
    [Pittsburg,
    Monday, September 9, 1811.]
    *Messinger and others against Kintner.
    In Error.
    The appointment of appraisers by an Orphan’s Court under the act of 1764, to value the lands of an intestate, and a decree adjudging them at the valuation to one of the children, when at the same time the record shows no petition to the court by the widow or any of the children, no consent of parties to the appointment, no appearance of the other children by guardian or otherwise, or notice to them, but on the contrary plain evidence that none did appear, are absolutely void ; and this may be taken advantage of by one of the children in an ejectment against him to whom the property was adjudged, or his vendees.
    Although after a length of time, presumptions may be made in favor of what does not appear, in order to support the decree of an Orphan’s Court at an early day, when its proceedings were probably irregular, yet there can be no presumption against what does appear.
    An unauthorized decree of an Orphan’s Court for the sale of lands, will not stand until reversed in a regular course of appeal, but may be questioned in a collateral suit by or against a person claiming under that decree.
    Error to the Common Pleas of Washington county.
    Kintner the plaintiff below brought this action, which was ejectment, to recover an undivided ninth part of a tract of land, containing 270 acres or thereabouts, which he claimed as one of the children of Michael Kintner who died seised in fee.
    Messinger one of the defendants married a daughter of Michael Kintner, and claimed the property under a decree of the Orphan’s Court, adjudging it to him at a valuation. The other defendants were purchasers under him.
    The record of the Orphan’s Court presented the following entries: “ 7th February 1786. Came into court George Kint•ner and Catharine Kintner, administrators of Michael Kintner deceased, produced an account of their administration by which it appears that there is a balance of 88i. 5s. 3d in the hands of the ■ administrators, subject to distribution, according to law,—
    
      “By the Court, same day. The court appoint Patrick M’Cuilocb, Hugh Scott, Robert Ramsey, and Patrick Scott appraisers to value the lands late of the said Michael Kintner deceased, in Fallowfield township, to Adam Kintner the heir at law” (oldest son). “And in case of failure of the said Adam’s appearance to claim, or other person having preference by law, to Daniel Messinger husband to Mary, daughter of the said Michael deceased.”
    “ Third May 1786. Came into court, Hugh Scott, Patrick M’Culloch, Robert Ramsey, and Patrick Scott, who were '^appointed by this court on the 7th of February last, to value the lands of Michael Kintner deceased to the heir at law, or in case of his failing to appear to claim the right of purchase, or any having preference by law, then to Daniel Messinger husband of Mary, daughter of the deceased, and made report that they valued the lands aforesaid to fourteen shillings an acre, which tract of land contains 173 acres and 73 perches strict measure; and the said heir nor any other having preference as aforesaid, not appearing to claim the right of purchase aforesaid, the court order and decree, that the said Daniel Messinger have the said lands so as aforesaid valued, at the valuation, to be paid to the relict and children of the deceased, according to the directions of the laws in such cases made and provided.”
    Peter Kintner the plaintiff, was a minor in 1786, and at that time without a guardian. He chose a guardian in 1788, being then above fourteen, and arrived at lawful age in 1795. Messinger, and those who purchased, had been in possession a long time, and made some improvements, without opposition from Peter, who in 1807 gave Messinger a receipt acknowledging that he had received all the money that Messinger was to have paid him, after which this suit was brought. Others of the children were also minors in 1786. The tract valued to Messinger, instead of 173 acres 73 perches, in fact contained 270 aci’es.
    The President of the Common Pleas (Roberts) chax’ged the jury, that at the time when the order of the Orphan’s Court was made, that court was so constituted, that an adherence to strict legal forms in their proceedings could not be expected. To require it might shake an infinite number of titles in Pennsylvania, depending on decrees of Orphan’s Courts at and before that period. We should therefore be strongly inclined to support tlie proceedings of those courts, wherever they appeared to be substantially correct. But whatever inclination might be felt to presume their proceedings to be right, where they are capable of such construction, it would be going too far to presume them to be right where upon the face of them they appear evidently to be wrong. The Orphan’s Coui’t had a right, with the consent of the 
      *parties, to appoint persons to value the land. If the parties could not agree, the court had a right upon a proper application to award an inquest. That, all the parties could not consent, is evident, it being acknowledged on all hands, that some of them were minors, and therefore incapable of consenting. It has indeed been said that although these minors had no guardians, yet it is possible they might have appeared by their next friends, and consented. But it would be a rash presumption to suppose an appearance by next friends, when we cannot perceive the slightest intimation in any part of the proceedings of an appearance by next friends, or of any appearance whatever; and when, on the contrary, the lauguage of the record negatives every idea of an appearance or consent of the parties, their guardians, or next friends. The court seem to have had no idea, that the consent of any one was necessary. On the same day on which the administration account was exhibited, they appoint four men to value the land to Adam Kintner the heir at law, and in case of failure of the said Adam’s appearance to claim, or other person having preference by law, to Daniel Messinger, &e. The endeavor to support a decision by presumption and inference is vain, where the language of such decision destroys every presumption and inference which you might be disposed to adopt.
    The next ground urged by the defendants, is the acquiescence of the plaintiff: the circumstance of his omitting for such a length of time to prosecute his claim, and also that of his having so late as the year 1807, long after he became of age, received his proportion, and given an acquittance for it. This is doubtless a strong circumstance, and frequently a conclusive one, against the claim of a party, that he acquiesced; that he stood by without intimating his right, and suffered another to expend his money or his labor. A stale claim will ever be frowned upon by a court and jury, unless the delay be very satisfactorily accounted for. How far the delay in this case, as well as the apparent acquiescence, has been satisfactorily accounted for, you will decide, &c.
    This opinion being reduced to writing, and filed agreeably to the act of 24th February 1806, was removed by the writ of error to this Court.
    *The third and fourth sections of the act of 28d March 1764, are alone material to the case.
    Tbe third enacts “ that it shall and may be lawful to and for the justices of the Orphan’s Court of the county in which the lands and tenements of intestates shall be, upon a petition 
      
