the proceedings of the court. And he will ever pray, etc. Decree. AND NOW, the day of , A. D. 19, on con- sideration of the foregoing petition and affidavits thereunto an- nexed, and on motion of Daniel Webster, Esq., counsel for the petitioner, it appearing that the said partition which has been made by the parties thereto under deed dated the > day of , 19 , recorded in Recorder's Office in and for the County of , in Deed Book , is a fair, just and equal partition, and is to the interest and advantage of the parties, and that it does not injure or prejudice any trust, charity or purpose for which the same is held, and does not violate any law which may confer an immunity or exemption from sale or alienation, IT IS ORDERED AND DECREED (i) that the said partition be and the same is hereby confirmed, (2) that the joinder in the afore- said partition deed dated , recorded , by the said William Burns, trustee under the will of Daniel Brown, deceased, be and the same is hereby ratified and confirmed, with the same force and effect as if the court had authorized the joinder of the said William Burns therein prior to the date of the deed. AND IT IS FURTHER ORDERED that the title of the several ten- ants in common under the said deed of partition shall be in fee simple, indefeasible by any party or persons having a present or expectant interest therein, and be unprejudiced by any error in the proceedings of the court. (Persons Absent and Unheard From for More Than Seven Years.) IN THE ORPHANS' COURT FOR THE COUNTY OF . Term, 19 . No. . ESTATE OF THOMAS BROWN, SUPPOSED TO BE DECEASED. To the Honorable the Judges of the said Court: The petition of Henry Brown, a tenant in common in fee 60 of the hereinafter described premises, respectfully represents: (60) See note 10, ante. FORMS OF PETITION AND DECREE. 273 (1) That Daniel Brown died on the i5th day of January, A. D. 1874, intestate and unmarried, leaving to survive him issue five children as follows: Thomas Brown, Henry Brown, James Brown, Susan, since married to Lewis Rice, Polly since married to James Smith, and no other child or issue of a deceased child. (2) That the said Daniel Brown was at the time of his death seized of ALL THAT CERTAIN (here insert description of premises) . (3) That the persons interested in the said premises are as set forth in the following table : Thomas Brown, one-fifth. Henry Brown, one-fifth. James Brown, one-fifth. Susan Rice, one-fifth. Polly Smith, one-fifth. (4) That Thomas Brown, a son of the said Daniel Brown, de- parted this jurisdiction on or about the first day of January, A. D. 1900, and has been absent and unheard from for more than seven years, that is to say, from that time to the time of the filing of this petition, under circumstances from which the law would presume his decease. (5) That your petitioner and the other parties in interest have contracted to sell the said premises to John Clark for the price of $10,000 by agreement of sale, copy of which is hereunto annexed marked "Exhibit A." (6) That your petitioner and the other parties in interest are unable to convey the interest of the said Thomas Brown, who has been absent and unheard from under the circumstances afore- said. 61 (7) That this petition is presented to your Honorable Court under the provisions of the Act of April 18, 1853, P. L. 5O3, 62 for (61) It does not seem necessary to set out in the petition in detail the evidence concerning the departure or absence of the person supposed to be deceased. The court will undoubtedly in every such case, unless the pre- sumption of death has already been made out in other proceedings, as, for instance, where the personal estate has been distributed under the Act of 1885, appoint an examiner to take testimony or direct a hearing before the court. It seems therefore only necessary to set out the formal aver- ment in the petition itself. (62) See note 14, ante. 274 FORMS OF PETITION AND the purpose of conveying the interest of the said Thomas Brown, supposed to be deceased as aforesaid. (8) That the price of $10,000 aforesaid is a better price than could be obtained for the said premises at public sale, and it is to the interest and advantage of the said parties that the sale should be made in order that the parties may avoid the expense of parti- tion proceedings and the disadvantage of holding the premises longer in the present condition of undivided ownership, with one of the owners absent where he cannot be communicated with. (9) That the said premises are assessed for taxation for the year -, at $ , as appears by certificate of the Board of Revision of Taxes hereunto annexed, marked "Exhibit ," 63 (10) That the sale may be made without injury or prejudice to any trust, charity or purpose for which the same is held, and without the violation of any law which may confer an immunity or exemption from sale or alienation. (n) That the other parties in interest, to wit, Henry Brown, James Brown, Susan Rice and her husband, Lewis Rice, Polly Smith and her husband, James Smith, have signified their ac- quiescence in the said sale and joined in this petition. Your petitioner therefore prays your Honorable Court for a decree confirming said sale and appointing William Burns, trus- tee, to carry out the same on behalf of the said Thomas Brown, supposed to be deceased, and directing him to convey the same to the said John Clark upon receipt of the proportionate share of the said Thomas Brown in the purchase-money, the title of the pur- chaser to be a fee simple interest and indefeasible by any party or persons having a present or expectant interest in the said prem- ises, and be unprejudiced by any error in the proceedings of the court. And he will ever 'pray, etc. 64 Preliminary Decree. AND NOW, , on consideration of the foregoing (63) This averment need only be inserted when required by local rule of court. (64) It is not necessary to insert forms covering the intermediate pro- ceedings relating to the appointment of an examiner or to a hearing be- fore the court. When those proceedings have been so concluded that the court is satisfied that the presumption of death is made out, a preliminary decree may be entered as follows. FORMS OF PETITION AND DECREE. 275 petition, and on motion of Joseph Story, Esq., counsel for the pe- titioner, it appearing that the said Thomas Brown has been absent and unheard from for more than seven years, that is to say, from the - , under circumstances from which the law will presume his decease, IT IS ORDERED AND DECREED that notice be given by publication (here insert the terms of the pub- lication) that the foregoing petition will be persented to the court on the - day of - at - A. M., and a decree be made confirming the said sale unless cause be shown to the contrary. Decree. AND NOW, the - , on consideration of the foregoing petition and affidavits thereunto annexed, it appearing that due no- tice by publication has been given as directed by the preliminary decree heretofore entered, and it further appearing that no ob- jections have been made to the granting of the petition, and on motion of Joseph Story, Esq., counsel for the petitioner, it ap- pearing that Thomas Brown, son of Daniel Brown, deceased, has been absent and unheard from for more than seven years under circumstances from which the law will presume his decease ; and it further appearing that it is to the interest and advantage of all parties in interest that the premises described in the foregoing petition, to wit, - * - , should be sold to the said John Clark for the sum of $10,000 for the whole, the said sum of $10,000, being a better price than could be obtained at public sale, and that the same may be done without injury or prejudice to any trust, charity or purpose for which the same is held, and without the violation of any law which may confer an immunity or ex- emption from sale or alienation, IT IS ORDERED AND DE- CREED (i) that the aforesaid sale to John Clark for $10,000 be and the same is hereby confirmed, (2) that William Burns is ap- pointed trustee to carry out the same on behalf of the said Thomas Brown, supposed to be deceased as aforesaid, (3) that the said William Burns, trustee as aforesaid, be and he is hereby author- ized to join in the deed of the said premises to the said John Clark for the price of $10,000 for the whole, upon receipt of the share of the said Thomas Brown therein, the title of the purchaser to be a fee simple title indefeasible by any party or persons having a present or expectant interest in the said premises ; and unpreju- 276 FORMS OF PETITION AND diced by any error in the proceedings of the court ; the said Wil- liam Burns first entering security in the sum of $4,000. Public Sale of Trust for a Charity. IN THE ORPHANS' COURT FOR THE COUNTY OF Term, 19 . No. . ESTATE OF DANIEL BROWN, DECEASED. To the Honorable the Judges of the said Court: The petition of William Burns, trustee under the will of Daniel Brown, deceased, and as such interested 65 in the premises herein- after described, respectfully represents : (1) That Daniel Brown died on the I5th of December, A. D. 1895, having first made and published his last will and testament in writing dated the , a true copy whereof is here- unto annexed marked "Exhibit A.," by which he devised a certain tract of land, adjoining his farm to your petitioner, in trust, upon which he directed his trustee to construct and maintain a school for the education of poor young girls of the neighborhood. (2) That the said premises are described as follows: (Here insert description of premises). (3) That your petitioner caused said premises to be exposed to public sale at the salesroom of Messrs. Sims & Sons, at 10 o'clock A. M., on Wednesday, April i, 1914, due notice of said sale hav- ing been properly given by full advertisement for at least twenty days by handbills posted in at least twenty of the most public places in the county, and by notice published in two newspapers, to wit, the and the , not less than three times in each, due proof of which publication is hereto annexed marked "Exhibit B." 66 (65) See note 10, ante. (66) In the case of a petition to ratify a public sale, it should be form- ally set out that the notice prescribed by the act has been given, and proof should be attached to the publication of that notice. This proof should be in the shape of an affidavit by some disinterested party that the publica- tion was made, giving a copy of the notice printed in the papers, and by affidavit of the party who posted the handbills that he actually posted them in twenty public places, or this matter may be regulated by a local rule of court. If so, the petition should conform thereto. FORMS OF PETITION AND DECREE. 277 (4) That the premises were sold on the day and at the time aforesaid to John Clark for $20,000, he being the highest and best bidder, and that being the highest and best bid for the same. (5) That it will be to the interest and advantage of all parties that the premises should be sold for the price aforesaid, it ap- pearing that the lot of ground so devised by Daniel Brown for the purpose of constructing a school thereon is unsuitable for the purpose, a large factory having recently been constructed in the neighborhood thereof, the noise, smoke and dust from which will disturb the quiet and privacy necessary for the protection and education of poor young young girls. (6) That the said premises are assessed for taxation for the year , at $ , as appears by certificate of the Board of Revision of Taxes hereunto annexed, marked "Exhibit ." 