author: by Ti-iayer, P. J., Per Curiam:

text:
    January Term, 1884,
    No. 315.
    January 11, 1884.
    Karstein et al. v. Bauer.
    1. A. died seized of real estate and leaving him surviving a widow B and seven children. His eldest son and administrator prayed the orphans’ court for partition, naming in his petition the widow and seven children of the decedent. An inquest issued, to which return was made by the sheriff valuing the premises at $1,200; the heirs were ruled to accept or refuse at the valuation, and all having notice and all refusing, the Court made an order of sale and directed C to make it; 0 accordingly sold to I) for $1,330 j return to that effect was made, the sale duly confirmed, and a deed for the property executed to D, containing O’s receipt for the full amount of the purchase money. STo reference to B was made in the order of sale, its confirmation, or in the deed to the purchaser. Ten years afterwards, D having died in the interval, and an action of debt being brought by the widow against his heirs, the ierre tenants of the laud, to recover the interest upon one third of the purchase money for that period, it was Held, that in the absence of evidence of an actual receipt of the money by the widow, a release or something equivalent thereto, her share remained a charge upon the land, and the facts show no act of herSy capable of destroying her right nor sufficient to estop her from asserting it.
    2. The provision of the act of March 29,1832, that-4' where a decree for a sale shall be made by the orphans’ court, the Court shall direct that the share of the widow of the purchase money shall remain in the hands of the purchaser during the natural life of the widow, and the interest thereof shall be annually and regularly paid to her by the purchaser, his heirs and assigns, holding the premises, to be recovered by distress or otherwise as rents are recoverable in this Commonwealth,” is mandatory and absolute so that it is not in the power of the Court to adjudge the land to the party taking it or to the purchaser, discharged from the payment of the interest on the widow’s share.
    3. An action lies by the widow against the purchaser or alienee of the purchaser, and the Statute of Limitations cannot be set up against the widow’s claim.
    4. The judgment is cZe terris and not general.
    Before Mercur, C. J.; "Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Common Pleas, No. 4, of Philadelphia County.

    Debt by Catharine Bauer against Elizabeth Karstein, Augustus, Annie, and Edward Karstein to recover interest claimed to be due her on her share in certain lands of plaintiff’s deceased husband, John A. Bauer, sold by order of the orphans’ court to Augustus Karstein, the husband and father (since deceased), of the defendants, who are his heirs and terre tenants of the lands.
    The facts in the case as they appeared on the trial before Ti-iayer, P. J,; are as follows :
    On the 13th day of March, A. I). 1869, Henry A. Bauer presented a petition to the orphans’ court of the county of Philadelphia, for the partition of the real estate late of his father, John A. Bauer, deceased, among which real estate was included a property on the north side of Jarvis street, ninety-six (96) feet six inches eastward from Second street, containing in front thirteen (13) feet and in depth sixty-two (62) feet nine inches.
    The petition sets forth that the said John A. Bauer, the decedent, left surviving Mm a widow, Catharine Bauer, and seven children, viz: Henry A. Bauer, Catharine Evans, Louisa Bauer, Sophia Bauer, Josephine Bauer, John Bauer, and Ann Bauer, the last three minors, having for their guardian Catharine Bauer.
    The Court issued an inquest in partition, to which return was made by the sheriff May 7, 1870, that he had valued the same as set forth on his said return, $1,200.
    On May 14, 1870, the Court granted a rule upon the heirs to accept or refuse the premises at the said valuation,
    And on June 18, 1870, it appearing to the Court that al,l the parties interested had had notice of said rule, and that all of them refused to take the said premises described therein at the valuation thereof, the Court made an order for the sale of the premises described above, among others, and Henry A. Bauer, who was administrator of decedent, was ordered to make the sale.
    The premises in question were sold by Henry A. Bauer on July 13, 1870, under the order of the Court, to Augustus Karstein for $1,330, and return was made to that effect July 23, 1870, to the Court, and the sale finally confirmed September 8, 1870, as follows: “Sale confirmed, security in double the amount of purchase money, Joseph. Allison.” The security was duly entered, and deed executed to the purchaser October 1, 1870. No reference occurs to the widow of John A. Bauer, either in the order of sale, the confirmation of the order, or the deed to the purchaser, and no order appears to have been made by the Court charging the widow’s interest upon the premises, or providing otherwise for its security further than as noted above. From the receipt annexed to the purchaser’ s deed, it appeared that he had paid over the whole amount of'the purchase money to the administrator. No attempt wras made to showi that the widow, had ever received any portion of it.
    The Court directed a verdict for the plaintiff, which was accordingly given for $370 78, the Court reserving the following points presented by defendants:

      First. That as Augustus Karstein was a tona fide purchaser, without notice the title to him and those under him would be good against the claim of the plaintiff.

      Second. The plaintiff, having been a party in the orphans’ court to the prayer for partition, for sale, and for confirmation of deed, and not giving actual notice of her claim, or in fact any notice sufficient to put purchasers on inquiry, is barred by her action now when other rights have intervened;

      January 6, 1883,

      Third. The plaintiff, having failed to make any demand within six years, is not entitled to recover.

      Fourth. That the sale having realized $1,330, the full value o£ the property, which sum was paid to the ad-, ministrators, the law will presume that in the settlement of his account in the orphans’ court, the claim of the widow’s dower was secured out of the purchase money.
   The opinion of the Court below was delivered

by Ti-iayer, P. J.,

as follows:

There are few subjects in regard to wnich more solicitude has been shown by the Legislature and the courts than the protection of the widow’s right in the estate of her deceased husband. The act of 1764, relative to the partition of the estates of decedents, enacted that her share should be valued and charged upon the land;- that the interest should be regularly and annually paid to her, and that she might recover it by distress. The same provision was carried into the act of 1794, the act of 1807, and finally into the present law, the act of 29th March, 1832, which enacts that “the widow shall not be entitled to payment 'of the sum at which her purpart shall be valued, but the same shall remain charged upon the premises,” and that, “where a decree for a sale shall be~made by the orphans’ court, the court shall direct that the share of the widow of the purchase money shall remain in the hands of the purchaser during the natural life of the widow, and the interest thereof shall be annually and regularly paid to her by the purchaser, his heirs and assigns, holding the premises, to be recovered, by distress or otherwise, as rents are recoverable in this Commonwealth.” This provision is mandatory and absolute, so that it is not in the power of the court to adjudge the land to the party taking it, or to the purchaser, discharged from the payment of the interest on the widow’s share: Good v. Good, 7 W., 199; Medlar v. Medlar, 2 Penna. R., 355. And the object of the provision is, as pointed out by Kennedy, J., in Good v. Good, that the payment of the money, after any lapse of time, may be made perfectly secure. By such a sale her interest is converted into a money charge on the premises: Vensel’s Appeal, 27 Smith, 71. If a recognizance is taken, or other security, it is but a collateral security for the charge upon the land: DeHaven v. Bartholomew, 7 Smith, 126; Brooks v. Smyser, 12 Wright, 90. And debt or assumpsit by the widow lies against the purchaser or the alienee of the purchaser: Pidcock v. Bye, 3 R., 183; Shelly v. Shelly, 8 W. & S., 153; DeHaven v. Bartholomew, 7 Smith, 128. The alienee and heir are in no better situation than the first purchaser: Hise v. Geiger, 7 W. & S., 273. And the Statute of limitations cannot be set up against the widow’s claim: Dillebaugh’s Estate, 4 W., 177; DeHaven v. Bartholomew, 7 Sm., 126.

George W. Arundel for plaintiff in error.

If, by her tacit consent in allowing the payment of the full amount of the purchase money to the administrator, and its subsequent division between her other children and himself, the defendant in error induced the purchaser to believe she had abandoned her Interest in- the land, equity would, at least, hold her to a prompt assertion and pursuit of her claim, and should hold her failure for ten years, and until after the purchaser’s death, to assert her claim, such laches as to now estop her.

These provisions and decisions are conclusive of the present case. [Here' the Court recited the facts supra.]

Under this state of facts, we entertain no doubt whatever that the share of the purchase money representing the widow’s interest is a continuing lien upon the land, which may be enforced by the present action. It was the fault of the purchaser to have paid over the whole amount of the purchase money to the administrator, if he did so without some agreement from the widow or a release of her interest. In the absence of that there can be no doubt that her share of it remains a charge upon the land. If the purchaser paid the whole amount to the administrator, he paid it in his own wrong, and the fact that he paid it ignorantly and in good faith will not exonerate the land from the charge, for nothing can accomplish that short of evidence of an actual receipt of the money by her, a release, or something tantamount to it. And it makes no difference that neither the deed executed to the purchaser, nor any order of court made in the progress of the proceedings in partition, charged the widow’s interest expressly upon the land. That charge is made by the law pro'prio vigore, is the legal result of the sale in partition, and it can only be extinguished by some act of the widow herself. Her rights cannot be taken away by her neglect to claim it, by the acts of third parties, or by lapse of time. Judgment must therefore be entered for the plaintiff. But it is a judgment de terris, and not a general judgment: Pidcock v. Bye, 3 R. 183; DeHaven v. Bartholomew, 7 Smith, 128.

Judgment for the plaintiff, de terris, on the points reserved, whereupon defendants took this writ, assigning for error the action of the Court in entering judgment for plaintiff upon the points reserved.

January 21st, 1884.

It has been repeatedly held that a widow, in relation to her rights in her deceased husband’s estate, being a femme sole, is subject to the application of all the principles of equitable estoppel: Carr ». Wallace, 7 Watts, 394; Simpson’s Appeal, 8 Barr, 199 ; Troxell v. Iron Co., 6 Wright, 513; Ayres «. Wattson, 7 P. F. Smith, 360; Taggart’s Appeal, Leg. Int., Dec. 22, 1882.

As the plaintiffs in error interpret the rulings in Schall’s Appeal, 4 Wright, 170; Horam’s Estate, 9 P. F. Smith, 152; Richards®. Rote, 18 ibid., 251; Vensel’sAppeal, 27 ibid, 71; and Dickinson v. Beyer, 6 N orris, 274, if the widow was a party to the proceedings in partition of her deceased husband’s estate, or had notice thereof, her interest in the land is divested by the subsequent sale under the order of the orphans’ court, and her right of dower is transferred in such a case from the land to the fund realized from the sale, and her right of action should be, if at all, against the administrator or his sureties, to account to her for the use during her life of the one third of the proceeds of the sale, he having, with her consent, received the identical fund now in dispute.

