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have claimed the whole of the land by right of survivorship, and
agreed to sell and convey it to the plaintiffin error, upon his paying
17 shillings 6 pence per acre for it in the manner therein mentioned.
Under this agreement, the plaintiff in error being in possession of
the land, became entitled to hold it so far as Loney's interest in the
land extended, until Loney himself should either seek to have the
purchase money paid, or otherwise claim a surrender of ihc posses-



484 SUPREME COURT [Pittsburgh

[Smith v. Webiter.]

sion of his interest in the land. Under this view of this part of the
case, it appears to me that there was error in the charge of the court
to the jury in declaring that the articles of agreement between Loney
and the plaintiff in error vested no interest or claim to the possession
of the land in the latter. Upon the evidence given by the plaintiffs
below on the trial, it is evident that they could not have claimed to
turn Loney out of the possession of the land had he been in it and
been the defendant. But the plaintiff in error, by his agreement
with Loney, stood in his shoes, and consequently had the same
right to resist the recovery of the defendants in error, that Loney
himself would have had had he been the defendant in the court be-
low.

The third exception is, that the court erred in charging the jury
that "if they believed the testimony of Mr Potts, that in 1793 Tho-
mas Smith declared he had purchased the tract of land from John
Lee Webster, the writing signed by John Skinner Webster would
not cancel the agreement with John Lee Webster, but may be con-
sidered as fixing and settling the terms of that agreement referred to
by the witnesses, and the title tendered would be good, and entitle
the plaintiffs to your verdict." If it had been shown on the trial of
the cause that there was a subsisting contract in writing at the death
of John Lee Webster, between him and the plaintiff in error for the
sale of the land, John Skinner Webster, as executor of the last will
and testament of John Lee Webster, had full power to have carried
such contract into execution, by securing the purchase money and
making a deed of conveyance to the plaintiff in error for the land.
And in case no such contract existed, he was authorized by the will
during the minority of Isaac Lee Webster, the father of the defend-
ants in error, to whom the land or the proceeds of it were devised,
to sell and convey it. But without a contract made in writing by
John Lee Webster, in his lifetime, for the sale of it to the plaintiff
in error, John S. Webster, as his executor, had no authority given
him by the will to carry it into effect. And after Isaac Lee
Webster attained full age, the authority of John S. Webster to
sell or dispose of the land under the will ceased. But from the
face of the agreement itself, which John S. Webster made with the
plaintiff in error, it is very evident that he did not consider himself
invested with sufficient powers under the will to make such a con-
tract, because he expressly professes to act in making it under a let-
ter of attorney from Isaac Lee Webster, who, we must presume, had
in the mean time attained full age. Thus distinctly excluding all
idea of any former contract for the sale of the land by the testator,
as well as that of carrying any such into effect. Whether John S.
Webster had any letter of attorney from Isaac Lee Webster author-
ising him to make such a contract, did not appear on the trial of
the cause. But if he had, it appears to me that it was clearly a re-
linquishment of all former contracts made by the testator with the
plaintiff in error. The defendants in error then, if they meant to



Sept. 1834.] OF PENNSYLVANIA. 485

[Smith v. Webster.]

carry into execution the contract made with John S. Webster, their
father being dead, and the authority which John S. Webster had
under the letter of attorney from him thereby revoked, ought to have
joined in executing a deed of conveyance themselves to the plaintiff
in error for the land, showing likewise that they were invested with
the title to it, instead of producing a deed of conveyance, as they
did, from John S. Webster, purporting to be executed by him, under
an authority contained in the will of John Lee Webster to do so, in
order to carry into effect an agreement mr.de by the testator in his
lifetime with the plaintiff in error for the sale f the land. It is not
alleged in this deed that the agreement made by the testator with
the plaintiff in error was in writing ; nor was t y evidence given to
show that there was any such agreement existing in fact, to author-
ize John S. Webster to make the deed. Neither is the existence of
such an agreement reconcilable with the previous conduct of John
S. Webster, in making the agreement with the plaintiff in error
when he professed to have and to act under a letter of attorney from
Isaac Lee Webster. The deed of conveyance executed by him
under all these circumstances must be regarded as a nullity, and of
no efficacy whatever : and the court below were wrong in the view
which they took of this matter and submitted to the jury, by con-
necting it and the contract which John S. Webster made with the
plaintiff in error at all with a contract of which some of the witnesses
spoke, and said to be made with the testator in his lifetime, as con-
stituent parts of the same arrangement. For, supposing an agree-
ment between John Lee Webster and the plaintiff in error for the
sale of the land to have existed, the agreement afterwards made by
John S. Webster with the plaintiff in error may well be considered
a relinquishment of it, as it purports to be made by John S. Webster
in an entirely different character from that of the representative of
John Lee Webster, arid for and on behalf of a different person; and
at a time too when the land was in dispute, and an action of eject-
ment was pending against the plaintiff in error, to recover it from
him under a title altogether adverse to that under which the defend-
ants in error claim.