87 (7) That your petitioner has made an arrangement with the trustees of the < association, situate in the county aforesaid, which is provided with sufficient buildings and instruct- ors to adequately care for the education of poor young girls, by which arrangement the income arising from the fund left under the will of Daniel Brown, deceased, shall be used for the mainte- nance at that home of a certain number of poor young girls, pend- ing the arrangement your petitioner may be able to make for the selection of a suitable lot of ground and the construction of a building to carry out the charitable wishes of the testator. Your petitioner therefore avers that it is to the interest and ad- vantage of all parties that the sale my be made, and that the same may be made without injury or prejudice to any trust, char- ity or purpose for which the same is held, and without the vio- lation of any law which may confer an immunity or exemption from sale or alienation. He therefore prays your Honorable Court for a decree under the provisions of the Act of April 18, 1853, P. L. 5O3, 68 confirm- ing the said sale, and directing him to carry out the same so that the title j of the purchaser shall be a fee simple title, indefeasible by any party or persons having a present or expectant interest in the premises, and unprejudiced by any error in the proceedings of the court. And he will ever pray, etc. (67) This averment need only be inserted when required by local rule of court. (68) See note 14, ante. 278 FORMS OF PETITION AND DECREE. Decree. AND NOW, , on consideration of the foregoing petition, and on motion of John Marshall, Esq., attorney for the petitioner, it appearing that it will be to the interest and advantage of the said parties that the premises described in the foregoing petition, to wit: should be sold to John Clark for the price of $20,000, and that the same may be made without in- jury or prejudice to any trust, charity or purpose for which the same is held, and without the violation of any law which may con- fer an immunity or exemption from sale or alienation, IT IS ORDERED AND DECREED that the said public sale to John Clark be confirmed, and that William Burns, a trustee under the will of Daniel Brown, deceased, be and he is hereby authorized to convey the said premises to the said John Clark, for the price of $20,000, the title of the purchaser to be in fee simple, indefeasible by any party or persons having a present or expectant interest in the premises, and unprejudiced by any error in the proceedings of the court; the said William Burns first entering security in the sum of $40,000. Public Sale, Subdividing Tract and Vacating Roads. IN THE ORPHANS' COURT FOR THE COUNTY OF Term, 19 . No. . ESTATE OF DANIEL BROWN, DECEASED. To the Honorable the Judges of the said Court: The petition of William Burns, trustee under the will of Daniel Brown, deceased, and as such interested 69 in the premises herein- aeter described, respectfully represents : (1) That Daniel Brown died on the 28th day of June, 1902, having first made his will dated , a true copy whereof is hereunto annexed marked "Exhibit A.," by which he devised his residuary estate to your peitioner upon the trusts therein declared. (2) That the said Daniel Brown died seized, inter alia, in fee of all that certain (here describe premises). (69) See note 10, ante. . .1 FORMS of PETITION AND DECREE. 279 (3) That the said premises, consist of a large tract of land situate in the outskirts of the city of Pittsburgh, and over which the said Daniel Brown in his lifetime laid out certain streets, in- tending to divide the said tract into bulding lots. (4) That the said streets have not been accepted by the pub- lic authorities, and that it now appears advantageous to vacate the said streets and lay out others in lieu thereof, and divide the said tract of land into a different division of lots, as appears by a plan hereunto annexed marked "Exhibit B." (5) That it is to the interest and advantage of the said trust estate and of all the cestuis que trustent therein named, all of whom have signified their consent to the sale hereinafter de- scribed by joining herein, that the said premises should be sold be- cause they are unproductive, subject to a liability for taxation and in the neighborhood of a growing part of the city so that the premises are now ripe for improvement, and by selling the same for that purpose the trust estate will be materially benefited, as the purchase price will, when invested, yield a greater income than the premises in their present condition, and your petitioner is unable to improve the premises by building thereon, as such im- provement would require the expenditure of a large sum of money which he would would have to borrow for that purpose. Your petitioner therfore caused the said premises to be exposed to public sale, as per the said plan hereunto annexed, at the auc- tion rooms of J. W. Sims & Co., on February 20, 1910; due notice thereof having first been given for at least twenty days by handbills posted in at least twenty of the most public places in the said city of Pittsburgh, and by notice published in at least two newspapers, to wit, the - 1 and the , not less than three times in each, that is to say, in each paper on the , on the, and on the , due proof of which publication is hereunto annexed marked "Exhibit C." (6) That at the public auction sale of the said premises held as aforesaid, a number of the lots of ground described in the said plan were sold to various purchasers, as follow: Lot No. i to Thomas Clark for $500. Lot No. 2 to William Smith for $500. (etc., etc., here specify the lots sold to the different purchasers), the prices so realized being the highest and best price in each case bidden for the same. 280 FORMS OF PETITION AND DECREE. (7) That the said premises may be sold without injury or prejudice to any trust, charity or purpose for which the same is held, and without the violation of any law which may confer an immunity or exemption from sale or alienation. (8) That it is desirable to vacate the streets so laid out by the said Daniel Brown, as aforesaid, and in lieu thereof to open and dedicate the streets shown upon the plan marked "Exhibit B." (9) That there is no power of sale in the will of the said Daniel Brown, deceased. (10) That the said premises are assessed for taxation for the year at $ as appears by the certificate of the Board of Revision of Taxes hereunto annexed marked "Exhibit ." 70 Your petitioner therefore prays your Honorable Court for a decree under the provisions of the Act of April 18, 1853, P. L. 503, ratifying and confirming the said several sales of the said lots of ground as hereinbefore mentioned to the said several pur- chasers, and vacating the said streets laid out by the said testator and opening the streets laid out by your petitioner, as aforesaid, and authorized and empowering your petitioner to convey by deed of dedication the said streets to the public authorities and the said tracts of ground to the several purchasers ; the title of each pur- chaser to be in fee simple, indefeasible by any party or persons having a present or expectant interest therein, and unprejudiced by any error in the proceedings of the court. And he will ever pray, etc. Decree. AND NOW, the , on consideration of the fore- going petition and affidavits thereunto annexed, and on motion of John Marshall, Esq., counsel for the petitioner, it appearing that all the cestuis que trustent interested under the will of Daniel Brown have joined therein, and that it will be to the interest and advantage of all parties that the said premises should be sub- divided as set out in the said petition, and the streets laid out and dedicated by the testator should be vacated, and that the streets laid out by the said William Burns, trustee under the will of said Daniel Brown, should be opened, and further, that the said several (70) This averment need only be inserted when required by local rule of court. (71) See note 14, ante. FORMS OF PETITION AND DECREE. 281 lots of ground should be sold to the said purchasers as follows, to wit: (here insert), and that the same may be done without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may con- fer an immunity or exemption from sale or alienation, IT IS ORDERED AND DECREED that the sales of the said lots of ground to the several purchasers for the price aforesaid be and they are hereby confirmed; that the said William Burns be and he is hereby authorized to, in order to carry out the said sales, subdivide the said tract as set out in the said plan marked "Ex- hibit B.," and that he is further authorized to lay out and dedicate to public use the streets described and mentioned on said plan, and to convey the same to the city of Pittsburgh by deed of dedica- tion ; an he is further authorized and empowered to carry out the several contracts of sale made with the purchasers as aforesaid, and to convey to each the lot of ground sold to him upon the receipt of the purchase price; the title of each purchaser to his lot of ground to be in fee simple, indefeasible by any party or persons having a present or expectant interest in the premises, and unprejudiced by any error in the proceedings of the court; the said William Burns first entering security in the sum of Private Sale. Trustee Without Power of Sale. IN THE COURT OF COMMON PLEAS FOR THE COUNTY OF- Term, 1914. No. . IN RE TRUST UNDER THE DEED OF DANIEL BROWN. The petition of William Burns, trustee under the deed of Daniel Brown, and interested as said trustee 73 in the premises herein- after described, respectfully represents : (i) That Daniel Brown, by deed dated the 3ist day of Janu- ary, 1865, granted and conveyed the premises hereinafter de- (72) Security should be in double the amount of the purchase price of all the lots sold. (73) See note 10, ante. 19 282 FORMS OF PETITION AND DECREE. scribed, inter alia, unto John Jones, in trust, to collect the rents, issues and profits thereof, and pay over the net income to the said Daniel Brown during the remainder of his natural life, and from and after his decease to pay over the income to the children whom he might leave surviving for their lives in equal shares with re- mainders over, as therein mentioned, a copy of which said deed is hereunto annexed marked "Exhibit A." (2) That some of the children of the said Daniel Brown, to wit: Henry Brown, James Brown and Thomas Brown, are still living and the trusts declared under the said deed are still subsist- ing. That the said John Jones subsequently departed this life, and your petitioner, William Burns, was duly appointed substitute trustee in his place by your Honorable Court on the i$th day of January, A. D. 1900. (3) That the said deed of Daniel Brown, inter alia, conveyed ALL THAT CERTAIN (here insert description of premises). (4) That the said deed of Daniel Brown contains no power authorizing the trustee to sell any of the real estate therein con- veyed. (5) That your petitioner has entered into a contract of sale with John Clark, a copy of which is hereunto annexed marked "Exhibit B.," by which he has agreed to sell the aforesaid premises in fee simple for the sum of $10,000. (6) That the said Thomas, Henry and James Brown, cestui que trust as aforesaid, have consented to the said sale, as is evi- denced by their joinder in this petition. 