John White and Jacob JS. Bowers for defendant in error.

The defendant in error, by the statutes, had no right to the money to remain on the property in the hands of the purchaser to secure her interest, and could not object to the partition, could do nothing but demand from the purchaser that which the law gave her — the interest for life upon one third of the purchase money, to be paid by the purchaser and those holding the property. The doctrine of estoppel does not apply to such a case. The purchase money in the hands of Bauer, who wras ordered by the court to make the sale, could, in law, be considered only as the portion legally payable to him, that is, the portion then payable to the heirs — no part of it could go to the widow upon distribution.

Per Curiam:

No fact is shown in this record to destroy the right of the widow, nor to estop her from asserting it. The opinion of the learned judge on the motion for judgment on the point reserved contains a clear and correct statement of the law.

Judgment affirmed. .


source: Caselaw Access Project

author: Pup, Curiam:

license: Public Domain

text:
    January Term, 1884,
    No. 30.
    January 30, 1884.
    Littlefield’s Appeal.
    A, engaged in active business, conveyed to his wife as a gift real estate valued at $19,000. At the time A’s business was in prosperous condition; he was possessed of property other than that so conveyed to the amount of more than $25,000; he was indebted at the same time in the sum of about $5,000. This indebtedness was all paid within a few months. Three years later he failed; his wife sold a portion of the real estate which A had conveyed to her to a judgment creditor of her husband, who, in consideration thereof, assigned to her the judgment he held against A. A’s wife also held another small judgment against him; on this latter judgment she caused execution to be issued, and had sold, as the property of her husband, the remaining real estate which he had conveyed to her. The fund thus produced was claimed before an auditor both by A’s wife on account of the two judgments held by her, and by B, a judgment creditor of A, whose judgment had been obtained subsequently to those held by A’s wife. The auditor found in addition to the above facts that there was no purpose to defraud creditors by the conveyance, and that it was not made in anticipation of future indebtedness. Held, that the fund was properly awarded to the wife of A.
    Before Me roue, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, J. J.
    Appeal of George L. Littlefield and Alfred H. Little-field, trading as Littlefield Brothers, from a decree of the Court of Common Pleas, No. 2, of Philadelphia County.

    This, in the court below, was a contest between Little-field Brothers and Charity Harned, judgment creditors of Lewis M. Harned, who was the husband of Charity Harned, as to the distribution of a fund in court produced by a sheriff’s sale of Harned’s real estate under his wife’s execution.
    Charity Harned claimed the entire fund ($1,800) on two judgments, one dated October 22, 1879, in court of common pleas, No. 2, to September' term, 1879, No. 556, for $15,000, originally obtained by Joshua Peirce, and on December 19, 1879, by him marked to the use of Charity Harned; the other also in court of common pleas, No. 2, to December term, 1879, No. 69, dated December 8, 1879, for $958 21.
    On the first judgment, of $15,000, a fi. fa. was issued, and the fund realized from sheriff’s sale of personal prop: erty on the 8th day of November, 1879, amounted to $8,970 80, thus leaving a balance due on said judgment of $6,029 20.

      On the other judgment, of $958 21. an execution was issued, and a fund realized by sheriff’s sale of personal property on December 17, 1S79, of $685 50, thus leaving a balance due on this judgment of $272 71..
    Littlefield Brothers claimed on a judgment obtained in court of common pleas, No. 4, on the 20th day of May, 1882, to March term, 1882, No. 513, for $883 75
    Thomas B. Reeves was appointed auditor to make distribution of the fund. He found the following facts .

      First. That Lewis M. Harned and wife, by deed dated October 3, 1876, and recorded October 17, 1876, in deed-book, D. H. L., No. 45, page 510, conveyed to James N. Dickey certain premises on the east side of Sixth street, in the Sixth ward of the city of Philadelphia, and that the said James N. Dickey and wife, by deed dated October 14, 1876, recorded October 17, 1876, in deed-book, D. H. L., No. 45, page 501, conveyed the same premises to Charity Harned, wife of Lewis M. Harned.
    Subsequently, on the 13th day of December, 1879, Charity Harned conveyed these same premises to Joshua Peirce, the- deed being recorded in deed-book, L. W., No. 74, page 65. The consideration of this last conveyance was the assignment by Joshua Peirce to Mrs. Charity Harned of the judgment held by him against L. M. Harned and others, and also of whatever stock and machinery Peirce had purchased at the sheriffs sale in Bristol.

      Second. That Lewis M. Harned and wife, by deed dated November 1, 1876, and recorded June 2, 1877, in deed-book, D. H. L., No. 86, page 550, conveyed certain premises, No. 2202 Venango street, to James N. Dickey; and James N. Dickey and wife, by deed dated November 2, 1876, recorded June 2, 1877, in deed-book, D. H. L., No. 86, page 475, conveyed the same premises to Charity Harned, wife of Lewis M. Harned.
    It was upon an execution issued upon this last-named property, ■ selling all the right, title, and interest of Lewis M. Harned in said property, that the present fund is realized.

      Third. That at the time of these conveyances — to wit: November 1, 1876 — Mr. L. M. Harned was doing a prosperous business in the manufacture of upholstery trimmings in this city, and was perfectly solvent then, and so continued for a period of over two years thereafter.
    Subsequently, in 1877, through the advice of parties from whom he made his purchases in trade, he removed his manufacturing to Bristol, Bucks county, Pa., where he continued to manufacture in the same business that he had formerly conducted in Philadelphia until 1879 when he failed.

      Fourth. At the time of the conveyance, in 1876, it appeared that the total amount of Mr. Harned’s liabilities did not exceed $5,000, exclusively consisting of the then current liabilities of his business ; all of which was paid at maturity, he doing business on sixty and ninety days’ credit, which was considered equivalent to cash. It also appeared that at the time of the conveyances — to wit: November 1, 1876 — the machinery in the establishment of L. M. Harned was worth $20,000, on which he did not owe one dollar. It further appeared that, in addition to his machinery, he had stock on hand and bills receivable amounting further to from $7,000 to $10,000 ; so that at the time of the conveyance to his wife he was perfectly solvent.

      Fifth. It did not appear that the removal of the business to Bristol rendered it hazardous, but, on the contrary, it did appear before your auditor that the facilities for carrying on the business there were greater than they were in Philadelphia, and the expenses less — notably decrease of rent, water rent, taxqs, etc.; and in fact it was proven before your auditor that the business whilst conducted there was prosperous throughout 1877 and 1878 and the early part of 1879. It also appeared that the business in Bristol was the same identically in every particular as that which he had conducted so 'successfully in Philadelphia.
    Your auditor reports that at most the removal to Bristol was nothing more than a mistake of judgment, becoming only apparent in the subsequent'part of the year 1879.

      Sixth. That no debt or liability which was in existence or contracted at the time of the conveyances — November 1, 1876 — was in existence at the time of the sheriffs sale, under which this fund was created ; in fact all the liabilities (which, aggregated, did not exceed $5,000 as above stated) were fully paid by Mr. Harned within ninety days after November 1, 1876, being as soon as the same had matured.

      Seventh. Your auditor further finds, as a fact, that, treating the deeds as a voluntary conveyance, there was no evidence produced before him to prove any purpose to defraud creditors by such conveyances by Mr. Harned indirectly to his wife; the fact being that Mr. Harned, at the time of said conveyances to his wife, was possessed of other property in his own name belonging to him, amounting to more than five times the amount of any liability existing at that time or for some considerable length of time afterward. Your auditor further finds that said conveyance was not made in anticipation of future indebtedness, because for a considerable space of time after the conveyances the amount of the current liabilities did not increase to any appreciable extent.
    The deeds mentioned in the auditor’s findings were offered in evidence before him on behalf of Littlefield Brothers in an attempt to prove fraud on the part of Harned in executing them ; it was shown that at the time of these conveyances, Harned was indebted to Littlefield Brothers in the sum of $813; this sum was paid within sixty or ninety days thereafter, and a fresh debt incurred, and this mode of dealing was continued until Harned’s failure, when he owed them $833 75.
    The auditor awarded the entire fund, after deducting the expenses of the audit, to Charity Harned.
    Exceptions filed on behalf of Littlefield Brothers were dismissed, and the auditor’s report confirmed; whereupon they took this appeal, assigning for error, inter alia, the award to Charity Harned as owner of the Peirce judgment, the failure to direct payment of the Littlefields’ judgment, the dismissal of their exceptions, and the confirmation of the auditor’s report.

      Charles L. Loelcwood and Joseph A. Sinn for appellants.

      First. The fund in court is raised by a sale of the grantor’s right, title, and interest in. the conveyance,-and, therefore, should be distributed on the theory that the conveyance was fraudulent. The inquiry is not whether the gift was valid, but against whom was it invalid. No one, except those creditors who had a right to attack the title, which right has been divested by the sale, can share in the proceeds: Hoffman’s Appeal, 8 Wright, 95 ; Beekman’s Appeal, 2 Wright, 385 ; Haymaker’s Appeal, 3 P. F. Smith. 306.
    The ground upon which voluntary settlements are supported is that they are provisions for a wife- or family. They should not be supported when it is evident that the subject of the transfer was to be used for the husband’s benefit, and to keep his creditors at bay.
    This case presents a most extraordinary state of facts— a husband in business and in debt, owning real estate, machinery, and stock in trade — a wife, without any separate estate, (except that embraced in the small undisputed judgment,) who first gets the real estate, then gives up part of that and gets the machinery and stock and a creditor’s judgment, and then keeps alive this judgment and uses it against her husband’s creditors. If the transfer to her was valid, she should have relied ■ upon it, and would have had the protection of the law. Having abandoned that position, and declared that though the transfer was not valid, yet she would take, as.a creditor, what she did not get under the transfer, her claim should not prevail against honest creditors.

      Second. She is estopped from claiming the fund.

      Third. When the "owner was indebted, at the time of the conveyance, but afterward paid off the debt by new purchases on credit, even the new subsequent creditors are subrogated to the rights of existing creditors.

      Fourth. There is ample evidence that appellants were, intended to be defrauded.

