Gordon's Appeal

Mr. Justice Merour

delivered the opinion of the court, May 3d 1880.

This contention arises under an application of the appellant as administrator of Stephen T. Gordon, to sell the real estate of the decedent situated in Bucks county. The application was made to the .Orphans’ Court of the county of Philadelphia, under the 32d section of the Act of 29th March 1832. It authorized the administrator to raise, by the sale of said real estate, the sum of $10,000, for the payment of debts. The Orphans’ Court of Bucks county, on due application thereafter, ordered the sale. In pursuance of the order sale was made, and the return thereof confirmed nisi by the court. On tendering the deed to the purchaser he objected to paying in cash the whole amount of his bid ; but claimed, under the Act of 20th April 1846, that a part thereof should apply on a judgment he held against the decedent. It had originally been entered on bond and warrant of attorney, in the District Court of the county of Philadelphia, and transferred to the county of Bucks by exemplified copy. The appellant refused to make the application or amend his return of sale, and alleged facts denying the existing validity of the judgment. Thereupon the court directed an issue which was duly found. When it came on for trial, the court being of the opinion that a court in Bucks county had no jurisdiction, struck off the issues, and sent the administrator to the Orphans’ Court of Philadelphia county. On application there the court awarded an issue. It proceeded to judgment in the Common Pleas of Philadelphia county, and was determined in favor of the plaintiff therein. It was affirmed in this court. The Orphans Court of Bucks county thereupon decreed that the appellant make and execute a deed to the purchaser, treating his judgment as a valid and subsisting lien, having first ordered the return of sale to be so amended as to require the appellant to accept the receipt of the purchaser in part payment of his bid.

Two questions arise on this record : 1. Had the Orphans’ Court of Bucks county jurisdiction to try the validity of the lien claimed by the purchaser; if it had, the other is whether the appellant is estopped by the judgment in the issue tried in the Common Pleas in the county of Philadelphia ?

The Act of 29th March 1832, expressly declares the administrator shall in all cases make return of his proceedings in relation to such sale, to the Orphans’ Court of the county in which the real estate so sold lies, when, if the same be approved by the court, it shall be confirmed. Thus exclusive jurisdiction, after the preliminary order made by the Orphans’ Court of Philadelphia, in ordering, supervising and confirming the sale, was given to the Orphans’ Court of the county of Bucks. T-he Act of 20th April 1846, which provided for the administrator accepting the receipt of a purchaser who was a lien creditor, necessarily subjected the action of the administrator in regard thereto, to the same court. The act, therefore, declares the court shall determine, either by reference to an auditor or by directing an issue, as to the right of a purchaser to pay his bid, or any part thereof, by applying the same on his lien. This necessarily restricted the action of the court to the limits of its own county in which ever way it proceeded. If the facts alleged the irregularity of the original judgment, or denied the authority under which it was confessed, there might be some reason in holding, under King v. Nimick, 10 Casey 297, that the application to strike off the judgment should have been made in the Common Pleas of the county of Philadelphia. There was, however, no such allegation. Conceding that it was fairly given and regularly entered, the offer was to show a subsequent failure of consideration, so that nothing was due thereon. This question in so far as it affected the sale in Bucks county, the Orphans’ Court of Philadelphia had no jurisdiction to try. The Orphans’ Court of Bucks county therefore erred in striking off the issue which it had directed to be formed, and in ordering the return of the administrator to be amended before the validity of the lien was duly established. Nor is the appellant estopped by the judgment of the Common Pleas of Philadelphia, and the affirmation thereof by this court. We affirmed only the correctness of the charge and rulings on the trial. No question of the jurisdiction of the Orphans’ Court of Philadelphia was determined on the trial of the facts in that issue. The only matters tried and determined were the disputed facts certified to be in the issue. We understand the third assignment to involve not only the liability of the purchaser to pay the expenses of trying the issue, but alsp the expense of the administrator in trying the same. . So far as is shown by the record we see no cause why he should not be allowed those expenses. ■ This, however, can be determined more intelligently after the trial of the issue. The several assignments are substantially sustained.

And now, 3d May 1880, decree of 6th May 1878, reversed and set aside; the amended report of sale set aside; the issue directed by the Orphans’ Court of Bucks county reinstated, and a procedendo awarded.