#### Taylor *v.*Hoyt.

The orphans’ court has no jurisdiction to sell the land of one who has been absent for seven years, under the Act of April 18, 1858, where no notice was given, by publication or otherwise, to the absent owner ; and where the record of the proceedings showed that they were instituted on the estate of the deceased father of the absentee, some three years after his death, and the petition averred that the father left a daughter, the absentee, either legitimate or illegitimate, who had been absent and unheard from for more than seven years before his death; and the record of such proceedings in the orphans’ court is no defence to an action of ejectment by the owner who afterwards returns._

*It seems*that the Act should be strictly construed, as the constitutionality of the Act can be sustained only on the legal presumption that one who has been absent and unheard of for seven years is dead, a presumption unwarranted in fact.

Oct. 9, 1888.

Error, Nos. 72, 73 and 74, Oct. T., 1888, to C. P. Mercer Co., to review judgments on verdicts for plaintiff in actions of ejectment by Mary Elizabeth Hoyt against Priscilla Taylor, P. P. Gelvin, and Andrew Davis, at June T., 1887, Nos. 82, 83 and 84.

The pleas in these cases were not guilty. At the trial it was admitted that the common source of title was Dr. David Edgar, who died seized of the land in controversy. The plaintiff offered evidence that she was the lawful daughter of Dr. Eldgar, and his sole heir.

The defendants offered in evidence the record at No. 38, Jan. *207T., 1885, in the orphans’ court, showing a sale to thed efendants by a decree of the court, under the Act of April 18, 1858, providing for sale where the owner has been absent for seven years. The proceedings were conducted on the estate of Dr. Edgar.

The court charged that the only question for the jury was to determine whether the plaintiff was the lawful daughter of David Edgar, and reserved the question whether the plaintiff’s recovery of the land in suit was barred by the proceedings in the orphans’ court. The jury returned a verdict in favor of the plaintiff.

Judgment was entered on the verdict, in the following opinion of the court, by Mehard, P. J.:

*“*The question reserved on the trial of this case was, whether the plaintiff’s recovery of the land in suit was barred by the proceedings at No. 38, Jan. T., 1885, in the orphans’ court of this county.

“ The verdict of the jury has established that the plaintiff is the sole lawful heir of David Edgar, deceased, who died seized in fee of the land, and under whom defendant claims. The only obstacles in the plaintiff’s way are the proceedings mentioned. The record at No. 38, Jan. T., 1885, in the orphans’ court, shows that Eliza Hamilton, a sister of David Edgar, deceased, presented her petition setting forth, inter alia, that David Edgar had died on Jan. 23,1882, seized of the land in suit; that he had had a daughter, Mary Elizabeth Edgar, petitioner could not say whether legitimate or illegitimate, who, being unmarried, had been absent and unheard from since 1859 or i860; that her father, in his lifetime, had made diligent search for her, from the time of her disappearance until almost the time of his death, as petitioner was informed and believed, but had failed to find her. The petitioner set forth the names of the collateral heirs of David Edgar, deceased, who would of course be the collateral heirs, ex parens paterna, of his only child, and prayed for a sale of the land, whereof David Edgar had died seized, in accordance with the provisions of the Act of April 18, 1853, Purd. 1457. All of the persons named in the petition as collateral heirs, appeared, without citation, and, asserting the facts alleged to be true, joined in the prayer of the petition. The missing daughter of David Edgar, deceased, was not made a party to the proceedings, nor was there an attempt to notify her of them by publication or otherwise, so far as the record shows. The record, indeed, shows that the decree, which is in proper form, was signed without the issuing of a citation or other process. Under this decree, the land was duly conveyed to the defendant.

“ The validity of the title thus acquired by defendant is denied on the following grounds, viz.: 1st. Because notice, as prescribed by § 3 of the Act under which the sale was made, was not given to Mary Elizabeth Edgar (Hoyt). 2d. Because the proceedings were premature, having been commenced within seven years of the death of David Edgar. 3d. Because the clause of this Act authorizing a sale of real estate on the presumption of the owner’s death, is un*208constitutional. 4th. Because the facts alleged in the petition do not fulfil the requirements of the Act, (a) in that it shows that the presumption of Mary Elizabeth Edgar’s death had arisen before the death of her father, and (b) in that it questioned her legitimacy.

“ These objections to defendants’ title will be briefly considered in their inverted order.

