Leedom v. Lombaert

Mr. Justice Mercur delivered the opinion of the court, The argument of the twenty-five assignments of error was well made by the counsel for the plaintiff under three questions. The first relates to the validity for any purpose of the mortgage in question. [389] The plaintiff in error was the testamentary trustee of certain real estate, for the use and benefit of his wife, and their children. He applied, by petition, to the Orphans’ Court of the proper county, setting forth that the said real estate was much dilapidated, and required repairs to the houses and saw-mill, and that the personal estate in his hands and under his control, as trustee, was insufficient for the improvement and repairs of said real estate, and for the purposes necessary to carry out the trust. He therewith exhibited a true and perfect inventory and conscionable appraisement of all the personal estate whatever in his hands as said trustee. He therefore prayed the court to order the mortgage of said real estate, or so much thereof, and for such sum as to the court should appear necessary for the improvement and repairs of said real estate, and for the purposes of the business of said trust. Thereupon the court appointed an auditor to take testimony and report the facts, together with his opinion. The auditor reported, fully sustaining all the averments in the petition, and recommended that the petitioner “ be authorized to mortgage the said real estate to the amount of $5500, which would be in no way an injury or prejudicial to the estate.” The court confirmed the report, granted the prayer of the petitioner, and decreed that he be ordered and authorized to mortgage the property to an amount not exceeding the sum recommended by the auditor, for the purposes stated in the petition, on his giving security, to be approved by the court, in the sum of $10,000, conditioned for the faithful appropriation of the mortgage-money for the benefit of the trust. The record shows the bond, duly executed by the trustee and two sureties, was filed a few days thereafter. It is endorsed approved over the signature of two of the associate judges. It is claimed that this was not sufficient evidence of the approval, and that parol evidence that it was not approved by the court was improperly rejected. The record shows it was filed and approved. It was a statutory bond. The law presumes it was properly examined and passed upon by the court as a part of the proceedings before it was approved and filed: Hartz v. Commonwealth, 1 Grant 360; Boyd v. Commonwealth, 12 Casey 355. In Lockhart v. John, 7 Barr 138, it was held, that the provisions of the Acts of Assembly of 1832 and 1834, requiring administrators to give security for the faithful application of the proceeds of Orphans’ Court sales, were directory merely, and the want thereof did not avoid the sale. So in Thorn’s Appeal, 11 Casey 47, the giving of surety was treated as directory under the 6th and 10th sections of the Act of 18th of April 1853, 2 Purd. Dig. 1242, although in this case security was given before confirmation of the sale. It is further objected that the record fails to show notice to all the persons interested. The Orphans’ Court is a court of record. [390] It has, within its jurisdiction, all the qualities and incidents of a court of record at common law. It had undoubted jurisdiction of the trustee and of the property. “ Its proceedings and decrees in all matters within its jurisdiction shall not be reversed or avoided in any other court:" 2 Purd. Dig, 1103, pl. 4. In collateral suits and proceedings they must be held conclusive, unless impeached for fraud, or want of jurisdiction appearing on the record: Painter v. Henderson, 7 Barr 48; Welty v. Ruffner, 9 Id. 224; Keech v. Rinehart, 10 Id. 242; Dixey’s Executors v. Laning et al., 13 Wright 143. Where jurisdiction is established, the presumption is, that all directory provisions have been followed: Pittsburg v. Walter, 19 P. F. Smith 365. The mere omission to state on the record some of the intermediate steps cannot make its decrees void. The Common Pleas has no power to inquire into mere irregularities. Hence, the record was rightly admitted in evidence, and there was no error in rejecting all the parol evidence offered, to impair its effect. It gave to the trustee a clear right to execute a mortgage of undoubted validity, according to the terms of the decree. Second. Under and by virtue of that decree the mortgage was executed to Eorrest. It recites the decree of the court; the giving of security, and the approval thereof by the court. More than nine months thereafter it was sold and assigned by Eorrest to Mrs. Lombaert, at a small discount. The assignment was made to her, and the money paid therefor by her agent, Cochran, in the presence of the mortgagor, the plaintiff in error. The evidence shows that Eorrest was not the bond, fide holder of the mortgage for full value ; but the jury have found that Mrs. Lombaert had no notice that Forrest had not given value for the mortgage, and that he was not the bond fide owner. And they have further found that she was induced by both the mortgagor and mortgagee to believe that he, Forrest, had received the mortgage in a regular way, and that the plaintiff in error had no set-off against it; also, that she had no knowledge that the money was to be misapplied by him. Taking the whole charge, and the answers to the points, the learned judge appears very distinctly to have told the jury substantially that she could not recover any more on the mortgage than what she purchased in good faith, and without a knowledge of the manner in which it was held by Eorrest. Defence to the mortgage is made by the mortgagor alone. It is not shown by the record that the eestwis qui trustent make any defence; nor does it appear in the evidence that they are not fully secured by the obligation given. Mr. Cochran acted as agent for ‘Mrs. Lombaert in the negotiation and purchase of the mortgage. While thus acting he received no information of any fact calculated to impair its validity. Leedom had full knowledge of the negotiation between Forrest [391] and Cochran while it was in progress. Yet, he answers: “ I don’t know that at any time I told Mr. Cochran that I had any defence or offset to this mortgage.” Again, he testifies: “At the time the matter was closed, I don’t know that I mentioned to him (Cochran) that I had any defence.” He was not only present, but was consulted as to the discount on the mortgage, and assented to it. His whole conduct clearly led the purchaser to believe that he had no defence to the mortgage. He not only exhibited that expressive silence, which in equity would be a fraud for him now to gainsay, but he gave positive encouragement to the purchaser to rely on the validity of the mortgage. He is now estopped from alleging his own breach of trust to the prejudice of a good faith purchaser: Weaver v. Lynch, 1 Casey 449. Third. The record does not show that the trustee was discharged. It does show that after verdict, and before judgment, the counsel for plaintiff in error, by leave of the court, did suggest that he had been dismissed from his trust; but when that dismissal occurred nowhere appears. No evidence of the fact was either given or offered on the trial. The pemark made by the judge to the counsel, just before charging the jury, that there was “no evidence of notice to Mr. Cochran that Forrest was not the real holder of the mortgage, but was only acting for Leedom,” did not preclude them from arguing the case then, n:or from requesting leave so to do when they saw the court was about to submit the question of notice to the jury. Having omitted to do either, we do not now think the remark of the judge a sufficient cause for reversing the judgment. Judgment affirmed.