The opinion of the Court was delivered by
Kennedy, J.The errors assigned, though numerous, may be considered as presenting only two questions: first, was the sale of the land in,question t.o the plaintiff below, under the decree of the orphan’s court, valid ; and, secondly, was the court below correct in admitting evidence of the declarations of the defendant below, that he purchased the land exclusively for the benefit of himself, and did not intend that his sisters should have any interest in it.
As to the first, there are but two grounds upon which such a sale can be held invalid ; either a want of jurisdiction in the court ordering it, or fraud practised in effecting it. The first has been relied on here, but certainly without any good ground. It is said there was no debt against the estate of the testator; and without this the orphan’s court had no authority to decree a sale of the land. But it was shown t.o the orphan’s court by the executors, when they applied for an order of sale, that there was a debt due by judgment, obtained against the testator in his lifetime, amounting to nearly 700 dollars, and only about 23 dollars of personal assets to meet it. It is alleged, however, that this debt was extinguished by the agreement of the plaintiff in error with Mr Huidekoper, who had the control of it, as also the legal title to the land. This inference cannot well be drawn thence ; nor does the evidence tend in the slightest degree to prove that it was so understood by any of the parties, but quite the contrary. Mr Huidekoper, the principal witness of the plaintiff in error as to this matter, testified that, the old contract, upon which the judgment was founded, was not destroyed ; that be knew of no satisfaction being entered upon it; nor does it appear from his *555evidence, or any other testimony given on the trial, that it. was ever spoken of or agreed to be done. The judgment was given by the testator to secure the payment of the purchase money of the land in dispute ; which he devised to the plaintiff in error, Ins son and two of his daughters, in equal portions. But in the agreement made by the plaintiff in error with Huidekoper, whereby he bound himself to pay the balance of the money due from the testator’s estate for the land, he also took care in consideration thereof to have the covenant of Huidekoper to convey the whole of it to himself for his own use solely. Now there is no evidence even tending to show that the sisters, the other devisees of the land, were consenting to this arrangement ; and though the executors were willing that the payment of the purchase money still remaining due, and coming to Mr Huidekoper, should be arranged so as to secure the interest of the plaintiff in error and his sisters in the land, according to the will of their father, and at the same time to have themselves discharged from all responsibility in respect to it.; yet it was only upon condition that the sisters were provided for by it, as well as the plaintiff in error, that they ever consented to his making any arrangement about it. They, however, finding afterwards that the plaintiff in error disclaimed his having made the agreement with Mr Huidekoper for the benefit of his sisters in any part, and that he was about selling the land, or at least one hundred acres of it, as his own, considered it their duty, as no doubt it. was, to provide ways and means for paying the judgment which still existed against the estate ; and if possible secure something for the sisters of the plaintiff in error. If the plaintiff in error, by his arrangement, intended to have the judgment extinguished, he ought to have had satisfaction entered upon it; nothing of the kind, however, was done, nor ever seems to have been spoken of or mentioned in making the arrangement with Mr Huidekoper. Nor was it in the power of the plaintiff in error and Mr Huidekoper, by their agreement, to deprive the sisters of their interest in the land. Indeed it is clear that Mr Huidekoper intended nothing of the sort; for it would seem that he was induced by the plaintiff in error to make the agreement for the benefit of his sisters as well as himself. But the executors finding that the plaintiff in error had made the agreement with Mr Huidekoper in his own name exclusively, and that he had denied that his sisters had any interest in it, made their application to the orphan’s court for a decree of sale of the land, so that the judgment might be satisfied out of the moneys arising therefrom, and the surplus, whatever it might be, distributed among the devisees of the land. A decree for this purpose was accordingly made by the orphan’s court; and in pursuance thereof a sale was effected; which was afterwards approved and confirmed by the court in the presence and hearing of the plaintiff in error, as it would seem from the evidence, without any objection being made on his part. Then was certainly the time for him to have spoken, and to have made it known to the *556court, if it were true, that there was no debt existing against the estate of the testator which required a sale of the land. This is conclusive to show that he did not consider the judgment extinguished or the debt satisfied by the agreement which he made with Mr ’Huidekoper.. His silence, then, is wholly inconsistent with the defence which he sets up now. But suppose the executors to have been mistaken in their opinion that the judgment, debt still existed, when in irath it had been extinguished, still that would not avoid the proceedings of the orphan’s court, and render the sale an absolute nullity, if it were exempt from fraud, as against, a bona ficle purchaser. So far as the facts of the case are made to appear without any controversy there is no fraud in law arising from them which can affect the sale; and as to intentional fraud, or fraud in fact, that was purely a question of fact, which the court below very properly submitted as such to the decision of the jury, under an instruction quite as favourable to the plaintiff in error as he had any right in law to claim.
Then as to the admissibility of the evidence excepted to, we think it was clearly so, in order to repel the impression which the plaintiff in error wished to make upon the minds of the jury, to wit, that when he made the agreement with Mr Huidekoper he made it as well for the benefit of his sisters as himself. But even supposing that such was his intention at the time of making the agreement; yet having made no provision for them in the agreement itself, nor having come under any agreement wiih them in writing on the subject, neither the executors nor the sisters were bound to be content with his word merely in regard to the interest which the sisters should have in the arrangement; and in justification of their course the evidence was not only proper to show that the plaintiff in error was unworthy of trust, and that they had done him no injustice, but that they, the executors, had taken him at his word, and proceeded on their part as if he had resolved with himself to exclude his sisters from all interest in the land. And why should he complain of it1? Even when the land was selling lie did not pretend or admit that his sisters had any interest in it, but claimed the whole of it himself, and for that reason forbade the sale.
Judgment affirmed,