“The Act of April 18, 1853, authorizes a sale, ‘whenever the owner of real estate may have been absent and unheard from for seven years, under those circumstances from which the law would presume his or her death.’ The argument drawn from the first branch of the 4th objection to the validity of the proceedings relied on by the defendant, is that, in as much as the petition, on which they are based, showed that Mary Elizabeth Edgar had been absent and unheard from, under the circumstances contemplated by the Act, for twenty-two years prior to David Edgar’s death, the presumption of her death had arisen before her father’s death; and, hence, the petition showed title to the land of David Edgar to be in his collateral heirs. This argument, we apprehend, loses sightof the purpose of the clause just quoted. It is true, the facts stated in the petition showed that the presumption, of plaintiff’s death had begun to run in her.father’s lifetime and that, had the fact been in accordance with the presumption, his collateral heirs would have inherited David Edgar’s land; but it must be borne in mind that this was only a presumption, and was not conclusive of the fact. The collateral heirs did not acquire, and therefore could not convey, a title which would be valid, should the fact turn out contrary to the presumption. If the, land had been awarded them, by a decree of the court, on the stress of such presumption, it could have been recovered by the absentee falsely presumed to be dead. Miller *v.*Beates, 3 S. & R. 492. A title resting on the presumption of the death of one who, if alive, would be the owner, was therefore unstable and unmarketable, not freely alienable nor fully answering the ends of property. This was one of the evils to be cured by the Act. It provides a conveyance indefeasible by an owner presumed to be dead, and limits his remedy, should the presumption prove false, to the fund realized from the sale of the land. If this be the correct view of this law, it would not seem important whether the presumption, of the owner’s death had arisen before or after the death of the ancestor. In either event, he would be the owner, if alive; and the possibility of the facts proving contrary to the presumption, would be in the way of an indefeasible conveyance; and, hence, the reason for applying the remedy would be as strong in one case as in the other.

“ The second branch of the objection emphasizes the term ‘ owner of real estate,’ the argument being that, inasmuch as the petition suggested a doubt as to the plaintiff’s legitimacy, it did not appear that she was the owner of the land sold, and that the sale was therefore unauthorized by the statute. It is conceived that this *209argument affects the proof rather than the subject matter. But, notwithstanding the doubt expressed, the petition proceeded on the assumption that. Mary Elizabeth Edgar, if alive, would be the owner of the land described in it; and, the fact being conceded that she was David Edgar’s daughter, her legitimacy would be presumed in absence of evidence to the contrary. The object of the Act is to unfetter estates from an absentee’s title and not to adjudicate its validity. That the title is questionable will not oust jurisdiction under the statute.

“It is objected that this part of the Act of April 18, 1853, is unconstitutional; that Mary Elizabeth Edgar could not be deprived of her property unless by ‘ the judgment of her peers or the law of the land.’ We cannot follow in detail the able argument of the learned counsel for plaintiff on this point. This question was raised under another clause of this Act, in Greenawalt’s Appeal, 37 Pa. 99. Our supreme court said, in answer: ‘ The objection that all the parties interested immediately or remotely are sui juris, and are not to have their interests divested without their consent, hinted at in the arguments, has also been considered. The Act of 1853 is a general law, operating on all cases alike, — is intended as a rule of property, and is unlike the case of Ervine’s Appeal, 16 Pa. 256, which exposed a legislative attempt to make a rule in a special case after rights had become vested under existing laws. I think it was well decided that such a divestiture of title was not “ by due process of law.” Here, however, the property in question became vested under a rule of law promulgated in the statute, by which it, and property similarly situated, might be divested,.and there is nothing contrary either to natural justice or constitutional right, to allow the Act so to operate, where the fund is substituted for the estate, or so much as may remain after the necessary application to the relief of the estate, or the benefit of those interested in other portions of it. It unfetters the realty from diversity of titles and contingent interests, secures to purchasers clear titles, and to parties interested the value of their interests. This objection is not in the way of the order of sale.’ In Burton’s Appeal, 57 Pa. 218, where the power of the court to decree the sale of church property under this Act was being considered, our supreme court said: ‘ Conversion is not destruction, and can be made for the benefit of the trust.’ In proceedings in partition, the tenants-in-common are forced to part with land and accept its value in money; and, by the operation of the statute of limitations, an owner loses not only his remedy but his right. More *v.*Luce, 29 Pa. 260. The part of this law under consideration is, as we think, akin to the provisions made in this and other statutes for the care and sale of lands belonging to minors, lunatics, etc., and rests on the same grounds. A person absent and unheard from for seven years, and who cannot be found on diligent search, is as much in need of the interference of the state in the superintendence, disposition and management of his prop*210erty, as one who, for some reason, is not sui juris. In one case, the state interferes, as parens paterna, lest the minor or lunatic may suffer from his own improvidence; in the other, it interferes lest the estate of the absentee may go to waste for want of an owner’s care, and thus he, as well as those entitled to it, in the event of his death, will lose the use and value of their property. A substantial distinction in principle cannot be made between the state taking control of the one who lacks mental capacity to control it for himself, and taking control of the property of one who either does not know of its existence, or has abandoned it for seven years. A lunatic restored to reason, or a minor on reaching full age, would have as plausible ground to complain of a sale made in the exercise of such control, as would a wanderer on returning after an absence of seven years, under circumstances indicating his death. In both cases, the state acts with a view to the owner’s benefit, as well as for public weal, in unfettering the estate and making it answer the ends of property, instead of idly going to decay. “ This species of legislation may, perhaps, properly be called prerogative remedial legislation. It hears and determines no lights; it deprives no one of his property. It simply authorizes one’s real estate to be turned into personal, on the application of the person representing his interest, and under such circumstances that the consent of the owner, if capable of giving it, would be presumed. It is in the nature of a grant of privilege to one person, which at the same time affects injuriously the right of no other.” Cooley, Const. Lim. 124, 103.’

