Grubb v. Galloway

Opinion by Mr. Justice Mitchell, The petition in the orphans’ court averred, affirmatively and specifically, every fact necessary to support the decree authorizing the mortgage, and the decree ivas therefore a judicial ascertainment of the truth of such facts, on which the mortgagee was entitled to rely. The learned judge below so held in regard to the date of decedent’s death, but drew a distinction as to the debts set up in the schedule to the petition, and held that the latter exhibited such looseness or irregularities as to put the mortgagee upon inquiry as to the actual facts. This distinction is inconsistent with the other ruling and indefensible on principle. The decree was conclusive of everything involved in it and in reaching the result the orphans’ court necessarily passed on the subject of the debts in the schedule, as fully as on the date of decedent’s death, and determined that they were debts of the decedent, a lien on his real estate, and of the proper amount to require the mortgage petitioned for. The mortgagee was not bound to examine for himself and come to a different conclusion at his own risk, but was entitled to rely on the court’s decree as a conclusive adjudication of all the facts, so far as concerned the validity of the title under the mortgage. Much reliance was placed by the court below on Smith v. Wildman, 178 Pa. 245. That case went to the utmost verge in authorizing collateral attack on a decree of the orphans’ court, but it falls far short of sustaining a judgment like this. In that case the petition for sale merely recited that the de [242] cedent died intestate, owning real estate but not enough personalty to pay the debts. No averment was made of the date of death, and the only debt set forth in the record was on a parol contract more than eleven years due. Under these circumstances the heirs were held not to be precluded from showing the actual facts. The case came before the court again in 194 Pa. 294, and the extent of the decision was accurately stated in the syllabus of the latter report, that where the petition shows on its face that the debt is on a parol contract eleven years old, the court has no authority to grant an order of sale without an averment and proof that the debt is still existing and in lawful condition for enforcement at the time when the petition is presented. The difference between that case and this is clearly shown by a quotation from the opinion of Williams, Jl, in the first case (178 Pa. 253) : “The court should be satisfied before making an order for the sale of real éstate that there are unpaid debts properly chargeable upon the real estate of the decedent; that the real estate described in the petition is bound by the lien of the said debts ; and that it is necessary to have recourse to the land to enable the administrator or executor to pay them. The most convenient way for presenting these facts to the court is to embody them in the petition, stating the date of the decedent’s death, and whether the debts were at that time secured by mortgage or judgment.” Every step .in the practice here pointed out as correct was exactly followed in the present case. There is nothing in Hemphill v. Pry, 183 Pa. 593, at variance with the views here expressed. There the decree was founded partly on the assent of an infant without a guardian, and the defect of jurisdiction as to his interest was patent on the record. It is of common knowledge and has long been a subject of judicial regret that sheriff’s sales pass uncertain titles, and property suffers in price accordingly. But it is the settled policy, founded on the highest interests of all concerned, that titles under sales and mortgages by order of the orphans’ court shall be secured beyond question, and the courts have been vigilant to secure and preserve this result. Occasional hardship from false statements or improvident decrees has been inevitable, and sometimes has led to decisions like that in Smith v. Wildman, [243] belonging to the class which are said to make bad law. But in general the security of titles based on regular adjudications of the courts having jurisdiction of the subject, has been steadfastly maintained in the highest interests of public policy. The real hardship, fortunately only occasional, arises from a serious defect in the act of 1834, the failure to require notice to heirs and devisees before sale or mortgage which may affect their estates or interests. Careful judges in practice require such notice now, but it should be made mandatory by statute. Judgment reversed and judgment directed to be entered on the verdict.