#### Barkley’s Appeal. [Bentley’s Estate.]

. Proceedings in partition were instituted for a married woman by her husband. In the subsequent proceedings, the husband was named with the heirs, and by the final decree, a purpart, charged with owelty, was awarded to him without specifying his representative or individual capacity. Three years after the final decree, an order was made on the husband to pay the owelty charged on the land. Five months after this order was made, the wife, by a next friend, presented a petition for review alleging, as an error on the face of the record of the proceedings in partition, that the purpart had been awarded to her husband in his own right and not as her agent. The answer denied the allegations of the petition and averred that other interests had intervened. The record on the proceedings for review, did not show notice upon the husband. The orphans’ court dismissed'the petition on the ground, 1, that the record showed that the husband was acting for his wife ; 2, that the petitioner was guilty of laches, and other interests had intervened ; and, 3, that the record did not show notice upon the husband. *Held,*that the proceedings should be affirmed.

Per Curiam : That the purpart was awarded to the husband, instead of to the wife, matters little, seeing that her money was used to pay the owelty. She was in equity the-owner of the land, and could have compelled a conveyance to herself. Under such circumstances, she cannot now be allowed to resist the collection of the recognizance.

Oct. 16, 1888.

Appeal, No. 107, Oct T., 1888, from a decree of O. C. Washington Co., dismissing a petition by Josephine Barkley, by next friend, for a review of partition proceedings, and stay of lev. fa. to compel payment of valuation money, in the estate of George Bentley, deceased, at Feb. T., 1887, No. 18.

The petition, after stating the facts appearing by the opinion of the court below, asked relief because, 1, the court had awarded purpart A to her husband, W. F. Barkley, in his own right, without her consent, and that in so doing, it had exceeded its jurisdiction; and, 2, that the calculation or statement, concentrating and appropriating her interest in the valuation money of the other purparts, was erroneous; that it had not been made by the clerk or an auditor as required by law, and that it was made without her knowledge or consent ; and, 3, a lack of knowledge on her part, until within the past few days, of the concentration and appropriation made by the calculation of her interest in the valuation money of the other pieces -of land. The prayers were to have the decrees set aside, the lev. fa. stayed, and general relief.

The answer denied these facts. It also set up changes in the parties in interest, and the introduction of new parties, and stated that the petition was defective in that it did not allege that the petitioner could not, by the exercise of proper diligence, have ascertained, long before she did, the facts, upon which she based her application for relief.

The facts appear in the following opinion of the court below, by'MclLVAiNE, P. J.:

“ On Feb. 23, 1883, Josephine Barkley, by her husband, W. F. Barkley, instituted a partition proceeding in this court in the estate of her collateral relative, George Bentley, deceased. The inquest divided his real estate into eight purparts and, on Sept. 11, 1883, the *275heirs having been called into court on a rule, purpart A, containing about 155 acres and appraised at $100 per acre, was taken by and awarded to the said W. F. Barkley, and all the other purparts were taken by and awarded to different heirs of George Bentley, deceased.

“On Nov. 7, 1883, the court approved a schedule of distribution and made a decree directing that the parties taking the different purparts should pay out the money they respectively owed the other heirs, according to this schedule!

The share of Mrs. Barkley in the whole estate was $4,856.10, and this decree directed that this sum be credited as a payment on the valuation purchase money of purpart A, awarded to W. F. Barkley, her husband, and the balance, $10,509.94, was decreed to the heirs of George Bentley, who had not taken any real estate or had not taken real estate appraised at a sum equal to their share of the estate.

“ On Nov. 9, 1886, upon the petition of the parties in interest, this court decreed that the said W. F. Barkley, within forty days, pay this sum of $10,509.94, with interest, to the parties entitled to the same under the decree of distribution made Nov. 7, 1883.