78 * (7) That it will be to the interest and advantage of the said trust estate, as well as to the interest and advantage of , the said Thomas, Henry and James Brown, that the said premises should be sold to the said John Clark for $10,000 for the reason that (8) That the said sum of $10,000 is a better price than could be obtained for the premises at public sale. (9) That the said premises are assessed for taxation for the year < at the sum of $ , as appears by certificate of (733) In the case of trusts, there is some doubt as to how far it is nec- essary to notify all equitable interests in remainder. The petition as drawn only provides for notice to the life cestui que trust, which is probably enough. It may be, however, that circumstances or the court will require notice to all parties. See 138, ante. FORMS OF PETITION AND DECREE. 283 the Board of Revision of Taxes hereunto annexed marked "Ex- hibit C." 74 ( 10) That the said sale may be consummated without injury or prejudice to any trust, charity or purpose for which the same is held, and without violation of any law which may confer an im- munity or exemption from sale or alienation. (11) Your petitioner therefore prays your Honorable Court, under the provisions of the Act of April 18, 1853, P. L. 503," to enter a decree ratifying the aforesaid sale, and authorizing your petitioner to consummate the sale by conveying the said premises to the said John Clark in fee simple, so that the title of the pur- chaser shall be indefeasible by any party or persons having a present or expectant interest in the premises, and be unprejudiced by any error in the proceedings of the court. And he will ever pray, etc. Decree. AND NOW, the day of , A. D. 19, on con- sideration of the foregoing petition and affidavits thereunto an- nexed, it appearing that all of the cestuis que trustent have joined therein, and on motion of William Tilghman, Esq., counsel for the petitioner, it appearing that it will be to the interest and ad- vantage of the trust under the deed of the said Daniel Brown, as well as to the interest and advantage of the said Thomas, Henry and James Brown, cestuis que trustent thereunder, that the prem- ises described in the foregoing petition, to wit: (here refer to premises specifically) should be sold to the said John Clark for the sum of $10,000, and that the said sum of $10,000 is a better price than could be obtained at public sale, and that the same may be done without injury or prejudice to any trust, charity or pur- pose for which the same is held, and without the violation of any law which may confer an immunity or exemption from sale or alienation, IT IS ORDERED AND DECREED that the said sale by William Burns, substituted trustee, as aforesaid to John Clark be and the same is hereby confirmed, and that the said William Burns, substituted trustee as aforesaid, be and he is hereby au- thorized, empowered and directed, upon the receipt of the said (74) This averment need only be inserted in cases where the certificate is required by local rule of court. (75) See note 14, ante. 284 FORMS OF PETITION AND DECREE;. sum of $10,000, to convey the said premises to the said John Clark. The title of the purchaser to be in fee simple, indefeasible by any party or persons having a present or expectant interest in the said premises, and unprejudiced by any error in the proceed- ings of the court, the said William Burns first entering security in the sum of $20,000. Private Sale of Interest of a Lunatic. IN THE ORPHANS' COURT FOR THE COUNTY OF Term, 19 . No. . ESTATE OF GEORGE BROWN, A LUNATIC. To the Honorable the Judges of the said Court: The petition of William Burns, committee in lunacy of George Brown, a lunatic, the said George Brown being the owner in fee of the premises hereinafter described, 78 respectfully represents: (1) That Daniel Brown died on the I5th day of January, 1875, sized in fee of the premises hereinafter described, intestate, un- married and leaving to survive him a son, the said George Brown, and no othed issue or issue of a deceased child him surviving. (2) That the said premises are described as follows: (here insert description of premises). (3) That by inquisition proceedings in the court of common pleas of the County of , of Term, No. , the said George Brown was duly adjudged a lunatic, and your peti- tioner was duly appointed committee of his person and estate. (4) That your petitioner has contracted to sell the said prem- ises to John Clark for $10,000, by agreement of sale copy whereof is hereunto annexed marked "Exhibit A." (5) That it will be to the interest and advantage of the estate of the said lunatic that the property should be sold for the price aforesaid because the property is dilapidated, decaying, in bad need of repair and cannot be rented to advantage without the expenditure of a considerable sum of money. The gross income from the property for the last three years has been , the expenditures for water rent, taxes and repairs has been , (76) See note 10, ante. FORMS OF PETITION AND DECREE. 285 and the net annual income for the three years has been . The petitioner can by investing the sum of $10,000 at the prevail- ing rates of interest receive a larger revenue than can be obtained by renting the property in its present condition. (6) That the said sale may be made without injury or preju- dice to any trust, charity or purpose for which the same is held, and without the violation of any law which may confer immunity or exemption from sale or alienation. (7) That notice of the proposed sale has been given to the wife (or next of kin, as the case may be), of the said George Brown, and she has signified her consent to the said sale by join- ing herein. 77 (8) That the said sum of $10,000 is a better price than could be obtained at public sale. (9) That the said premises are assessed for taxation for the year , for the sum of $ , as appears by the certificate of the Board of Revision of Taxes hereunto annexed marked "Exhibit ," 78 Your petitioner therefore prays your Honorable Court for a decree under the provisions of the Act of April 18, 1853, P. L. 5O3, 78a confirming the said sale, and authorizing him to carry out the same by conveying the premises to the purchaser in fee simple for the sum of $10,000, so that he may have a title indefeasible by any party or persons having a present or expectant interest in the said premises, and unprejudiced by any error in the proceedings of the court. And he will ever pray, etc. Decree. AND NOW, the , on consideration of the fore- going petition and affidavits thereunto annexed, and on motion of Horace Binney, Esq., counsel for the petitioner, it appearing that the wife (or next of kin, as the case may be), of the said George Brown has signified her consent to the said sale by joining herein, (77) Although it is not necessary under the terms of the act^to give notice to the wife or next of kin in the case of proceedings concerning the interest of a lunatic, it is undoubtedly much better practice to do so, and this averment is therefore inserted. (78) This averment need only be inserted when required by local rule of court. (783) See note 14, ante. 286 FORMS OF PETITION AND DECREE. and it further appearing that the will be to the interest and ad- vantage of the estate of the said George Brown, a lunatic, that the premises described in the foregoing petition, to wit, , should be sold to John Clark for $10,000, and that the said sum of $10,000 is a better price than could be obtained at public sale, and that the same may be made without injury or prejudice to any trust, charity or purpose for which the same is held, and without the violation of any law conferring immunity or exemption from sale or alienation, IT IS ORDERED AND DECREED that William Burns, committee of the estate of George Brown, a lunatic, be and he is hereby authorized to convey the said premises to the said John Clark, for the sum of $10,000, the title of the purchaser to be in fee simple, indefeasible by any party or persons having a present or expectant interest therein, and unprejudiced by any error in the proceedings of the court; the said William Burns first entering security in the sum of $20,000. Form for Mortgage. IN THE ORPHANS' COURT FOR THE COUNTY OF Term, 19 . No. . ESTATE OF DANIEL BROWN, DECEASED. The petition of William Burns, guardian of Thomas Brown, owner in fee of 79 the premises hereinafter described, respectfully represents : (1) That on the I3th day of December, A. D. 1913, your peti- tioner was duly appointed guardian by your Honorable Court of the estate of the said Thomas Brown. (2) That Daniel Brown died on December i, 1913, intestate, unmarried, and leaving to survive him an only child, Thomas Brown. (3) That the said Daniel Brown was at the time of his de- cease seized in fee of all ALL THAT CERTAIN (here insert description). (4) That the said premises are subject to the lien of debts of (79) See note 10, ante. FORMS OF PETITION AND DECREE. 287 the said Daniel Brown not of record, and to the lien of a mortgage of $1,500 which was executed by the said Daniel Brown on the day of , recorded in the County of , in Book , page . (5) That the said Daniel Brown left no personal estate, and the total amount of his debts aggregate about $3,000. (6) That the said premises are worth the sum of $10,000, as appears by affidavits of real estate experts hereunto attached. (7) That the said premises are assessed for taxation for the year , for the sum of $ , as appears by the certificate of the Board Revision of Taxes hereunto annexed marked "Ex- hibit 80 B." (8) That the said premises are improved and yielding an as- sured annual revenue, and that it would be to the disadvantage of the said minor that they should be sold for the debts of the said Daniel Brown, as they are likely to increase in value in the future and can probably be kept rented permanently at a profitable figure. It will therefore be to the interest and advantage of the said Thomas Brown that your petitioner should borrow the sum of $4,500 to be secured by a bond and mortgage in the usual form upon the said premises, the proceeds of the said mortgage to be used in paying off the said mortgage of $1,500, and in paying the debts of the said Daniel Brown. (9) That your petitioner has arranged to borrow from John Kane the sum of $4,500 for a period of three years, with interest payable at 5%, the said sum to be secured by a bond and mortgage on said premises. (10) That the said mortgage may be created without injury or prejudice to any trust, charity or purpose for which the property is held, and without the violation of any law which may confer an immunity or exemption from sale or alienation. Your petitioner therefore prays your Honorable Court, under the provisions of the Act of April 18, 1853, P. L. 503," for a petition authorizing him to execute a mortgage in the usual form accompanied by a bond with a warrant of attorney in the usual form to John Kane in the sum of $4,500, to be secured on the said premises, and that the title of the mortgagee shall be unprejudiced (80) This averment need only be inserted in jurisdictions where re- quired by rule of court. (81) See note 14, ante. 288 FORMS OE PETITION AND DECREE. by any error in the proceedings of the court and indefeasible by any party or persons having a present or expectant interest in the premises. And he will ever pray, etc. Decree. AND NOW, the , on consideration of the fore- going petition and affidavits thereunto annexed, and on motion of Joseph Story, Esq., counsel for the petitioner, it appearing that it will be to the interest and advantage of the said Thomas Brown that his guardian, William Burns, be authorized to borrow of John Kane the sum of $4,500 for three years at five per cent., the same to be secured by bond and mortgage on the premises de- scribed in the foregoing petition, and that the said mortgage may be created without injury to any trust, charity or purpose for which the same is held, and without the violation of any law which may may confer an immunity or exemption from sale or alienation, IT IS ORDERED AND DECREED that William Burns, guardian of Thomas Brown, be and he is hereby author- ized and empowered to borrow the sum of $4,500 from John Kane for three years at five per cent., and secure the same by executing a mortgage on the premises described in the foregoing petition (here refer to premises), accompanied by a bond and warrant of attorney in the usual form, the title of the said John Kane to be indefeasible by any party or persons having a present or expectant interest in the premises, and unprejudiced by any error in the proceedings of the court; the said William Burns first entering security in the sum of $9,000. TABLE OF CASES Acklin's Est, 237 Pa. 528 166 Allen's Est., 1 1 Phila. 