      Ernest Lowengrv/nd Octavius A. Law for appellee.
    The statute of 13 Eliz. does nob make a voluntary conveyance void simply because the grantor is indebted at the time : Mateer ?>. Hissim, 3 P. & W., 160.
    The debts must bear some proportion to the remaining property of the grantor, which will render their payment doubtful: Wilson v. Howser, 2 Jones, 109; Townsend v. Maynard, 9 Wr., 198; Thacker v. Phinney, 7 Allen, 146; Woolston’s Appeal, 1 P. P. Sm., 452.
    Even if the property conveyed had been all the husband owned,-the gift would have been good as against subsequent creditors unless a fraudulent intent, as to them, could be affirmatively shown: Nippes’ Appeal, 25 P. P. Sm., 472; Williams v. Davis, 19 Id., 21.
    In order to overthrow a gift to a man’s wife on the ground that it is an unreasonably large provision for her, it must appear not only that he is thereby denuded of all or the greater part of his property, but that the gift leaves him practically insolvent: Ammon’s Appeal, 13 P. P. Sm., 284; Coates v. Glerlacli, 8 Wr., 43; Conley v. Bentley, 6 Norris, 40; Harlan v. Maglaughlin, 9 Id., 293 ; Kimble v. Smith, 14 Id., 69.
    February 11th, 1884.
   Pup, Curiam:

It is found as a fact that when Harned conveyed the property in question to his wife, he was possessed of other property, the value of which was more than five times the amount of all his liabilities then existing, or which were incurred for some considerable time thereafter, and that there is no evidence of any purpose either to defraud creditors by the conveyance, or that it was made in anticipation of future indebtedness. It further appears that all his indebtedness which existed at the time the conveyance was made has been paid. The finding of the auditor is well sustained, and the Court was right in confirming if, and in deciding accordingly.

Decree affirmed and appeal dismissed at the costs of the appellants.


author: Per Curiam :

text:
    July Term, 1883,
    No. 51.
    January 16, 1884.
    McConnel v. Gates.
    1. While some defects in the service of a scire facias on a municipal claim may be successfully interposed to defeat an action on the scire facias, yet if a judgment be recovered, and a judicial sale regularly made, those defects will not defeat the title of a purchaser.
    2. In a suit to recover arrears of ground-rent against the purchaser of a lot of ground at a sheriff’s sale under a judgment on a municipal claim, he set up a defense that the sheriff’s return to the scire facias showed that the service was not made in accordance with the act of 11th March, 1846, the copy of the writ having been posted less than two weeks prior to the return day. Held, that a good title was vested in the purchaser, though he himself was the plaintiff in the judgment, and-he thereby became liable for the .ground-rent which accrued after his purchase.
    3. The regulárity of the incorporation of an insurance company which once held the title to the ground-rent, cannot be inquired into in a proceeding against a subsequent owner to recover arrears.
    4. The ground rent was reserved by deed dated March 1, 1859, and judgment was obtained on two returns of nihil habet, on June 20,1876, for the arrears then due from the date of the deed. Helcl, in an action of covenant for arrears commenced February 8,1881, that the entry of judgment preserved the lien of ground-rent from being presumed to have been released or extinguished, and that the Statute of Limitations was no bar to a recovery.
    Before ■ Merctjr, C. J.; Gordon, Paxson, Trtjnicey, Sterrett, Green, and Clark, JJ.
    Error to tbe Court of Common Pleas, No. 2, of Philadelphia County.

    Summons covenant sur ground-rent issued. February 8, 1881, by James R. Gates against Hugh. McConnel to recover arrears of ground-rent.
    By agreement in writing, tlie case was submitted to Walter D. Allen, as referee, under the act of 14th May, 1874.

      April 3, 1883, the report of the referee was filed, finding, inter alia, the following facts :
    By deed dated January 8, 1857, William Edge and wife conveyed to David J. Pruner in fee, a lot of ground situate on the north side of Cumberland street, at the distance of ninety feet westward from the west side of Fifteenth street, in tlie city of Philadelphia. By deed dated the first day of March 1 1859, David J. Pruner and wife, in consideration of one dollar, conveyed to Joseph J. Lingle the said premises, reserving thereout a yearly ground-rent of ninety dollars, payable half-yearly, on the first day of the months of March and September, in every year, being the ground-rent in question in this suit.
    By deed bearing even date with the last-mentioned deed, David J. Pruner and wfife, in consideration of $1,500, conveyed the said yearly ground-rent to the Merchants’ Insurance Company of Philadelphia.
    On a judgment against the Merchants’ Insurance Company, the ground-rent in question was taken in execution and sold, on March 5, 1860, to James M. Sellers.
    The said James M. Sellers, in consideration of $1,500, conveyed to Edwin O. Michener, in fee, the said yearly ground-rent.
    On April 25, 1876, the said Edwin O. Michener commenced an action of covenant against Joseph J. Lingle, the original covenantor, and on the 20th day of June, 1876, judgment was entered on two.-returns of “ nihil habeV’ (after posting and advertisement, as "required by the act of Assembly and the rules of court) in favor of the plaintiff for $2,049 10, being the ground-rent then in arrears, with interest to the date of judgment. On this judgment the premises, out of which the ground-rent issued, were taken in execution and sold, on August 7, 1876, to Charles A. Weiderman for $25.
    May 24, 1880, Edwin O. Michener, in consideration of $1,500, conveyed the said yearly ground-rent to James R. Dever, in fee. The title was taken by Mr. Dever in trust for William T. B. Roberts, and at the request of Mr. Roberts, or his counsel, was conveyed by Mr. Dever to the plaintiff by deed dated October 28, 1880.
    The defendant acquired title to 'the lot out of which the ground-rent issues, by purchase of the same at a sheriff’s sale, made by virtue "of proceedings on a j udgment on a municipal claim for paving, which sale was made on the 3d day of July, 1876, about one month previous to the sale to Weiderman hereinbefore mentioned. The deed for the property was acknowledged by the sheriff on January 12, 1878.
    It was admitted by counsel for the plaintiff that the arrears of ground-rent sued for in this action are to be paid, if recovered, to William T. B. Roberts, under an agreement between him and Mr. Grates to that effect.
    The return of the sheriff to the writ of sci.fa., in the suit of the city to the use of Cunningham and McConnell v. Unknown, on the municipal claim for paving above-mentioned, shows that the service of the writ was not made in accordance with the' act of Assembly of March 11, 1846. The writ was .returnable to the first Monday of May, 1876, which was the first day of May. According to the sheriff’s return, the copy of the writ was posted on April 24, 1876, being less than the two weeks prior to the return day required by the act of Assembly.
    Testimony was taken upon the question of the existence or non-existence of the Merchants’ • Insurance Company at the time the said ground-rent was conveyed to it. The referee found that the company was in existence at that time.
    The referee further reported, inter alia:

    “The first question which arises under the pleadings is, whether a release or extinguishment of the ground-rent is to be presumed under the act of 27th April, 1855, (Purdon, 862, pi. 18.) The rent was reserved by deed dated March 1, 1859, and judgment was obtained at the suit of Michener against Lingle, the original covenantor, on two returns of nihil on June 20, 1876, for the .arrears then due. Though this judgment was obtained within the twenty-one years fixed by the act, within which a demand must be made to prevent the presumption of release or extinguishment, counsel for the defendant contended that the demand contemplated by the act is a personal demand, and that the judgment on two returns of nihil is insufficient to preserve the lien of the rent. The referee, can find nothing in the acts of Assembly which will justify this view of the law. The act of April 8, 1840, in relation to judgment for arrears of ground-rent on two returns of nihil, provides ‘that the said return of two nihils shall be in all respects equivalent to actual service of the same as is now the practice in the case of mortgages and judgments.’
    “Actual service in this act can only mean personal service, and if two returns of nihil are equivalent to personal service, the same effect must be given to the judgment entered thereon as if the defendant were personally served. In the case of judgments, it has never been doubted that the judgment of revival entered on two returns of niMl is a general judgment, and binds the person as well as the real estate of the defendant. Moreover, the act of 1855, under which it is claimed that this rent must be presumed to have been’ released or extinguished, provides that the evidence of any such claim or demand may be perpetuated by the record of any judgment obtained for such rent in any court of record. The referee is therefore of opinion that the judgment entered in the suit of Michener against Lingle preserved the lien of the ground-rent, and prevented the same from being-presumed to have been released or extinguished.
    x- * x- » . x- * * * x * x
    “As to the effect of the agreement of the plaintiff to pay to Mr. Roberts the arrears of rent, if recovered, the referee cannot see that the plaintiff’s right to sue for such arrears is affected by such an agreement. As the agreement is undei-stood by the referee, Mr. Roberts has no title to the arrears in question until they are recovered by the plaintiff, and therefore could not sue the defendant for them. Regarding the agreement, however, as an equitable assignment, it does not affect the right of the plaintiff to recover. The legal title to the rent is in the plaintiff, and a recovery by him would be a bar to another suit against the defendant for the arrears: See Armstrong «. the City of Lancaster, 5 Watts, 68. The fact that the equitable assignee is not joined in the action prejudices no defense which the defendant may have. That the absence from the record of the name of the equitable assignee will not constitute a defense against the claim of the legal plaintiff, is expressly decided in the case of the Memphis Railroad Company v. Wilcox, 12 Wright, 162.
    “The referee was asked by defendant’s counsel to pass upon the question whether the sale for arrears of ground-rent on August 7, 1876, divested the title of Mr. McConnel under the sale made by the sheriff on July 3, 1876. The judgment for the arrears was entered on June 20, 1876, and was discharged by the sale to Mr. McConnel on July 3, 1876. Being thus discharged, the subsequent sale under this judgment to Wiederman could vest no title in him and did not divest Mr. McConnel’s title.
    “Thecaseof Conrad?). Smith, 5 W. N. C., 402, (affirmed in Supreme Court, 11 W. N. C., 100,) decides that the purchaser of land subject to a ground-rent sold under a municipal claim, is in the same position as an assignee of the lessee, and. is personally liable for the fulfilment of the covenant to pay the rent. In McQuesney v. Hiester, 9 Casey, 435, it was held that an assignee of the lessee ought not to be charged with interest on arrears which accrued prior to the conveyance to him, but that on sub-• sequent arrears he is liable for interest.”
    The referee filed an opinion' upon exceptions to his report, inter alia, as follows :