“On Nov. 28, 1884, Josephine Barkley, with others, presented in the court a petition praying that the final decree of Sept. 11, 1883, so far as it related-to purpart D, taken by W. Adams, in right of his wife, Clarrissa Adams, be set-.aside on the ground or for the reason that the said Clarrissa Adams was not an heir of George Bentley, deceased. In this petition, no error in the decree of distribution of Nov. 7, 1883, or in the final decree of Sept. 11, 1883, was alleged except the one we have just indicated. The court, after hearing, dismissed this petition and allo.wed the record to stand as it was originally made.

“On March 17, 1887, the said Josephine Barkley came into this court and again presented the petition which is the basis of the present proceeding. She again alleges error in the final decree of Sept. 11, 1883, in that it awarded purpart A to her husband, W. F. Barkley, in his own right, and she also alleges error in the decree of distribution made Nov. 7, 1883, in that her share of George Bentley’s real estate was concentrated in this purpart and that her share of the whole of the valuation money was credited on the valuation purchase money of this purpart* taken by her husband. She asks that both these decrees, as well as that of Nov. 9, 1886, against W. F. Barkley, directing the payment of the $10,509.94 to the other heirs found to be entitled to the same, be set aside.

“ At the argument, the counsel for the petitioner argued that there was error of law apparent in the record in that it showed that W. F. Barkley took purpart A 1 in his own right’ and not in right of his wife or as her agent; and therefore that a bill of review was a matter of right.

“ We have examined the record and [it does not sustain this *276position.] [2] The partition proceeding was instituted on behalf of ‘Josephine Barkley, by her husband, W. F. Barkley.’ The petition, which is the basis of all subsequent steps in the proceeding, shows that W. F.* Barkley was acting for and in the right of his wife. The record further shows that the rule to accept was served upon the heirs, and, the heirs being called, that W. F. Barkley appeared; and it does not show that Josephine Barkley appeared; and, further, that, the heirs being called, W. F. Barkley elected to take p'urpart A at the valuation. In the calculation on which the decree of distribution is based, the amounts are specified which are to be paid to the heirs not accepting to take at the valuation any of the purparts and the name of Josephine Barkley is not among these heirs, because [she, through her husband, belonged to the class of heirs who did take at the valuation a purpart of this real estate.] [1] In the original petition, it is set out that Josephine Barkley, an heir, is acting by her husband, W. F. Barkley, and, from that on to the end of the proceeding, W. F. Barkley is designated as an heir, presumably because he represented an heir.

“ The presumption always is that the court has exercised jurisdiction legally. Omnia praesumuntur rite esse acta, is a legal maxim always applicable to judicial proceedings. [And there is nothing apparent in this record sufficient to overcome this presumption.] [3] It is true, the decree of Sept. 11, 1883, awarded the land to W. F. Barkley, but it does not set out that it is awarded to him in his own right, but on the contrary, [from the original petition and from the fact that he is designated as an heir, the presumption is that he was acting for Josephine Barkley, his wife, who was an heir.] [4] He started into the proceeding acting in the right of his wife, and the presumption is that he continued so to act, unless the record shows specifically that he was afterwards acting in his own right. And if Mrs. Barkley was now in court asking that the record be amended so as to show explicitly that her husband was acting for her throughout the proceeding, she would have a prima facie case upon the record itself.

[“ If the court erred, at all, in awarding to W. F. Barkley purpart A, it must be convicted of that error by evidence outside the record.] . [5] Can this be done at this late day? For three years and a-half, the petitioner and her husband have been in possession of this land under this decree. During that time, the relations sustained by the parties interested in this large estate which was divided into eight purparts, have been greatly changed. Some of the purparts taken at the appraisement have been resold, some of the recognizances given have been satisfied, and parts of others assigned to third parties for a valuable consideration.

“ With the personal knowledge that the petitioner evidently had of this proceeding, she certainly has not exercised due diligence in asserting her rights in the premises, granting that she has been *277deprived of them by the decrees of which she complains. And if these solemn decrees of this court, unappealed from, have been acted upon by other parties and other interests have intervened, as we find they have, then the relief which we might have otherwise given the petitioner, must be withheld.

