William H. Shoemaker, John B. Uhle, and Frank P. Prichard, for the several parties in interest.

Whatever may have been the custom to a certain extent, there is no warrant in law for taking out searches. The advertisement gives legal notice to the holders of liens. Although the Master gives bond, the same principles are to be applied to his case as to an Auditor, who is not obliged to search.

C. P. No. 4.

Sept. 15, 1884. Petition of the Fourth Reformed Church. Practice-Act of June 10, 1881, P. L. 97— Mortgage presumed to be paid from lapse of time-Satisfaction of—The Recorder's assignment of mortgage a search must be produced. This was a petition under the Act of June 10, 1881 (P. L. 97), for an order on the Recorder of Deeds to enter satisfaction upon a mortgage made April 2, 1831, by John Levering to the Schuylkill Navigation Company, who appeared THE COURT. Our experience of the practice by the sheriff's return to have been duly served is that searches are generally taken out. We had with notice. A certificate of counsel was ana case before us in which a mortgagee did not see nexed to the petition stating that a personal exthe advertisement, and he lost his claim. We amination of the index of mortgages and the regard it as the safest practice to order searches, index of assignments of mortgages disclosed no therefore in this case let it be done, at the ex- assignment of the mortgage described in the

Shantz v. Lyle, 1 WEEKLY NOTES, 224.

pense of the fund of course.

Ordered accordingly.

petition.

J. M. Gest (with whom was B. A. Mitchell), for the petitioners, referred to the practice of Common Pleas No. 3.

THE COURT stated that it was their practice to require an official search from the Recorder of Deeds showing that no assignment of the mortgage had been made.

ELCOCK, J., at Quarter Sessions.

J. M. G.

Benedict v. Gunnis et al. Affidavit of defence law-Bills and notes-In an action against an indorser an affidavit of defence is sufficient which avers that defendant never received notice of non-payment.

Rule for judgment for want of a sufficient affidavit of defence.

This was an action of assumpsit by the holder, against the indorsers of a promissory note. The copy filed contained an averment of protest. The affidavit of defence alleged, inter alia, that defendants were only accommodation indorsers, and that the defendants had never received notice of the non-payment or protest of the

Orphans' Court.

June 16, 1884.

John L. Neill's Estate. Decedent's estate. Executors-Account-An account having been filed and an adjudication held, it is discretionary with the Court to order the filing of a subsequent partial account. Sur citation to file a second account, and answer.

The petition of Mary E. Murphy set forth that John L. Neill died September 21, 1877, having made a will by which he bequeathed to the petitioner five thousand dollars to be paid after the death of Miss Elizabeth A. Lambert.

That the executors filed an account on the 28th October, 1878, which was audited and the adjudication confirmed November 30, 1878, and that no account had been filed since. Thatsubsequently to that time, on being requested by certain parties interested in the estate to submit another account, the executors, through their counsel, furnished a statement of account which is believed to be erroneous, in that, among other things, certain large credits were claimed therein

to which, as petitioner was advised, the account- | informed as to the nature and character of these ants are not entitled, and the validity of which payments by the executors, but from the statethe petitioner desired to have settled without ments of counsel at the argument, led to infer delay.

they are for the professional services of counsel The respondent made answer to the effect that in the issue devisavit vel non, to determine the a distribution under the adjudication had been validity of the codicil to the will of testator. If made as far as the terms of the will allowed. this be so, there is no urgent necessity for ascerThat the petitioner had not a present interest, taining whether they are proper credits in the and that she would not sustain any injury by the accounts of the executors. The litigation is still postponement of the filing of a further account pending, and any discussion of that question at until the determination of litigation now pend-present is premature. The executors have the ing in the Supreme Court. That the re- advice and assistance of able counsel, familiar spondents had furnished the petitioner with a with the law upon the subject (Rankin's statement of administration up to the spring of Appeal, 10 WEEKLY Notes, 235), who will pro1883, and have offered her a similar statement to date.

Wm. W. Porter, H. J. McCarthy, and Wm. A. Porter, for petitioner.

Robert N. Willson and James W. Paul,

contra.