The fourth error is, that the court below charged the jury that
the plaintiffs below were not bound to tender a deed of conveyance
before the institution of their ejectment. If the plaintiffs below had
the legal title in them to the land, that was clearly sufficient at law
to enable them to maintain the action of ejectment ; and it was only
on principles of equity that the defendant there could claim to defend
against the plaintiffs' recovery of the possession of the land. Then
what did equity require the defendant below to do in order that he
might be protected in the possession of ill Certainly to pay the
purchase money: and nothing short of that, as it appears to me, could
save him. By the terms of his contract, he had no right to demand
a deed of conveyance until he paid the purchase money : and not
having offered to pay it, he was neither in law, nor yet in equity,



486 SUPREME COURT [Pittsburgh

[Smith v. Webster.]

entitled to demand a deed of conveyance. And not being enti-
tled himself to demand it, equity could not interpose to keep him
in possession of the land. A vendee under an executory contract
for the purchase of land, who has obtained the possession of it under
his agreement, can cnly defend himself in that possession in Penn-
sylvania, where we have no court of chancery, upon such ground
as would entitle him to a decree of injunction by a court of equity
against his vendor, who was proceeding by action of ejectment at
law to turn him out of the possession. We must be careful not to
confound the vendor's proceeding by action of ejectment for the
purpose of enforcing the payment of the purchase money, with his
proceeding in a mere personal action founded upon a breach of the
contract of sale itself. The action of ejectment in such case is not
founded upon the contract, but raiher upon the legal title to the
land still being in the plaintiff, who is not bound by his contract to
part with it until he shall have received from the defendant the
purchase money. And the defendant having failed to pay it accord-
ing to the terms of his contract, has no claim even in equity to hold
the possession. But the plaintiff, if he means to proceed by a per-
sonal action for a breach of the contract, as by covenant or assumpsit,
(and the payment of the purchase money and the making of the deed
are, by the terms of the contract, to be considered simultaneous acts)
must, before bringing his action, execute and tender a deed of
conveyance to the defendant.

Judgment reversed, and a venire de novo awarded.



Klingensmith against Bean.

A sale of real estate by an administrator, by authority of an order of the
orphan's court, made after the term to which the order was returnable, and
confirmed by the court at a subsequent term, is not void : the confirmation hav-
ing been tantamount to a continuance of the order. And the validity of such a
decree by the orphan's court cannot be inquired into collaterally.

ERROR to the common pleas of Mercer county.

This was an action of ejectment, brought by the defendants in
error as the heirs of Robert Bean deceased, to recover a tract of four
hundred acres of land. The defendant admitted that Robert Bean
died seised, but claimed title to the land by virtue of a deed from
Joseph Keck, acting administrator of the intestate, to William Scott,
executed in pursuance of an order of the orphan's court. At an
adjourned session of the orphan's court of Mercer county, held the
20th of January 1818, on the petition of the administrator, the court
granted an order to sell the properly on the Monday of the next



Sept. 1834.] OF PENNSYLVANIA. 487

[Klingensmith v. Bean.]

