Weyand's Appeal , 62 Pa. 198 ( 1869 )

The opinion of the court was delivered,

by Agnew, J.

The appellant settled one account as guardian of three wards, a practice, by the way, not to be approved of. Guardianship is not joint, but several; the persons, estates, and interests of the wards being several and independent, though they may be children of the same parents. Each is liable for his or her own expenditures, and each attains majority, and can call the guardian to account, at a different period. The account, after reference to an auditor, and amendment, was confirmed by the Orphans’ Court, who decreed the money to the wards to be paid to them by the guardian according to the amended report. This decree, on appeal by Mr. Weyand, the guardian, was confirmed by the Supreme Court, with interest and costs. After the return of the record, a fi. fa. was issued by leave of the Orphans’ Court, June 2d i860; a levy made on real estate, inquest held after waiver of notice by Weyand, and the property extended at a rent of $3000 per annum. On the back of the fi. fa. Weyand endorsed as follows: “I agree to retain the real estate levied upon and pay the rent fixed by the inquest according to law.” This was dated and signed by him on the 1st September 1860. In pursuance of this acceptance, Weyand paid the semi-annual rentals until 1866, and failing, to pay the instalment falling due March 1st 1866, the appellee filed his affidavit of non-payment, and obtained leave of the Orphans’ Court to issue a venditioni exponas to sell the real estate described in the levy, returnable to November Term 1866. In November the appellant moved to set this writ aside, and the motion was finally refused in May 1867. From this decision Mr. Weyand appealed, and this is the appeal now before us.

The appellant contends that the dfecree of the Orphans’ Court on the settlement of his account is not such as will authorize a fi. fa. on part of his ward. At one time this was true, but since the passage of, the Act of 29th March 1832 relating to Orphans’ Courts, the practice is different. The decree was in terms and effect a decree against Mr. Weyand for the payment of the money found to he due to his ward: Shollenberger’s Appeal, 9 Harris 338, decides this, in which it was held that a guardian was entitled to a fi. fa. against his ward for the balance found due by the -ward in the settlement of the guardian’s account. A fortiori, the ward would be entitled to the writ against the guardian, on a balance found due by the latter.

The appellant also contends that a venditioni exponas could not issue after five years from the final decree without a scire facias to revive judgment. This is an error. The appellant himself had suspended the execution of the fi. fa. by his retaining the property and paying the rental until 1866. Besides, the law has provided for no writ of scire facias to issue out of the Orphans’ Court, and instead of it the 11th clause of the 57th section of the Act of 1832 requires the fi. fa. to be allowed by the court, or a judge in vacation. This furnishes an adequate protection against issuing the writ causelessly; while the Supplementary Act of 21st April 1846, § 2, directs writs of venditioni exponas to be issued out of the Orphans’ Court in the same inanner that writs of fi. fa. are allowed under the 57th section referred to.

Another objection to the venditioni exponas is, that Mr. Gaither had not signified his election in writing that Mr. Weyand should retain the premises at the valuation. A writing is required under the 2d section of the Act of 13th April 1840, and without it the proceeding to sell on venditioni exponas is irregular: Black v. Aber, 2 Grant 208. But here the defendant in the writ himself anticipated the election of the plaintiff by endorsing his agreement to retain the premises on the writ, and accordingly was permitted to retain them and pay the rental for nearly six years. The plaintiff' in the execution was not bound by this agreement of the defendant; and might have issued his liberari facias; but, after recognising it by accepting the semi-annual rentals, he would not have been permitted to issue a venditioni exponas without a failure of the defendant to pay the instalments. It does not now lie in the mouth of the defendant, therefore, after retaining the property for six years, and failing to make payment, to deny his acceptance and the plaintiff’s election, and to set him back to proceed de novo. If it becomes necessary to sell under the venditioni exponas, the court will yet permit the plaintiff to file in writing his consent to the defendant’s retention of the premises, nunc pro tunc, in order to make* the record competent to support the title under the sale.

It is contended by the appellant that a venditioni exponas issued under the Act of 1846 does not authorize the sale of real estate, this court having decided, in 1844, in Orphans’ Court v. Woodburn, 7 W. & S. 167, that personal property alone could be levied and sdld under the Act of 1832. But the Act of 1846 was manifestly passed to remedy this supposed defect. It provides not only for the writ of venditioni exponas by name, but for the sale of real as well as personal estate, “ in the same manner in all respects as if such writ had issued out of the Court of Common Pleas.” This would include the deed and acknowledgment. The appellant thinks the word “levy” indicates a seizure of personal estate only. But the language is, “ shall proceed to levy and sell the real and the personal property.” His interpretation is inconsistent with the nature of the writ, and would leave the words “real estate” without meaning. The word “levy”, however, is applicable, reddendo singula singulis, to the writ of testatum fi. fa. previously mentioned along with the'vend. ex.

In addition to the proceeding in the Orphans’ Court, the ward had procured a transcript of the balance of her guardian’s account to be filed in the Court of Common Pleas, in 1859, under the 27th section of the Act of 29th March 1832. This entry was revived by agreement in 1864. The balance was finally paid off in November 1866, after the issuing of the venditioni exponas, leaving the costs in the Orphans’ Court unpaid. The appellant contends that the transcript and revival in the Common Pleas bars the proceeding in the Orphans’ Court. If this were a question of lien only^ it is probable the point of the appellant is well taken, although we do not decide this. Under the Act of 1832 the mode of obtaining a lien on the real estate of executors, administrators, guardians, and other accountants, is that provided in the 29th section of the Act of 1832, by filing a transcript of the balance due. Another mode is provided in the same Act to obtain a lien on real estate in the case of other orders and decrees of the Orphans’ Court. This is under the 11th, 12th, 13th, 14th and 15th clauses of the 57th section, which provided for the issuing of attachments and writs of sequestration to enforce orders and decrees of the Orphans’ Court. The 15th clause makes it the duty of the sheriff or coroner, on receiving a writ of sequestration, to file a copy in the prothonotary’s office of the same county, the entry of which shall thenceforward charge the real estate of the defendant and bind it in the hands of all purchasers and mortgagees subsequent to the entry, without other notice. The writ of fi. fa. being intended, under the Act of 1832,to sell personal estate only, the fact that the decree of the Orphans’ Court was of itself no lien on real estate, seems not to have been adverted to in passing the Act of 1846, giving the writ of venditioni exponas to sell real estate. But whatever may be the effect of a sale of real estate under writs issued out of the Orphans’ Court, questions not now before us, we cannot deny the writ of venditioni exponas for this purpose, the Act of 1846 having. given it in express terms, and applied it to the sale of real as well as personal estate. Further legislation may be necessary to give effect to the proceeding, and to preserve in the Common Pleas the evidence of liens on real estate. Finding no error in the proceeding, the order of the Orphans’ Court is confirmed, with costs to be paid by the appellant.