Sager v. Mead

Opinion by Mb,. Chief Justice Sterrett, This action of ejectment for the land described in the writ [130] had its inception in circumstances which appear to be quite out of the ordinary course. On October 6, 1870, George A. Cobham. died testate, seized, inter alia, of the land in controversy, leaving to survive him three daughters: Georgena C. Cobham, Elizabetli (intermarried with John Sager) and Alice (afterwards intermarried with George Mead, the defendant, and since dead), and a stepson. Henry Cobham, who was also a nephew of the deceased. As appears by his will, the testator devised said lands to Henry •Cobham, Georgena C. Cobham, John Cobham and Rasselas Brown, upon the various trusts, for life etc., specified in said •will, and appointed them executors. The office of trustees having become vacant by the death of said Georgena C. and John Cobham, and in consequence of the other two trustees having ceased to act, in August, 1891 said vacancies were filled by the appointment of plaintiffs. Pursuant to a citation issued and served on Georgena C. Cobham, Elizabeth Sager, John Sager, Alice Mead and George Mead, said will was presented for probate. Thereupon a caveat •was filed by said John Sager, Elizabeth Sager and Alice Mead, -and the matter was so proceeded in, at the instance of the said •caveators, that an issue was directed “to try the validity of said writing and the matters of fact that may be objected thereto.” That issue was afterwards discontinued by Mr. S. P. Johnson, attorney for the parties thereto, and all the papers withdrawn from the record. Said will was not probated until April 10, 1875. In the meantime Georgena C. Cobham, Elizabeth Sager, Alice Mead, George Mead and Henry Cobham, ignoring said will, waived their right to administer ; and upon their request, letters of administration on the estate of said George A. Cob-ham were granted to Rufus B. Smith, who was afterwards removed and letters of administration de bonis non were issued to W. M. Lindsey. On June 18, 1871, the six persons above named entered into an agreement: (1) That the application for probate of the will aforesaid should be withdrawn; (2) That W. M. Liudsey shall take out letters of administration on the estate of said deceased and sell the real estate for the payment of debts ; (3) That George N. Parmlee shall purchase the property at [131] said sale and hold the same for redemption by and distribution to and among the parties to said agreement according to their original rights and equities in the same, and as if the said George A. Cobham had died intestate ; (4) That the distribution of said property should be made in the manner specified in said agreement, etc., etc. Pursuant to an order of sale made December 13, 1871, all the real estate of said decedent was sold by said Lindsay, as administrator de bonis non, etc., and bid in by said Parmlee ; and afterwards, in accordance with the terms of said agreement, the property was divided and deeds made by said Parmlee to the respective parties. Recognizing George A. Cobham as the common source of title, plaintiffs, as substituted trustees, etc., claimed under his will probated, as above stated, April 10,1875, and defendant ■relied on the orphans’ court sale. Plaintiffs’ contention was that said sale was void and of no effect: (1) Because the register had no authority to grant letters of administration when the will was known to be in existence ; (2) because the petition presented by said administrator to the orphans’ court was insufficient to give said court jurisdiction to order the sale; and (3) because the agreement of June 18,1871, between the tenants for life, for withdrawal of the will from probate, etc., together with their proceedings thereunder, was a fraud upon those entitled in remainder ; and defendant being a party thereto and fully cognizant of the fraudulent purpose cannot successfully claim thereunder. The question, as to the jurisdiction of the register, etc., is involved in the first nine specifications of error. The tenth relates to the alleged insufficiency of the administrator’s petition for the order of sale ; and the remaining six relate to the offers to prove the alleged fraudulent and collusive agreement to which defendant was a party, entered into and carried out for the purpose of ignoring the will and defeating its provisions, by means of the orphans’ court sale, in the interest and for the benefit of the tenants for life, and to the prejudice of those interested in remainder and now represented by the substituted trustees, plaintiffs. If it be conceded that such was the purpose of the parties to said agreement, etc., it can scarcely be doubted that the pro [132] ceedings were fraudulent and void as to those whose interests W'ere intended to be thus injuriously affected, without being made parties to the proceeding or having an opportunity to be heard. It is not seriously contended that this would not be so, but it is insisted that the decree of the orphans’ court, under which the sale was effected, cannot be impeached and avoided in a collateral proceeding. As a general rule, the principle invoked is correct, but we think it has no application to the case under consideration, for the reason that those whose rights and interests were injuriously affected by the decree, into the procurement of which the alleged actual fraud entered, were neither parties to the proceeding nor have they ever had a day in court. Such cases are not within the rule. As to the interests thus defrauded the decree is, as it were, non coram judice and void. It is not pretended that those entitled in remainder under the will in question were parties to the agreement ignoring that instrument and effecting a sale of the lands in question as though the testator had died intestate. The principle contended for by the plaintiffs, and which we think applies to the facts of this case, is recognized in several cases, among which are: Jackson v. Summerville, 13 Pa. 359 ; McCaskey v. Graff, 23 Pa. 321: Seylar v. Carson, 69 Pa. 81 ; Otterson v. Middleton, 102 Pa. 78; Gilbert v. Hoffman, 2 Watts, 66; Dean v. Connelly, 6 Pa. 239. In the case first cited, it appeared that, in an action of partition, based upon a deed wliich had been obtained by fraud, the land was adjudged to the defendant; and it was held that “though a judgment of a court of competent jurisdiction cannot be overturned in a collateral proceeding upon an allegation of mistake or error, yet when actual fraud had been used by a party in procuring a deed, and the deed is used as a means of obtaining a judgment in partition of the land, part of which was conveyed by the deed, the decree in partition is void, to the extent of the fraud, as to party defrauded, though it may be valid with respect to other interests not involved in the fraud.” This is upon the principle that actual fraud vitiates all contracts and proceedings into which it enters and renders them null and void as to the party or parties defrauded. Delivering the opinion of the Court in that case, Mr. Justice Coulter, said: “ That decree was rendered upon the faith of the fact that the Summervilles were legally [133] and honestly represented by Jackson. But if the deed were fraudulent and void, the title never passed out of the Summervilles, but still resides in their legal representatives. Whilst therefore the decree is good as against the interest honestly represented before the court, it is void as against the interests not represented at all; that is, not represented in the eye of the law. As to that interest, the decree of the court was, as it were, non coram judice. Where the parties have been heard or due notice has been given, the judgment or decree of the court upon the point in issue cannot be overturned, in a collateral proceeding, upon an allegation of mistake or error. That is the law. But where fraud has been used by the party, and enters into the procurement of the decree, the law holds up the mirror of truth, and it fades away.” It follows from what has been said that the proposed evidence at least tended to prove the allegations of the plaintiffs and should have been submitted to the jury with guarded instructions as to its legal effect. As to the specifications relating to the jurisdiction of the register to appoint an administrator, etc., it is sufficient to say that, generaby speaking, that officer has jurisdiction to appoint an administrator to act until a will is presented and proved. In this case, however, it is only necessary to consider the appointment of the administrator in so far as it may appear to have been part of the alleged general scheme of the parties to the agreement aforesaid, to ignore the will and defeat its provisions, to the prejudice of the rights of those entitled in remainder. While the petition of the administrator de bonis non for the order of sale is not strictly formal and beyond the reach of adverse criticism, we cannot say that,—standing alone and disconnected with other facts, including those embraced in the rejected offers,—it was insufficient to give the court jurisdiction. On the whole, with the proposed evidence before the jury, we think such a case would be presented as should be submitted to them under proper instructions. Judgment reversed, and venire facias de novo awarded.