“The 2nd objection, like the 4th, emphasizes unduly, as we think, the term ‘ owner of real estate.’ The interpretation insisted on under it, is, that jurisdiction can attach only to property of which the owner shall hqve been absent, etc.,' for seven years after acquiring title. This presents the clause of the Act under consideration, in the light of a statute of limitations. Such is not its nature. Its purpose is not to bar remedies or transfer rights, but it is to relieve real estate, tied up and unproductive -through the absence, neglect and probable death of the owner, from the fetter of uncertainty, by putting it in the hands of one who may safely use and improve it, and by substituting security for its value, stamped with the same title as the property sold. The ground for legislative interference is, that the circumstances create a presumption of the owner’s death. This presumption would be equally strong whether it matured before or after acquiring title.

[“ The remaining objection is, to our mind, a fatal one. It is that notice of these proceedings was not given to Mary Elizabeth Edgar, as prescribed by § 3 of the Act of April 18, 1853. This section provides for notice to ‘ all persons in being who shall not have appeared, and who shall have any present or expectant interest in the premises.’ It is plausibly argued, on behalf of defendant, that one who has, been ‘ absent and unheard from for seven years, under those circumstances from which the law would presume his *211or her death,’ is to be regarded as a person *not in being,*to whom notice therefore cannot be given. This view gets some force from the fact that property, real and personal, is decreed, to those next entitled, on the stress of the presumption of the' owner’s death, simply upon proof of the facts raising the presumption, and ■ without any attempt to notify the absentee. Innis *v.*Campbell, 1 Rawle, 373; Miller *v.*Beates, 3 S. & R. 490; Burr *v.*Sim, 4 Wh. 169; Bradley *v.*Bradley, 4 Wh. 173 ; Whiteside’s Ap., 23 Pa. 116. This may result in a loss of his property to an owner, erroneously presumed to be dead, through the insolvency of the one to 'whom it has been decreed. Miller *v,*Beates, 3 S. & R. 492. Nevertheless, the absent owner, falsely presumed to be dead, has a right of action, and, where the subject matter is real estate, can recover the thing itself. Ibid. But the Act of 1853 makes a title to the land indefeasible by the owner, and protects his right by securing the value. The main fact to be adjudicated — the one on which the decree of sale depends — is, that the owner has been ‘absent and unheard from for seven years under those circumstances from which the law presumes his or her death.’ It is true, this court cannot inquire collaterally, whether that fact was proven at the hearing of the case. Gilmore *v.*Rodgers*et al., 41 Pa. 128. But it is begging the question to say that no attempt need be made to notify one alleged to have been absent, etc., for seven years, because the law presumes him dead, when the court is seeking to acquire jurisdiction over the persons in interest, for the purpose of determining whether such be the fact.

