
    Foley, Appellant, et al., v. Smay, Appellant, et al.
    Argued March 21, 1945.
    Before Maxey, C. J., Drew, Linn, Stern, Patterson and Jones, JJ.
    
      judgment affirmed in Appeal No. 63.
    
      Henry E. Marker, Jr., with him Marker <& Rial, for Lena Smay, appellant No. 42, appellee No. 63.
    
      Carroll Caruthers, for Foley, appellant No. 63, appellee No. 42.
    May 21, 1945:
   Opinion by

Me. Justice Patteeson,

This is an action in ejectment by Olive Foley, appellant in Appeal No. 63, and Raymond Oliver against H. S. Smay and Lena Smay, appellant in Appeal No. 42, to recover possession by each of an undivided one-fourth interest in certain real estate sold by the Barclay-Westmoreland Trust Company, guardian of the estate of Mary Jane Palmer, a weak-minded person. A trial by a judge without a jury, resulted in judgment for H. S. Smay and Lena Smay, purchasers at a public sale directed and confirmed by the Court of Common Pleas of Westmoreland County. The trial court held that as to Olive Foley the record was complete and regular on its face and she could not now successfully collaterally attack the proceedings and sale. With regard to Raymond Oliver it held that the proceedings were coram non judice, his name not being set forth in the petition for sale of real estate by the guardian and no notice of the same having been given to him, but, since the proceeds had been exhausted in support of Mary Jane Palmer, there was nothing which he could have inherited and, therefore, he now possessed no interest which would permit him to successfully attack the conveyance. On appeal to the Superior Court the judgment against Olive Foley was affirmed but that against Raymond Oliver was reversed. This Court allowed appeals by Olive Foley and Lena Smay.

This action in ejectment was tried on the declaration and abstracts of title submitted by Olive Foley and Raymond Oliver and the answer and abstract of title submitted by the purchasers, H. S. Smay and Lena Smay. The latter objected to the admission of the abstracts of title for the reason that the action was improperly brought and the records of the court in the sale of the real estate could not be attacked collaterally.

The evidence established that on June 15, 1931, pursuant to order of court directing a reconveyance Olive Foley and her husband, James Foley, conveyed the property in question to Mary Jane Palmer. See Palmer v. Foley et ux., 305 Pa. 169. On May 25,1931, as the result of proceedings instituted pursuant to the Act of May 28, 1907, P. L. 292, 50 P.S., section 941, Mrs. Palmer was declared to be weak-minded and unable to take care of her property, and the Barclay-Westmoreland Trust Company of Greensburg was appointed guardian. On June 15, 1933, said guardian petitioned the court to authorize a private sale of said real estate to defendants. The petition averred, inter alia, that the personal estate of Mrs. Palmer had been completely exhausted by the payment of debts and for maintenance and support; that the assessed valuation of the real estate was $580; that the income therefrom ($120 per year) was wholly insufficient to maintain and support Mrs. Palmer; that funds were needed for the maintenance and support of Mrs. Palmer and the payment of an existing lien against the property; that an agreement had been entered into for the sale of said real estate for $800, said agreement being subject to the approval of the court; that the affidavits attached thereto by persons familiar with the property and real estate values showed the price agreed upon was fair and reasonable; that the only persons capable of inheriting the estate were Olive May Foley, daughter, William Palmer, son, and Laura Belle Doumont, daughter; and that a copy of the petition and notice of intended presentation to the court was duly served on all the aforesaid persons. It failed to include the name of Baymond Oliver, the only surviving child of Minnie Marie Oliver, a daughter, who had died December 13, 1918.

The court refused to allow the private sale but directed public sale. On August 15, the guardian filed a return of the public sale and petitioned for a confirmation thereof, setting forth that, pursuant to the order of court, due public notice by advertisement and handbills had been made, both upon the property and by advertisement in designated newspapers; that ten days previous notice of time and place of sale was given to the interested parties by personal service upon them with a written notice of said sale; that the terms as set forth in the advertisement and handbills, had been complied with and that the price of $800 had been bid; and, requested confirmation of said sale. On August 16,1935, the court approved and confirmed said sale for the sum of $800.