“In George’s Appeal, 12 Pa. 263, Justice Bell says: ‘In the case in hand, the petition praying correction of the decree of adjudication was presented to the court in three years and two days after Plartford entered into recognizance to secure the other parties in interest payment of their distributive shares. Without attempting to indicate a time of limitation generally applicable, I think we may safely say an inaction of three years ought not to be deemed such laches as would induce the court to refuse its aid, *especially as it is understood the lands are yet in the hands of Hartford's representatives, the purchase money unpaid and everything remains as at the time of the decree. I cannot, therefore, perceive that any danger or injustice to others zvill residt from entertaining the petition, etc'.*The part of this quotation to which we wish to call special attention is the part we have italicised.

“ In the case before us, we can see no way of giving the petitioner the equitable relief she asks without doing great injustice to other innocent parties who would not have been in a position to be injured by such a decree as she asks if she had applied for relief at an earlier day. And we do not think that the fact that the petitioner is a married woman saves her from the consequences of her delay. The cases cited to show that an estoppel in pais cannot be set up against a married woman are not in point. Here we have a proceeding instituted by the petitioner herself; the court had jurisdiction of the subject matter and the petitioner had a right to institute the proceedings as she did; the decree complained of was based on her petition and it would be a fraud on innocent parties, who have invested their money and taken assignments of the recognizances given, to now allow her to set up a state of facts which do not appear on the record, that would overthrow or annul the decree on which they relied. This is not an effort on the part of a feme covert to set aside a contract she had no power to make, but it is an effort to set aside the decree of a court made in a matter of which the court had jurisdiction.

“ We will not go into a discussion of the testimony or the many legal questions raised on the argument, as the views which we have already expressed render it unnecessary. In our opinion, the petitioner, by her delay, has made it impossible for a court, in the exercise of its equitable powers, to grant the relief she asks, and her petition must be dismissed.

“ Before closing this opinion, however, we wish to say that an examination of the records of this proceeding has revealed the fact that W. F. Barkley, who is in possession of this 155 acres of land under the decree of Sept. 11, 1883, is not, as a party, in court, and *278if the merits of the case were with the petitioner, [we could not make a decree that would bind him.] [7] The petitioner came into court by *‘*her next friend, T. J. Weddell,’ and in her petition prays that a rule may issue on ‘ all parties in interest ’ to show cause why the decree of Sept. 11, 1883, awarding purpart A to W. F. Barkley should not be set aside. No rule issued, but a number of the parties in interest waived the issuance of a rule, and voluntarily appeared, but W. F. Barkley is not one of them, and, [as far as the record shows, he knows nothing of this proceeding,] [7] although it was instituted to set aside a decree which awarded to him 155 acres of land. ■ We have no doubt, from his testimony, that W. F. Barkley is in sympathy with his wife in this matter, still he should have had legal notice of the proceeding, and the record should show this fact.

[“And now, April 16, 1888, this cause came on to be heard, and, upon due consideration thereof, it is ordered, adjudged and decreed that the petition of Josephine Barkley, by her next friend, T. J. Weddell, herein filed, be and the same is hereby dismissed at costs of the petitioner; and stay of lev. fa., which was granted to No. 65, August Term, 1885, on Nov. 9, 1886, is now lifted.”] [8]

*The assignments of*error, specified the action of the court, in holding, 1, as in brackets 1, quoting it; 2, as in brackets 2, stating it substantially; 3, as in brackets 3, stating it substantially; 4, as in brackets 4, quoting it; 5, as in brackets 5, quoting it; 6, that the petitioner is estopped, and by the change in the relations sustained by the parties interested in the estate of George Bentley; 7, as in brackets 7, stating it substantially; and, 8, in making the decree as above, quoting it.

*J. M.*Braden, for appellant.