      to them presented by the widow or relict, or by any child or children of such intestate, if of age, or by his or her, or by their guardian or guardians or next friends if under age, to appoint four or more persons, indifferently chosen on behalf and with the consent of the parties, or where the parties cannot agree, to award an inquest, to make partition according to the purport and true meaning of the act for settling intestate’s estates, &c.”
    The fourth provides, that where any estate in lands, &c., cannot be divided “ amongst the children, or widow and children of the intestate, without prejudice to or spoiling of the whole, the same being so represented and made appear to the Orphan’s Court of the count}', &c., then the said court may, but not otherwise, order the whole to the eldest son, if he shall accept it, or any of the other sons successively, upon the eldest son’s refusal; or if there be no son, or all the sons refuse, then to the eldest daughter of the intestate, and on her refusal, to any other of the said daughters successively; he or they, or some friend for him, her or them, paying to the other children of the intestate their equal and proportionable parts of the true value of such lands, &c,, as upon a just appraisement thereof pursuant to the act for settling intestates’ estates aforesaid is directed, or giving good security, &c.; and the person or persons to whom or whose use payment or satisfaction shall be so made for their respective parts or shares of the deceased’s lands in manner aforesaid, shall be for ever barred of all right, title or demand of, in, to or out of, the intestate’s lands and tenements aforesaid, &c.” 1 St. Laws, App. 47.
    