The trial judge filed an opinion and decree and entered verdict for the Smays. A motion for judgment non obstante veredicto was then filed, and exceptions to the findings of fact and conclusions of law were made. Argument was bad before tbe court en banc wbicb dismissed tbe exceptions and overruled tbe motion. Upon appeal to tbe Superior Court tbe decree was reversed insofar as Raymond Oliver was concerned and affirmed as to Olive Foley.

With regard to tbe appeal of Olive Foley there can be no question but that tbe record is complete and regular on its face. No exceptions were filed by her at tbe time of tbe sale, nor did she take any steps to have tbe sale set aside although ample opportunity was bad to do so. Alleged defective compliance with tbe procedure set forth by statute cannot be challenged in tbe present proceeding. Errors, if any, were mere procedural irregularities and did not affect the jurisdiction of tbe court to direct and confirm tbe sale: Knox v. Noggle, 328 Pa. 302. Judgment was properly entered against her.

Tbe appeal of Lena Smay challenges tbe action of tbe order of tbe Superior Court in reversing tbe court below and bolding that Raymond Oliver has a present one-fourth undivided interest in tbe real estate. Both tbe court of common pleas and tbe Superior Court agreed that as to Raymond Oliver tbe proceedings were coram non judice, relying upon Bennett v. Hayden, 145 Pa. 586, and Patchin v. Seward Coal Company, 226 Pa. 159. Tbe Superior Court, however, differed with the common pleas court in that it refused to consider as controlling tbe fact that tbe proceeds from tbe sale of the property bad been entirely consumed for tbe support and maintenance of Mrs. Palmer, and, further, that no tender bad been made of tbe amount of tbe respective interest by Oliver.

A sale by a guardian of a weak-minded person is a judicial sale. Statutory requirements must be fulfilled to confer upon tbe court jurisdiction to effect such sale. “The existence of the jurisdictional facts must be determined by an inspection of tbe record. ‘It is settled law that tbe facts set out in the petition determine tbe jurisdiction of the court Bennett v. Hayden, 145 Pa. 586”: Patchen v. Seward Coal Company, 226 Pa. 159, 164. The petition of the Barclay-Westmoreland Trust Company sets forth all jurisdictional requirements. The record is complete and regular on its face. It shows conclusively that all persons interested in the estate of the ward had received notice as required. That Raymond Oliver was unknown as an heir and not included as such in the petition does not militate against the conclusive effect of the judicial sale. Bennett v. Hayden, supra, holds that the court is without jurisdiction to decree a public sale if the fact that notice has been given to the wife and next of kin does not appear of record. The Court said (pp. 596, 597) : “Moreover, the court had no jurisdiction to make an order . . . for a public sale, unless it appeared upon the face of the petition that the notice to the next of kin . . . had been given. The entire proceeding was coram non judice.” The record in the instant proceedings does not contain such jurisdictional defect. The interests of Raymond Oliver in the estate of Mrs. Palmer at the time of the sale cannot properly be considered as those of an heir or next of kin; nor is it proper to draw an analogy between failure of an heir at law to join in a deed of conveyance and failure to name and serve Oliver as a potential heir or next of kin. In the former the interests are vested and absolute; in the latter they are inchoate and expectant only. Materialization of any such interests which Oliver had during the lifetime of Mrs. Palmer into a property interest was dependent upon her decease while seized of the property. This property was the sole property of Mrs. Palmer and could have been conveyed by her during her lifetime and the proceeds therefrom used by her as she deemed proper. This is precisely what occurred here, although the sale was made by a guardian appointed by the court. In either circumstance there would remain nothing which Oliver could inherit. The mere inchoate and expectant interest never became anything more because at the death of Mrs. Palmer there was nothing to inherit. To now permit him to assert a right to a one-fourth undivided interest in this real estate would create an inheritance which never existed in fact or law.

We are of opinion that Judge Gordon properly held that “the property was consumed in its entirety before Mrs. Palmer’s death, and nothing, therefore, passed by descent to the plaintiff. This, we think, is the manifest equity of the case, and completely defeats the right of both plaintiffs to recover in the present action.”

In Appeal No. 42 the judgment of the Superior Court is reversed and the judgment of the common pleas court reinstated; in Appeal No. 63 the judgment is affirmed. 
      
       Act of 1874, P. L. 109,12 P.S. sec. 688.
     