48, 32 L. I. 417 165 Anders's Est., 4 W. N. C. 382 127 Anderson v. Devlin, 17 Phila. i, 34 L. I. US 46 Armington's Est, I Phila. 444, 10 L. I. 1 15 168 Armstrong's App., 68 Pa. 409 167 Ash's Est., 12 D. R. 72, 28 Pa. C. C. 109 46 Backenstoss v. Stahler's Admin., 33 Pa. 251 162, 184, 188 Badder's Est., 5 Super. Ct. 465 214 Baily's App., 32 Pa. 40, sub nom. Bailey's App., 2 Gr. 225 44 Banes v. Gordon, 9 Pa. 426 179 Barger v. Cassidy, 4 Phila. 324, 18 L. I. 316 199 Barndt's Est, 23 D. R. 226 161 Barr v. Weld, 24 Pa. 84 in Barton v. Benson, 126 Pa. 431 168 Bashore v. Whisler, 3 Watts. 490 173 Belle v. Mateer's Est., 19 D. R. 929 150 Bell's App., 66 Pa. 498 26 Bennett v. Hayden, 145 Pa. 586 73, 194 Bickley's Adm. v. Biddle, 33 Pa. 276 160, 175, 211 Biggert's Est., 20 Pa. 17 179 Bindley's App., 69 Pa. 295 163 Blake's Est., 134 Pa. 240 148, 149 Bloodhart's Est, 2 Pa. C. C. 476 105 Bodder's Est., No. I, 30 Pa. C. C. 417, 13 D. R. 471 168, 176 Bodder's Est., No. 2, 30 Pa. C. C. 417, 13 D. R. 471 170 Bodder's Est, 31, Pa. C. C. 46, 14 D. R. 53 170 Bopp's Est, 18 York 161 172, 181 Bowers's App., 84 Pa. 311 214 Bowker's Est., 12 Phila. 161, 35 L,. I. 456 26 Boyd v. Wingate, 13 W. N. C. 56, 14 L. Bar 205 85 Boyle's Est, 2 Kulp 169 172 Breese's Est., 2 Kulp 62 165 Breil's App., 24 Pa. 511 165 Brendle v. Cong., 33 Pa. 415 1 1 r Brennan's Est., 220 Pa. 232 188 Bricker's Est., 22 Super. Ct. 12 , . , 99 Bridesburg Land Co., Pet. of, 7 Phila. 436, 27 L. I. 317 13, 156 Brittain's Est., 28 Super. Ct. 144 161, 168 Brock v. Steel Co., 203 Pa. 249 29,33,40,160,175 Brooke's Est, 214 Pa. 46, 15 D. R. 137 17, 88 ,113 Brooks's Est., 3 Phila. 516, 16 L. I. 372 143 289 290 TABLE OF CASES. Brown's App., 68 Pa. 53 32, 165, 167 Brownsville Bank's App., 96 Pa. 347 211 Brubaker's App., 65 Pa. 317 148 Buchanan v. Corson, 51 Super. Ct. 558 75 Bucknor's App., 4 Walk. 331 214 Burke's Est, 15 Pa. C. C. 9, 3 D. R. 384, 34 W. N. C. 359 69, 156 Burkhart's App., i Mona. 474, aff. Burkhardt's Est, 6 Pa. C. C. 374 104 Burton's App., 57 Pa. 213 37, 39, "9 Burton's Est., 16 Pa. C. C. 289, 4 D. R. 106 26, 45 Butt's Est., 20 Lane. L. R. 41 163 Calhoun's Pet., 3 D. R. 232 55 Campbell's Est. (No. i), 22 Super. Ct. 430 210 Carey's Est., 9 Kulp 336 34 Carpenter's Est, 17 D. R. 170 18 Carr's Est., 17 D. R. 297 150 Carrier's App., 79 Pa. 230 17 Carroll's Est., 2 Kulp 37 166 Carswell's Pet, I Phila. 521, 12 L. I. 14 21, 45, 46, 60, 169 Carver's App., 89 Pa. 276 210 Charlton's Est., 12 Phila. 102, 35 L. I. 194 26, 136 Chase v. Fisher, 239 Pa. 545 166 Church v. Gray, 198 Pa. 321 119 Church v. Williams, 5 Pa. C. C. 641 53 Church's Pet, 166 Pa. 43 81 Church's Pet, i Lack. L. N. 89 81, 119 Cierlinski v. Railways, 225 Pa, 312 196 Clark's Est., 38 Pa. C. C. 302 166 Clark's Est., 195 Pa. 520, 10 Super. Ct. 423, aff. 7 D. R. 9, 20 Pa. C. C. 439 142 Claypoole's Est., 15 Pa. C. C. 283, 3 D. R. 455 160 Clothier's Pet., see Pierce's Case. Cobleigh's Est, 23 Super. Ct. 271, 8 Lack. L. N. 107 161 Cochran v. Cochran, 127 Pa. 486 85 Commonwealth v. American Bonding Co., 25 Super. Ct. 145 142 Commonwealth v. Hilgert, 55 Pa. 236 142 Commonwealth v. McDonald, 170 Pa. 221 142 Commonwealth v. McGovern, 4 Super. Ct. 598 142 Commonwealth v. Magee, 24 Super. Ct. 329 142 Commonwealth v. Messinger, 237 Pa. i 142 Commonwealth v. Pool, 6 Watts 32 107 Commonwealth v. Trust Co., 16 Super. Ct. 570 142 Commonwealth v. Winters, 4 W. N. C. 346, 12 Phila. 226, 34 L. I. 338 142 Corbett's Est., 10 D. R. 59, 48 Pitts. L. J. 101 168 Corr's Est., 29 Pa, C. C. 276, 12 D. R. 788 25, 60, 81, 157 Cotton, Trust Est. of Libbens S., 46 Pitts. L. J. 203, 21 Pa. C. C. 451 35 Crawford v. Forest Oil Co., 208 Pa. 5 91 Crawford's Est., 221 Pa. 131, 10 Del. Co. 387 18, 23, 106 Cromrath's Est., I Wood. 103 164 TABLE OF CASES. 291 Crosson's Est, 125 Pa. 380, 6 Pa. C. C. 14 163, 211 Culbertson's Est., 38 Pa. C. C. 491, 20 D. R. 1081 208 Cunnius v. School District, 198 U. S. 458, 25 Sup. Ct. Rep. 721, 49 L. ed. 1125, aff. 206 Pa. 469, which reversed 21 Super. Ct. 340, 25 Pa. C. C. 17 15, 135, 137 Curtis v. Longstreth, 44 Pa. 297 84 Cushman v. Church, 162 Pa. 280, revers. 14 Pa. C. C. 26, 188 Pa. 438, aff. 6 D. R. 607, s. c. 7 Del. Co 41, 81 Davis's App., 60 Pa. 118 150 Dawson-Springer v. Ewing, 16 S. & R. 371 173 Dean's App., 87 Pa. 24 169 Dech v. Gluck, 47 Pa. 403 209 DeHaven's App., 106 Pa. 612 170 Demmy's App., 43 Pa. 155 180 Derr's Est., 203 Pa. 96, 10 Kulp 438 23, 169 Devlin v. Comm., 101 Pa. 273 15 Diller v. Young, 2 Yeates 261 152 Dively's Est., i Lane. L. R. 359 171 Dixey's Exec. v. Laning & Sill, 49 Pa. 143 143, 190 Donnelly v. Byers, 234 Pa. 339 25, 26, 107, 173 Dorrance's Est. 9 York 69 114 Dorrance's Est., 13 D. R. 664, n Kulp 255 114 Douty's Est., 196 Pa. 432 214 Drayton, Est. of, 6 Phila. 157, 23 L. I. 133 169 Dull v. Slater, 31 Super. Ct. 488 170, 209 Duncan's Est., I W. N. C. 14 176 Dundas's App., 64 Pa. 325 167 Eckert, Est. of, 12 Phila. 93, 5 W. N. C. 451, 35 L. I. 193 150 Eichelberger v. Barnitz, 9 Watts 447 85 Elliott, Ex parte, 5 Whart. 524 52 Elsey v. McDaniel, 95 Pa. 472 75 Erb v. Enb, 9 W. & S. 147 179 Ervine's App., 16 Pa. 264 17 Everman's App., 67 Pa. 335 214 Fahrig v. Schimpff, 199 Pa. 423 173 Farabee's Est., 29 Pa. C. C. 334 181 Farmers' Mutual Ins. Co. v. Graybill, 74 Pa. 17 179 Fell's Est., 14 Phila. 248, 9 W. N. C. 382, 38 L. I. 6 21, 59 Ferree v. Comm., 8 S. & R. 312 152, 179 Fidelity Trust Co., Application of, 16 Phila. 645, 40 L. I. 484 72 Fish's Est., 16 Phila. 373, 41 L. I. 263 168 Forney's Est., 3 Kulp 29 166 Foster's App., 74 Pa. 391 148, 151 Fox's Est., 18 Pa. C. C. 114, 2 Lack. L. N. 292 91 Fox v. Mensch, 3 W. & S. 444 173 Fox v. Winters, 4 Rawle 174 ". 190 Freeman's Est, 181 Pa. 405, 21 D. R. I 14, 17, 50 ,123 Freeman's Est., 18 D. R. 194 136 292 TABLE OF CASES. Freker v. Berg, 193 Pa. 442 24, 32, 136 Frick Coke Co. v. Laughead, 203 Pa. 168 184 Fulton's Est., 51 Pitts. L. J. 257 40,148 Funck's Est, 16 Super. Ct. 434 30,39,119,133,148,166 Funston's Est, 24 Pa. C. C. 135 .. 163 Gable v. Whiteside, 242 Pa. 188 126 Gallaher v. Collins, 7 Watts 552 196 Camber's Est, I W. N. C. 85 34, 91 Gamble v. Woods, 53 Pa. 158 214 Gamble's Est., 9 D. R. 691 33, 89, 169 George v. Trust Co., 234 Pa. 300 177 Gheen's Est., 12 Phila. 123, 35 L. I. 234 169 Gheen's Est., 5 W. N. C. 319 169 Gillespie's Est., 10 Watts 300 172 Gilmore v. Rodgers, 41 Pa. 120, 9 Pitts. L. J. 209, sub nom. Gilmore v. Rogers, 19 L. I. 28 13, 63, 67, 68, 174, 176 Glentworth's Est., 17 D. R. 292 Goddard's Est, 198 Pa. 454, aff. 9 D. R. 703 21, 114, 115, 118, 124, 148 Goldsmilth's Est., 13 Phila. 389, 37 L. I. 465 71 Graham's Est, 14 W. N. C. 31 33, 66 Gray's Est., 52 Pitts. L. J. 195 152 Green's Est., 5 Pa. C. C. 605, 19 Phila. 55, 45 L. I. 174, 5 L,anc. L. R. 217 107 Green's Est., I Del. Co. 521 100 Greenawalt v. Greenawalt, 71 Pa. 483 98 Greenawalt's Est., 5 D. R. 314, 2 Dauph. Co. 358, sub nom. Fox's Est., 18 Pa. C. C. 114, 2 Lack L. N. 292 91 Greenough v. Small, 137 Pa. 132 179 Greenawalt's App., 37 Pa. 95, Luz. L. Obs. 243, sub nom. Greena- walt's App., 17 L. I. 404, 14, 30, 34, 98, 102, 105, 143 Grew's Est, 14 D. R. 225, 31 Pa. C. C. 530, 6 Lack. Jur. 166 165 Grier's App., 101 Pa. 412, 40 L. I. 90, 30 Pitts. L. J. 224 184 Griffiths v. Cope, 17 Pa. 96 in Grim's App., 33 Super. Ct. 587 214 Grindrod's Est, 140 Pa. 161 88,190,193 Grove's Est., 2 Wood. 182 166 Grubjb v. Galloway, 203 Pa. 236 195 Grubb v. Steel Co., 203 Pa. 255 40 Gumbert's App., no Pa. 496 60, 108 Guthrie's App., 37 Pa. 9 84 Hackett v. Milnor, 156 Pa. i 123 Halderman's App., 104 Pa. 251 73, 198 Halderman v. Young, 107 Pa. 324 73, 198 Hamilton's Est., 51 Pa. 58 164, 172 Hammill's Est, 234 Pa. 438 170 Hancock's Est., 9 D. R. 231, 23 Pa. C. C. 592 161 Handbest's Est., 15 D. R. 234 161 Hannum's App., 2 Penny. 103 168 TABLE; OF CASES. 293 Harmstead's Est., 18 D. R. 786 136 Harrington v. Stivanson, 210 Pa. 10 177 Haslage's App., 37 Pa. 440 214 Hazlett's Est., 137 Pa. 587 167 Heffner's App., 119 Pa. 462, 21 W. N. C. 249, 39 Helf rich v. Weaver, 61 Pa. 385 148 Hepburn's App., 65 Pa. 468 148 Herr's Est, 12 Pa. C. C. 622 165 Herr v. Groff, 34 Pa. C. C. 65 208 Hess's App., i Watts 255 214 High's Est., 136 Pa. 222 88, 05 Hinkson v. Lees, 181 Pa. 225 28, 92, 05 Hirsh's Est., 17 W. N. C. 28, 17 Phila. 512, 42 L. I. 454 130 Hirst's Est., 147 Pa. 319, aff. 28 W. N. C. 212 54, 72, 115, 152, 154 Hollins's Est., 16 D. R. 441 51, 115, 123 Holmes' App., 108 Pa. 23 182 Holmes's App., 53 Pa. 339 13, 150, 151 Homer's Est., 20 Pa. C. C. 458, 7 D. R. 63, 15 Lane. L. R. 335 153 Hoopes v. Price, 17 Phila. 98, 41 L. I. 114 148 Horn's Est, 10 York 156 171 Hostetter's Est., 222 Pa. 197 171 Hotchkiss v. Homan, 25 Pa. C. C. 314 170 Hough's Est., 3 D. R. 187 150 Howe's Est., 14 Pa. C. C. 574, 3 D. R. 267 175, 211 Howells v. Wery, 40 Pa. C. C. 586 75 Hower's App., 55 Pa. 337 102, 156 Hubley's Est, 16 Phila. 327, 41 L. I. 66 26 Huckle v, Phillips, 2 S. & R. 4 190, 191 Huff, Ex parte, 2 Pa. 227 52 Hunsworth's Est., 22 D. R. 544 131 Ike's Est, 200 Pa. 202 168 Jacobs' App., 23 Pa. 477 162, 182 Jacoby v. McMahon, 174 Pa. 133, 189 Pa. i 101, 197 Jacoby's Est., 201 Pa. 442 18 Jayne's Est., 2 W. N. C. 536 162, 169 Jermon v. Lyon, 81 Pa. 107 100, 187, 206 Johnson's App., 114 Pa. 132, 18 W. N. C. 205, 43 L. I. 426, 3 Lane. L. R. 376 175 Johnson's Est, 15 Phila. 543, 39 L. I. 160 172 Kayser's Est, 9 D. R. 360 180, 205 Keim's App., 125 Pa. 480 88, 95 Keller v. Lees, 176 Pa. 402 91, 175 Kelly's Est., 17 D. R. 647 170 Kennelly's Est, 17 Phila. 99, 41 L. L 114 57, 72 Kerner's Est., 13 D. R. 311, 30 Pa. C. C. 175 17, 35, 123 King's Est., 2 Leh. Val. L. R. 229 172 King v. Gas Coal Co., 204 Pa. 628 200 King v. Gunnison, 4 Pa. 171 164, 173 294 TABLE of CASES. Kinsel v. Ramey, 87 Pa. 248 84 Kiskaddon v. Dodds, 21 Super. Ct. 351 102 Kline's App., 39 Pa. 463 157, 176 Kling v. Hummer, 2 P. & W. 349 122, 123 Klingensmith v. Bean, 2 Watts 486 190 Kneass's App., 31 Pa. 87 17 Kortright's Est., 237 Pa. 143, 21 D. R. 248 79 Kramer's Est., 37 Pa. C. C. 520 55 Kreamer v. Fleming, 191 Pa. 534 211 Kreimendahl v. Neuhauser, 13 Super. Ct. 606, aff. 8 D. R. 558, 47 Pitts. L. J. 60 63, 144, 145, 199 Kurtz's Est., 16 Lane. L. R. 205 163 Lambrecht's Est., 22 W. N. C. 24 ". 105 Landreth v. Howell, 24 Super. Ct. 210 176 Larimer, Lessee of, v. Irwin, 4 Binney 104 190, 191 Laughlin's Est., 23 W. N. C. 544 212 Law's Est., 7 Pa. C. C. 605 179 Law's Est., 6 Pa. C. C. 647 181 Lawrence and Appleton's Est., 169 Pa. 185, s. c. 14 Pa. C. C. 662, 3 D. R. 356, 35 W. N. C. 406 46, 47 Leazure v. Hillegas, 7 S. & R. 3113 80 Lerch's Est, 2 Leh. Val. L. R. 348 172 Leedom v. Lormbaert, 80 Pa. 381 115, 143 Lee's Est., 18 Phila. 2, 42 L. I. 488, 17 W. N. C. no 30, 33, 34, 46 Leshey v. Gardner, 3 W. & S. 314 179 Levengood's Est., 38 Super. Ct. 491 203 Lindsay's Pet., 2 Del. Co. 197 127 Linn v. Alexander, 59 Pa. 43 85 Lockhart v. John, 7 Pa. 137 143, 190 Lombaert's App., 99 Pa. 580 46, 207 Loomis v. Loomis, 27 Pa. 233 159, 160 Loucks's Est., 203 Pa. 278, s. c. sub nom. Myers's App., 16 York 6, aff. 15 York 181 33, 92, 169 Loughery's Est., 12 D. R. 386, 28 Pa. C. C. 632 69 McAlpin's Est, i Phila. 