      x x x x x ■ x x x

    “The defendant claims that as the return of the sheriff to the writ of sci.fa:, in the proceedings on the municipal claim, shows that the service was radically defective, the sheriff’s sale to the defendant in this case did not divest the title of the real owners, and therefore passed no title to the defendant which would render him liable to the payment of the ground-rent in question.
    It has-been uniformly held in this State that an irregularity or defect in the service of a writ is cured by the subsequent entry of judgment, and that a sale of the property of the defendant, under such judgment, will, on the acknowledgment and delivery of the sheriff’s deed, vest in a bona Jide purchaser a perfect title to the property sold: see act of 1705; Purdon, page 651, pi. 84; Delaney v. Gault, 6 Casey, 63 ; Wistar «. The City, 5 Norris, 215. In Delaney «..Gault, the Court say, (page 68,) ‘After judgment upon the scire facias, it is too late to inquire, in any collateral proceeding, into the sufficiency of the sheriff’s return of service of the writ, or whether service has been properly made, if it be returned. This was ruled by the late Judge Cooper, at nisi prius, in 1849, in the case of Wharton «. Hughes,/A purchaser at sheriff’s sale, under a judgment obtained in a scire facias, on a municipal claim, is not bound to show that the acts of Assembly have been strictly complied with. In regard to all that he is protected by the judgment-.’
    The defendant, in support of his position, relies mainly upon the cases of The City «. O’Byrne, 12 Norris, 225; City v. Wistar, 5 Norris, 215; and Simons v. .Kern, 11 Norris, 455. In the case of City «. O’Byrne, as in the case of City v. Wistar, judgment on a municipal claim was reversed on writ of error because of irregularities in. the service of process. In neither case was there any sheriff’s sale, and in City '«. Wistar, the Court expressly recognize the principle laid down in Delaney v. Gault, as above quoted. (See 5 Norris, p. 215.)
    The case of Simons «. Kern was the case of a municipal claim against a registered owner. There was a defect in the sheriff ’ s return in that case similar to the one in the present case. The sheriff sold the premises against which the claim was filed and acknowledged, and delivered his deed to the purchaser. The Court held that under the provisions of the supplement to the registry act, approved March 29,- 1867, the sale was void, and the owner could recover the premises in ejectment. The supplement to the registry act prohibits the sale of the land of registered owners for taxes or other municipal claims, except after recovery by suit and service of the writ upon the registered owner as in the case of a summons. The sale was held to be void on the ground that it was made in violation of the statutory provisions.
    The act was passed for the protection of an owner who has registered his deed, and did not change the law as laid down in Delaney v. G-ault, where the owner’s deed is unregistered.
    The unknown owner in the case of the municipal claim of Cunningham and McConnel, could not claim the benefit of the registry act for the reason that his deed was not registered, and the sheriff ’s sale on the judgment entered on that lien must be held to have vested a valid title in the defendant. * * *
    Judgment is therefore awarded in favor of the plaintiff for $467 25, being the amount of the arrears of ground-rent which accrued between the date of the sale to the defendant and the date of the commencement of this action, with interest on those arrears only which accrued subsequently to the conveyance to the defendant by the sheriff, on January 12, 1878.”
    Defendant’s counsel filed exceptions to the report of the referee.
    Defendant then took out a writ of error, and assigned as error the action of the referee in awarding judgment for the plaintiff; reporting that the claim was not barred by the Statute of Limitations ; finding that the Merchants’ Insurance Company was an existing corporation; that plaintiff held a valid title to said ground-rent; that the title in fee simple, subject to said ground-rent, was vested in defendant, and that he was liable to plaintiff for said arrears.

      Henry M. Dechert for plaintiff in error.
    The evidence did not prove the existence of the Merchants’ Insurance Company. The existence of a mesne assignee may be attacked as if it were suing directly: Methodist Episcopal Church «. Pickett, 19 N. T., 485; Morawetz on Private Corporations, sec. 137.

      The defective service of the scire facias in the suit under the execution upon which the liability of plaintiff in error, it is alleged, arises, defeats his title to the premises, out of which the ground-rent is alleged to issue, and therefore no liability attaches to him : Caldwell v. Walters, 6 Harris, 79. The act of 1846, Purd. Dig., 1089, pi. 25, requires posting and advertising- to be two weeks before the return day: Wistar v. City, 5 Norris, 215 ; O’Byrne v. City, 12 Id., 226 ; Simons v. Kern, 11 Id., 455.
    The judgment was therefore void: Freeman on Judgments, sec. 124, 125. McConnel is not estopped from asserting the defect in his title, because no one has been prejudiced, and there is no privity between the parties.
    The plea of the Statute of Limitations furnishes a bar to recovery in this case. ( The present suit was brought February 5, 1881, and there is no evidence to show that any one ever made payment of the ground-rent since its creation in 1859, or that any claim or demand was made for its payment. Nothing was done except entering a judgment for the arrears in 1876.

      B. IB. Lowry and Andrew Mayer for defendant in error.
    The ground-rent was not reserved to the insurance company, and this is not an attempt by the corporation to' enforce a contract made with it. The insurance company was merely a conduit pipe for the title to the ground-rent. The evidence, however, abundantly proves the existence of the company.
    The defect in the service of the scire facias does not affect the title of the purchaser at the sheriff’s sale : Hering ®. Chambers, 13 W. N. C., 510; Delaney v. Gault, 6 Casey, 63. The judgment was good until the Court rendering it has altered it, or it is reversed on writ of error : Lowber & Wilmer’s Appeal, 8 W. & S., 387; Clarke. Douglass, 12 P. F. Sm., 408 ; McDonald ». Simcox, 2 Out., 618 ; Gibson.v. Winslow, 2 Wr., 49.
    The .plea of the Statute of Limitations is effectually disposed of by the referee.
    January 28th, 1884.
   Per Curiam :

While some defects in the service of á scire facias on a municipal claim may be successfully interposed to defeat an action on the sci.fa., yet, if a judgment be récovered and a judicial sale be regularly made, those defects will not defeat the title of a purchaser. In 'this case, a good title was vested in the purchaser, and he thereby became liable for the ground-rent which accrued after his purchase. The regularity of the incorporation of the insurance company which once held the title cannot be inquired into here. It was the mere conduit through which the title passed. As the covenant for ground-rent ran with the land, the Statute of Limitations was no bar to a recovery for the sum found by the referee, and for which judgment was entered.

Judgment affirmed


author: Sterrett, J.:

text:
    January Term, 1883,
    No. 304.
    January 11, 1884.
    McDowell’s Appeal.
    1. Where a receiver at the solicitation of both partners, and acting in good faith and under the advice of counsel, continued a business at a loss, and being prevented by the active interference of the partners from effecting a sale of machinery and a patent, stored and insured the machinery at a considerable, though not unreasonable, expense, he ought not to be surcharged with the expense of continuing the business or the amount expended for storage and insurance.
    2. Where a receiver collected all of the accounts of the firm that he could, took the accounts to a reliable collection agency, and instructed them to collect all that were available, and they, refusing some of them as uncollectible, reported to him, from time to time, as to the remainder, and he charged himself with the proceeds reported, he ought not to be charged with the alleged value of the accounts.
    3. He ought not to be surcharged with such accounts where there is nothing to determine their value.
    4. Such a receiver is entitled to a reasonable compensation.
    Before Mercttr, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and' Clark, J J.
    Appeal of George McDowell from the decree of the Court of Common Pleas, No. 2, of Philadelphia County, dismissing his exceptions to the report of an auditor.
    May 16, 1871, George McDowell was appointed receiver of the firm of P. Hevner & Co., consisting of Peter Hevner and Thomas A. McClelland. He filed his account as such receiver January 10, 1881, and it was referred to William Drayton as auditor. t

    The auditor reported, inter alia, as follows:
    During the six months after his appointment, the receiver, at the request of both parties, retained possession of the factory, stock, and fixtures of the firm, and carried on the business. During this period, he collected some of the firm’s accounts.

      'On the 11th day of November, 1871,. the receiver presented a petition, praying for an order of sale; on reading which, the Court ordered:
    That the prayer of said petition be granted, and that the said George McDowell be authorized and directed to make sale of the within-mentioned property at public sale.
    The minute-book shows the following order was made November 21, 1871:
    “On motion of B. L. Temple and IT. S. Hagert, for the plaintiff and defendant, the Court order, that the receiver put up for sale, on November 22, 1871, the patent right for the State of Pennsylvania, for rectifying and distilling whiskey under the Oliver Harris patent, and the machinery for refining whiskey under the said patent at the same time, and that he sell the same together for a price not less than $10,000.”
    The sale of the stock, etc., took place on November 22, 1871, but no bids were received for the machinery and patent right at all approaching the limit fixed by the court, and they were, therefore, withdrawn. As soon as the sale had taken place, the machinery was removed to the tobacco warehouse by the receiver, and stored at an expense of $120 per annum, and insured for $25 per annum. No application was made by him to the court at any time to sanction this expenditure, which was continued until-1881.
    In ———1881, the auditor, having filed an interlocutory report, the Court ordered that the .machinery and patent right should be sold without conditions or limitations.
    Acting under this order, the machinery and patent right were exposed to sale on May 26, 1881, and the terms of this sale not being complied with, were again exposed to sale on October 4, 1881. The amount realized from this sale, over expenses, was $260 69.
    No inventory of the sale of November 22, 1871, was ever filed by the receiver, nor was any inventory filed by him of the assets which came into his hands as receiver.
    The open accounts of the firm, when he took possession, amounted to a balance of $3,246 61.
    The receiver claims that he sent these to a collection agency, and produced a paper stating that this was a list of the claims in the hands'of Fairthorn & Rand, and, also, a letter from them stating that this was a final report of that firm on the claims sent to them.
    The receiver also rented a box at the Fidelity Company for the deposit of the receipts of P. Hevner & Co., and for his own private papers, half of which he has charged against the estate.
    The moneys of the estate the receiver deposited with the Fidelity Company, but he drew on this fund as though it was his private account, and loaned the counsel for the defendant various sums of money from this fund.
    In May, 1873, he purchased with $947 50 a bond of the Lehigh Yalley railroad, which, in September, he sold at $110. He has nowhere charged himself with this profit, nor has he accounted for the two years and a half interest thereon. •
    Counsel for plaintiff asks that the receiver be surcharged, and accuses him of negligence and mismanagement of the estate:

      First. In continuing to carry on the business for six months after his appointment, viz: From May 6, 1871, until November 22, 1871, and in postponing the sale of whiskey until the latter date, at an extra expense of $1,536 91, the total of sales being only $168 73.

