Hemphill v. Pry

Opinion by Mb. Justice Mitchell, The practice of orphans’ courts in ordering sales or mortgage of the real estate of decedents for payment of debts, years after •death and after the usual statutory period of limitations has run, appears to have become very loose, and is in need of revision and greater caution for the preservation of the rights of heirs and devisees. The learned court below in their opinion on the question reserved at the first trial, expressed the very proper view that the better practice would be to have all the jurisdictional facts appear at large on the petition for the order of sale. But even this is not always enough. The statute unfortunately does not require notice to the widow and heirs or devisees, as it ought to do, but the orphans’ court is a court of equity, and when the lapse of time or other circumstances in the case raise a reasonable presumption that other rights may have intervened, it is always the duty of a chancellor, even of his own motion, to be satisfied that such rights shall not be prejudiced without notice and an opportunity of hearing. In the absence of such opportunity the proceedings will be closely scanned to see that they conform strictly in all respects to the law. In the present case the order to mortgage was made nearly nine years after decedent’s death, and more than six years after the notes which it was to secure had become due. Prima facie, therefore, the notes were barred by the statute of limitations, and their statutory lien as debts of the decedent upon his real estate had expired. This was the situation when the appellant, W. H. Fredericks, purchased the interest of two of the heirs. [601] What was there to prevent his acquiring a clear title ? It is said that there was a direction by the testator to sell for the payment of debts, and this took the case out of the statute. But the direction was the usual formal one that all his “ honest debts be paid as soon after (his) decease as possible,” and the further direction to sell was “that all my real and personal property be sold and converted into money .... I hereby grant unto my executors the term of five years in which to make sale of my estate as aforesaid.” There was here no express trust to sell for the payment of debts, the power to sell was for the general purposes of the will, and was moreover in express terms limited to five years, which had expired before this mortgage was made. But it is further said that the running of the statute of limitations against the note had been prevented by the payment of interest on them by the executor, with the assent of the widow and heirs. This is the only ground on which the judgment can be sustained, and so far as the evidence justified the verdict it was entirely sound. The law was correctly stated by the learned court in their opinion on the question reserved at the first trial that “ the jury should have been instructed that if the notes of Margaret Hemphill were not under seal and were overdue six years before the mortgage was given, that the mortgage was invalid as against the intervening defendants unless the interest was kept paid upon the notes after the death of J. T. Fredericks, either by them or by the executor with their knowledge and consent, to within six years of the date when the mortgage was given, or unless something was done by them that would stop the running of the statute as against the collection of Mrs. Hemphill’s notes, or stop them from calling in question the validity of the mortgage.” The mortgage was clearly valid against parties assenting to keeping the notes alive by payment of interest, but on the second trial the court unfortunately overlooked the fact that two of the sons were minors at the time of such payments and could give no assent which would bind them. When they sold to a purchaser, the appellant, they disaffirmed any assent they may have given during infancy, and as already shown, the statute of limitations had ^h’eady apparently run against the notes, the statutory period of fien of debts had expired, and so also had the testamentary poweisof sale given to the executor. Whether or [602] not under these circumstances a purchaser would be bound by a secret lien, under the rule that a purchaser from an heir takes only such interest as the heir may ultimately be shown to have, it is clear that he would not be so bound unless his grantor would also. As already said, the two grantors of appellant, W. H. Fredericks, were minors at the time, and we have examined the testimony carefully without finding anything to show that they even expressly consented, much less that they had a guardian to advise and care for their interests. There was therefore no sufficient evidence to justify the submission to the jury of the question of assent as against them, or their grantee. ■ Judgment reversed as to appellant, W. H. Fredericks.