440, 10 L. I. 114 32, 33 McBride's Est., 23 Pa. C. C. 544, 9 D. R. 216 165 McCaffrey v. Gibney, 223 Pa. 368 26,89,90,170,174 McCarroll's Est., 2 W. N. C. 248 164 McCarron's Est., 15 W. N. C. 485 149 McClane v. McClane, 207 Pa. 465 160, 161 McClurg's Est, 22 Pitts. L. J. 133 36,43,114 McClurg*s Est., 4 D. R. 655 150, 209 McCormick's App., 57 Pa. 54 176 McDonald v. Campbell, 2 S. & R. 473 190 McFarson's App., n Pa. 503 126 McGhee v. Hoyt, 106 Pa. 516, 41 L. I'. 399 177, 200 McGuirk v. Friel, 9 Del. Co. 22 115, 194 McKce v. McKee, 14 Pa. 231 126, 191 TABLE OF CASKS. 295 McPherran's Est. (No. i), 212 Pa. 425 167 McPherson v. Cunliff e, 1 1 S. & R. 422 192 McRee's Est, 6 Phila. 75, 22 L. I- 389 165, 167 Maple v. Kussart, 53 Pa. 348 197, 200 Mehrten's Est., 41 Pa. C. C. 169 207 Mercer Home v. Fisher, 162 Pa. 239 21 Mercer Home, Fisher's App., 162 Pa. 232, aff. 9 Montg. Co. 171, s. c. 4 North. Co. 103, 3 Lack. Jur. 367 39, 118, 160 Merrell v. Merrell, 5 Pa. C. C. 531, 5 Kulp 125, 6 Lane. L. R. 17.. 13, 127 Merritt v. Whitlock, 200 Pa. 50 177 Messinger v. Kintner, 4 Binney 97 194 Metz's Est, 14 York 136 165 Miller's App., 84 Pa. 391 161 Miller's Est., 8 York 7 172 Miller's Est, 4 D. R. 328, 16 Pa. C. C. 449 32, 51, 58 Miller's Est., 5 Kulp 205 166 Miller v. Spear, 21 W. N. C. 554 105,175 Miles v. Diven, 6 Watts 148 173 Miles v. Commonwealth, 2 Walk. 64 142 Mitchell v. Kintzer, 5 Pa. 216 168 Mitchell v. Spaulding, 20 Super. Ct 296 73, 193 Moore's Est, 9 Phila. 326, s. c. 30 L. I. 176, 5 Leg. Gaz. 165 98, 156 Moorhead v. Wolff, 123 Pa. 365, 23 W. N. C. 167, 36 Pitts. L. J. 352, 46 L. I. 261 33, 60, 88, 90, 91, 95, 204, 205, 207 Morgan's App., no Pa. 271 160, 199 Morgan's Est, 9 Pa. C. C. 119 161 Morris v. Fisher, 8 D. R. 161 84 Morrison v. Nellis, 115 Pa. 41, 19 W. N. C. 20, 44 L. I. 187, 34 Pitts. L. J. 274, 14 Lane. L. R. 96 30,69,194,230 Morton's Est., 201 Pa. 269 18 Moulton's Est., 15 Phila. 579, 39 L. I. 412 172 Moyer's Est., n Pa. C. C. 528, i D. R. 600, 9 Lane. L. R. 203,^3 North. Co. 189 106 Muller's Est., see Schug's App. Murphy's App., 8 W. & S. 165 169 Murphy's Est., 15 Phila. 530, 39 L. L 1 18 165 Murray's Est., 234 Pa. 520 88, 96, 150, 153 Murtland's Est., 16 Phila. 222, 40 L. I. 120 172 Mussleman's App., 65 Pa. 480 26, 160 Myers' Est., I D. R. 140, n Pa. C. C. 194, 30 W. N. C. 175 40, 122 Myer's Est., 9 Pa. C. C. 439 168 Nauman v. Weidman, 182 Pa. 263, 40 W. N. C. 509, 37 Atl. Rep. 863, 14 Lane. L. R. 305 , , 81, 119 Nimick's Est., 179 Pa. 591 175 Nowr/s Est., 20 Pa. C. C. 76 212 O'Brian v. Wiggins, 14 Super. Ct. 37, 17 Lane. L. R. 233, 14 York 54, aff. 8 D. R. 481, 22 Pa. C. C. 236, 16 Lane. L. R. 143 . .174, 207, 208 Orwig's Est., 19 Phila. 158, 7 Pa. C. C. 71, 46 L. 1-99 14, 45, 69, 99, 103 296 TABLE of CASES. Owens' Est., 15 Pa. C. C. 196, 3 D. R. 331 17, 28, 148 Owens' Pet., 3D. R. 328 21, 93, 113 Overdeer v. Updegraff, 69 Pa. no 177 Packer's Est., 7 Phila. 473, 26 L. I. 380, 3 Brewst. 527 63, 70 Painter v. Henderson 7 Pa. 48 190 Palairet's App., 67 Pa. 479 14 Patchin v. Seward Coal Co., 226 Pa. 159 74, 196 Paul v. Shallcross, 2 Rawle 326 170 Paul v. Squibb, 12 Pa. 296 201 Pennock's App., 14 Pa. 446 171 Penn-Gaskell's Est. (No. i), 208 Pa. 342 208 Penn-Gaskell's Est. (No. 2), 208 Pa. 346 118 Penn Square Bldg. Assn. App., Si% Pa. 330 172, 201, 205 Perrine v. Kohr, 20 Super Ct. 36 193 Phila.'s Pet., 2 Brewst. 462 18 Phila. v. Reeder, 30 Pa. C. C. 375 209 Phillips's Est., 12 D. R. 690 48 Phillips v. Church, 225 Pa. 62 41, 81 Phillips v. Crist, 33 Super. Ct. 445 196 Pierce's Case, 7 Phila. 475, 26 L. I 1 . 13, sub nom. Clothier's Pet., 3 Brewst. 254 54, 67, 102 Potts v. Wright, 82 -Pa, 498, 34 L. I. 148, 24 Pitts. L. J. 125, 5 Law Times, O. S., 35, 9 Lane. Bar 14 44, 143, 178, 191 Price v. Taylor 28 Pa. 95 84 Pringle v. Rogers, 193 Pa. 94 200 Ramsey's App., 4 Watts 71 210 Ranck's Est., n Lane. L. R. 233 165 Randolph's App., 5 Pa. 242 162, 207 Ray's Est., 24 Pa. C. C. 366, 17 Montg. Co. 15, 48 Pitts. L. J. (O. S.) 244, 14 York 145 150 Reed v. Lukens, 44 Pa. 200 181 Reed v. Palmer, 53 Pa. 379 21, 67, 173 Reel's Pet., 32 Pa. C. C. 200 161 Reilly's Est., 13 Phila. 201, 36 L. I. 49 45 Reilly's Est., 200 Pa. 288 18 Reinhart v. Lantz, 37 Pa. 488 84 Rham v. North, 2 Yeates 117 190 Rhoades's Est., 4 W. N. C. 527 32, 34, 40, 88, 113 Richards v. Rote, 68 Pa. 248 194 Richter v. Fitzimmons, 4 Watts 251 173 Rigg v. Schweitzer, 170 Pa. 549, 37 W. N. C. 152 161 Ringler's Est., i Wood. 214 164 Robb v. Mann, 1 1 Pa. 300 173, 183 Robinson's App., 62 Pa. 213 214 Robinson v. Clancy, 68 Pa. 89 214 Rogers's Est., 185 Pa. 428 121 Rogers's Est., 16 W. N. C. 228 18 Ross's Est., 18 D. R. 429 159, 210 of CASES. 297 Rowe's Est, 1 1 Kulp 32 210 Ryan's Est., 8 Pitts. L. J. 25 164 Sackett v. Twining, 18 Pa. 199 142, 173 Sager v. Mead, 171 Pa. 349 195 Sawyers v. Hicks, 6 Watts 76 142 Saxton v. Mitchell, 78 Pa. 479 108 Schaffer's Est., i Wood. 387 122 Schug's App., 14 W. N. C. 49, 41 L. I. 45 171 Schur's App., 17 W. N. C. 140, i Sadler 355, 2 Atl. 336, i Cent. 888, 4 East. 846, aff. Muller's Est., 16 Phila. 382, 41 L. I. 274, . . 167 Schwartz's Est, 12 Phila. 71, 35 L. I. 153 171 Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. Rep. 1108, 38 L. ed. 896. . 15 Scott's Est., 4 Phila. 178, 27 L. I. 4 165,166 Seebold v. Shitler, 34 Pa. 133 in Seigers' Est., 19 W. N. .404 69 Seif v. Krebs, 239 Pa. 423 81, 112 Selin v. Snyder, 11 S. & R. 319, 7 S. & R. 166 194, 200 Sellers Church's Pet, 139 Pa. 61 119 Sener v. Ephrata Boro., 176 Pa. 80 220 Serrill's Pet., 9 D. R. 755 55 Sharp's Pet., 6 Phila. 153, 23 L. I. 412 21, 32, 34, no, 114, 117 Sheetz's Est., 12 D. R. 372, 29 Pa. C. C. 14, 17 York 44 26, 30 Shepherd's Est, 8 Pa. C. C. 520 55, 154 Sheridan's Est., 10 Kulp 157 168 Smith's Est., 207 Pa. 604 14, 15 30 33, 92, 169 Smith's Est., 8 Lack. L. N. 368 207 Smith's Est, 188 Pa. 222 43, 168, 179 Smith's Est., 53 Pitts. L. J. 136 154 Smith v. Rilbblett, 233 Pa. 300 198 Smith v. Schwarz, 209 Pa. 79 24, 115, 193 Smith v. Townsend, 32 Pa. 434, 16 L. I. 92 14, 24, 89 Smith v. Wildman, 178 Pa. 245, 194 Pa. 294 198 Smyth v. Neill, I W. N. C. 43 222 Snodgrass's App., 96 Pa. 420 214 Snyder, Lessee of, v. Snyder, 6 Binney 483 190, 200 Snyder v. Markel, 8 Watts 416 100 Snyder's Est., 29 Pa. C. C. 465, 30 Pa. C. C. 614, 7 Dauph. Co. 287.. 166 Souders' Est., 20 Lane. L. R. 231 163 Spangler's Est., 12 York 20 124 Spencer v. Jennings, 114 Pa. 618, 123 Pa. 184, 139 Pa. 198, 19 W. N. C. to, 44 L. I. 230, 34 Pitts. L. J. 243, 23 W. N. C. 43, 46 L. I. 158, 36 Pitts. L. J. 227 27, 47, 60, 101, 103, 105, 131, 149, 192 Stadleman's Est., 23 D. R. 403 21 Stallman's App., 38 Pa. 200 119 Steel v. Ellmaker, 11 S. & R. 86 171 Steen's Est., 175 Pa. 299, 17 Pa. C. C. 201 209 Stevenson's Est., 186 Pa. 262, 4 Super. Ct. 46, 17 Pa. C. C. 312, 5 D. R. 5 31,46,47 Stevenson v. Scott, 188 Pa. 234 179 20 298 TABLE OF CASES. Stewart v. Moody, 4 Watts 169 142 Stoughton, App. of 88 Pa. 198 49, 50 Strange v. Austin, 134 Pa. 96, aff. 7 Pa. C. C. 128 179 Swan's Est., 238 Pa. 430 104 Swift v. Harbison-Walker R. Co., 228 Pa. 584 21,89,196 Tanners' Est, 218 Pa. 361 168 Taylor's Est., 17 D. R. 692 175 Taylor v. Hoyt, 2 Mona. 206, 15 Atl. Rep. 892 137, 192 Tempkton v. Lehigh & Wilkes-Barre Coal Co., 50 Super. Ct. 341 . . 191 Terry's Est., 13 Phila. 208, 36 L. I. 461 181 Thomas's Est, n D. R, 290 30, 51, 131 Thompson v. Rogers, 67 Pa. 39 44, 183, 188 Thorn's App., 35 Pa. 47 141, 143 Titzell v. Cochran, 7 Sad. Cases 15 84 Tomlinson's App., 90 Pa. 224 211 Tomlinson v. Trenton, &c., R. R. Co., 31 Pa. C. C. 81 177, 183 Torrance v. Torrance, 53 Pa. 505 198 Truby v. Steele, 45 Super. Ct. 152 198 Tubb's Est, 4 D. R. 325 176 Ulrich's Est., 14 Phila. 243, 38 L. 1. 5 137 Ulrich's App., 2 Penny. 455 60 Updike's Est, 18 D. R. 982 170 Vandever v. Baker, 13 Pa. 121 173 Van Dusen's Est., 11 Pa. C. C. 201, I D. R. 156, 29 W. N. C. 573 ... 17, 34 Veihdorfer's Est, 26 Pa. C. C. 317 170 Wagner's App., 89 Pa. 303 63, 88 Wainwright's Est., n Phila. 147, 33 L. I. 280, 3 Pitts. Law Times (O. S.) 95 107 Walker's Est, 25 Super. Ct. 256 214 Watt v. Scott, 3 Watts 79 159 Weaver's Est, 2 Lane. L. R. 114 153 West v. Cochran, 104 Pa. 482, sub nom. West v. Cochrane, 41 L. I. 330, 31 Pitts. L. J. 373 46, 67, 104, 105, 191 Westhafer v. Koons, 144 Pa. 26 60, 89, oo, 91, 175 Whiteman's Est, 13 Phila. 249 171 Willard's App., 65 Pa. 265, 36 L. I. 286 18, 21 Williams's Est, 140 Pa. 187 214 Wilson v. Coursin, 72 Pa. 306 75 Wilson's App., 45 Pa. 435 99 Wilson's Est., 2 W. N. C. 631 130 Wiltberger's Est., 18 Phila. 232, 44 L. I. 431, 4 Pa. C. C. 184 170 Woodward's App., 38 Pa. 322 150 Wright's Est., 2 Kulp 442 166 Wylie's Est, 7 D. R. 748 176 Yard's Est., 17 Phila. 436, 42 L. I. 17, 15 W. N. C. 422 13, 67, 103, 107, 148, 163 Yeatman's App., 102 Pa. 297 210 Young's Est., 224 Pa. 570 133 Young v. McCamant, 241 Pa. 232 178 Table of Statutes (The text of the statute is given where the reference is in heavy face type.) Date. Sec. P. L. 1718, Feb. 22 3 i Sm. L. 99 1749, Jan. 27 i i Sm. L. 103 1799, Jan. 16 2 3 Sm. L. 338 1821, Feb. 5 i 7Sm. L.355 1832, Mar. 29 2 190 13 31 32 1834, Feb. 24 15 70 16 17 18 24 42 43 44 1836, June 13 22 597 1836, June 16 i 682 1846, April 20 2 411 1847, Mar. 16 2 474 1849. April 9 16 524 Stewart's Subject of Act. Purdon. Page. Sale or mortgage by shipwrecked husband, 1663 77 Common recovery, . . 1483 84 Deed to bar an estate tail, 1483,1484 85 Extinguishment o f ground rents 1805 55 Orphans' Court a court of record, 3360 190 Allowance for minor, 49,63,64 Orphans' Court sales,. 1116 100,103 Orphans' Court sales,. 1118 174,212 Parol contracts of de- cedent, Parol contracts of de- cedent, Parol contracts of de-j- 741 126,192 cedent, Parol contracts of de- cedent, Parol contracts of de- cedent, Duration of lien of decedent's debts, ... 1 106 97 Lien of decedent's debts discharged by sale in partition, . . 3439 99 Security Orphans' Court sales, 1122,3439 140,226 Execution of deed, .. Sale of land of a luna- tic, Sale of interest of a minor, Common Pleas, Sale of vacant land of a minor on ground rent, Purchaser of real es- tate at judicial sale obtaining possession, 299 186 2397 73.193 3385 63,64,74 3379 149 1120 1588 177,178 300 TABLE OF STATUTES. (The text of the statute is given where the reference is in heavy face type.) Stewart's Date.. Sec. P. L. Subject of Act. Purdon. Page. 1849, April 16 I 663 Sale of standing tim- ber of a lunatic or habitual drunkard, . 2399 74 1851, April 3 305 Sale of interest of a minor, 1119 63,65 Sale by trustee, 1120 in 1851, April 10 5 505 Confirming defective deeds to bar an es- tate tail, 1484 84 1851, Oct. 28 7 1852 Conveyance by hus- 725 band with an insane wife, 2406,2463 77 1853, April 18 i 503 Price Act, 3999 215 2 Price Act, 4003,4017 216 3 Price Act, 4017 220 4 Price Act, 4019 221 5 Price Act, 4023 226 6 Price Act, 4025 227 7 Price Act, 4027 228 8 Price Act, 4028 230 9 Accumulations, 4036 Omitted 10 Price Act, 4029 230 1854, Feb. 20 3 90 Amount of corporate holdings, 779 80 1854, April 13 I 368 Acknowledgments, ... 4029 221 2 Investments in real es- tate, I no 51, 4029,4928 58,169 3 Court may ratify aft- erwards, 4030 25,26, 215 1854, April 21 437 Alienation by mining companies, .... 78 1854, Dec. 14 724 Acknowledgments, . . . 376, 222 1170,1511 1855, April 26 9 328 Forfeiture, 1477 80 1855, April 27 I 368 Estate tail, 1485 84,89 5 Jurisdiction Orphans' Court and Common Pleas, 4031 21,215 1855, May 3 3 4^5 Expenditure of per- sonal property on improve m e n t of trust real estate, .. 4885 47 TABLE OF STATUTES. 