[Swayze and Wife v. Burke et al.]

Rep. 494, 495; Commonwealth v. John Breed, 4 Pick. 460; Benham v. Craig, 11 Wendel, 83; Bryden v. Walker, 2 Harris & John. 292; 8 Cowen, 406; 4 Wendel, 303; 2. Watts' Penn. Rep. 66; 7 Wendel, 438; 2 Mason, C. C. R. 536; Rhoades & Snyder v. Selin, 4 Wash. C. C. R. 720.

Mr. Watts, for the defendants in error, upon the exception taken by the counsel for the plaintiff to the charge of the court, that fraud must be brought to the knowledge of Mr. Ross, and that the title derived from him was good in his vendees, contended that this point involved a question of law and a question of fact. As to the question of law, that the court had jurisdiction of the subject matter of controversy, the court answered it as requested by the plaintiff; for the whole cause, the charge of the court, the verdict and judgment was based upon the fact that the court did entertain jurisdiction. And as to the matter of fact, whether the conduct of Oliver Ormsby was fraudulent or not, it was expressly referred to the jury to determine. Any other direction by the court would have been erroneous. This point necessarily raises the question, whether the conduct of Ormsby was fraudulent? The argument of the plaintiff assumes the fact, that Mr. Ormsby was the trustee of the heirs of his father, John Ormsby, deccsed. In Pennsylvania, there is no kind of connection between the administrator of the personal estate, and the interests of the heirs, as regards the real estate; as to the realty, the administrator is as a perfect stranger; and, upon a sale of it by the sheriff, upon an execution, he may become the purchaser. Cases have been cited, in the argument of the plaintiffs' counsel, to show that an administrator cannot become a purchaser of land sold by himself; also, that fraudulent conduct of an administrator, in making sale of land, will vitiate it. This is true, but it is difficult to discover what application it has to the law of this case. Whenever an administrator makes a sale of land in Pennsylvania, he does not do it as an administrator ex officio, but by a special order of the orphans' court, for some particular purpose; such as the payment of debts. In such case, he cannot be the vendor and the vendee; and, it is equally plain, he must act fairly in conducting such sale: and this is the principle established by the cases referred to.

If the plaintiff had it in his power to show that personal estate of John Ormsby had come to the hands of his administrator, O. Ormsby, to an amount sufficient to pay the debt of the Penns; and that he had

[Swayze and Wife v. Burke et al.]

not paid it, but suffered the land to be sold, and become the purchaser himself, there would have been some pretext for the argument, that O. Ormsby's title was fraudulently obtained: but, as the facts are, and the proof in the cause is, that, although O. Ormsby did take out letters of administration, no estate ever came to his hands to be administered, or which, by law, was applicable to the payment of the debts of the intestate; no trust, in relation to the land in dispute, existed between the parties to this action; and Oliver Ormsby was as competent to become the purchaser at sheriff's sale, as any other individual. But he did not thus purchase.

When James Ross purchased the land, he purchased it for himself; and, if he be believed, he never had any previous understanding or arrangement with O. Ormsby on the subject. His object was, first, to secure the debt due to the Penns; and that accomplished, he was willing to convey to O. Ormsby his title to the land, upon being released from the payment of the balance of the purchase money, after Penn's judgment was paid. Mr. O. Ormsby agreed to take the land from him at the price he had paid for it. Who were defrauded? The heirs of John Ormsby? By whom? Mr. Ross expréssly says that O. Ormsby was not present at the sale, that he was away from home, and when he returned he told him of it: he also says that, at the time of the sale, his intention was, and he said, at the time the property was sold, if Mr. Ormsby or any other of his family was able to redeem it, he might have it on the payment of the money. At that period, these lots were of very little comparative value; and perhaps O. Ormsby was the only individual who would have given for them the price at which they sold at sheriff's sale.

O. Ormsby gave his receipt to the sheriff for the balance of the purchase money, after the payment of the lien for which the land was sold, thus charging himself as administrator, and his security in the administration bond, with this money, for which he was accountable to the heirs. Under the facts of this case, it is quite impossible that there could have been fraud on the part of O. Ormsby alone; if fraud was committed, James Ross must have been a party to it: for, if he were a bona fide purchaser of the land at sheriff's sale, all idea of fraud, subsequently committed, is out of the question; for O. Ormsby never had one trait of the character of a trustee with respect to this land. The conveyance by James Ross to him, is absolute and unqualified by any trust; and, it is not pretended to be shown, that O. Ormsby purchased the land in trust for the plaintiff. It was pertinently re

[Swayze and Wife v. Burke et al.]

marked by the court below, in their charge to the jury: "Suppose the property had depreciated in value after he received the conveyance from Mr. Ross, would he have been permitted, under the circumstances disclosed, to cast it upon the estate of John Ormsby, and to cancel his liability arising from his receipt to the sheriff? But the claim of the plaintiff is founded upon an alleged fraud of O. Ormsby: and the answer to it is, that it most manifestly appears, that, before he did one act, or uttered one syllable in relation to the land in controversy, there was an indefeasible, legal title vested in James Ross, by a judicial sale. O. Ormsby was bound by no legal or moral obligation to accept James Ross's offer to permit him to redeem; and, if he did accept it, it was upon the terms mentioned in the deed, by which the transaction was consummated and the title vested in him.