May court. There was no sale on the day appointed, nor continu-
ance, nor renewal of the order of sale. And on the 24th of Novem-
ber 1818 the administrator returned that he exposed the land to
sale on the Monday of the May court, in pursuance of the order, and
there being no bidders, he adjourned the sale to the 18th day of
August 1818, being the Tuesday of the August court, when the
land was sold to William Scott for 196 dollars, he being the highest
and best bidder, &c.; and praying the court for a confirmation of the
sale, and for leave to make a deed. On the 16th of February 1819
the court, on motion, affirmed the sale, and granted leave to the
purchaser on the usual terms. Scott conveyed to Klingensmith.
The following errors were assigned :

1. The court erred in charging the jury that the sale made in
August, on the order of the orphan's court, was void.

2. In charging the jury that the confirmation of sale by the or-
phan's court vested no title in the purchaser.

Holstein, for plaintiff in error.

The provision of the act of assembly, requiring the administrator
to bring his proceedings before the next court after sale, is merely
directory. Rahm v. North, 2 Yeales 118; Snyder's Lessee v. Sny-
der, 6 Binn. 498. Where there are objections to the sale they should
be made when the administrator returns his proceedings. Here
there were no bidders for the land on the day appointed by the order
of the court. The estate was benefited by ttie adjournment and
subsequent sale. The money was paid by an innocent purchaser,
and was appropriated to the payment of the intestate's debts. The
sale was fair and open, and no one was injured. Orphan's court
sales are never characterized by the utmost regularity ; and for a
slight and immaterial defect in the proceedings of an administrator
an innocent purchaser should not be made to suffer. M'Pherson v.
Cunliff, 1 Serg. fy Rawle 429 ; Guier v. Kelly, 2 Binn. 299.

Banks and Pearson, for defendants in error.

Although presumptions, in support of the regularity of the pro-
ceedings, may be made in favour of what does not appear, Massinger
v. Kintner, 4 Binn. 103, no such presumptions can be made against
what does appear. It was necessary that the parties should be regu-
larly m court before the decree was made ; otherwise they would
not be bound by it. The administrators are required to return their
proceedings to the next term of the court. The law directs notice
to be given. This direction was not complied with. If there was
a want of bidders, the fact should have been returned to the court,
and a new order of sale obtained. The order which they had, spe-
cified the time and place of sale. The administrator has no autho-
rity beyond the order. He may adjourn the sale from day to day,
but cannot go beyond the next court. He should be held to a strict
observance of the law. If he has failed to make sale on the day



18S SUPREME COURT [Pittsburgh

[Klingensmith v. Bean.]

specified in the order, it is dead. If he can pass over one court,
where will he stop 1 The decree of the orphan's court could not
give validity to a sale which was, in fact, made without an order,
and contrary to law. Huckle nnd wife v. Phillips, 2 Serg. fy Rawle
7 ; Rohr et ux. v. Eisenhauer's Executor, 4 Serg. fy Rawle. 248 ;
M'Pherson v. Cunliff, 11 Serg. <$ Rawle 431436; Purd. Dig. 406.

Purviance, in reply, was stopped by the court.

The opinion of the Court was delivered by

ROGERS, J. It is the usual practice of the orphan's court to ap-
point the day of sale, and to make the proceedings of the adminis-
trator returnable to the next orphan's court. In such cases the
administrator begins the sale on the day appointed, and in his dis-
cretion adjourns the sale to a day certain. If a term intervenes, it
is the practice to apply to the court for a continuance of the order.
But although this is the usual practice, it is not universal. There
is nothing in the act of 1794 which directs this mode, nor is there
any thing which prevents the court, for reasons of which they are
the competent judges, to adopt a different course. The order is not
a returnable writ, and, in Rham v. North, 2 Yeates 118, the court
say that the words of the law appear to be directory only, and they
can see no good reason why a regular fair sale may not be returned
at another court. The court not only have the power, but justice
to the creditors and heirs sometimes requires this course to be pur-
sued, as in the present instance, where the petition was presented in
January, and where it was plainly the interest of all parties that the
sale should be deferred until the ensuing spring, when purchasers
would be able to view the premises and judge of the quality of the
soil. In Rham v. North it is said, that under an order of the orphans
court empowering an administrator to sell lands, he should begin
the sale on the day affixed by the court, and may afterwards adjourn
it, but not beyond the day of the succeeding court. I do not see
any good reason for the restriction, and I am inclined to believe that
the practice has been otherwise, although it has been usual to sanc-
tion the proceedings of the administrator by an application to the
court, in which the facts are stated for a continuance of the order.
The orphan's court have always exercised a superintending power
over such proceedings, and as long as this is faithfully done, I can-
not see the danger of abuse by a liberal extension of time to the
administrator to effect a sale. Although here the order was not
continued, yet the facts were truly represented by the administrator
to the court in the return, and have been sanctioned by them. A
subsequent recognition of the act of the administrator is tantamount
to a continuance of the order, and equally available to protect the
interest of parties. There was no surprise, no misrepresentation, no
fraud. All that the act of 1794 requires is, that the administrator
who makes the sale shall bring his proceedings to the next orphan's