      Second. In failing to make sale of the machinery, or to offer it for sale, between November 22, 1871, and May 26, 1881, and in not applying to the court for leave to sell until March 24, 1881, but keeping the same on storage at an expense of $10 per month, and paying insurance thereon for ten years at $25 per annum, making storage $1,200, insurance $250, total $1,450, while the machinery only netted, at 'the sale, $260 69.

      Third. In his dealing with the money of the estate, loaning them to others, and using them for his own purposes, and so mixed with his private funds as to make it impossible to distinguish whether they are his private moneys or those of the firm. This applies particularly to the deposits in his bank-book of
    January 10, 1872,..........$1,200
    January 20, 1872,......... 500
    March 19, 1873, ........... 500
    October 6, 1874,.......... 250

      Fourth. In omitting these items from his account filed, and also the item of deposit,
    May 8, 1875,............ $31 81
    which was money collected by him. (Testimony, page 17.)

      Fifth. In not accounting satisfactorily for the uncollected assets of the firm, amounting to $3,246 61.

      Sixth. In not charging himself with the patent, machinery, book accounts, stock of whiskey, etc., on hand at the date of his appointment, and in filing no inventory of the assets which went into his hands.

      Seventh. In investing $947 50, on May 7, 1873, in the purchase of $1,000 Lehigh Yalley railroad six per cent, bond, in not accounting for the interest received and profit realized by him, the bond selling, in the fall of 1875, at $110, making a profit of $152 50.

      Eighth. In paying $30 per annum for a safe to keep the few loose receipts belonging to the estate, making a total charge of $140.

      Ninth. In not filing an account within a reasonable period, and delaying for ten years, when the balance on hand was nearly consumed in the expense of the receivership, viz: $L,892 12.

      Tenth. In not investing this balance In his hands December 31, 1871.
    In view of these conflicting opinions, it is necessary to decide:

      First.' What were the duties of the receiver, and how he fulfilled them in this case.

      Second. How far he is protected by the advice of his counsel.
    The reasons assigned by the plaintiff for surcharging the receiver afford a simple method of considering these questions in order, which the auditor has adhered to as closely as possible.
    With regard to the first allegation, viz: That the receiver had no authority to carry on the business of the firm for six months after his appointment.
    The general rule with regard to a receiver continuing the business of a partnership undoubtedly is, that the receiver, as an officer of the court, will not be appointed to continue the management of a business, which, from its nature, cannot be conducted under the direction of the court, as in the case of a theater, newspaper, hotel, &c., yet it is sometimes necessary for the court, by its receiver, to continué in the management of the business, over which the. receiver is appointed for the purpose of effecting a more satisfactory adjustment, for better protecting the interest of all parties. The courts are generally adverse to assuming the management of a business, except as incidental to the object of the suit, and for the purpose of closing it up and dividing the proceeds, yet they will not surcharge a receiver for keeping up a business for a time, so as to wind it up for the benefit of all interested: High on Deceivers, § 36 ; Hooper v. Winston, 24 111.; 353 Booth e. Clark, 17 How., 331.

      In this case, the business was undoubtedly carried on at a considerable loss, as appears both from the calculation submitted by plaintiff’s counsel, and from the testimony of the receiver. He urges in justification that he carried this on at the request of both parties.
    “I did not sell at the request of Messrs. Hevner and Mc-Clelland. They desired a private sale until it was found impossible to do so. Then I urged my attorney, Mr. Ruddiman, to obtain the order of court for me to sell, which was done. It was my desire, as soon as I was appointed receiver, to effect a public sale, and I would have done so, but for this arrangement.”
    In view of this testimony, it became the duty of the plaintiff to contradict the allegations of the receiver, if possible.
    Had a complaint been made, at the time of the continuance by the receiver of the business, to this court, it would have put an end to such extravagance on the part of its officer, or had it been shown that the plaintiff had remonstrated with the receiver for his conduct, the latter-would undoubtedly have been surcharged under the above authorities ; but, as no evidence was offered to contradict the testimony of the receiver, it must be accepted as true, and a great neglect of duty is attributable to the plaintiff, for it has always been held that it is the duty of plaintiff’s solicitor to watch the actions of the receiver: Miller ■». Elkins, 3 L. J. Ch., 128, and in High’s work on Receivers, 181.
    It is said that while formerly courts held a receiver could not make application to the court in the first instance, but should apply to counsel of plaintiff, and only on his refusal to act, apply, yet now a more .liberal rule* prevails ; it does not seem proper, as no active steps were taken by the parties interested at the time, that at this late day one of them should be allowed to come in and ask that the receiver be surcharged for what was a mistake in his authority, that mistake having been encouraged by the very party who now seeks to take advantage of it.
    The action of the receiver having been, although not in the line of his duty, yet not in direct violation thereof, this surcharge is therefore refused.
    In answer to the second charge:
    There is no doubt that the receiver’s conduct in paying such large bills for storage, rent, and insurance on his own authority, and continuing so to do without ever applying to the court for sanction, is not justified by any reported case.
    The receiver is an officer of the court, and is bound to apply to the court before making any outlay,' except such as is imperative and urgent, and in the latter case should obtain the sanction of the court at the earliest opportunity: Edwards on Receivers, § 104; Adams\». Woods, 15 Cal., 206 ; Tempest v. Ord, 2 Meriv., 55.

    But the receiver justifies his conduct in this particular by alleging the advice of counsel as to the effect of the order of court made November 21, 1871
    Mr. McDowell testifies:
    “On asking the advice of my counsel, I -understood him to say that Mr. Hagert had enjoined me from selling the machinery and patent, whicli formed part of the assets of the estate, for a less sum than $10,000, through the court-. I could not file any report until Mr. Hagert joined him before the court- to have that order rescinded.”
    With regard to the request relative to the sale of the machinery, Mr. Ruddiman corroborates Mr. McDowell’s statement, and says:
    ‘ ‘ I advised him that until there should be some modification of the order, either by the court itself or by the parties allowing him to make sale of the property at a less figure than that to which he had been restricted, it was his business to hold the property the best way lie could without allowing it, as far as he was able, to suffer either diminution or depreciation.”
    How far will the advice of a counsel protect a receiver who has so managed the estate that the whole balance in his hands is consumed by the expenses of ten years, during which he has never filed an inventory or account, or applied to the court, whose officer he is, to sanction a single item of expenditure from November 11,1871, until January, 1881 ?
    The English rule, as laid down in Vez v. Emery, 5 Ves., 141, is that if an executor, in a doubtful matter, had taken the advice of counsel, and been advised by any gentleman of the law in this country that he was bound to make a certain payment, the chancellor would not have held him liable. * * *