But, it is said, that a number of lots were levied on in mass, and so sold, instead of having been separated. What had O. Ormsby to do with that? If heirs or creditors were injuriously affected by it, their remedy was to apply to the court to set the sale aside: but that was not done: nor have the defendants, upon the trial of this cause, pretended to prove that the lots were worth one dollar more than the price for which they sold.

The question of fraud, being a matter of fact, was distinctly submitted to the jury by the court; and they have found against the alleation.

Mr. Justice M'LEAN delivered the opinion of the Court.

An action of ejectment was brought in the western district of Pennsylvania, by the plaintiffs against the defendants, to recover the land in controversy. Both parties claim by descent from John Ormsby, sen. who died in Alleghany county, Pennsylvania, in December, 1805. The deceased had a son, Oliver, who survived him, and who administered on his estate; and a daughter, Sidney, who married Isaac Gregg. He had also a son called John Qrmsby, jun. who married in the Mississippi country, and died in August, 1795. Mary Swayze, the wife of the plaintiff, is the daughter of this son; and was an infant at his decease.

In December, 1807, Oliver Ormsby gave bond as administrator of his father; but it seems he filed no inventory of the personal estate, as the law required, nor did he ever settle his administration account.

On the 6th September, 1826, as administrator, he confessed a

[Swayze and Wife v. Burke et al.]

judgment for four hundred and sixty-seven dollars and sixty-four cents, in favour of Messrs. Penns, Mr. James Ross acting as the attorney of the plaintiffs. An execution was issued on this judgment, and the premises were sold to Mr. Ross for three thousand dollars. He declared, publicly, at the sale, that Ormsby or any of his family might redeem the land, at any time, on the payment of "debts and interest;" and Mr. Ross further states, that before the sale, Mr. Ormsby was informed that he only wanted the money on the judgment, and that he did not intend to buy the land to hold it.

No money was paid by Mr. Ross at the sheriff's sale, or at the time he received the sheriff's deed. Ormsby remained in possession of the land, receiving the rents and profits; and in April, 1831, four years after the sheriff's sale, he paid Ross five hundred and twenty-three dollars, the amount of the judgment and interest; and received from him a conveyance of the land. At this time, Ormsby receipted to the sheriff, as administrator, for the balance of the three thousand dollars, after deducting the amount paid to Ross. The sheriff's deed to Ross, and the deed from him to Ormsby, were recorded on the same day.

The land in controversy consists of eighteen coal-hill lots near Pittsburg, and thirty-five acres adjoining them, and which is now of great value; and was worth a large sum at the time of the sheriff's sale.

There was a letter in evidence, written by Oliver Ormsby to Mrs. Swayze, dated 19th March, 1828, at Natchez, in which he says: "My father, at his death, was not possessed of more property than a sufficiency to pay his debts; having, from time to time, sold to individuals, and conveyed to his children." And there was evidence conducing to show, that the sale of two of the lots would have satisfied the judgment.

On these facts and others in the case, the counsel for the plaintiffs prayed the court to instruct the jury, that, "in matters of fraud, courts of law and chancery have a concurrent jurisdiction. It is therefore within the province of the jury to inquire whether the conduct and proceedings of Oliver Ormsby, whereby the legal title to the property in dispute, became vested in himself, for his exclusive use and benefit, were in fraud of his co-tenant, Mary Swayze; and if they were, the verdict ought to be for the plaintiffs." This instruction was given, as requested, with this qualification, "that the fraud should be brought to the knowledge of Mr. Ross; and that, if he took a valid title under the sheriff's deed, the title of

[Swayze and Wife v. Burke et al.]

his vendee would be good, under the circumstances disclosed in evidence."

To the refusal of the instruction as requested, and the instruction as given, an exception was taken; which raises the question of law, whether, to render the title of Ormsby, as set up by the defendants, inoperative and void, it is essential that Ross should have participated in the fraud.

The charge of the judge was explicit on this point. He not only instructed the jury, that, to make the title of Grmsby fraudulent, Ross must have had a knowledge of the fraud; but assuming, it would seem, the province of the jury, he declared that the fairness of the transaction was above suspicion.

That fraud is cognizable in a court of law, as well as in a court of equity, is a well established principle. It has been often so ruled in this Court.

As there is no court of chancery under the laws of Pennsylvania, an action of ejectment is sustained, on an equitable title, by the courts of that state. Such is not the practice in the courts of the United States; and in this case, if the plaintiffs fail to show a paramount legal title in themselves, they cannot recover.

It is unnecessary to inquire, whether, under the circumstances, Ormsby did not receive the conveyance of the land from Ross, in trust, for the heirs of his father, generally. This inquiry would be appropriate in the exercise of a chancery jurisdiction, on a bill framed for the purpose. But the jury were limited to the question of fraud. The deed by the sheriff to Ross, and the one from him to Ormsby, contain upon their face all the requisites of legal conveyances; and they must be operative to convey the title, unless the circumstances under which they were executed make them void.

In 1807, Ormsby took out letters of administration; but he seems to have acted, in the management of the estate, without regard to the law, or the obligations of his administration hond. He filed no inventory, made no settlement of his accounts. In 1825, he promised to pay the debt in the hands of Ross, but he took no step to fulfil this promise. It was his duty, as administrator, to make application to the orphans' court for authority to sell as much of the real estate as would pay the debt. But, to obtain this order, it would have been necessary to show that the personal assets were exhausted. In 1826, he confessed a judgment, and suffered an execution to be taken out, and the property in controversy to be sold. He remained