The husband of a female heir has no right to accept land for his wife in partition proceedings, and a decree awarding him the land in his own right, is void as to his wife. Fogelsonger *v.*Somerville, 6 S. & R. 267; Stoolfoos *v.*Jenkins, 8 S. & R. 167; Kean *v.*Ridgway, 16 S & R. 60; Johnson *v.*Matson, 1 P. & W. 371 ; Otto’s Est., 52 Pa. 434; Harlan *v.*Langham, 69 Pa. 235 ; Evans *v.*Ross, 107 Pa. 231; Scott, Intest. L. 675 ; 1 Rhone, O. C. pp. 539, 540.

The calculation or statement, under the Act of 1855, was a part of the decree complained of. Jones’s Ap., ix W. N. C. 554; Dennison *v.*Goehring, 6 Pa., 402; Riddle’s Est., 19 Pa. 433.

An inspection of the record shows error apparent on its face, the transfer of her interest not having been made in the mode pointed out by the Act of March 29, 1832, § 42.

A decree of the orphans’ court, awarding the wife’s share in land to her husband in partition proceedings, may be attacked collaterally, and overthrown, and the wife, or her heirs, may recover the land by action of ejectment, even in the hands of a bona fide purchaser for value, and this for the reason that the title was to be *279found among the records of the orphans’ court, of which a purchaser is bound to take notice. Fogelsonger *v.*Somerville, 6 S. & R. 267; Stoolfoos *v.*Jenkins, 8 S. & R. 167; Kean *v.*Ridgway, 16 S. & R. 60; Harlan *v.*Langham, 69 Pa. 235 ; Evans *v.*Ross, 107 Pa. 231; Diefenderfer *v.*Eshleman, 113 Pa. 305.

The record of the partition proceedings in this case clearly discloses Mrs. Barkley’s heirship, and this record was notice to any purchaser of a share of the valuation money, that her title or interest remained. Beidelman *v.*Foulk, 5 Watts, 339; Walsh *v.*Stille, 2 Pars. 17; Epley *v.*Witherow, 7 Watts, 163; Jaques *v.*Weeks, 7 Watts, 261; Hill *v.*Epley, 31 Pa. 331.

If through the administration of equity, we can produce a result which the law denies ab initio, on grounds of public policy, then estoppel, or compensation, its equitable equivalent, will accomplish what the law and policy have forbidden. Glidden *v.*Strupler, 52 Pa. 407. _ ,

_ , An attorney at law, as such, is incompetent to affect his client’s title to realty by any agreement he may enter into, in, or out of, an action pending. Naglee *v.*Ingersoll, 7 Pa. 196; Pearson *v.*Morrison, 2 S. & R. 20; Huston *v.*Mitchell, 14 S. & R. 307; Gable *v.*Hain, 1 P. & W. 267.

The presumption of law that the husband is the agent of the wife, does not extend to his acts with relation to her real estate.

Legal incapacity cannot be removed even by fraudulent representations, so as to create an estoppel in the act to which the incapacity relates. Innis *v.*Templeton, 95 Pa. 262; Klein *'v.*Caldwell, Trustee, 91 Pa. 140; Glidden *v.*Strupler, 52 Pa. 407; Quinn’s Ap., 86 Pa. 447; Caldwell *v.*Walters, 18 Pa. 79; Davidson’s Ap., 95 Pa. 394; Buchanan *v.*Hazzard, 95 Pa. 240.

When error of law is apparent on the face of the decree, a review of the decree of the orphans’ court is a matter of right. Plartman’s Ap., 36 Pa. 70; Jones’s Ap., xi W. N. C. 554; Green’s Ap., 59 Pa. 238; George’s Ap., 12 Pa. 260; Bishop’s Ap., 26 Pa. 470.

The rule asked for in appellant’s petition was “ on all parties in interest.” Barkley voluntarily appeared and testified in these proceedings.

*John Aiken,*with him *T. J. Duncan, J. W. & A. Donnan,*and *John H. Murdoch,*for appellees.