301 (The text of the statute is given where the reference is in hea Date. Sec. P. L. Subject of Act. 1855, May 4 2 430 Conveyance of real es- tate by wife when abandoned by hus- band ,vy face type.) Stewart's Purdon. Page. 1663 75 1085 71 4034 21,215 129 3386,4035 44,223 1484 84 1807 55 4031 185 4031 222 4031 20,59,72, 76,79,112, 140,229 "55 77,219 2615 78 4034 74,217 222 4032 222 .... 226 1856, April 21 495 1856, April 21 486 1857, Mar. 14 3 97 1859, Mar. 22 207 1859, April 15 I 670 1860, Sept. 6 i 1861,840 1861, May I 2 431 1863, April i i 187 1864, April 18 i 462 1865, Mar. 22 30 1865, Mar. 27 i 34 1866, April ii 780 1866, April 17 i 108 1867, Mar. 23 i 43 2 3 1867, Jan. ii i 1372 1867, July 18 Certificate to be filed by foreign guardian, Confirming sales of lunatic's estate, Effect of decree in equitable partition, . Terms of Orphans' Court sale .... Judicial sale of an es- tate tail, Extinguishment o f ground rents, Execution of deed, . . Acknowledgment by persons out of state, Change in location of right of way, .... Conveyance by minor wife Alienation by mining company Sale by husband or wife of a person non compos mentis, Acknowledgments, ... Acknowledgments, . . . Security Private sales, effect of, Discharge of mort- gages by judicial 4032 44,I06 144,146, 174,204, 209 1185 206 2616 78 78 Alienation by mining companies Mining companies, . . 302 TABLE OF STATUTES. (The text of the statute is given where the reference is in heavy face type.) Stewart's Date. Sec. P. L. Subject of Act. Purdon. Page. 1869, April 15 47 Authorizing e x t i n - guishment of irre- deemable ground rents, 1807,1808 14 1869, April 20 78 Lunatics, 2358 198 1871, May 8 2 265 Alienation by mining company, 78 1874, April 20 no Sale of real estate of dissolved corpora- tion 819 79 1874, April 29 i 73 Alienation and pur- chase of real estate by corporation gen- erally, 770 78 1874, May n i 131 Sole and separate use, conveyance by trus- tees of, 4032 116 1874, May 14 166 Sale of land less than $i,ooo, 3385 231 1874 May 19 208 Sale of burial grounds, 559,560 134 1874, May 21 221 Implied entails, 1485 85 1874, June 8 i 277 Lease of mining lands, 4033 50,231 1876, April 17 10 30 Alienation by real es- tate companies, ... .... 78 1876, April 28 i 50 Validating certain ir- regular sales, 4033 198 1876, May 13 159 Sales of burial grounds, 560 134 1877, Mar. 24 i 39 Sales of burial grounds 4033 20,133 217 1877, April 18 6 54 Sales of burial grounds 561 134 1878, May 22 i 83 Execution of deed, . . 4035 185,186 1878, May 22 96 Validating corporate holdings 597J479 79 4108 1878, May 24 134 Justice of the peace, . 177 1878, May 25 i 154 Conveyance where married person is a lunatic 2406,2463 76 1879, Mar. 28 i 14 Release of dower by wife of a lunatic, . 2463 75 TABLE OF STATUTES. 303 (The text of the statute is given where the reference is in heavy face type.) Stewart's Date. Sec. P. L. Subject of Act. Purdon. Page. 1883, May 22 41 Validating corporate holdings 597,1479 79 4108 1883, June 20 i 130 Estate tail, 1485 84 1885, June 24 155 Persons presumed to be deceased 1075 15,135, 138 1885, June 25 178 Sale of real estate of dissolved corpora- tion, 79 1887, Mar. 22 6 Discharge of mort- gages by judicial sale, 1185 206 1887, May 12 96 Sales of burial grounds, 561 134 1887, May 23 I 168 Sales of burial grounds 562 133,217 1887, May 24 202 Sale by overseers of the poor of property of an insane pauper, 3576 75 1887, May 26 374 Validating corporate holdings, 597,1479 79 4108 1889, April 22 42 Amount corporate holdings 779,4928 80 1889, May 9 I 159 Alienation, etc., of real C1.8 estate by title com- panies, 4761 78 1889, May 9 182 Private sales author- ized, II2I 43,174, 224 1889, May 13 190 Foreign guardian, . . . 1085 71 1889, May 21 I 257 Mortgages by corpora- tions : 812 78 1891, April 15 I 15 Sale of real estate of a dissolved corpora- tion, 818 79 1891, April 22 I 25 Conveyance by a mar- ried woman trustee, 4924 75 1891, May 26 118 Sale of burial grounds, 562,563 134 1891, June 16 310 Sale of burial grounds, 562 134 1893, May 18 88 Validating corporate holdings, 597,1479 79 4108 TABLE OF STATUTES. (The text of the statute is given where the reference is in heavy face type.) Stewart's Date. Sec. 1893, May 19 1893, June 6 1893, June 6 1893, June 8 1893, June 12 1895, May 22 1895, June 7 1895, June 24 1895, June 24 1895, June 25 1895, June 26 1897, April 20 1897, May 19 4 1897, June 14 i 1897, June 15 1897, July 9 1897, July 15 1899, April 28 Purdon. Page. 206 80 134 209 134 213 142 74 P. L. Subject of Act. no Discharge of mort- gages by judicial sale, 1185 324 Corporate holdings, .. 594,4112 325 Sales of burial grounds 562 392 Lien of decedent's debts not of record, 1108 99,106 461 Sale on petition of . , widow and heirs, .. 3386,3447 172,197, 231 in Discharge of taxes, etc., by judicial sale, 2694,4666 181 Saleof burial grounds, 562 212 Superior Court, 4498 et seq. 248 Cost of obtaining se- curity 300 Sale of property of a weak-minded per- son, 2408,2409 381 Appointment of com- mittee ad litem. of a lunatic, 2401,3451 28 Validating corporate holdings 597,1479 4108 67 Appeals, 1430,1433, 1447,1448, 1449,1451, 1465,1467 144 Remainders to a class, amendment of Price Act, 4003-4017 53,91, 216 159 Remainder to a class, 3386 91,97, 4033-4034 216,232 212 Conveyance of real es- tate by married woman where sepa- rated from husband, 2450 75 283 Amount of corporate holdings, 4582,4583 80 772 112 Sale of property of weak-minded person, 2409 74 OF STATUTES. 305 (The text of the statute is given where the reference is in heavy face type.) Stewart's Date. Sec. P. L. Subject of Act. Purdon. Page. 1899, April 28 157 Parol contracts of de- cedent, 126 1899, May 5 248 Superior Court 6055 213 1901, April 19 I 83 Execution of deed, .. 186,187 1901, May 8 I 141 Discharge of mortgage by judicial sale, ...4022,4024, 206 4998,1184 1901, May 21 272 Sale of land of minor in two or more counties, 3387,4034 70,216 1901, June 19 2 574 Sale of property of a weak-minded per- son, 2407,2408 74 5657 1903, April 15 200 Validating corporate holdings 597, 1479, 79 4108 1903, April 22 241 Acknowledgments, ... 4031 187,222 1903, April 27 325 Private sale of land of a lunatic, 2399,4035 73 1905, April 8 121 Purchaser at judicial sale obtaining pos- session, 1588,5475 178 1905, April 20 239 Purchaser at judicial sale obtaining pos- session, 1588,1929, 178 58i5 1907, May I 140 Division of charitable corporation and con- veyance of property, 5295,5296 81 1907, May 28 292 Sale of property of weak - minded per- son, 5655,5656, 47,233 5657 1907, May 28 296 Insurance company, alienation and pur- chase of real estate, 5613 79 1909, April 23 155 Transfer of burial ground by borough to cemetery com- pany, 5276 1909, April 23 156 Acknowledgment t o deed, 5393 306 TABLE OF STATUTES. (The text of the statute is given where the reference is in heavy face type.) Stewart's Date. Sec. P. L. Subject of Act. Purdon. Page. 1909, April 27 185 Sale of property of weak-minded person residing out of county, 5654,5655 74 1909, April 39 291 Sales of burial grounds 5291 134 1911, June 31 631 Married woman's con- veyance to husband, 372 Supp. 75 1911, June 9 724 Notice of private sales, 218,219, 43,224 5<>5 1911, June 10 871 Validating corporate holdings, 172 79 1911, June 15 955 Validating corporate holdings, 79 1913,, May 15 214 Amount of corporate holding, 80 1913, May 23 304 Sale where interests are undivided, 231 1913, May 23 345 Amicable partition by guardians 131,228 1913, May 28 369 Persons presumed to be deceased, 138,219 1913, May 28 373 Persons presumed to be deceased, 135 1913, June 12 470 Notice of private sales, 43,224 1913, June 25 551 Sales of burial grounds, 134 1913, July 21 871 Validating private sales, 225 Index Page. Absentee n, 135 Persons absent and unheard from 135 Circumstances of presumption 136 Constitutionality of clause as to I5n, 136 Heirs as to notice to 137 Notice to the absentee 136 Petition 137 Preliminary ., 135 Price Act, provisions of, as to 135 Personal property of 15, 16, 135 Purchase money, distribution of 16 Time of presumed death 136 Accumulations 28-227-230 Charities, amount of, by 80 Acknowledgment to deed 187 Acts of assembly cited First page of Table of Statutes Administration of the property 17 Alienation Cestui que trust by 116 Executory devise, of 99 Forfeiture for 40, 41 Immunity from 36 Involuntary 9 Purchaser at Orphans' Court, sale by 184 Prohibition of 41 Voluntary 9 Alienability object of statute 13 Alley, laying out and vacating 59 Amicable partition 129 et seq. Appeals 213 Decrees appealable 214 Effect of 213 Notice of 213 Orders appealable 214 Supersedeas when 213 Who may 213 Apportionment of interest 181 Associations Charitable 82 Beneficial ,. 82 Religious 82 Assumpsit 173 307 308 INDEX. Page. Authors cited Foulke, Roland R Equitable Conversion in Penna., 58 U. of P. Law Rev. 455 126, 150, 192 Perpetuities, Rule Against, etc., in Penna. (1909), 41, 80, 82, 84, 87, 89, 98, 107, 108, in, 112, 117, 227, 230 Powers of Sale in an Executor in Penna., 59 U. of P. L. Rev. 597 107 Gest, John Marshall Drawing Wills and Settlement of Estates in Penna 135 Price, Eli K. The Act for the Sale of Real Estate ( 1874) 14, 27, 37, 84, 85, 86, 91, 94, 95, 98, 106, HI, 116, 122, 125, 127, 129, 141, 145 Wharton, Henry Lien of Decedent's Debts in Penna., 6 W. N. C. 545 ( 1879) 100, 106, 203, 206 Base fee 107 Building association mortgage 46 Burial grounds, see Cemeteries. Burial grounds, trust for 39 Cases to which Price Act applies 18 Case stated 173 Caveat emptor 169 Cemeteries 39 Borough, sales of, by 134 Burial use 134 Charter, by way of 133 Church, sale by , 134 Cemetery company, sale by 134 Buried, persons in 134 Legislation concerning 133 et seq. Lot holder 134 Modified fees by way of 133 Petition 134 Price Act, provisions of 133, 134 Purchase money . 134 Quarter Sessions, jurisdiction of 134 Removal of dead 134, 135 Trust, by way of 133 Who may petition 134 Cestui que trust Charitable 118 Consent of 115 Notice to 114-115 Life, to 115 Remainders, to 115 Married women 116 INDEX. 309 Page. Cestue que trust Price Act, provisions of 112 Petition by I7n, 114 Personal property interest is 22 Sale to, by trustee 117 Trustee, sale to, by 117 Title of, sold 116 Charge 9 Charitable objects 118 Definite 1 18 Indefinite 1 18 Non-charitable 1 18 Charity- Trust for 118 Prejudice, without to 35-36 Price Act, provisions of 118 Prohibition of alienation as to 41 Security in case of 142 Charter, as a law 37-38 Child-bearing in women, age of 90 Class, remainders to Class, to generally 92 Equitable 93 Definition of 90 Children to 92 Purchase money, discharge of, from 97 Price Act, application of, to 91 Supplements of Price Act, as to 91 Collateral attack law in Pennsylvania 202 Conclusive of facts set out in record, decree 194 Decree now conclusive 100 Law formerly otherwise 189 Where no decree 199 Fraud, because of 200 Irregularities, no, because of 190 Jurisdiction, where record does not show 198 Law in Pennsylvania, statement as to 202 Mistake, because of 200 Mutual 201 Preliminary 200 Unilateral 201 Notice, party in interest without 192 Notice, party in interest with * 197 Notice, presumed when 24, I93n. Parol evidence to explain 199 Preliminary discussion 189 Price Act, provisions of, as to 155 Record facts in, may not be impeached 194 310 INDEX. Page. Colorable sale 36 Common, ownership in 10 Common Pleas Jurisdiction of Equity 18 Lunatics 73 Price Act, under 18 Orphans' Court sales, jurisdiction over 160 Orphans' Court and 19, 21 Ratify, what it could confirm before 25 Common recovery 84 Completion of Orphans' Court sale, rights of parties pending .... 