    The general rule, as to persons in a fiduciary capacity, is followed in several Pennsylvania cases: During’s Appeal, 1 Har., 234; Neff’s Appeal, 7 P. F. S., 91; Calhoun’s Estate, 6 Watts, 186; Frankenfield’s Appeal, 11 W. N. C., 373.
    As in this case, there does seem to be a wide difference of opinion as to the effect of the order of November 21, 1871, the receiver, as he employed counsel and followed his advice, should be protected. It is, therefore, with some hesitation that the auditor finds that the receiver, although guilty of neglect and outstepping the bounds of his duty and authority, is protected from responsibility by his action in taking and following the advice of counsel, and by the neglect on the part of plaintiff for so long a time to object to his course.
    ' The third, fourth, and fifth charges the auditor reserves for further consideration, and in answer to the sixth and ninth points finds, that as to the neglect of the receiver to file an inventory of the assets in his hands, and his neglect to file an account until January, 1881, the testimony ■is conflicting.
    In view of this conflict of testimony, and the advice above acknowledged on the part of Mr. Ruddiman, it seems improper to inflict a penalty on this account on the receiver.
    This surcharge is therefore refused.
    In answer to the fifth charge, the failure of the receiver to account for the uncollected accounts of P. Hevner & Co., the auditor finds:
    “The accountant testified that a statement, which he identified, and which is appended, marked Exhibit X), was handed him by the book-keeper of the firm at the time he took possession.
    “This statement shows the amount of open accounts to be $3,929 61, less payments of $683, leaving a balance due of $3,246 61. Testimony, page 8: ‘ None of the claims in Exhibit I) have been paid to P. Hevner to my knowledge.”
    “A list of claims was offered in evidence by the receiver, and marked Exhibit C. He testified, on page 1: ‘ These are the claims in the hands of Pairthorn & Rand,’ but on page 20, Exhibit C shown witness, (Mr. McDowell:) ‘■That represents the list of claims in the hands of Pair-thorn & Rand and Tener & Co.’
    “ On page 1: ‘I collected all I could; I put them in the hands of Pairthorn & Rand; page -: I collected $595 81, as shown by my account; page 21: All the accounts were taken to Pairthorn & Rand, and they retained only those which they considered of value ; I took all the accounts to them, and my instruction to them was to collect all that they could ; page 2: Some of these accounts liad been placed by P. Hevner & Co. in the hands of Tener & Co. for collection, the balance I put in the hands of Pair-thorn & Rand; page -: Some of- these claims were refused by Fairthorn & Rand as nut collectible ; page 21: The amounts so collected are filed in my account; Fair-thorn & Rand repeatedly made reports to me, which were finally written out by them, as shown by Exhibit E.
    “From this testimony, the auditor finds the balance of unpaid claims in Exhibit I) amounts to $3,246 61; of these $58 are marked bad (debts) on that list.
    “Exhibit C shows that of the balance, $1,222 45 were put in the hands either of Tener and Fairthorn & Rand, or of the latter only.
    ‘ ‘ Exhibit E accounts for $893 73 of the claims mentioned in Exhibit D as worthless. Of these, $440 25 are noted in Exhibit C, and $453 48 are not.
    “ The receiver, in his account, has charged himself with $595 86, as collected by him. Of these claims, $84 41 are noted in Exhibit E.
    “The balance of the claims mentioned in Exhibit D are not accounted for in any way by the receiver, except in so far as his statement goes, that he took them all to Fairthorn & Rand. But this statement he does not adhere to, as shown by the testimony in one place, saying that part were in the hands of Fairthorn & Rand, and part were in those of Tener & Oo. It appears, from his accounts, he had dealings with the latter firm. But he gives no account of which claims were placed in their hands, nor what was done with them, nor does he give any corroborating testimony to show what was the status of these debtors. The auditor has prepared a table showing what disposition was made of each claim in Exhibit E.
    “The duty of a receiver to obtain payments and to keep strict and exact accounts of all his proceedings is a fundamental principle, and a failure so to do will subject him to punishment: See High, § 38. He is held to a strict accountability for the faithful performance of the trust reposed in him: Jackson ©. DeForrest, 14 How., P. R., 82.
    “If a receiver is appointed, he must proceed to sell the partnership property, and collect the outstanding debts without delay, and in this case the order of May 16,1871, under which he was appointed, imposes the latter duty on him specifically.
    “Although, as is said in Witmer’s Appeal, 6 Norris, 120, it is the harshest demand that can be made upon a trustee, to compel him- to make up a deficiency not owing to his willful default, and that trustees are not liable beyond what they actually receive, except in cases of gross negligence.
    “ Yet, ‘ in considering whether a trustee has made himself liable for a failure to collect and convert the assets in his hands, regard must be had to the character of the trust; thus a guardian would not be held tó such prompt action in enforcing collection of securities, as an executor, administrator, or assignee for the benefit of creditors.
    “ ‘It was the duty of the appellee within a reasonable time to make proper efforts to convert all the assets into money, and his failure so to do is gross negligence: ’ Chambersburg Bank App., 26 P. F. S., 203.
    “ So in Johnston’s Est., 9 W. & S., 107, a failure of an executor to collect or even demand payment for six months after the note arrived at maturity was held negligence. ‘To entitle him to a credit he must * * '* prove that he took legal steps to recover the sum due. or that from the notorious insolvency of the debtors, a suit would have been useless.’
    “ Skerrett’s minors, 2 Hog, 192, where rents were lost by neglect of the receiver held, he must make them good.
    ‘ ‘ To the extent of this balance of $894 95, the fifth charge is sustained.
    “ The third charge is one that must be disentangled from the confusion which the receiver’s remarkable system of book-keeping has thrown around it.
    “He undoubtedly, by his own admission, shows that he used the moneys of the estate as his own. He admits borrowing money from the receiver’s balance, and says his check-book will show the state of the case. He also loaned from time to time sums of money to B. L. Temple, Esq., as he testified, on collateral security,-but without interest. He claims to have advanced money to the estate, and that- several of the checks were drawn to repay himself for these advances. The auditor has endeavored to show how this exchange of checks stands.
    “ In May, 1873, he invested $947 50 in the purchase of a Lehigh six per cent, bond, on which he did receive interest for about two years and six months, when he sold it for $1,100. He has not accounted for the interest or profit. lie claims to have sold it to re-imburse himself for storage, which he had paid, amounting to $386, and to have used the balance for the same purpose.
    “According to the receiver’s account as filed, the state of the balance was:
    “ He had received up to June 15, 1871, $203 09, expended $678, leaving a balance of $475 09 due to him ; up to August 15, received $769, expended $938, leaving a balance of $169 due him, and by December 31 he had received $4,489 34, and expended only $2,841 36, leaving a balance in his hands of $1,647 98. The receiver had never, therefore, occasion to be out of pocket over $500 at any time, and allowing this as a large balance, the interest on that sum for six months would be $15.
    “As the receiver has derived the benefit of interest on the money in his hands, and has loaned it out and taken no interest, he should be charged with interest on this balance of $1,647 98 from January 1, 1871, to the present day. This course is.approved in the following cases: Utica Insurance Co. v. Lynch, 11 Paige, 520; Cowdry «. R. R.. 1 Wood, 337; Drever v. Maudesley, 13 L. J. Ch., 433.
    “He should also be surcharged with the profit made on the sale of the bond, as asked for in the seventh charge, and the item of deposit in his bank-book of May 8, 1875, $31 81, which he failed to explain.
    “The receiver does not show any good ground for so great an expenditure as $140 for a safe to keep the few papers shown to the auditor. As the receiver incurred this expense without an order of court, and without the advice of counsel, he must depend on the propriety of his conduct for the approval of the expenditure. The auditor finds that a charge of $5 per annum would have been a proper allowance for safe rent.
    ‘ ‘ The allowance for counsel fee is rejected on the ground that he never asked for such an allowance from the court, but a fee of $100 is allowed him for stating this account.
    ' “The extra costs of this audit are also imposed on the receiver. The auditor has fixed his fee at the request of counsel at $200 ; of this amount $50 should be imposed on the estate, and the balance on the receiver. The auctioneer’s commission of $197 is also allowed.
    “The commissions of $1,000, asked for by the receiver, are refused.”
    McDowell filed exceptions to the report of the auditor, which were all dismissed by the Court and the report confirmed. He thereupon took this appeal, assigning, inter alia, the following specifications of error:
    . First. The court below erred in refusing to allow the receiver counsel fees, and in surcharging him with $100 paid by him on account of counsel fees.

      Second. The court below erred in not allowing the receiver commissions for his services in the management of the receivership.

      Third. The court below erred in surcharging the receiver with $42 45, being the amount of five items for which credit was asked, because no vouchers were produced for said items by the receiver; the payment thereof being duly proved by the receiver.

      Fourth. The court below erred in surcharging the receiver with interest on the sum of $1,647 98, from January 1, 1871, to January 1, 1881,. amounting to $988 78.

      Fifth. The court below erred in surcharging the receiver with the profit realized on the sale of the $1,000 bond of the Lehigh Yalley Railroad Company, and interest on the same, amounting to $216 55.

      Sixth. The court below erred in surcharging the receiver with the sum of $894 95 of uncollected assets ; the evidence showing that the assets of the firm were collected by the receiver with due diligence, and that the claims, amounting to said sum of $894 95, were uncollectible.

      Seventh. The court below erred in surcharging the receiver with the sum of $31 81, being the amount of a deposit not included in the account.

      Eighth. The court below erred in imposing upon the receivér a proportion of the expenses of the audit and settlement of his account, amounting to the sum of $150, as the whole of said expenses should have been imposed upon the fund for distribution.

      John J. Otarle and Francis E. Brewster for appellant.
    There is no fact in the case which justifies the harsh course pursued by the learned auditor in disallowing the receiver’s commissions and the counsel fee of $100, or in imposing three fourths of the expenses of the audit on him, unless it be the' failure of the receiver to collect claims amounting to nearly $900, which he endeavored to collect, but found uncollectible.x As the auditor has surcharged the appellant with the amount of these claims, it would seem that he was sufficiently punished for his management of the estate without taking away his entire compensation, and, in addition, imposing heavy costs upon him. The evidence fails to show that the receiver was guilty of any negligence or want of diligence in collecting the claims which came into his hands.
    It has been repeatedly held that it is the harshest demand that can be made in equity to compel trustees to make Tip a deficiency not owing to their willful neglect: Jackson v. Jackson, 1 Atk., 513; Johnson’s Appeal, 12 S. & R., 317; Neff’s Appeal, 7 P. F. Smith, 91; Witmer’s Appeal, 6 Norris, 120.

      Henry S. Hagert for appellee.
    Where an officer like a receiver grossly neglects to file his inventory and pass his accounts, every presumption in reference to their fairness and justice will be construed strongly against him: In re Carter, 3 Paige’s Ch. Rep., 148 ; Edwards on Receivers, § 1021.
    The auditor surcharged the accountant with interest on the balance in his hands on the ground that he mixed the trust funds with his own, and used.and misappropriated them, and in so doing the auditor was clearly within the line of the authorities : Gilbert’s Appeal, 28 Smith, 266 ; Reeves & Parvin’s Appeal, 38 L'eg. Intel., 441; Stehman’s Appeal, 5 Barr, 413.
    February 4, 1884,
   the opinion of the Court was delivered by

Sterrett, J.:

There was undoubtedly great delay in disposing of the property, settling the business of the copartnership, and-filing a final account, but the receiver was not wholly to:' blame for that. At the solicitation of both partners, and with the view of better disposing of the stock on hand, he continued the business for about six months after the dissolution of the firm ; and, when he obtained an order' of court for the sale of all the property, including the patent and machinery, they interposed' and had the order so modified as to require the patent and machinery to be sold together for not less than $10,000. Pursuant to the order of sale, all the property was promptly sold, except the patent and machinery. For those articles, only a small percentage of the sum fixed by the Court, was offered and they were accordingly withdrawn. It is not even alleged that they, could have been sold then or since for anything near the amount named, and the partners made no effort to have the order so modified that a sale could be effected. It is true, the receiver himself might have applied to the court for a rescission or further modification of the order ; but, under the circumstances, it was quite as much their duty as his to make the application. Being thus prevented, by the active interference of the partners, from effecting a sale of the patent and machinery, the receiver was obliged to provide for the safe-keeping of the latter at considerable expense. It is not alleged that the amount paid for storage and insurance was unreasonable. The learned auditor substan-tially found that in disposing of the property and stock on hand, the receiver acted in good faith, under the advice of counsel, and that the parties now complaining either urged him to do what he did or acquiesced; and hence, he very properly refused to surcharge him either with the expenses of continuing the business, the amount expended for storage and insurance, or the alleged value of the machinery.

In view of the fact found by the auditor, we think there was error in refusing to allow appellant any compensation for his services as receiver. While he was clearly not entitled to the full amount claimed, it does not appear that anything was done or omitted to be done by him that should work a forfeiture of his entire claim. By far the greater part of the services for which compensation is claimed were either rendered at the instance of the partners or made necessary by their active interference. Objection to the allowance of compensation, therefore, comes with bad grace from them. Taking into consideration all the facts and circumstances, as shown by the auditor’s report, we think appellant is entitled to at least $300 for his services, and that sum is accordingly allowed.