      Campbell for the plaintiffs in error,
    argued, that although upon the face of the record, the decree might appear to have been irregular’, yet after so great a lapse of time, and particularly after the acquiescence of the plaintiff below, it ought not now to be questioned.
    Proceedings of this kind in the Orphan’s Court have usually *f»een very irregular, and have always been regarded with great tenderness by the superior courts, as is evident from the case of Walton v. Willis, 1 Dall. 351. Many titles depend upon them; and to apply any but the most indulgent criticism to them, would shake the security of real property throughout the state. An interval of twenty-one years elapsed"between this decree and the action, in which it was never questioned. Purchasers for a valuable consideration have come in, improvements have been made, and the Court will therefore do every thing to support the decree. The difference between the real and estimated quantity of the tract is nothing, because it was not ascertained until long after the valuation. It is a perfectly fair case, and requires nothing but the aid of common legal presumption in favor of the proceedings of a court of extensive jurisdiction, to sustain it. It is not necessary that by the minutes and files of the court, every thing should appear to have been regularly done. An appearance is not recorded there. The appraisement and valuation were a public transaction, and at this time of day, since proof is impossible, the Court will presume the necessary consent. It will not suppose that the judges of the Orphan’s Court grossly disregarded the rights of minors, by permitting the proceeding to be considered ex parte. The order of valuation is made on the same day on which the administration accounts are filed by the widow and brother of the intestate, from which a privity and consent may be inferred; and although the minors had not guardians, they had next friends, through whom they may have consented, and probably did consent. In the case of the Mayor of Hull v. Horner, Cowp. 110, Lord Mansfield said, that all shall be presumed to have been solemnly done, rather than that ancient grants should be called in question, which were necessary to the perfection of the thing, though the grant cannot now be shown. The principle applies to the point of consent here. The case is peculiarly strong in favor of the purchasers, who are in the light of purchasers at sheriff’s sales, not affected by previous irregularities.
    Here is moreover the acquiescence of the plaintiff, which is not only a legal bar after seven years, by the fifth section *of the act of 1705, 1 St. Laws, App. 44, but is upon funeral principles an equitable bar. He stood by. le received his purpart, and gave an acquittance.
    But if the decree can be reversed, this is not the mode of doing it. There is a remedy by appeal, to correct the errors of the Orphan’s Court; and while their decree remains in full force and unreversed, it cannot be impeached in a collateral suit. The inconveniences of it would be monstrous, and it is contrary to perfectly well settled principles of law.
    
      Hoss for the defendant in error,
    argued, that inasmuch as the only legal mode of partition in this case, was by inquest, unless the parties consented, it was essential to the jurisdiction of the court in the present mode of proceeding, that the consent should appear. Now although much may be presumed where nothing appears, there can be no presumption against what appears; and it is perfectly apparent from all the entries that Messinger was the main spring of the work, that he did not wish any body to appear, and that nobody did appear. There was no petition, no notice to the parties, not one step which the law requires to give authority to the court. Any decree would stand, if this could. As to the purchasers, they stand upon the same footing with Messinger. They are purchasers with notice in law. They purchased under the decree, and were bound to see that it was authorized.
    As to the acquiescence of the plaintiff, it was without a knowledge of his rights. As a fact this was discussed to the jury, and their verdict confirms the position. As a question of law it is perfectly settled. Levy v. The Bank United States, 1 Binn. 27. If his rights were known, it was a bargain entered into from necessity, which equity would relieve against. Wiseman v. Beake, 2 Vern. 121.
    Since the decree was without authority, it may be set aside generally by appeal, or as to the particular case in an action of ejectment. In Larrimer’s Lessee v. Irwin there was a recovery in ejectment against a decree of an Orphan’s Court, a sale, and a possession of thirteen or fourteen years.
   *Tilohman C. J.

There are two questions in this cause. 1. Whether the decree of the Orphan’s Court, by which the land of Michael Kintner deceased was adjudged to Daniel Messinger was void. 2. If void, whether Peter Kintner, the plaintiff below, has confirmed the title of the defendants by his actions and conduct.