178 Compulsory sale 17, 26 Conditional fee 107 Confession of judgment 49 Confirmation of sale 159 Consent, no jurisdiction by 23 Consent of cestui que trust US Consent of cestui que trust to omission of sureties 142 Consideration must be adequate 43 Constitutional law 14, 15, 142 Constitutionality of Price Act Absentees as to 15 Class remainders to 90 Contingent remainders to 15 Estate tail to 15 Executory devise 15 Power of sale 14 Possibility of reverter 14 Sui juris owner 14 Vested interests 14 Contingent remainders Class to, see Class remainders to. Destruction of 87 Equitable 88-97 Legal 88-94 Mortgage 97 Notice 90 Ascertained person 90 Unascertained person 90 Petition 89 Preliminary discussion 87 Price Act, provisions of 87-88 Purchase money, discharge of, from 93 et seq. Vested remainders, and 89 Corporations Capacity to convey 78 INDEX. 311 Page. Corporations Charitable 81 Division of charitable 8l Judicial sale, holding property, purchased at 79 Literary 81 Limitations upon holdings 80 Lease by 80 Mortgage by , 79 Religious 81 Superfluous provisions of Price Act, as to 79 Coverture Husband with wife Absentee 77 Abandoned him 77 Habitual drunkard 77 Lunatic 77 Minor 77 Shipwrecked 77 Married woman Absentee husband 75 Abandoned by husband 75 Change of location of right of way 76 Conveyance to husband 75 Feme sole trader 75 Lease by 76 Lunatic husband 76 Mortgage by 76 Notice to 24, 115 Petition in case of 76 Trustee when, conveyance by 75 Death, presumption Time of 136 What is * 136 Debts of a decedent Not of record Duration of lien 99 1832, Act of 100 See 105 Expired lien 106 Price Act, provisions of 100 Power, sale under 107 Preliminary discussion 99 Private sale, effect of 105 Record of Private sale, effect of 105, 209 Public sale, effect of 209 Decedent, parol contracts of 126 312 INDEX. Page. Decree Collateral attack upon, see Collateral Attack. Execute, who may 60 Effect of 159 Endorsing on deed 186 Forms of, see Forms. Deed, acknowledgment of 187 Decree of court, must conform to 188 Execution of 184 Endorsing decree, on 186 Recording of 187 Setting aside, after payment of purchase money 175 Defective appointment 124 Destruction of buildings by fire 180 Determinable fee 107 Definition of 107 Price Act, provisions of . . 108 Possibility of reverter after 108 Devisee Title of, when divested by Orphans' Court sale 179 Devolution 9 Lunatic interest of 152 Minor interest of 150 Sui juris owner, interest of 152 Discharge of liens, see Liens. Discretion of trustees 40 Disposition of or concerning the title authorized Change location of right of way 59 Exchange 51 Ground rents, conveyance of or on (see Ground Rents) 51 et seq. Lay out streets 59 Lease 49, 5O Mortgage 45, 47 Purchase of real estate 58 Preliminary discussion of 42 Sale, see Sale. Public 43 Private 44 Square and adjust lines 57 Streets, lay out and vacate 59 Subdivide tract 59 Drunkard, see Habitual Drunkard. Dower, see Coverture 148 Due process of law 9 Eminent domain 9 Equitable claim against title sold 148 Equitable conversion 69, 153 INDEX. 313 Page. Equity jurisdiction C. P. over lunatics 73 Equitable conversion 69, 153 Equitable interest, Price Act as to 22 Original equity jurisdiction ill Orphans' Court, of 18, 159 Pennsylvania in lit Estate tail Barring the entail, without Price Act 84 Common recovery 84 Judicial sale of 84 Lease of 86 Mortgage of 86 Partition decree in 84 Petition 86 Preliminary discussion 84 Price Act, provision of 84-85 Purchase money 85 Remainders after 85 Ex parte application 23 Exchange Si, 58 Partition distinguished from 51 Execution of decree 60, 72 Executor Sale under power 107 C. P. jurisdiction as to 161 Power of sale in 35 Executory devise Nature of 97 Petition 97, 98 Price Act, provisions of 97, 98 Purchase money 98 Exemption from sale or alienation Church, as to 41 Exchange 30 Ground rents 30 Law, as to 41 Location of right of way 30 Lease 30 Mortgage 30 Partition 30 Purchase of real estate 30 Prohibition of alienation by donor 41 et seq. Specific performance 30 Square and adjust lines 30 Spendthrift trust 41 What is 36 21 314 INDEX. Page. Expediency, question of 30 Existing legislation, Price Act construed with 25 Minor's interest 63 Payment of debt, sale for 100 Extrinsic evidence 199 Fact, question of 30 Fee- Base 107 Conditional 107 Determinate 107 Modified 107 Qualified 107 Feudal law 89 Forfeiture for alienation 40-41 Foreign guardian 71 Forms See Appendix B. Absentee (form) 272 Change location of right of way 249 Charity trust for public sale (form) 276 Contingent remainder Ascertained person (form), private sale 259 To children (form), private sale 254 Class to other than children (form), private sale 257 Description 236 Executory devise (form), private sale 261 Exchange (form), private sale 252 Forms, preliminary remarks 235, 237, 239 Ground rents Irredeemable private sale (form) 266 Redeemable private sale (form) 264 Jurisdictional averments 236 Lien of debts not of record private sale (form) 245 Lunatics, private sale (form) 284 Minor, private sale of entire interest (form) 239 Minor, private sale of undivided interest (form) 242 Mortgage (form) 286 Partition : Amicable Join in (form) 268 Ratification (form) 270 Persons presumed to be deceased, private sale (form) 272 Preliminary 235 Reasons 237 Subdivide tract (form), public sale 278 Title, averment of 235 INDEX. 315 Page. Forms Trusts- Power of sale, time for exercise of, expired, private sale (form) 247 No power of sale private (form) 281 Vacating roads (form) Frauds, Statute of 163 Fraud 168, 200 General jurisdictional facts 29 Ground rents Apportionment of 181 Assignment of 54 Conveyance of, on, nature of 51, 52 Covenant to extinguish, specific performance of S3 Decree, relating to assignment of, form of 57 Extinguishment of 14, 54 Who is to 53 Liens against 55 Lease of 53 Irredeemable ., , 14, 56 Judgments, where subject to 55 Mortgage of 54 Nature of 51, 52 Owner of land, petition by 55, 57 Partition of 54 Power, extinguishment of, reserved under 52 Price Act, application of, to 52, et seq. Proceeds of, conveyance on 154 Redeemable 56 Sale of 54 Security on conveyance reserving 57 Subdivision of 53 Title to ground rent affected by circumstances mentioned in act 53 Undivided interest in 54 Guardian Appointment of 66 Foreign 71 In one county land, in another 69, 145 Notice to 66 Petition by 66 Security 145 Habitual drunkards Act of 1836 73 Other legislation as to 72 Price Act, application of 72 316 INDEX. Page. Heir- Title of 179 When divested 179 Interest and advantage to Appeal, as to 30 Fact is a question of 30 Life tenant and remainderman 31 Mortgage in case of 31 Purchasers title, as to 30 Reasons why to 31-32 Res judicata when 30 Improvements and repairs, sale to pay for 34 Immunity from sale or alienation, see Exemption. Introduction, 9 et seq. Investment in real estate 51 Issue to Common Pleas 149 Judges referred to Agnew 17, 37 ,39 Allison 68, 102 Archibald 108 Ashman 26, 46, 123 Bittenger 181 Brown 167 Clark , '.. .60, 101, 104, 105, 131, 193 Clayton 81 Darte 35 Dean 101 Doty 151 Duncan 191 Gibson 52 Green 95, 105 Hanna 105, 137 Kennedy 122, 144, 145 Lowrie 159 Ludlow 13, no, 117 Mercur 210 Mestrezat 30, 89, 06, 173 Mitchell 17, 29, 81, 123, 195, 211 Paxson 60 Penrose 13, 14, 34, 45, 46, 51, 55, 100, 123, 124, 153, 154, 157, 181 Pierce 70 Rice 13, 102,127 Simonton 91 Smith 47, 159 Strong 14, 89 Sulzberger 41, 81 Swartz 90 INDEX. 317 Page. Judges referred to Thompson 13, 34, 102, 105, 151 Tilghman 191 Trunkey 27, 103, 105, 149, 230 Walling 208 Judgment 9 Judgments against purchaser 182 Judicial sale 203 Common recovery, as a 84 Discharge of liens by 203 Orphans' Court sale is 203 Jurisdiction C. P. and O. C. as between . . 19 et seq. Consent, no by 23 Mistake as to 200 et seq. O. C. and C. P. as between 19 et seq. Price Act under, confined to cases specified 18 Real property, as to 21 Situs of land, with respect to 22 Jurisdictional facts, general 29 Alienation, violation of law conferring immunity from 36 Interest and advantage to 30 Reasons why 31 Price Act, provisions of 29 Prejudice, without to trust or charity 35 Violation of law conferring immunity 36 Justice of peace 177 Law conferring immunity 36-37 Lease Corporation by 50 Committee of a lunatic by 49 Guardian by 50 Improvement 51 Life tenant, contingent remainders 50 Life tenant, vested remainders 50 Long term 51 Married women by 50 Mining land of 50 Security, in case of 140 Superfluous provisions of act as to 28, 49, 50 Trustee by 49 Unconfirmed 50 Vested interests, against 17, 50 Legacies 9 Legal disabilities Associations 82 Corporations 78 318 INDEX. Page. Legal disabilities Coverture Married men 76 Married women 75 Habitual drunkards 72 Lunatics 72 Minority, see Minor 62 et seq. Preliminary discussion of 61 Religious, beneficial, charitable corporations 81 Weak-minded persons 74 Liability to see to the application of the purchase money Bond, effect of filing, on 144 Private sales 144 Liens, discharge of Agreement of parties as to 211 Arrears of interest on 210 Collateral inheritance tax 208 Debts of decedent 209 Dower 209 Ground rents 211 Judgments 207 Judicial sales, general rule as to 203 Legacies 207 Mortgages 205 Private sale by 201 Public sale by 201 Sheriff's sale distinguished 203 Taxes 209 Lien of debts of a decedent, see Debts of a Decedent. Life tenant and remainderman 31, 33 Possible increase in value of land 32 Limitation of amount of property to be held by charitable corpora- tions 80 Limitations of and liens upon the title Class, remainders to 90 Contingent remainders 87 Contingent remainders, and vested remainders 89 Executory devise 97 Estate tail 84 Lien of debts, not of record 99 Modified fees 107 Lunatics Cestui que trust a 72 1836, Act of 73 Defendant a lunatic 74 Husband a lunatic 74, 75 Inquisition, necessity of 72 Notice in case of 73 INDEX. 319 Page. Lunatics Partition 72 Pauper, insane 75 Petition 72 Purchase of real estate 71 Square and adjust lines 72 Vendor and vendee 73 Weak-minded persons 74 Wife, a lunatic 74,75,77 Married men, see Coverture. Married Women, see Coverture. Maintenance and education of a minor 49 Merger 54, 87 Minors Act of 1832 64 Act of 1836 64 Act of 1847 GS Act of 1851 65 Conversion as to 64 Counties, two or more, land in 70 Devolution of interest of 64 Foreign guardian 71 Guardian, appointment of 66 Lease of land, of 50 Notice to 66 Mortgage of interest, of 45 Partition 131 Price Act, provisions of 62 Reasons for sale 69 Security, in case of 70 Undivided interest 67, 68 Modified fees, see Determinable fee. Forms of 107 Possibility of reverter 108 Price Act provisions of 107 Mortgage Building association, to 46 Confession of judgment, with 49 Cases of 45, 46 Execution of 46 Expediency, in case of 31, 45 Life tenant and remainderman, of case of 45, 47, 49 Life estate, of 45 Minor, interest of 45, 46 Nature of 45 Proceeds of, expenditure of 17, 48 Purchase money 44 Purpose of 45, 46 Ratification of 26 320 INDEX. Page. Mortgage Ratification of 26 Trust estate, of 46, 47 Vested interest, against consent of 17 Mortgagee, duty of 46, 47 Nominal consideration 36 Notice Absentee, to 16, 17, 24, 136 Advertisement by 24, 136 Cestui que trust to Contingent 115 Lunatic 115 Present 115 Future 115 Collateral attack, see 192, 197 Effect of 197 Expectant interest 24 General discussion of 23 Guardian to, where no 65 Lunatics, in case of 73 Married women, to 24 Minors, to, where no guardian 65 Nonresidents 23, 24 136 No notice, where no 24, 192 Posting, by 23 Presumption of 24, 115, I93n. Publication, by 23 Present interest, to 24 Price Act, provisions of , as to 23 Record lost where 24 Objects Indefinite 1 18 Definite , 118 Price Act 118 Order of sale 162 Orphans' Court jurisdiction Advisory 18 Common Pleas and 19 Conclusive when 25 Consent, no, by 23 Direction in will, not ousting 18 Equity, a court of 159 Failure of, effect of 18 Price Act, under, confined to cases specified 18 Ratify what it could authorize in advance 25 Sale To enforce 172 Where interest undivided 26 Statutory only 18 INDEX. 