Christy v. Christy ( 1896 )

Opinion by

Mr. Justice Mitchell,

The learned judge below gave too broad an effect to our decision in this case when it was here before: 162 Pa. 485. All that was then before the court and determined was the interpretation of the will of F. X. Christy, the persons who were entitled to be considered his “ heirs ” as to the surface of the land and the mineral rights, and their status by virtue of such heirship as cestuis que trust under the agreement of 1878 between F. J. Christy and Dr. J. T. Christy in regard to the latter’s purchase of F. X. Christy’s land. In other words it settled the mode of distribution of F. X. Christy’s estate, whatever it might be, but neither raised nor decided any question as to the extent of that estate in these lands. That question is now before us.

The learned judge was of opinion that that had been decided adversely to appellants, but in addition to the ground of res adjudicata, he based his decree on the failure of Dr. Christy to perfect his title under his agreements with his father, F. X. Christy, by proceeding in the orphans’ court after the latter’s death to obtain a decree of specific performance. He therefore held as matter of law that Dr. Christy had abandoned his agreements with his father and was not now entitled to enforce them, and he also inferentially found an abandonment as matter of fact.

This conclusion however overlooks the force of Dr. Christy’s position in this litigation. He was the owner of the legal title in fee and in possession, and this is a bill to declare him a trustee as to a part of the land. To the validity of his legal title these plaintiffs at least could never object, for they claim under F. X. Christy, and Dr. Christy holds all of F. X. Christy’s title by virtue of an orphans’ court sale for payment of his debts. That sale passed the title clear of all claim of the plaintiffs as heirs, and had the purchaser been a stranger would have passed it clear of Dr. Christy’s claim not only as heir but as a prior purchaser by unrecorded articles of agreement. But as Dr. Christy was himself the purchaser his previous equity was preserved. It merged in his legal title and was protected by it. He had no need to go hito the orphans’ court for specific performance, for all that could have given him was F. X. Christy’s title, and that he had already. His legal title was therefore beyond attack by any of the present parties.

The plaintiffs come into court on an equity arising solely under the agreement of November 2,1878. By that Dr. Christjf as the purchaser of the land which stood in his father’s name recognized his father’s interest and agreed to hold it in trust for his father’s heirs. But he expressly-confined the trust to “ the interest in said tracts of which my father died seized, reserving my own interest in said tracts which I had at or before the time of my father’s death.” This agreement was made on the day of the orphans’ court sale either just before, or just after the sale but before confirmation, and it is the foundation of the plaintiffs’ rights. Without it, as already said, the purchaser, whether Dr. Christy or a stranger, would have taken the entire title of F. X. Christy, indefeasible by any of his heirs. With it there were two equities which survived the sale, first, the right of the executor to an account and the balance of the agreed purchase money due from Dr. Christy to his father, and secondly, the right of the heirs to come in as joint holders of their father’s interest on payment of their pro rata share of tlie purchase money paid by Dr. Christy at the orphans’ court sale.

With regard to the first, the executor and Dr. Christy agreed to submit the whole matter to Alvin Evans, Esq., as referee, and this being made a rule of court, the referee filed an award, finding the sum due from Dr. Christy to his father’s estate, judgment was entered upon it, and it was paid by' Dr. Christy. This ended the controversy as to one half of the land, and left the legal title in Dr. Christy freed from any further equity in that behalf. It is impossible to sustain any finding of an abandonment in fact by Dr. Christy of his rights under the agreement of 1865, in the face of his express reservation of them in the agreement of 1878 acquiesced in and enforced by the executor, and conclusively established by his receipt of tlie amount due by award of the referee.

It is argued by appellees that this submission was unauthorized, and void as beyond the powers of the executor after the sale and after the equitable title in the land had passed to the heirs. But this objection is founded on a misconception of what was submitted to the referee. It was not the title of the heirs remaining in the land under the agreement but the amount of money due their father’s estate, which it was clearly.the province of the executor to ascertain and collect. There was not then and is not now any denial that the father made the agreement of 1865, and that it was still in force was, as already said, expressly declared in the agreement of 1878, without which plaintiffs have no right at all in the land.

The agreement as to the tract of land known as the Stack-house survey, does not seem to have been included in the reference. In fact there does not seem to have been any controversy about it needing to be referred. The agreement is not denied, nor the payment of the consideration by Dr. Christy. It was expressly reserved with the other in the agreement of 1878 and the title of Dr. Christy to an undivided half is now beyond further question. The payments by Dr. Christy in the course of the litigation with the Cambria Iron Company had no proper place in the account.

Secondly, the plaintiffs as heirs of F. X. Christy are cestuis que trust under the agreement of 1878, as was held at the previous hearing of the case in 162 Pa. 485. At the date of filing their bill, they had not paid or tendered any part of the purchase money to Dr. Christy, and the master and court below had held that this was such laches as required the bill to be dismissed. This court however, taking into consideration the facts that while no money had been paid none had been demanded, and that Dr. Christy had in his hands sufficient to fully reimburse his advances for plaintiffs, held that the latter were entitled to an account on the principles then stated. That ruling we now repeat, with the addition that the accounting must be on the basis of F. X. Christy’s estate in the land having been an undivided half.

This litigation has been unduly protracted and obstructive. The conduct of appellants’ testator as the learned court below said “ was far from being commendable,” but this, while justifying a refusal of commissions, cannot deprive him of his legal rights.

Decree reversed and account ordered to be restated in accordance with this opinion. Each party to pay its own costs in this court.