1. I would make great allowance for informality in the proceedings of Orphan’s Courts in early times. But this allowance must not be carried so far as to sanction manifest injustice. After a length of time, presumptions may be made in favor of what does not appear. But there can be no presumption against what does appear. The proceedings now under consideration, are to be judged of by the act of 23d March 1764. What was the power of the Orphan’s Court, in cases where the land of an intestate could not be divided without injury to the heirs. It is derived from the fourth section of the act. Where it is made to appear to the court, that the estate cannot be divided without prejudice, then the court may, but not otherwise, order the whole to the eldest son if he shall accept it, or any of the other sons successively upon the eldest son’s refusal; or if there be no son or all the sons refuse, then to the eldest daughter, &e. &c.; he or they paying to the other children of the intestate their equal and proportionable parts of the true value of such estate, as upon a just appraisement thereof, pursuant to the act for settling intestates’ estates is directed. On turning to the act referred to, we find, that the appraisement is to be by the valuation of four or more persons indifferently chosen by both parties, or by an inquest appointed by the Orphan’s Court to value the same, where the parties cannot otherwise agree. Was this mode pursued by the Orphan’s Court in the case before us? It was not. They ordered an appraisement to be made by four men without the consent or agreement of both parties. It is said, that we ought to presume such consent or agreement, although it does not appear upon the record. But I cannot bring my mind to make such presumption, because it appears to me by a full consideration of the whole record, that the children were not before the court either in person or by guardian or next friend, and that the court did not think it necessary that they should be present, supposing that the rights of the absent children were *sufficiently protected by their order, which did not adjudge the land to Messinger, except in case of the nonappearance of the eldest son, or any other child having the right of preference by law. We see the consequence of such irregular proceedings. The quantity of land to which the intestate was entitled, had not been ascertained by survey returned to the land office. Yet in this state of ignorance, the appraisement and valuation were made by the acre, and Messinger only paid for 173 acres, when the tract turned out afterwards to contain 270 acres. There is nothing in this case which calls for favorable presumptions. The proceedings of the Orphan’s Court cannot be supported.

But it is contended by the counsel for the defendants, that the decree, though erroneous, ought to stand until reversed by the regular course of appeal, and ought not to be questioned in this collateral way. If that question was open, I should think it well worthy of consideration. But after the frequent decisions, by which the decrees of Orphan’s Courts have been called into question in actions of ejectment, I am bound to consider the law as settled. I have in my hands a manuscript note of the case of the Lessee of Larrimer and wife v. Irwin, tried before the late Chief Justice M’Kean and Judge Smith in this county in the year 1798. It was then decided, that a decree of the Orphan’s Court, ordering lands to be sold for the payment of debts was void, because at the time of the decree no administration account was settled, and it appeared, before the sale took place, that the intestate’s personal estate was more than sufficient to pay the debts; and the court very properly laid it down, that it behoves the purchaser at a sale of this kind to see that the proceedings were so far regular as to authorize the sale. It has been strongly urged, that whatever may be the case as to Messenger, those persons who purchased of him, and have made improvements, ought not to be disturbed in their possession. But their case is not to be distinguished from Mes-singer’s because they are purchasers with notice. Every man is bound to take notice of a record, which is the foundation of his title. If they looked into the title at all, the decree of the Orphan’s Court stared them in the face at the first step, and seeing the decree they must take notice at their peril, of the proceedings on which it was founded.

*2. I will now consider the second point, the discharge given by the plaintiff for his share of his father’s estate, and his acquiescence in the possession of the defendants. These things were submitted by the judge to the consideration of the jury. The effect of a receipt or discharge of this kind, will depend on a variety of circumstances, particularly on the age of the person who gives it, and his ignorance or knowledge of his rights, at the time it is given. To say that a discharge given by a young man, a little more than a year after he comes of age, shall at all events be conclusive on him, would be unwarrantable assertion. It seems to me, that when the judge submitted this part of the case to the jury in the manner which it apappears he did, he acted fully as favorably to the defendants, as they had auy right to expect. On the whole, I see no error in the charge of the President of the Court of Common Pleas, and am of opinion that the judgment should be affirmed.

Yeates J.

The present writ of error is brought to reverse a judgment entered in the Court of Common Pleas of Washington county, for some supposed errors in the President’s charge to the jury upon the trial. That charge has been reduced to writing, and filed of record in pursuance of the act of 24th February 1806.

I fully subscribe to the sentiments expressed by the court, that the proceedings of the Orphans’ Court of a frontier county, shortly after its erection, should be viewed with much indulgence and allowance; that where their proceedings are substantially just, presumptions may be formed in their favor to supply omissions -of an inferior nature; but that no tribunal of justice can possibly presume their proceedings to be right, when on the face of them they are evidently wrong.

