Appeal of Leibert , 119 Pa. 525 ( 1888 )

Opinion,

Mr. Justice Green :

A part of the land of the deceased, Charles L. Knauss, was awarded to the appellant upon proceedings in partition on Jan-nary 26, 1872, and her recognizance and bonds were given on the same day to secure the shares of the other heirs. The administrators of Charles L. Knauss filed their account on May 9, 1878, showing a balance of personal estate in their hands of $19,159.47 for distribution. The estate was perfectly solvent, and the administrators and their sureties were liable for the faithful application of the amount in their hands, first to the payment of all debts and second to distribution among the heirs.

It is undoubtedly true that the appellant as acceptor of part of the intestate’s real estate could have applied by petition to the Orphans’ Court to have the amount of the recognizance and bonds given by her abated sufficiently to pay the Goepp mortgage if she had chosen to do so. That mortgage was given in 1853 and was duly recorded. It was not paid at the death of the intestate, and it was an open lien against the land accepted by the appellant, of which she had constructive notice by the record, and actual notice also. This being so, she was entitled to have the mortgage discharged out. of the valuation money of the land if necessary. But there was ample personal estate for the payment of all the intestate’s debts. Although the mortgage was a lien upon the land, the debt which it was given to secure was payable, like all other debts of the intestate, out of his personal estate exclusively in the first instance. It was only in the event that there was no personal estate applicable to that purpose that the land could be resorted to. If then the appellant had applied by petition to the Orphans’ Court to have her recognizance and bonds abated for the payment of the mortgage debt, her petition must have been refused, because there was ample personal estate applicable to its payment. The other heirs would have had the right to resist, as they naturally would have done, any abatement of their bonds for the payment of the mortgage.

But the appellant, although she was one of the heirs and distributees, as well as acceptor of the land, and, in either of these capacities, could have compelled the payment of the mortgage by the administrators, did not see fit to exercise that right. On the contrary, she practically treated the mortgage as an obligation which she was bound to pay, by paying interest on it for nearly fourteen years. She slept during all this time upon whatever rights she had to have the mortgage paid. Her husband, who was one of the administrators, took credit for it in his account as being paid by him by an assumption of it. The other heirs were thus, by the acts of both the appellant and her husband, lulled into inaction, so that they have now lost the opportunity to have the mortgage extinguished out of the personal estate, in consequence of the subsequent insolvency of the administrators. For the reason above stated the appellant was disabled from having the relief she now seeks at the inception of her title. To this she has added the further disability of thirteen years’ inexcusable laches. In such circumstances it would be a manifest perversion of justice to compel the appellee to submit to any abatement of his ward’s bond for the purpose of paying any part of the mortgage debt. As to vacating the original partition proceedings at this late day because the mortgage has now been enforced against the land, it is impossible by reason of the rights which have grown up out of those proceedings, inequitable to the last degree, and not to be tolerated for a moment upon any suggestion appearing upon this record. The principles and authorities relied upon in the elaborate argument of the learned counsel of the appellant have no application in such a case as this. They are intended for the furtherance of justice in cases which require their use, but to apply them in such a case as this would be a gross injustice.

The decree of the court below is affirmed, and the Appeal dismissed at the costs of the appellant.