The orphans’ court having had jurisdiction over the subject matter in the partition proceedings, its decrees are conclusive in this collateral proceeding. The petitioner’s only remedy was by appeal from the decree. Painter *v.*Henderson, 7 Pa. 48; McPherson *v.*Cunliffe, 11 S. & R. 422; Snyder *v.*Snyder, 6 Binn. 497; Begelow, Estoppel, 57; 1 Nott & McCord, 329-

Fogelsonger *v.*Somerville, and Stoolfoos *v.*Jenkins, relied upon by appellant to sustain" the position that the decree may be attacked in a collateral proceeding, is overruled, on that point, by McPherson *v.*Cunliff, supra.

*280Oct. 29, 1888.

The land was awarded to Barkley in right of his wife.

It might have been awarded to him in his own right. Thompson *v.*Stitt, 56 Pa. 156; McCollough *v.*Wallace, 8 S. & R. 181; Snevily *v.*Wagner, 8 Pa. 396; Kinzer *v.*Mitchell, 8 Pa. 64; McMillan’s Ap., 52 Pa. 434.

The averments of the bill were denied by the answer, and were unsupported by other evidence than that of the husband and wife. The bill should therefore be dismissed. Charles *v.*Huber, 78 Pa. 448 ; Dollar Savings’ Bank *v.*Bennett, 76 Pa. 402; Eberley *v.*Groff, 21 Pa. 251; Pusey *v.*Wright, 31 Pa. 387.

The petitioner having participated in the partition proceeding, is estopped from denying their validity. Young *v.*Babilon, 91 Pa. 280; Chapman *v.*Chapman, 59 Pa. 214; Thompson *v.*Maxwell, 95 U. S. 391; French *v.*Shotwell, 5 Johns. Ch. 554; Kyder *v.*Phoenix Ins. Co., 101 Mass. 548; Atkenson *v.*Manks, 1 Cowen, 709; 2 Dan. Ch. Pr. 973.

A mistake of law is not the subject of equitable relief. Ranken *v.*Mortimer, 7 Watts, 372; Good *v.*Herr, 7 W. & S. 253; McAninch *v.*Laughlin, 13 Pa. 371; Broom’s Leg. Max. 260; 1 Story, Eq., §§ 3 and 137.

If it appear that the matter alleged to be newly discovered, though unknown to the party, was known to her attorney, solicitor or agent, in time to have been used, the bill will not be allowed, notice to the one being notice to the principal. Greenlee *v.*McDowell, 4 Ired. Eq. 481 ; Jenkins *v.*Eldridge, 3 Story, 314.

It is well settled, by a long train of authorities, that the matter must not only be new but it must be such that the party filing the bill, by the use of reasonable diligence, could not have learned; and if there be any laches or neglect in this regard, the title to relief is destroyed.- Young *v.*Keighley, 16 Ves. 348 ; LeMoyne’s Ap., 104 Pa. 321 ; Green’s Ap., 59 Pa. 235 ; Scott’s Ap., 112 Pa. 427; Wiser *v.*Blackley, 2 Johns. Ch. 488.

If all of the allegations of the petitioner were true, the court would refuse the prayer for relief, because of the changes of parties since the decree was entered, and for the further reason that it would producejmischief to innocent third persons. 2 Dan. Ch. Pr. 1578, citing, amongst other cases, Thomas *v.*Harvie, 10 Wheat. 146; Harris *v.*Edmundson, 3 Tenn. Ch. 211 ; Dexter *v.*Arnold, 5 Mason, 303; see, also, Ricker *v.*Powell, 100 U. S. 104.

Per Curiam,

We are not persuaded that the court below erred in the disposition of this case. Mrs. Josephine Barkley, through the agency of her husband, was the actor in this partition; and, that the purpart was awarded to him, instead of to her, matters little, seeing that her money was used to pay the owelty. She was in equity the owner of the land, and could have compelled a conveyance to herself. Under such circumstances, she cannot now be allowed to resist the collection of the recognizance.

Decree affirmed and appeal dismissed at costs of appellant.