The defendant in error was clearly entitled to one undivided ninth part of a tract of land in Fallowfield township containing 270 acres, the property of his father at the time of his death. Daniel Messinger, who had intermarried with Mary, one of the daughters of the deceased, applied to the Orphan’s Court, and four persons were appointed on the 7th February 1786, to value the lands, and the persons so appointed, on the 3d May following, came into court and *made report that they had valued the tract, said to contain 173 acres 73 perches strict measure, at 14s. per acre; and Adam Kintner, the eldest son, nor any other having preference, not appearing to claim the right of purchase, the court oi’dered that Messinger should hold the lands at the valuation, to be paid to the relict and children of the deceased according to law. At this time the defendant in error was turned of nine years of age, and had no guardian to represent his interests.

How then has he been divested of his unquestionable right to his proportion of the land in question ?

By the supplement to the intestate act of 1705 passed on the 23d March 1764, the Orphan’s Court might, on petition by any child of the intestate, appoint four or more persons, indifferently chosen on behalf and with consent of the parties, or where the parties could not agree, award an inquest, to make partition or a valuatioh in case the lands could not be divided without prejudice to or spoiling of the whole. The consent of the parties must necessarily precede the appointment of the appraisers; without it, the Orphan’s Court possessed no legitimate power of appointment. Who gave consent here ? The minor children could give no consent. Admit even that guardians might bind their wards, by a choice of men for that purpose, (which is contrary to the received construction of the law,) they had no guardians to protect their infancy. Where is the petition by a child of the intestate ? How has it been made to appear to the court, that the land could not be divided among the widow and children without prejudice to or spoiling of the whole? Who were the guardians or next friends of the minors, who received notice of the proceedings, and watched over their interest? Could the rights of the infants have been asserted, when a tract of land of 270 acres is represented as 173 acres 73 perches, and consequently not two thirds of the tract have been appraised? The plain answers to these questions abundantly show the radical defects in the proceedings of the Orphan’s Court, which were wholly ex parte, and could never divest the defendant in error of his share of these lands. Besides, if every other step had been correct and fair, be has never been called upon to elect whether he would take the land at its appraised price. The wife of *Messinger, or her husband in her right, could not take until her brother or their guardians had exercised their option. All presumptions then, that the proceedings were substantially right, are removed by the contrary being fully proved.

It has however been alleged, that the case of Michael Pober may well be contradistinguished from that of Daniel Messinger, inasmuch as the former was a bona fide purchaser without notice, and has made valuable improvements. But it did not appear that he had paid any part of the purchase money; and he had presumptive notice of the whole case, by claiming under the decree of the Orphan’s Court, which necessarily put him upon inquiry. • The title of the defendant in error having been established as to one-ninth part of the lands, the verdict could only be taken for his undivided interest in the whole tract.

It was also contended, that the decree of the Orphan’s Court was reversible by appeal only, and not collaterally in a different suit. This may be correct as a general proposition, but its application is denied here. The defendant in error, either by himself or his guardians, was no party before the court nor heard by them, and consequently was not bound by their order. It was res inter alios acta. Frequent cases occur, where ejectments have been brought by a child, on the valuation and confirmation of lands to another child; and so where lands have been sold for payment of the father’s debts, by an administrator, under an order of the Orphan’s Court. It has not been deemed necessary in the first instance, to appeal to this Court to reverse the decree.

Finally, it has been objected, that here has been great laches in bringing this suit, acquiescence in the adverse title, and that the defendant in error has received of Messinger in 1807, all the money which the latter owed him; and that this should operate as a complete release.

Laches will not be imputed to an infant. As soon as the defendant in error knew of his right, after coming of age, he instituted this suit. But all these matters were submitted to the jury for their decision, and their finding is conclusive. They must have been satisfied, that the defendant in error was ignorant of his rights, when he gave the general receipt in 1807, and was deceived therein; because they have said by*their verdict that he shall repay to Messinger the money he had received from him, together with interest.

I am of opinion, that the judgment of the Court of Common Pleas should be affirmed.

Brackenridge J. concurred.

Judgment affirmed.

[Commented on and approved in 6 Binn. 491, 499. Cited in 2 S. & R. 7 ; 6 id. 271; 11 id. 432 ; 14 id. 184 ; 2 W. 489 ; 2 W. & S. 303 ; 7 Barr, 52; 2 Pars. 427; 15 S. 485.]  