The subject of complaint in the sixth specification of error is the surcharge of thirteen uncollected accounts amounting to $894 95, a schedule of which is appended to the auditor’s report. It was the duty of appellant to account for the property and assets that came into his hands as receiver, and if he failed to show that the accounts referred to were uncollectible or worthless, he was properly chargeable with whatever, in the exercise of reasonable diligence, he might have realized therefrom. He therefore undertook to prove that such of the accounts as were available had been collected, and on that subject he was examined by the auditor. Speaking of the accounts, a schedule of which had been furnished by the book-keeper of the firm, he testified in substance that he collected all he could; that he took the accounts to Fairthorn & Rand, a reliable collecting agency, and instructed them to collect all that were available ; that some of the accounts were refused by them as uncollectible ; and, as to those retained by them, they reported to him from time to time, collected all they could, paid over the proceeds, and he charged himself therewith in his account. There appears to have been no conflict of testimony as to these facts, and the only inference that can be fairly drawn from them is that appellant was reasonably diligent in endeavoring to collect the accounts that came into his hands.- Bnt, even if this were not so, there is nothing by which to determine the valne of the accounts with which he was surcharged. They were old accounts, some of them long past due, and for aught that appears, they were entirely worthless ; and, from the facts reported by the auditor, it may be fairly inferred that such was the fact. The evidence was insufficient to justify the surcharge complained of, and it should therefore be stricken out. The surcharge of interest complained of in the fourth specification is erroneous as to the amount thereof. The account of the receiver shows that the average annual disbursements made by him from 1872 to 1880, exceeded the interest on the fund assumed to be in his hands during that time. In computing the interest with which he should be charged, these disbursements should be taken into account. The fund on which interest is properly chargeable is still further reduced by the allowance of compensation to which he was entitled when it was earned, and that also lessens the item of interest making up the surcharge; but it is unaffected by striking out the surcharge for uncollected accounts, for the reason that no interest appears to have been charged thereon. The result of these corrections in the computation of interest is a reduction of $401 68 in the amount surcharged; and, to that extent, the fourth specification of error is sustained.

There is nothing in the remaining assignments of error that requires special notice. They are not sustained.

After deducting expenses of audit, $230 75, and the sums awarded to creditors, viz: $138 88 and $341 61, the balance found by the Court to be in the hands of appellant, and which was awarded to EL S. Hagert, Esq., attorney for Thomas A. McClelland, appellee, is $2,317 43, from which should be deducted as follows:

Allowance for compensation, .... $300 00

Surcharge for uncollected accounts, . 894 95

Reduction in surcharge of interest, . 401 68

-- $1,596 63

Leaving the correct balance,........ $720 80

' Payable to H. S. Hagert, Esq., attorney for appellee, with interest from December 15, 1872, the date of the decree in the court below. Under the circumstances, the costs of appeal should be paid by appellant.

•As above modified, the .decree of the court of common pleas is affirmed and appeal dismissed at costs of appellant.


author: Green, J.:

text:
    January Term, 1883,
    No. 250.
    January 11, 1884.
    Morio’s Appeal.
    1. A master Who has found that there was nothing in the testimony to sustain the bill as it was filed should report a decree dismissing it.
    2. The master has no authority to go outside of the bill and raise and decide questions which were not presented by the pleadings, upon which the parties were never heard by testimony or by counsel, and report a decree entirely foreign to the whole subject of the contention before him.
    3. A testator devised his real estate to his widow for life, with remainder to his son. The son, who was a man of drinking habits, but whose mental capacity was not impaired, afterwards became indebted to his mother for borrowed money, and executed to a third person for her a bond and mortgage upon the real estate for $4,000, in which the mother joined. The mortgage was then immediately assigned to the mother. The real estate was afterwards sold by the sheriff under foreclosure proceedings upon the mortgage, and was bought in for her benefit. The mother, as executrix of testator, was adjudged to have about $2,300 in her hands, to which the son would be entitled upon her death, and the orphans’ court had ordered her to enter security therefor, in default of which she was discharged as executrix. A bill in equity was filed by the son’s widow against the widow of testator and the assignee of the mortgage, praying for an injunction to restrain the sheriff from delivering a deed for the property, and for the cancellation of the mortgage, on the ground that it was given to defraud her of her dower in the land. The bill contained.no prayer for general relief, and the master found that there was no fraud in the giving of the mortgage: The court below ordered that the sale under the judgment on the mortgage should be set aside, that the mortgage should only be held as security for $2,000, and that the plaintiff should be restrained from issuing any further execution on the judgment until the entry of security by her for the proper application of the proceeds of the execution, &c. Held, to be error, the court having no jurisdiction in this proceeding to make any part of the decree. Held, further, that such a decree should not be made in a proceeding which did not raise such questions, and as to which the parties were never heard.
    4. The court in which the judgment on the mortgage was obtained has full power to determine how mucli was due on the mortgage.
    5. The orphans’ court is the'proper tribunal to make whatever order may be necessary to enforce its own decrees.
    Before Mercur, C. J.; Gordon, Trunkey, Paxson, Sterrett, Green, and Clark, JJ.
    Appeal of Henry Morio and Elizabeth Morio from the decree of tlie Court of Common Pleas, No. 2, of Philadelphia, County, reducing the amount and restraining proceedings upon an alleged fraudulent mortgage. ■
    Bill in equity filed by Theresa A. Morio against Henry Morio and Elizabeth Morio, setting forth, inter alia, as follows :

      First. That Peter Morio, Sr., in 1874, died, owning the property described in the contested mortgage.

      Second. That he devised said property to his widow, Elizabeth Morio, for life, and at her death to his son, Peter J. Morio. He appointed his widow executrix.

      Third. That Peter J. Morio died July 5, 1877, leaving said Theresa A. Morio, his widow, sole devisee ; she thus becoming entitled to the estate in remainder left by Peter Morio, Sr., after the death of Elizabeth Morio.,

      Fourth. Alleges Avaste on part of life tenant.

      Fifth. That the said Peter J. Morio, about two years before his death, to Avit: on the 23d day of July, A. D. 1875, at a time when he was very unkind to your oratrix, while under the influence of his mother, and influenced by her, and A\diile being incapable of resisting said influence, joined with the said Elizabeth Morio in a mortgage for $4,000, upon said described premises, to Joseph. Lei-brand, Avitliout one farthing of consideration, with the intent thereby to defraud your oratrix of her interest and dower in said real estate. That the said Joseph Leibrand, on the same day last aforesaid, assigned and transferred said mortgage to said Elizabeth Morio; that the said Peter J. Morio, at the time of his death, declared that said mortgage was created without consideration, and for the purpose of defrauding your oratrix of her dower, and of all her rights in said property, and he expressed his sorrow for the act and called the said Elizabeth Morio to cancel said mortgage, wkich she refused to do, and he died before he could procure its cancellation.

      Sixth. That Elizabeth Morio has assigned the mortgage to Henry Morio, who has foreclosed it Avithout notice to said Theresa A. Morio, and had it bought in at sheriff’s sale for her benefit. That the proceedings and sale were so conducted as to keep them from her knowledge, and with the intent to defraud her out of her estate in remainder in the property. '

      Seventh. That the orphans’ court has discharged Elizabeth Morio from her office as executrix of Peter Morio, Sr., estate.
    The bill prayed:

      First. That an injunction be issued against the sheriff from delivering a deed for the property sold under the judgment of Henry Morio on the fraudulent mortgage.

      Second. That the mortgage be decreed fraudulent and void, and be delivered up for cancellation.
    The bill, answer, and testimony taken thereunder were referred to Edward R. Worrell, as master, who found the following facts:
    ' First. That upon the death of Peter Morio, to wit, the 25th day of April, 1874, Elizabeth Morio, his widow, took under his will, a life estate in the premises described in the bill with remainder to their son, Peter J. Morio, (now deceased,) of whom the plaintiff is the widow and sole devisee.

      Second.. That on the 22d day of July, 1875, the said Elizabeth Morio and the said Peter J. Morio executed the mortgage in issue to Joseph Leibrand, who paid no consideration therefor, and who immediately assigned the same to the said Elizabeth Morio.

      Third. That the said mortgage accompanied the joint bond of Elizabeth Morio and Peter J. Morio to the said Joseph Leibrand, conditioned for the payment of the sum of $4,000.

      Fourth. That, at the time the mortgage was assigned, the said Peter J. Morio was indebted to his mother for borrowed money, the amount of which, however, was not proven, as the mother claimed that the mortgage was a gift to her, and had no moneyed consideration to support it.

      Fifth. That Peter J. Morio was a man of drinking habits, but that his mental capacity was not impaired, nor was he unduly or improperly influenced by his mother.

      Sixth. That the mortgage in issue was the intelligent act of Peter J. Morio while he was entirely sober, and that he was not influenced by his mother, to or in its execution.

      Seventh. That the mortgage was a gift and not a security for Peter J. Morio’s indebtedness to his mother.

      Eighth. That there is no evidence to support the charge of waste, &c., contained in paragraph four of the bill.