July 5, 1884. THE COURT. If the executors had not heretofore complied with the provisions of the Act of March 15, 1832, there can be no doubt that petitioner would be entitled to require the settlement of the estate contemplated by the Act. But an account having been filed, audited and confirmed, it is discretionary with the Court, in view of all the circumstances, to direct the filing of a further account. (Seeger's Estate, 6 WEEKLY NOTES, 369; Caldwell's Estate, Id. 370.)

perly instruct them as to their line of duty, and
the statement of an account to be filed by them
at the termination of the existing controversy,
such as will be approved by the Court. And it
may then appear that the expenditures now com-
plained of by petitioner will not be claimed as
credits. We think petitioner should be satisfied
with the readiness and willingness of the execu-
tors to continue to furnish as heretofore state-
ments of their management of the estate.
The petition is accordingly dismissed.
Opinion by HANNA, P. J.

Dissenting opinion by ASHMAN, J.

By the Act of March 15th, 1832, § 15, P. L. 139, it is made the duty of executors and administrators, to exhibit to the Register a just account of the estate of the deceased in one Unless it be shown that some advantage will year from the time of administration granted, or be gained by the settlement of the account, such when thereunto legally required; and a discreas the payment of claims of creditors, or distri- tion is thus committed to the Court, which has not bution to legatees or heirs; or that some injury been touched by succeeding legislation. The will be suffered by parties interested by the delay considerations which should induce the exercise of the executors or administrators, the Court of that discretion cannot be thrown into a will hesitate to impose upon them the trouble, ormula which shall rule with exa ctness every and the estate the costs and expenses of account-case. In estates where frequent changes of ining. Here it appears that petitioner is a legatee vestment and large outlays are required, it may in remainder after the determination of a life be advisable for the safety both of the accountestate. She is, therefore, under ordinary cir- ants and the distributees, to render accounts cumstances, such a party interested, as may com- of the administration at short intervals; in pel the filing of an account. (Albertson's estates where no such incidents are present, Estate, I WEEKLY NOTES, 188.) But it is not frequent accounting might prove a serious buralleged she is ignorant of the condition and den. We are bound to say, however, that the management of the estate. On the contrary, hardships which might arise in special instances, full statements of the receipts and expenditures would be a trifling objection to the policy which have been rendered by the executors to the par- should exact a periodical and detailed exhibit of ties interested, and no information has been the administration of estates. Under any syswithheld. Nor is it alleged that the interests of tem of constant supervision fraud would be the petitioner will be prejudiced, except to this checked and faulty methods corrected, and the extent, that in the statements furnished, the executors have expended certain moneys which she is advised cannot be allowed as proper disbursements. But admitting these expenditures to be proper credits, it is not asserted they are extravagant or unreasonable, or that the estate will thereby be diminished to an amount insufficient to discharge her legacy. We are not

correctness of the settlement could be shown by vouchers which would be easily accessible. With these very obvious arguments confronting us, it will be unwise to withhold our aid from a party who seeks an account of a trust in which he is interested, unless he shall first present a specific charge of fraud or neglect in its management. He has a right to affirmative proof that his in

terests are being honestly cared for. Hence the | but administrators d. b. n. c. t. a., and not recriticism that this petitioner made no such com- sponsible for the default of the deceased execuplaint and even averred no apprehended injury, tors. The latter, or their estate, are liable. If is inappropriate. Nor is it quite sufficient that the "Goode" mortgage was in reality a bad the accountants shall furnish her, as they have investment, the proper practice was to seek to done, with a statement of all their receipts and hold the surviving executrix liable at the audit of disbursements. She could request, without being her account. But this was not done. And she deemed unreasonable, and without imputing bad having died and the mortgage having passed to faith to her trustees, that the Court should pass the accountants as administrators, by whom it upon the accuracy of their statement. The estate was foreclosed and the real estate purchased at the in their hands is large, and six years have elapsed sheriff's sale, title being taken in the devisees, it since the filing of an account; and neither the is clear that the question as to the personal liatrouble nor the expense of the proceeding ought bility of the executors cannot arise upon the to be so formidable as to preclude a demand in audit of the account of the administrators. They which, as it appears, other distributees desire to are entire strangers to the transaction. Nor do we see how the question could be reserved. They did not make the investment, and of course cannot be made to pay the supposed loss. But Bentley's Estate. it does not appear that any loss has been occasioned by the investment. If accountants had Decedent's estate-Investment-An administra- taken title to the land, and then sold it for less tor d. b. n. c. t. a. will not be surcharged on an than the amount of the mortgage, it might be investment made in good faith by the executor-well said, the estate had suffered loss; but as Where a mortgage has been foreclosed and the property purchased by the estate, no loss to the

unite.

estate has been ascertained.

