the opinion of the Court was delivered by
Green, J.:The object of the bill, in this case, was to set aside the mortgage given by Peter J. Morio to his mother, on the ground that it was given to defraud the widow of Peter J. Morio of her dower in the land bound by the mortgage. The averments of the bill all relate to that one subject, and the prayer for relief was that the mortgage might be declared fraudulent and void as to the widow. There was no prayer for general relief, and the prayer for an injunction is simply to restrain the delivery of a deed by the sheriff, on the ground that the property was sold under a judgment obtained on a fraudulent mortgage.
There was nothing in the case, therefore, except the question of a fraudulent mortgage. There was an allegation of waste, but no prayer to restrain it, and the master has made express finding that there was no evidence, to support the charge of waste. He also finds that “ the single ground on which the mortgage is attacked by the plaintiff fails entirely to be sustained by the testimony.” Having found that there was nothing to sustain the bill, he says he would have dismissed it, had it not been for the charge of waste, and then, having found there was no waste, instead of dismissing the bill, he proceeds to consider a question which was not raised by the pleadings, and upon which neither party was heard. Upon that question, he decides that the mortgage could only be held for $2,000, because Elizabeth Morio, the mother of the mortgagor, was a party to it. ■ He infers that she was bound to pay one half of the mortgage, because she was jointly liable on the bond and mortgage, and was, therefore, bound to pay one half of it on the principle of contribution. He *405then introduces another subject altogether, equally foreign to the pleadings, to wit: That Elizabeth Morio was executrix of her husband’s estate, and had settled her account in the orphans’ court, showing a balance of $2,300 in her hands, which he says the counsel for the plaintiff claimed should be applied to the payment of the mortgage. He declines, however, to interfere with the province of the orphans’ court in enforcing any decree that court -might make, but he recommends a decree setting aside the sheriff’s sale of the land in question under the judgment on the mortgage, (though no such relief had been asked,) and a re-assessment of damages in the sci.fa. on the mortgage, in accordance with his views on the subject of contribution, although there had been full opportunity to make that defense in that proceeding, and an application to open the judgment on the sci. fa. had been made and refused by the court in which it was obtained.
In all this there was clear error on the part of the master. Having found that there was nothing in the testimony to sustain the bill as it was filed, it was his plain duty to report- a decree dismissing it. He had no authority to go outside of the bill and raise and decide questions which were not presented by the pleadings, upon which the parties were never heard by testimony or by counsel, and. report a decree entirely foreign to the whole subject of the contention before him. The Court below did not adopt the views of the master on the subject of contribution by Elizabeth Morio, but reached the same conclusion upon the theory that the parties to the mortgage must be presumed to have treated the life estate and the reversion as of equal value, and, therefore, that Peter J. Morio’s intent could only have been to give one half of the mortgage to his mother. Whether this was so in fact, we will not undertake to decide, because the parties have never been heard upon that question, and there is nothing in the .pleadings to raise it. The learned judge of the Court below thought that the decree of the orphan’s court for securing the payment of $2,300 in the hands of Elizabeth Morio, as life tenant, should be considered, and, therefore, ordered the sale under the judgment on that mortgage to be set aside, that the mortgage in question should only be held as security for $2,000, and that Elizabeth Morio should be restrained from issuing any further execution on her judgment until the entry of security by her in the orphans’ court for the proper application of the proceeds of the execution. We are constrained to say that in our opinion there was no jurisdic*406tion in this proceeding to make any part of this decree. The court in which the judgment on the mortgage was obtained has full power to determine how much was due on the mortgage, and the orphans’ court is the proper tribunal to make whatever order may be necessary to enforce its own decree. In any event, such a decree should not be made in a proceeding which did not raise such questions', and as to which the parties were never heard.
Decree reversed and bill dismissed at the costs of the appellee.