      Ninth. That the defendant, Henry Morio, paid no consideration for the assignment to him, and he holds the mortgage as trustee for Elizabeth Morio.
    The master reported as follows :
    “The testimony that the mortgage was a gift, is not as satisfactory as might be desired, but is, perhaps, of little importance in view of the fact that the single ground on which the mortgage is attacked by the plaintiff fails entirely to be sustained by the testimony ; the weakness of the defendants’ evidence cannot be the basis of a decree against them.
    The equitable jurisdiction of the court attached under the charge of waste and the prayer for a receiver, or otherwise the master would have dismissed the bill without prejudice and left the parties to their remedy at law under the scire facias issued upon the mortgage.
    The plaintiff having failed to defeat the mortgage, a question presents itself to the master which was not raised by either of the parties, to wit: for what amount of the debt named in the bond can the mortgage be held as security ? The master is of the opinion that it cannot be a security for more than $2,000, and that Elizabeth Morio cannot collect under it the sum of $4,000, for which she is jointly liable; that she cannot use the mortgage to compel her coobligor to pay, individually and in full, an indebtedness created by .tlieir joint bond.
    The master is of opinion that the case is a proper one for the application of the doctrine of contribution.
    It was shown before the master that Elizabeth Morio, as executrix of Peter Morio, deceased, had been adjudged by the orphans’ court of Philadelphia to be in default in the sum of about $2,300, which amount Mr. Moyer claimed should be applied to the payment of the mortgage in issue ; the master is, however, of opinion that the enforcement of the decree of the orphans’ court must properly rest with that court, and that in this proceeding no decree could be made which would exempt the executrix from the process of the court having exclusive jurisdiction over her accounts.
    The master is of the opinion that, under all the circumstances, the sheriff’s sale, under the mortgage, should be set aside, and that the assessment of damages should be corrected with the views herein expressed, before an alias execution should issue.”
    The defendants’ counsel filed exceptions to the master’s report, which were dismissed by the Court below, Mitchell, J., delivering the following opinion:
    “We see no ground to disturb the master’s finding that the mortgage in question was a gift by Peter J. Morio to his mother, and that it was his voluntary and intelligent act. The master has reported, however, that the mortgage being the joint act of Peter and his mother, she is equally bound by it, and cannot now enforce it against his estate for more than one half its nominal amount. While it may be doubtful whether this conclusion can be sustained technically on the ground of contribution, it is nevertheless quite clear that Peter, having the reversion, joined his mother, who had the life estate, with the purpose of making a good mortgage of the fee for $4,000. For this purpose, the parties appear to have treated the life estate and the reversion as equal in value, and all that Peter intended to pledge was his portion. The clear intent of Peter, therefore, was to make a gift of his half of the mortgage to his mother, and we think his estate is entitled in equity to be relieved from any greater burden. "We are, therefore, of the opinion that defendant, Henry Morio, holds the mortgage in question as a valid security for $2,000, and for no more.
    It appears from the bill and answer, and the records of the orphans’ court in evidence, that Elizabeth Morio, the mother, has been adjudged to have in her hands, as executrix of Peter Morio, Sr., the sum of $2,330 25; that she has been ordered to enter security “to protect the persons entitled thereto after her death;” that she has been discharged from her office of executrix for failure to enter such security; 'that she has been ordered to pay over that sum to the administrator, c. t. a., of Peter Morio, Sr., and that proceedings for attachment for contempt in not paying over said amount are now pending in the orphans’ court.
    It further appears by paragraphs two and three of the bill, admitted by the answer to be true, that under the wills of Peter Morio, Sr., and Peter J. Morio, the present complainant, Theresa A. Morio, will be entitled to the said sum of $2,330 25, upon the death of Elizabeth Morio. Under these circumstances, it would not be equitable to permit Elizabeth Morio to enforce her collection of $2,000 against Theresa, and to put the money in her pocket without security for the compliance with the order" of the orphans’ court. But, at the same time, it may be that the collection of this debt may be necessary to enable Elizabeth to comply with such order. An injunction will, therefore, b,e granted against the issue of execution upon the mortgage, until, by entry of security for the application of the money, or in some other mode which counsel may suggest, the reversionary rights of complainant, Theresa Morio, in the estate of Peter Morio, Sr., are secured. .
    And now, to wit: January 11, 1883, it is ordered, adjudged, and decreed, that the exceptions be dismissed; that Henry Morio, trustee, holds the mortgage in question as a valid security for the sum of $2,000, and accrued interest; that the sheriff’s sale be set aside at the costs of plaintiff in the execution ; and that said plaintiff be restrained from issuing further execution upon said mortgage until the entry of security for the application of the proceeds of execution, or until the further order of the Court, and for any greater amount than $2,000 and accrued interest.”
    Defendants then appealed, and assigned as error the refusal to dismiss the bill and the entry of the above decree.

      Edmund Randall for appellants.
    The bill should have been dismissed, as there was nothing left in it for the consideration of the master or the court. There was no fraud shown, and there was no loss of dower by the mortgage given by the husband, because there is no dower right in such estate: 2 Serg. & R., 556; and if there was such right, plaintiff below waived it by accepting as sole devisee under her husband’s will: Reed v. Reed; 9 Watts, 263; Kellinger ». Reidenhauer, 6 Serg. & R., 531. This claim was, however, abandoned before the master, and a new one urged, to wit: That the mortgage was not the intelligent act of Peter J. Morio.
    If the right of contribution existed in this case, the master had no right to award it, as the plaintiff had waived it by not setting up such a claim: Harrisburg Bank v. German, 3 Barr, 300; Cutter v. Emery,' 37 N. H., 577; Mosier’s Appeal, 56 Penna., 76 ; McCormick v. Irwin, 11 Casey, 111. The right of contribution does not exist between a donor and a donee. There can be no contribution between coobligors where one signs at the request of the other: Hendrick v. Whittemore, 105 Mass., 23; Cutter v. Emery, 37 N. H., 567; Taylor v. Savage, 12 Mass., 102 ; Rosse v. Sterling, 4 Dow, 463.
    There is no testimony to support the assertion by the Court below that “the parties appear to have treated the life estate and the reversion as equal in value.”
    The appellee has no interest in the decree of the orphans’ court that entitles her to an injunction ; but even if .she has, the orphans’ .court can protect all rights.

      J. M. Moyer for appellee.
    The appellee claims no dower right but as devisee under the will of her husband alone. The grounds of relief may be gathered from the pleadings and proofs: Whelan v. Whelan, 3 Cow., 537; Darlington’s Appeal, 5 Norris, 512.
    The bond and mortgage, being two instruments, are but one act, and when one is paid, the other is void. The master found no money consideration to support the mortgage, and had difficulty in pronouncing it a gift. The evidence shows that it was not a gift: McTaggart v.
      Thompson, 12 Harris, 153; Rambler v. Tryon, 7 Serg. & R., 90 ; 2 Johns, Ch. 43 ; 3 Wharton, 422 ; 8 Wr., 276 ; Goodman v. Losey ; 3 W. & S., 529 ; Herman on Estoppel, sec. 468, 472; Field ». Langsdori, 43 Mo., 32.
    Peter J. Morio was not capable of making a deed and resisting the maternal influence : 6 .Harris, 174; 24 P. F. Sm., 249 ; L. C as in Eq., 1187; Anderson •». Elsworth, 3 Gif., 169; Phillipson ». Kerry, 32 Beav., 635; Turner ». Collins, 7 Law Rep. Ch., App., 339 ; 3 Eng. Ch. R., 32 ; 3 Price, 368 ; 1 Jar. on Wills, 16-18.
    The amount of the decree in the orphans’ court should be allowed as a set-off to the judgment on the mortgage : 3 W. & S., 349; 2 Watts, 173; 6 Penna., 37; 3 Yeates, 152; 25 Penna., 352 ; 7 Serg. & R., 9 ; 15 Id., 77.
    February 18, 1884,
   the opinion of the Court was delivered by

Green, J.:

The object of the bill, in this case, was to set aside the mortgage given by Peter J. Morio to his mother, on the ground that it was given to defraud the widow of Peter J. Morio of her dower in the land bound by the mortgage. The averments of the bill all relate to that one subject, and the prayer for relief was that the mortgage might be declared fraudulent and void as to the widow. There was no prayer for general relief, and the prayer for an injunction is simply to restrain the delivery of a deed by the sheriff, on the ground that the property was sold under a judgment obtained on a fraudulent mortgage.

There was nothing in the case, therefore, except the question of a fraudulent mortgage. There was an allegation of waste, but no prayer to restrain it, and the master has made express finding that there was no evidence, to support the charge of waste. He also finds that “ the single ground on which the mortgage is attacked by the plaintiff fails entirely to be sustained by the testimony.” Having found that there was nothing to sustain the bill, he says he would have dismissed it, had it not been for the charge of waste, and then, having found there was no waste, instead of dismissing the bill, he proceeds to consider a question which was not raised by the pleadings, and upon which neither party was heard. Upon that question, he decides that the mortgage could only be held for $2,000, because Elizabeth Morio, the mother of the mortgagor, was a party to it. ■ He infers that she was bound to pay one half of the mortgage, because she was jointly liable on the bond and mortgage, and was, therefore, bound to pay one half of it on the principle of contribution. He then introduces another subject altogether, equally foreign to the pleadings, to wit: That Elizabeth Morio was executrix of her husband’s estate, and had settled her account in the orphans’ court, showing a balance of $2,300 in her hands, which he says the counsel for the plaintiff claimed should be applied to the payment of the mortgage. He declines, however, to interfere with the province of the orphans’ court in enforcing any decree that court -might make, but he recommends a decree setting aside the sheriff’s sale of the land in question under the judgment on the mortgage, (though no such relief had been asked,) and a re-assessment of damages in the sci.fa. on the mortgage, in accordance with his views on the subject of contribution, although there had been full opportunity to make that defense in that proceeding, and an application to open the judgment on the sci. fa. had been made and refused by the court in which it was obtained.

In all this there was clear error on the part of the master. Having found that there was nothing in the testimony to sustain the bill as it was filed, it was his plain duty to report- a decree dismissing it. He had no authority to go outside of the bill and raise and decide questions which were not presented by the pleadings, upon which the parties were never heard by testimony or by counsel, and. report a decree entirely foreign to the whole subject of the contention before him. The Court below did not adopt the views of the master on the subject of contribution by Elizabeth Morio, but reached the same conclusion upon the theory that the parties to the mortgage must be presumed to have treated the life estate and the reversion as of equal value, and, therefore, that Peter J. Morio’s intent could only have been to give one half of the mortgage to his mother. Whether this was so in fact, we will not undertake to decide, because the parties have never been heard upon that question, and there is nothing in the .pleadings to raise it. The learned judge of the Court below thought that the decree of the orphan’s court for securing the payment of $2,300 in the hands of Elizabeth Morio, as life tenant, should be considered, and, therefore, ordered the sale under the judgment on that mortgage to be set aside, that the mortgage in question should only be held as security for $2,000, and that Elizabeth Morio should be restrained from issuing any further execution on her judgment until the entry of security by her in the orphans’ court for the proper application of the proceeds of the execution. We are constrained to say that in our opinion there was no jurisdiction in this proceeding to make any part of this decree. The court in which the judgment on the mortgage was obtained has full power to determine how much was due on the mortgage, and the orphans’ court is the proper tribunal to make whatever order may be necessary to enforce its own decree. In any event, such a decree should not be made in a proceeding which did not raise such questions', and as to which the parties were never heard.

Decree reversed and bill dismissed at the costs of the appellee.