Sept. 1834.] OF PENNSYLVANIA. 489

[Klingensmith v. Bean.]

court after the sale is made, and in ihis respect the directions of the
act were literally pursued. If, then, this case were before us on an
appeal, it might be questionable whether it would not be our duty
to affirm the sale, as it appears to have been a fair regular sale for
full value. But however this might be, yet it is plain that the pro-
ceedings were but irregular and not void, and this brings me to the
second question.

The cases of Massinger v. Kintner, 4 Binn. 97; and the Lessee of
Snyder v. Snyder, 6 Binn. 498, have given rise to an opinion that
the decree of the orphan's court may be examined collaterally in an
action of ejectment. But. although these cases, if attentively exa-
mined, do not establish the doctrine, yet this point is put beyond all
doubt by subsequent decisions. A decree of an orphan's court is
placed on the same footing as a judgment of a court of common law :
for this principle I refer generally to M'Pherson v. Cunliff, 11 Serg.
fy Rawle 433 ; The Orphan's Court v. Graff, 14 Serg. fy Rawle 182;
Blunt v. Darrach, decided by Judge Washington, and reported in 4
Wash. C. C. Rep. 657; and App's Executors v. Dreisbach, 2 Rawle
287. A judgment of a court of competent jurisdiction directly upon
the point, is conclusive between the same parties or their privies, upon
the same matter coming directly in question in another court of con-
current jurisdiction ; and this rule is founded upon considerations as
well of abstract justice as of public policy. The court of common
pleas assimilate this to the case of a sale of a sheriff without a vendi-
tioni exponas, which is void : but I should think it should rather be
likened to a decree of a court of chancery, and this in fact it was in
M'Pherson v. Cunliff, before cited. It is well settled, as regards that
court, that you cannot go behind the decree to examine the regu-
larity of the proceedings; and this whether the irregularity appears
on the face of the proceedings or not. The injustice of this case is
most manifest. The property was sold for a full price, which went
to the payment of the debts of the intestate. The sale received the
sanction of a court of competent jurisdiction, whose peculiar duty it
is to protect the interests of minors. The heirs of the intestate now
seek to recover the property from the purchaser without payment of
the purchase money, or a reimbursement of money expended in im-
provements.
Judgment reversed.



n. 3 M



490 SUPREME COURT [Pittsburgh



Compher against Anawalt.

Upon a writ of error to remove a judgment upon a scire facias, the court will
not examine the regularity of the original judgment, which had been obtained
more than seven years before.

A judgment upon a scire facias after two returns of " nihil," is warranted by
a long established practice, and the refusal of the court to open it is not the
subject of error. But in a case of manifest injustice, the supreme court will per-
mit a writ of error to be withdrawn, to afford the common pleas an opportunity
to open it.

ERROR to the common pleas of Somerset county.

This suit was originally brought by John Anawalt in 1819 against
David Reily and William Compher the plaintiffin error. The writ,
which was a capias, was returned " cepi corpus and bail bond as to
David Reily only" There was no service on Compher; but there
was a general appearance by an attorney, whose name was marked
on the margin of the docket opposite both defendants. On the 10th
of March 1819 the cause was referred by the plaintiff below, who,
together with Reily, chose arbitrators, who filed an award of 95 dol-
lars with costs of suit in favour of the plaintiff, from which Reily
appealed in May 1819. No further proceedings seem to have taken
place until June term 1829, when a scire facias was issued to revive
judgment against Compher, in which the administrators of Anawalt
were substituted. This scire facias was returned nihil. At August
term 1829 an alias scire facias to revive judgment against Compher
was issued, which was also returned nihil. On this alias scire facias
the name of the same attorney was marked for the defendant, and
judgment was rendered in September 1829 for 153 dollars 99 cents;
upon which a fieri facias issued at November term 1829, and was
returned nulla bona. A testatum fieri facias then issued at April term
1832 to Bedford county, the residence of Compher, and his goods
were levied upon, which was the first notice he ever had of the pro-
ceedings against him. Motions were then made by attorneys, em-
ployed by him for the purpose, for rules, respectively, to show cause
why the judgment against him, together with all subsequent pro-
ceedings, should not be set aside at the cost of the plaintiff, and why
the judgment should notbe opened and the defendantletintoadefence
on t he plea of nul tiel record. Along with these motions were pre-
sented the affidavits of A. B. Fleming, the attorney whose appear-
ance was marked in the original suit, and of Compher. The affidavit
of the attomey set forth that he was employed by Reily; that he
attended before the arbitrators and that Compher was not present;
that he had no recollection of being employed or spoken to by any



