Fessenden's Estate

Opinion by Mr. Justice McCollum, We cannot discover a scintilla of evidence in this casé to support the finding that the eighteen acre lot was sold on a judgment entered on the 25th of March, 1867. Is is an important finding because upon it is based so much of the decree appealed from as requires that the fifty-seven acre lot purchased by Moses S. Tyler on the 12th of March, 1868, “shall be exhausted in payment of the sum due the estate of Samuel N. Fessenden ” before resorting to the eighteen acres for the payment of any portion of the same. The general rule is that the finding of an auditor approved by the court will be sustained on appeal, if there is any evidence which warranted it, but his finding of a material fact without evidence or palpably against it constitutes ground for reversal. In the case before us it seems to be conceded by the learned counsel for the appellee that no evidence was submitted to the auditor on the hearing by either of the litigants showing when the judgment on which the eighteen acre lot was sold on the 22d of April, 1874, was [642] entered. As the purchaser of this lot acquired his title to it more than seven years after Tyler purchased the fifty-seven acre lot, it was incumbent on the former to prove the existence of facts which gave him as against the latter the position and rights of a first purchaser. These lots prior to the sale of either of them were alike subject to the charge laid upon them by the will of Asa Fessenden, in favor of his sou Samuel. Prima facie, Tyler by his purchase acquired the right, in equity, to have the eighteen acre lot sold in satisfaction of this charge before resorting to his lot for payment of it. If his grantor still owned the eighteen acre lot, or had subsequent to his purchase of the fifty-seven acres sold and conveyed it to the present owner of it, there can be no doubt that this equity could be enforced. We think it is equally clear that it could be enforced if the lot was sold on a judgment entered after the Tyler purchase. B ut the learned court below appeared to think it was sold on a judgment entered before this purchase and that, therefore, the present owner of it must be regarded as the first purchaser of a portion of the property charged with the support of Samuel. Whether the conclusion is warranted by the premises is a question which was not discussed or raised in the paper-books, or on the argument at bar, and we express no opinion in regard to it. To do so intelligently we ought to know when the judgment was entered and when it was revived, because, if it was entered before the Tyler purchase, a timely revival was necessary to continue the lien of it beyond the 12th of March, 1873. It is claimed by the appellant that the lien of the Read, Watrous & Foster judgment was lost before the sale in 1874, and that the Meacliam judgment was entered on the 6th of April, 1870, and to show the good faith of his contention in this respect, his counsel exhibited on the argument at bar an exemplification of the record which appeared to sustain it. We may add that the registry of the acknowledgment of the sheriff’s deed shows that the lot was sold on the Meacham judgment. It seems to us that justice to all concerned requires that we sustain the first specification and reverse the finding on which it is based, so that it may be ascertained, on competent evidence, upon what judgment the lot was sold, the time of its entry, and of the revival or revivals of it, if there were any before the sale. [643] We are not satisfied from our examination of the testimony that the learned auditor erred in the finding complained of in the third specification, or in not finding as it is claimed in the second specification he should have found as to the matters mentioned therein. We think that as F. A. Fessenden was made a party defendant in this proceeding, and was by reason of his acceptance of the devise personally and primarily liable for the support of Samuel, the decree should have been entered against him for the amount due Samuel’s estate, to be levied, on his and his vendees’ failure to pay it within a time specified, on the lands secondarily liable for it, in the inverse order of their alienation. We agree with the learned court below in its conclusion that the charge upon the Tyler lot is not extinguished by the act of April 27, 1855, P. L. 369, or by the supplement thereto of Feb. 2,1869, P. L. 3. The reasons given for this conclusion are quite sufficient to sustain it. There was no default on the part of the person primarily liable for Samuel’s support prior to 1890 and Tyler kuew there was none. From 1864 to 1890 Samuel was maintained by his brother Frederick in accordance with the provisions of his father’s will and to that extent the burden on the lands on which his support was charged was lightened. Frederick’s support of him during this period was in relief of his vendees, who were advised by the will of his father of the terms on which he might dispose of the lands devised to him, but it cannot be construed as an extinguishment of the charge upon them. We are not convinced that the proceedings to ascertain the amount due Samuel’s estate were premature or tainted with fraud. To the extent that the rulings complained of conflict with the views herein expressed the specifications are sustained. The remaining specifications are dismissed. Decree reversed at the costs of the appellee, and it is ordered that the record be remitted to the court below for further proceedings in accordance with this opinion.