Klingensmith against Bean, 2 Watts 486

The opinion of the Court was delivered by Rogers, Ji— It is the usual practice of the orphan’s court to appoint the day of sale, and to make the proceedings of the administrator returnable to the next orphan’s court. In such cases the administrator begins the sale on the day appointed, and in his discretion adjourns the sale to a day certain. If a term intervenes, it is the practice to apply to the court for a continuance of the order. But although this is the usual practice, it is not universal.

There is nothing in the act of 1794 which directs this mode, nor is there any thing which prevents the court, for reasons of which they are the competent judges, to adopt a different course. The order is not a returnable writ, and, in Rham v. North, 2 Yeates 118, the court say that the words of the law appear to be directory only, and they can see no good reason why a regular fair sale may not be returned at another court.

The court not only have the power, but justice to the creditors and heirs sometimes requires this course to be pursued, as in the present instance, where the petition was presented in January, and where it was plainly the interest of all parties that the sale should be deferred until the ensuing spring, when purchasers would be able to view the premises and judge of the quality of the soil. In Rham v.

North it is said, that under an order of the orphans court empowering an administrator to sell lands, he should begin the sale on the day affixed by the court, and may afterwards adjourn it, but not beyond the day of the succeeding court. I do not see any good reason for the restriction, and I am inclined to believe that the practice has been otherwise, although it has been usual to sanction the proceedings of the administrator by an application to the court, in which the facts are stated for a continuance of the order.

The orphan’s court have always exercised a superintending power over such proceedings, and as long as this is faithfully done, I cannot see the danger of abuse by a liberal extension of time to the administrator to effect a sale. Although here the order was not continued, yet the facts were truly represented by the administrator to the court in the return, and have been sanctioned by them. A subsequent recognition of the act of the administrator is tantamount to a continuance of the order, and equally available to protect the interest of parties. There was no surprise, no misrepresentation, no fraud.

All that the act of 1794 requires is, that the administrator who makes the sale shall bring his proceedings to the next orphan’s court after the sale is made, and in this respect the directions of the act were literally' pursued. If, then, this case were before us on an appeal, it might be questionable whether it would not be our duty ■to affirm the,sale, as it appears to have been a fair regular sale for full value. But however this might be, yet it is plain that the proceedings were but irregular and not void, and this brings me to the second question. The cases of Massinger v.

Kintner, 4 Binn. 97; and the Lessee of Snyder v. Snyder, 6 Binn. 498, have given rise to an opinion that the decree of the orphan’s court may be examined collaterally in an action of ejectment. But although these cases, if attentively examined, do not establish the doctrine, yet this point is put beyond all doubt by subsequent decisions. A decree of an orphan’s court is placed on the same footing as a judgment of a court of common law : for this principle Í refer generally to M’Pherson v. Cunliff, 11 Serg. & Rawle 433 ; The Orphan’s Court v. Graff, 14 Serg. & Rawle 182; Blunt v.

Darrach, decided by Judge Washington, and reported in 4 Wash. C. C. Rep. 657; and App’s Executors v. Dreisbach, 2 Rawle 287. A judgment of a court of competent jurisdiction directly upon the point, is conclusive between the same parties or their privies, upon the same matter coming directly in question in another eourt of concurrent jurisdiction ; and this rule is founded upon considerations as well of abstract justice as of public policy.

The court of common pleas assimilate this to the case of a sale of a sheriff without a venditioni exponas, which is void : but I should think it-should rather be likened to a decree of a court of chancery, and this in fact it was in M’Pherson v. Cunliff, before cited. It is well settled, as regards that court, that you cannot go behind the decree to examine the regularity of the proceedings; and this whether the irregularity appears on the face of the proceedings or not. The injustice of this case is most manifest. The property was sold for a full price, which went to the payment of the debts of the intestate.

The sale received the sanction of a court of competent jurisdiction, whose peculiar duty it is to protect the interests of minors. The heirs of the intestate now seek to recover the property from the purchaser without payment of the purchase money, or a reimbursement of money expended in improvements. Judgment reversed.