Sur exceptions to adjudication.

E. F. H.

June 19, 1884.

Upon the audit of the account of the administrator d. b. n. c. t. a. of David Bentley, deceased, before ASHMAN, J., the following facts appeared:

Under the will of David Bentley, deceased, after the devise of the income of his estate to his widow for life, one-third was devised to David B. Bentley in trust for the life of Moses Bentley, and after the decease of Moses Bentley, if he died without issue, to be divided between the two remaining children of David Bentley, David B. Bentley, and Anna E. Walker. Moses died without issue, and David B. Bentley died intes

tate.

stated, instead of this, title was taken direct to the devisees, one of whom is the exceptant, and they still remain owners of the land. Non constat, it will not upon a sale, realize more than the mortgage. There being then no loss, it would seem unreasonable and unjust in any proceeding to hold the executors liable for a conjectural default. If it could be done, the legatees would recover not only the amount of the mortgage, but also retain the land.

But as to the merits of the case. The executors purchased a legal investment, after the usual inquiry and investigation, and had no reason to believe it was other than safe. The interest was promptly paid for several years, but subsequently became in default and the mortgage was foreclosed, the property, a stone quarry, not realizing at the sale the amount of the mortgage. The account of the Pennsylvania Trust Com-The result shows that the investment was not the pany, administrators d. b. n. c. t. a., claimed credit for an investment of $4000 made by the executors in a mortgage known as the Goode mortgage. This mortgage had been placed by the executors of David Bentley on a stone quarry, which had subsequently been abandoned, and the mortgage was foreclosed, and the mortgaged premises were bought in on behalf of the estate for less than the amount of the mortgage, and

the same remain unsold.

The Auditing Judge allowed this credit, and to this ruling exceptions were filed.

Richard P. White, for exceptant.
John G. Johnson, contra.

July 5, 1884. THE COURT. The accountants cannot, in any event, be surcharged for the acts or omissions of their predecessors. They are

most judicious. The executors were mistaken and erred in judgment. But they were not grossly negligent and careless, and acted in entire good faith. The executors were the widow of testator, entitled to the income for life, and his son, who was legatee in remainder of one-half of the estate. So that it may with absolute certainty be presumed their personal interests were neither neglected nor wilfully disregarded. They seem to have acted with common skill, prudence and caution, in good faith, and as others do with their own moneys. And more is not required of trustees (Neff's Appeal, 7 P. F. Sm. 91; Pleasant's Appeal, 27 Id. 369; Pleasonton's Appeal, 3 Outerbridge, 363).

The exceptions are dismissed and adjudication. confirmed.

Opinion by HANNA, P. J.

E. F. H.

Subsequently, on the trial before MORROW, P. J., the defendants claimed credit for the sum bid by Vandyke, less costs, to wit, the sum of $3924.60. The Court charged the jury, inter alia, as follows:

"It is true a bond and mortgage are two securities for the same debt, and payment of one is payment of both; but when the bond is void, and the alleged payment is not in money, or other valuable thing, I am inclined to hold it is March 19, 1884. no payment on the mortgage. . . You are, therefore, directed to find for the plaintiff the full sum covered by the mortgage."

Verdict accordingly for the plaintiff for $6863.67 and judgment thereon. Whereupon the defendants took this writ, assigning for error, inter

The rule in sheriff's sales is caveat emptor, and there-alia, the portion of the charge above cited. fore credit should be allowed a debtor for a bid made by

H. N. Williams and Rodney A. Mercur (E. his creditor at a sheriff's sale of the former's property, J. Angle with them), for plaintiffs in error. although the sale passed no title.

And has been applied in

Walling v. Aikens, 1 McMullin, Eq..I.
Scripture v. Johnson, 3 Conn. 211.

he did. And, though the fact be that he had no interest whatever, it does not help the plaintiff in this proceeding. A man who buys a worth

Chamberlain v. Thompson, 10 Id. 243; S. C., 26 Am. less title at a sheriff's sale and pays for it, or is

Dec. 390.