321 Page. Orphans' Court sales Advertisement of 23, 24 Apportionment of interest on encumbrances 181 Collateral attack upon 202 See Collateral attack. Colorable 36 Common Pleas, jurisdiction of, over 21, 260 Confirmation of, effect of, on 159 Common Pleas jurisdiction 21 Price 167 Title 170, 171 Deed- Acknowledgment and recording 187 Who is to execute 184 Devisee, effect of, on title of 179 Dicta as to 163 Discharge of liens by, see Liens. Enforcement of by Orphans' Court and Common Pleas 172, 173 Equitable principles applicable 181 Fire, destruction of buildings by 180 Fraud 168, 200 Frauds, Statute of 163 Heir, title of, effect on 179 Jurisdiction, where no 163 Mistake Mutual 201 Unilateral 201 Nature of 159 Nominal consideration 36 Objection to, how raised 162 Order of sale 162 Parol evidence to vary or explain 199 Parties interested 163, 168 Possession, purchaser obtaining, after 177 Powers, sales under, distinguished 161, 167 Preliminary discussion of, 159 Price of sale Adequate, must be 43, 164 Confirmation conclusive as to 167 Inadequacy of setting aside for 164 Public 165 Private 166 Private 43, 165, 204 Proceedings for sale 161 Proof of 190 Public 43, 165, 204 Purchaser at (see Purchaser) 169 322 INDEX. Page. Orphans' Court sales Resale 162, 166 Setting aside 162, 166 Sheriff's sale distinguished from 203 Terms of 44 Title passed by 176 Title, when passes 179 Ownership in common 10 Parol contract of decedent 126 Partition v IO Amicable partition 129 Preliminary discussion of 128 Price Act, provisions of 128 Proceedings in partition 129 Security in case of 133 Undivided ownership, when necessary in case of 10 Partners 1/6 Pauper, insane 75 Personal property, application of Price Act to 21 Persons absent and heard from (see Absentee) 135 Perpetual trust for charity 142 Petition- Executor, by 60 Interest, party in 59 Who may 59 Place in law of the Treatise 1 1 Possibility of reverter 108 Powers Appointment, of 124 Consent, refusal to 122 Division of 120 Exhaustion of 52 Price Act, provisions of 1 12 Sale of, as to 121 Time not arrived for its exercise 122 Time limited for its exercise has expired 121 Preliminary act not done to bring it into exercise 121 Persons required to consent or join in its execution are Non compos mentis 121 Removed out of the state 121 Died 121 Refused to act 121 Unreasonably withhold consent 122 Sale under power of 26, 107 Preamble of Price Act 13 Prejudice to trust or charity 35 Colorable sale as 36 Preliminary discussion 13 INDEX. 323 Page. Prohibition of alienation by donor 37, 41 Price of sale 43,164 Price Act- Appeals under 30, 213 Application of 13, 14, 22 Alienability, object of 13 Cases to which applies Absentee 135 Associations, religious, beneficial or charitable 82 Burial grounds 133 Charitable societies, associations 82 Class, remainders to 90 Contingent remainders 87 Corporations 78 Estate tail 84 Exchange 51 Executory devise 97 Ground rent Conveyance of or on 51 Power under 52 Extinguishment or sale of, reserved under power of sale 52 Habitual drunkards 72 Legal disabilities 62 Lien of debts of a decedent not of record 99 Lunatics 72 Married men Wife a lunatic 77 Wife a minor 77 Married women Husband absent for seven years 75 Husband abandoned her for two years 75 Modified fees 107 Minors 62 Partition 128 Amicable 129 Proceedings at law or equity 129 Parol contracts of decedent for sale of land 126 Purchase of real estate 58 Powers Appointment 124 Sale of 121 Persons required to join in Deceased 121 Non compos mentis 121 Removed out of state 121 Refuse to act . 121 324 INDEX. Page. Price Act Powers of sale, persons required to join in Unreasonably withhold consent 122 Time for exercise Arrived, not 122 Expired 121 Preliminary act not done 121 Right of way, change location of 59 Sale 42 Streets, lay out and vacate 59 Square and adjust lines 57 Trusts 1 10 Vested remainder, liable to open and let in after-born children po Common Pleas, jurisdiction, under 18 See Common Pleas. Common Pleas, Orphans' Court, as between 19 Constitutionality of 14, 15 See Constitutionality. Condition of estate immaterial 22 Deed, title by 19 Equitable interests, application to 22 Existing legislation with respect to 25 Provisions as to 25 Form of proceedings under (see Forms). General jurisdictional facts 29 Interest and advantage 29, 30 Jurisdictional facts 29 Jurisdiction under Consent, no, by 23 Confined to cases specified 18 Common Pleas and Orphans' Court, as between 19 Notice 24 Personal property, application to 14, 21 Preamble of 13 Prejudice to trust or charity 35 Purchase, title by , 27 Purchase of real estate 27 Ratification under 25 Retroactive, application of 28, 40 Real property, applies only to 21 Legal title to 14, 21 Situs of the land 22 Superfluous provisions of 27, 58 Supplements of Appendix A, 215 et seq. Text 215 et seq. Title by will 19 Undivided ownership, application to 26 Urgent necessity 35 INDEX. 325 Page. Price Act Violation of law conferring immunity 36 Vested interest, application to 16 et seq. Object of 13, 22 Orphans' Court, jurisdiction under 18 See Orphans' Court. Preliminary discussion of 13 Private sale 44 Undivided ownership in case of 27 Public policy 9 Public opinion 9 Public sale 43 Public use 9 Purchaser Alienation by 184 Collateral attack upon title of, see Collateral attack. Indefeasible by whom 155, 156 Judgments against 182 Liability of Confi rmation After 171,172 Before 170 After deed delivered and purchase money paid 175 Orphans' Court sales, see 169 Preliminary discussion as to 182 Possession, obtaining 177 Possession when, entitled 179 Refusal to carry out terms of sale 169 Remedies of 170 Third parties, rights against 183 Title of 155 Alienation 155, 184 Devolution 184 Indefeasibility of 155 Passed by sale 176 Price Act, provisions of 155 Unprejudiced by error 155 Purchase money Account of proceeds 149 Continuing trust 149 Separate account 149 Attachment of, interest, in 153 Cestui que trust, claim against 148 Contingent remainders, discharge of, from 93 Equitable 97 Legal 94 Class, remainders to, discharge of, from 97 Debts of decedent, application of, to 148 326 INDEX. Page. Purchase money Devolution of 150 Equitable conversion, effect of 153 Habitual drunkard 152 Lunatic 152 Married women 152 Minor 150 Price Act, provisions of 150 Sui juris 152 Disposition of proceeds 147, 148 Executory devise, discharge of, from 98, 99 Estate tail, in case of 85 Discharge of, from . . 86 Vested remainders 86 Ground rents, conveyance of, on 154 Married women, terminating trust in 148 Mortgage 17, 44, 153 Rents 154 Substitution for land sold 147, 148 Trust in 148 Tenant in tail, interest of 85 Transfer of to another jurisdiction 152 Widow's dower 149 Purchase of real estate Corporation by 58-59 Fiduciary by 58 Married women by 58 Jurisdiction of court 22 Situs of the land 22, 59 Protect, security held 58 Needful, adjoining 58 Qualified fee 107 Ratify, court may 25 Real property, application of Price Act to 21 Reasons for sale 31 Reference as to a 30 Costs of 30 Remainders Class, to a 90 Contingent, remainders 87 Vested remainders 17, 50 Rents- Nature of 154 Who entitled in Orphans' Court sale 179 Res judicata 30 Retroactive application of the Price Act 28, 40 Cases arising after April 18, 1853 28 Title vesting prior to April 18, 1853 28-40 Circumstances arising after 28 INDEX. 327 Page. Return of sale 161 Reverter, possibility of 108 Right of way, change, location of 59 Sale- Colorable 36 Confirmation of 159 Consideration must be adequate 36-43 Ground rents, conveyance on, distinguished from 42 Exchange, distinguished from 43 Discharge liens by, see 203 Lease, distinguished from 43 Mortgage, distinguished from 43 Orphans' Court sale, see Orphans' Court Sale. Private 43, 44 Necessary averments in case of 43 Public 44 Advertisement in case of 43 Payment of debts, for 44 Terms of 44 Security Amount of the bond 140 Approval of 141 Benefit of, to parties interested 142 Cases where bond required 139 Change of location of right of way 76, 140 Conveyance on ground rent 57, 140 Lease 140 Mortgage 140 Partition 140 Purchase of real estate 140 Sale 140 Square and adjust lines 140 Corporate surety 141 Cost of obtaining security 142 Decree, filing in amount of, in 141 Guardian's security, land in another county 145 Individual 142 Liability to see to the application of the purchase money .... 144, 145 Jurisdiction, where, to be filed 146 Nominal security 142 No sureties, where none required 141 Necessity of filing 143 Price, Act, provisions of, as to 139 Perpetual trust for a charity 142 Sureties on the bond 141 Sureties, rights against 142 Trust company as surety 142 328 INDEX. Page. Security Time of filing 143 Undivided interest with respect to 141 Situs of the land Jurisdiction as respects 22 Purchase of real estate 22 Proceeds of sale for payment of debts 22 Sole and separate use 36-116 Special acts of assembly 14 Specific performance 26 Decedent's contracts 126 Price Act, provisions of 126 Price Act, application of, doubtful 126-127 Other legislation 126 Spendthrift trust 41 Square and adjust adjoining lines 57 Streets, laying out and vacating 59 Sui juris, vested interest, owner of 15, 16, 32 Earlier acts as to the unconstituionality of 14 Provisions of the act as to Unconstitutional 15 Superfluous 27 Superfluous provisions of the act 27 Corporations 28 Leases 28 Purchase of real estate 28 Trusts- Chancellors, jurisdiction over 10 1851, Act of in Charity for 1 18 Cestui que trust Nature of, immaterial 112 Consent of 115 Notice to US Title of, as to 116 Equity jurisdiction of, independent of the act in Equity jurisdiction now probably limited by the act in Improvement of real estate 47 Mortgage of 46 Petition, the 1 14 Prejudice to without 35 Preliminary discussion no Power in trustee which cannot be exercised 113 Price Act, provisions of, as to 112 Proceeds of sale 117 Sole and separate use 116 Spendthrift 41 Sui juris, all parties to 17 INDEX. 329 Page. Trusts- Trustees' sale to cestui que trust 117 Trustees, notice to US Vested equitable remainders 113 Trustee Discretion of 40 Improvement of real estate by 47 Investment of real estate 47 Mortgage by 46 Notice to 115 Sale to, by the cestui que trust 117 Title- Act presupposes a title to be sold 156 Before act was passed, acquired 28 Condition of the title, Price Act, application of, depends on . . 22 Descent ,. 19 Deed by 19 Doubt as to title 156 Dispute as to title 156 Gift acquired by 19 Indefeasibility of, sold 155, 156 Passed by sale 176 Price Act, provisions of 155 Purchase, acquired by 27 Purchaser of, see Purchaser. World good against 155 Will, by 19 Undivided interest 26 Minor of 67 Right of one, to compel another, to join in 26 Private sale of 27 Price Act, provisions of 26 No, compulsory divesting of 10, 26 Unincorporated association 82 Unproductive real estate 1 7, 34, 35 Unimproved real estate 17, 34 Use of property Uses, statute of Urgent necessity Variance Between order of sale and subsequent proceedings 162 Between terms of advertisement and order 162 Between petition and decree, Appendix B Vendor and vendee 181 Deceased vendor or vendee 126 Lunatic vendor, etc 73 Rights of vendee, under agreement 179 See Orphans' Court sales 179 INDEX. Page. Vested remainders 17 Vested interest Owner sui juris, no compulsory sale of 16-17-18 Lease, as against 17 Mortgage, as against 17 Way, right of change of location of 59 Weak-minded persons 74 UC SOUTHERN REGIONAL LIBRARY FACILITY A 000 685 677 7