Parshall's Appeal , 1870 Pa. LEXIS 217 ( 1870 )

The opinion of the court was delivered, May 5th 1870, by

Sharswood, J.

A careful examination of the evidence attached to this record has not satisfied us that any plain mistake was committed by the auditor and the court below in the conclusions of fact at which they arrived. The mode suggested in the argument of the counsel of the appellant for apportioning the amount produced by the sale of the three items of property — the farm belonging to the heirs of Henry — and the Cleland tract and refinery belonging to the accountant, — which he sold together, is certainly ingenious, but there is nothing in the testimony to support it. It is very clear that the high price of the whole was obtained because of its being oil territory, and that the Henry farm in that respect was by far the most valuable, and without it there probably could have been no sale of the rest. The refinery of course was entirely independent, and the auditor arrived at the value of that not on his own knowledge, but as he states from the weight of the testimony. The fact which he mentions that he was well acquainted with it certainly did not disqualify him from forming a correct judgment. The accountant has no reason to complain of the report in this particular.

We concur with the auditor and the court in thinking that under the circumstances the appellant was liable to account for the full amount of what he received from the sale of the real estate of the decedent. The agreement of April 7th 1864 certainly did not bind the interest of the minors, who were not parties to it; but looking at the subject-matter — a subject of speculation in an excited market — we think that time was made of the essence of the contract. This is strongly confirmed by the letter of attorney of the same date to the appellant to sell. It is not easy to see for what pui’pose that power was given, if the intention was an absolute and unconditional sale in the ordinary way. The consideration was to be paid on or before July 1st 1864, otherwise the contract was to be void and of no effect. Construing these two papers together, the agreement seems to have been that if $7000 were paid on or before the time stipulated,- Parshall was to be the owner; but if not, then any sale made by him under the power was to be for the benefit of the heirs. It appears that at the time the contract was made Parshall had agreed that a purchaser should have the refusal of the property. At least he stated to Snedeker in May or June that he was under such an arrangement, and it certainly was incumbent on him to have produced that party, and shown when and for what price he had agreed. It is very doubtful whether a court of equity would have enforced the contract against those who signed it. Parshall stood in a relation of confidence towards them which made it necessary for him to show affirmatively that his conduct in the transaction had been perfectly fair and open, and that the demand for the property in the market was communicated to them. Re that as it may, when he failed to pay or procure an extension of the time on the 1st of July, he was no longer vendee but administrator and agént. When therefore he made the contract with Snedeker, he must be regarded as acting for the estate and the heirs whom he represented. To secure a good title he arranged with the purchaser that there should be a sheriff’s sale under a judgment against the decedent, and that whatever he should be obliged to bid and pay in order to obtain such title should be credited on account of the agreed price. It is very clear that an administrator who takes this course may be rightfully surcharged in his account with the whole sum received by him, just as if that sum had been paid to the sheriff, and the balance after the payment of liens paid to him as administrator. The heirs are not to be turned over to a common-law action against him for the amount. The appellant contends, however, that according to the ruling of this court in Fisk v. Sarber, 6 W. & S. 18, and other cases, he could himself have become the purchaser at the sheriff’s sale under the judgment; but the doctrine of that case must be received with the necessary qualification that the judicial sale has not been brought about by the act or procurement of the trustee. Nothing is clearer than that if a trustee or agent with power to sell makes a private sale, and it is arranged that his vendee shall become the purchaser at a judicial sale which is to follow, he must answer to his cestuis que trust for the amount actually received, and not merely that at which it was bid off. It would not have altered the case if Parshall himself had bought at the sheriff’s sale and taken a deed to himself, if it could be shown that he had a previous contract under which a much larger price was paid for the property. Under the facts as reported by the auditor the sheriff’s sale in this case was resorted to simply to make a title to the purchaser under the contract, which had been before privately made by the appellant. Nor do we think that the heirs were estopped or concluded by their receipts. In order to make them available for such a purpose, it was incumbent on the appellant to have shown that the facts of the case were fully known by or communicated to them. The same remark applies to the paper filed by James Henry in the ejectment suit.

But we think the léarned court below erred in surcharging the appellant with $2750 on account of the stock received by him as part of the purchase-money of the entire property. Even if he is to be held liable for the highest price of that stock at any time after the purchase, it ought to be added to the purchase-money and apportioned as well as the money received in cash. It is to be recollected however that a considerable part of this purchase-money was indubitably Parshall’s own — certainly more than the sum in cash for which this stock was taken. He took the stock in his own name and mixed it with other stock of his own. He never could have pretended to have a right to throw this stock upon the estate or heirs of Henry. As administrator or as agent he had no right to accept it in payment. It was no part of the original agreement that it should be so taken. It was an investment by Parshall of that part of the purchase-money which belonged to himself. It was in effect the same as if he had received the cash, and with it purchased the stock. The auditor therefore, very properly we think, laid this investment out of view, and charged the accountant with the cash for which the stock was received. Ho doubt if the entire purchase-money had belonged to Henry’s estate, he might have been liable for all that he could have made at any time by the sale of the stock. But in a ease so peculiarly circumstanced as this, where a trustee receives an amount in gross to part of which he is clearly entitled in his individual capacity, and accepts in part payment, stock or securities taken in his own name, it is an unequivocal indication that they are received for that part which belongs to himself.

Some other errors have been pointed out which may be corrected in the court below, as the record must be remitted that the account may be resettled according to this opinion. The award to Lois Henry, if she was deceased at the time, is of this character, as well as the order for costs if it was made when the court was not in session. The costs of the audit in the court below ought clearly to be borne by the accountant, but the 'costs of this appeal should be paid from the estate.

Decree reversed and record remitted that a decree may be made in the court below conformable to this opinion.