Plaintiffs, as executors under the will of John F. Bell, deceased, sued one of his sons, the defendant herein, to recover the purchase price named in a written agreement by which testator had sold a farm to defendant for $4,000, three per cent of which was to be paid "each year . . . . . . in quarterly instalments. . . . . . If it is absolutely necessary $200 more is to be paid each year, until the death of John F. Bell and his wife. The above consideration to be secured by mortgage against said property when deed is made out." The jury rendered a verdict for defendant, and from the judgment entered thereon plaintiffs appeal.
Some ten years after the date of the agreement, and about four months before his death (decedent's wife having previously died), he executed a deed for the farm to defendant, for the expressed consideration of $4,000, which was recited to have been well and truly paid by the latter, though no money was then paid, nor was a mortgage given by him. On the same day, decedent also executed a codicil to his will, by which he gave his residuary estate to two other sons (plaintiffs herein, and the only other persons interested in this controversy), *Page 272 excluding defendant (who, by the will, had been given an equal share with them), "on account [as stated in the codicil] of deeding my farm" to him. The deed was not delivered to defendant, however, and he continued to make quarterly payments specified in the agreement. Evidently testator intended that the deed and codicil, each as a gift, should take effect upon his death, and thereby the three sons would each receive substantially the same amount from his estate. There was testimony of his statements to this effect, made at the time of the execution of the deed and codicil, but neither our conclusion as to his intention, nor the evidence last referred to, are important in determining this appeal.
Testator died March 10, 1922, since which time appellants have been constantly trying to compel defendant to pay for the farm or to give it to them; alleging also that, because of the codicil, he had no claim to any part of decedent's estate. They first brought ejectment, in their own right, claiming they were entitled to the farm, as residuary devisees under testator's will. While this was pending, they as executors under his will, filed in the orphans' court a petition in which they averred the execution of the agreement of sale, and that defendant had not paid the consideration named therein, and prayed that he be required to specifically perform his contract by paying to them, as such executors, the $4,000 with interest, and, upon his so doing, that they be authorized to execute and deliver to him a deed for the land. Defendant answered, averring, inter alia, that plaintiffs were estopped from recovering any part of the consideration money. Issue being thus joined, a trial was had, and the orphans' court decided, as expressly requested by plaintiffs, that it had jurisdiction to grant the prayer of their petition, but it also held that, under the facts found, they were estopped from claiming that defendant owed any part of the consideration money named in the agreement. Exceptions filed by plaintiffs to these findings were dismissed, as was also the petition *Page 273 for specific performance itself, and that decree stands unreversed.
Appellants' petition in that proceeding was based on section 18 (a) of the Fiduciaries Act of June 7, 1917, P. L. 447, 486, which expressly authorizes a vendor's executors to file, in the orphans' court, a petition for specific performance in all cases where the vendor has died before complete performance. Clause (b) of the same section provides that "The aforesaid remedy by petition to the orphans' court shall hereafter be exclusive," and so it was held to be in Gable v. Whiteside,242 Pa. 188, and Manzer v. Wycoff, 78 Pa. Super. 560. Recognizing this, appellants aver, in the instant case, that the orphans' court did not have jurisdiction of the petition which they had filed, because the statute only applies to lands of which a decedent died "seized or possessed." Having invoked its jurisdiction, however, and expressly induced the court to assert its existence and to act accordingly, appellants cannot be heard to take their present inconsistent position, in this later proceeding to recover the same purchase price, from the same defendant, on the same agreement of sale; allegans contraria non est audiendus: Garber v. Doersam, 117 Pa. 162,168; Donnelly v. Public Service Commission, 268 Pa. 345, 350.
Moreover, it was said in Myers v. Black, 17 Pa. 193, 198, that "The Act of 1834, sections 15 and 16 [which used the same language, P. L. 70], invested the orphans' court with full authority to make and enforce a decree for specific performance in every case where the vendor is dead." So far as concerns the present dispute, section 18 (a) of the Fiduciaries Act is copied from the foregoing sections of the cognate Act of 1834, and, hence, the words "seized or possessed" should receive the same construction in the Act of 1917: Hedrick v. Harrisburg,278 Pa. 274. Aside from this, however, since bills or petitions for specific performance always have for their purpose a transfer of the title of the vendor, on payment *Page 274 of the purchase price, it necessarily follows that, when section 18 of the Fiduciaries Act vests exclusive jurisdiction in the orphans' court to grant relief "Where any persons shall have, by contract in writing, agreed to sell and convey any real estate in this Commonwealth, and died seized or possessed thereof," it must mean "seized or possessed" of the title of the vendor which is thereby sought to be transferred to the vendee. This being so, clearly the orphans' court had jurisdiction of the petition filed with it, and the issues it decided could not legally be re-raised by appellants in the court of common pleas, as they attempted to do in the present case; and this would be so under the ordinary principles of res adjudicata, even if the jurisdiction of the orphans' court was not exclusive: State Hospital for Criminal Insane v. Consolidated Water Supply Co., 267 Pa. 29.
The judgment of the court below is affirmed.