Rowan v. S. R. Mfg. Co., 29 Conn. 324.

Com. Dig., tit. Chancery, 3 F. 3. Citing Bradburne
v. Amand, 2 Ch. Cas. 87.
Reed v. Tyler, 56 Ill., 288.
Evans v. Meybert, 7 Harris, 402.

The receipt of a mortgagee, acknowledging satisfaction of the debt secured by the mortgage, is not conclusive evidence of its discharge, but is open to explanation.

Pearce v. Savage, 45 Me. 90.
Perkins v. Pitts, 11 Mass. 125.
Porter v. Hill, 9 Id. 34.
Parsons v. Welles, 17 Id. 419.
Russell v. Church, 15 Smith, 9.

The proceeding before the Auditor was solely between Vandyke and the other creditors of Charles Wells, and determined nothing but the controversy between them.

Shaw's Appeal, 10 Wright, 407.

allowed a credit on his lien, which is substan-
tially the same thing, has no standing to repu-
diate the transaction subsequently. The facts
now set up by the plaintiff might have afforded a
ground of relief had an application been made
to the Court below at a proper time and in a
But he allowed the sale to be
proper manner.
confirmed, and insisted upon being allowed a
credit for his bid.

The rule in sheriff's sale is caveat emptor. The parties do not treat for a title, but the creditor proposes to sell and the purchaser to buy just land. (Weidler v. Bank, 11 S. & R. 134-) whatever interest the debtor may have in the

We are of opinion that the amount the property sold for at the first sale should be credited upon the mortgage.

Judgment reversed, and a venire facias de novo awarded.

Opinion by PAXSON, J.

April 14, 1884. THE COURT. This case was here before upon the refusal of the Court below to enter judgment for want of a sufficient affidavit of defence. We then held (see 13 WEEKLY NOTES, 341) that the sale under an execution issued upon the bond accompanying the mortgage was void as against Mrs. Wells, she being a married July, '83, 154. woman, and that the sale did not pass her title to the mortgaged premises. It followed that said sale was no defence to the scire facias on the mortgage, the judgment was therefore reversed, and a procedendo awarded.

Wolf's Appeal.

C. K. Z.

May 8, 1884.

Assignment for the benefit of creditors-Rents arising from assigned real estate-Rights of lien creditors-Wage creditors of assignor not entitled to such rents.

Rents of land in the hands of assignees for the benefit of creditors, being solely the product of the land itself, should be applied on those prior liens which would be entitled to the proceeds of the land if sold. Wage creditors cannot claim to be entitled to such rents.

Since then the case has been tried in the Court below, and it now comes up on the verdict against the defendant for the full amount of the mortgage. Upon the trial the defendants claimed as a credit the amount of the plaintiff's bid ($4000) upon the first sheriff's sale, which was objected to by the plaintiff, and disallowed by the Court. It requires but a moment's reflection to see that the credit should have been allowed. That sale was confirmed; the plaintiff claimed a credit for his bid; this was referred to an Auditor, and the claim was allowed by the Auditor and the Court below. The matter was, therefore, solemnly adjudged by a court of competent jurisdiction, and the decree cannot be attacked col-confirming the account. laterally and disposed of in this summary manner.

Appeal of Thomas M. Wolf, from a decree of the Common Pleas of Lebanon County, setting aside the Auditor's report on exceptions to the account of the assignees for the benefit of the creditors of Henry Light, John Light, and Cyrus Light individually and as composing the firm of Light & Bros., dismissing the exceptions to, and

The facts as disclosed before the Auditor were

It is no answer to say that the plaintiff bought as follows:a worthless title, that is begging the question. The assignees for the benefit of creditors of The execution issued upon the bond was a valid Henry Light, John Light, and Cyrus Light, inexecution against the husband, and the sale there-dividually and as composing the firm of Light & under passed any title there may have been in him. It may be he had no interest in the property; we do not know, and therefore cannot say The plaintiff may have supposed he had an interest, and he had a right to sell it in the way

so.

Bros., filed their trust account in the Court of Common Pleas of Lebanon County, in which they charged themselves, inter alia, with the rents, issues, and profits of the real estate which came into their possession under the deed of