Sept. 1834.] OF PENNSYLVANIA. 491

[Compher v. Anawalt.]

other than Reily, who did not limit the request to himself, but re-
quired (he attorney's services without any modification. The affidavit
of Compher stated that the first notice lie had was when the testatum
execution was levied on his goods; that he had not until then any
knowledge of the judgment and suit in Somerset county; that he
never spoke to or employed any attorney to appear for him in such
suit; that he owed the plaintiff nothing, and had a just and legal
defence. Notwithstanding these affidavits the rules were discharged
by the court below.

The following errors were assigned :

1. The court erred in considering the original judgment as a judg-
ment against William Compher, and in rendering judgment in the
scire facias against him.

2. The court erred in refusing to open the judgment on the scire
facias, so as to let the defendant into a defence on the plea of nultiel
record.

W. R. Smith, for plaintiff in error.

There was no service on Compher. The first notice he had was
tli testatum fieri facias, thirteen years after the institution of the suit.
There was no declaration. There was no legal evidence of an
appearance for him. The mere entry of the attorney's name on the
docket is not sufficient. It is true there are two cases in which it
was decided that such entry would bind a client, but under very
special circumstances. M'Cullough v. Guetner, 1 Sinn. 214; Scott
v. Israel, 2 Binn. 145. Where an attorney appears specially for one
defendant, in a suit against two, and afterwards as attorney for the
defendant acknowledges judgment in favour of the plaintiff, the
judgment is good only against the defendant for whom he appeared.
Kimmel et al. v. Kimmel, 5 Serg. < Rawle 294. Entering an
attorney's name on the margin of the docket is not a sufficient ap-
pearance for the defendant, when by the practice of the court the
appearance must be entered on the docket. Forsyth's Administrators
v. Waldron, 13 Serg. $ Rawle 164. In King et al. v. The Bank of
Gettysburgh, 2 Rawle 197, a doubt is expressed whether the mere
entry of an attorney's appearance on the margin of the docket is
sufficient. In 1 Salk. 86, 88, it was held that if an attorney
who has appeared without authority be irresponsible, the judgment
will be set aside. Relief can be granted by this court. 1 Liv. 198 ;
7 Crunch 436 ; 9 Johns. 253. In general, the acts of an attorney
bind his client ; but he is still subjected to the control of the court,
and deeds of oppression will not receive their sanction. Coxe et al.
v. Nicholls, 2 Yeates 546. The party will be let into a defence on the
merits. 6 Johns. 127, 129, 131, 132, 296, 328. A judgment takes
date from the report of arbitrators ; and where the submission is by
one defendant served, the judgment does not bind the other defend-
ants not served, although there be a general appearance by an attor-



492 SUPREME COURT [Pittsburgh

[Compher v. Anawalt.]

ney. Erdman el al. v. Siahlnecker, 12 Serg. fy Rawle 325 ; Stude-
1 Kicker et al. . Moore, 3 JJinn. 124.

Forward, for defendants in error.

There can be no question raised as to the original judgment, to
which a writ of error does not He, as seven years have ehipsed since
its rendition. The affidavits produced have nothing to do with the
case. It is evident from the record that the attorney appeared for
both. The entry of his name on the docket is sufficient. A scire
facias is now before this court, in which judgment was regularly
entered. This court cannot go behind the scire facias, and inquire



Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 2) → online text (page 57 of 62)