“In Smith *v.*Townsend, 32 Pa. 442, it is said: ‘ It is undoubtedly true, that no one having a present interest can be affected by proceedings under it (the Act of April 18,1853) unless made a party.’ This is not only on the ground of the provision of the Act, but likewise on the general principle that one cannot be bound by a judicial sentence without a day in court. McKee *v.*McKee, 14 Pa. 237; Richards *v.*Rote, 68 Pa. 248; Brown *v.*Hummel, 6 Pa. 86; Soles *v.*Hickman, 29 Pa. 342; Blackwell *v.*Cameron, 46 Pa. 236 ; Young *v.*Young, 88 Pa. 422 ; Cooley, Const. Lim., 493. We conclude, therefore, that, inasmuch as the plaintiff was a person actually in being, having an interest in the premises which these proceedings concerned, she was entitled to notice as provided in the statute; and that, as she was not made a party, and such notice was not given, she is not bound by the decree there made.]

“ It is accordingly ordered that j udgment be entered on the verdict.”

*The assignments of error*specified, 1, the portion of the opinion embraced in brackets, quoting it; and, 2, the action of the court in directing judgment to be entered for plaintiff on the verdict of the jury.

*212*E. P. Gillespie,*and *Jas. A. Stranahan,*with them *H. B. Bowser,*for plaintiffs in error.

The petition set forth the fact of absence, etc., for seven years. This gave the court power to order the sale. Gilmore *v.*Rodgers, 41 Pa. 128. “The presumption of death after seven years is as effective as direct proof of the fact.” Esterly’s Ap., 109 Pa. 222. See, also, Burr®. Sim, 4 Wh. 170. Section 3 of the Act of 1853 provides for notice to all persons in being, etc. One whom the law presumes to be dead is not a person in being, within the contemplation of law. Notice to such a one would be a vane thing.

The purpose of the provision of the Act is to prevent destruction of the estate by converting it into money and retaining the proceeds for the absentee, in case of return. The law being beneficial and remedial, is not to be construed so as to defeat its main intent. Smith *v.*Townsend, 32 Pa. 442.,,

The Act affects no vested rights or security of property. It merely converts unproductive into productive estates. Greenawalt’s Ap., 37 Pa. 100; Price on Real Estate Act, p. 61.

Irregularities in the proceedings of the orphans’ court will not defeat the title of a purchaser of a sale made by its order, and a decree confirming the same cannot be inquired into in a collateral proceeding. Gilmore ®. Rodgers, supra; McPherson ®. Cunliff, 11 S. & R. 431; Klingensmith *v.*Bean, 2 Watts, 486; Painter *v.*Henderson, 7 Pa. 48; Potts ®. Wright, 82 Pa. 498; Whitesides *v.*White-sides, 20 Pa. 473; Act of April 18, 1853, § 5; Act of March 29, 1832:

*E.J. Blandin,*with him *B. Magoffin,*for defendant in error.—

Absence and ownership for seven years must concur to give the court jurisdiction, under the Act of 1833. The daughter did not become the owner until her father’s death. The averment of the petition, therefore, that the owner had been absent and unheard from for seven years, was false, as the facts stated therein showed. The presumption was that the daughter was dead before the father. The petition proceeded upon this assumption, for the collateral heirs claimed to be entitled to the estate of Dr. Edgar.

The Act does not make a new canon of descent, it simply substitutes the proceeds for the land, to be held for the benefit of the person to whom the land belonged.

The Act prescribes notice. Besides, notice is required in all cases, to bind a party. McKee *v.*McKee, 14 Pa. 231, and the authorities cited by the court below.

Notice is necessary to preserve the constitutionality of this provision of the Act. Otherwise, it is depriving one of property without due process of law, prohibited by the 5 th amendment, U. S. Const., and Art. 1, § 9, Pa. Const.

The rule of caveat emptor applies to an orphans’ court sale, and if the court had no jurisdiction, the purchaser takes nothing.

*213Oct. 29, 1888.

Per Curiam,

The fact that Mary Elizabeth Edgar has been absent and unheard of for more than seven years did not give the orphans’ court power to order the sale of her land. Such power could only be acquired under the Act of 1853, and that Act confers such jurisdiction under certain conditions only. One of these conditions is that all parties in being, having any interest in the land proposed to be sold, however remote, shall have notice, and, if personal notice cannot be had, then by publication. It follows that the orphans’ court was powerless to order the sale under which the plaintiff claims, and its action in the premises was void. • The constitutionality of the Act itself can be sustained only on the legal presumption, much older than the Act, that one who has been absent and unheard of for the period of seven years is dead, a presumption unwarranted in fact; for, by the life-tables, as to persons under thirty years of age, the presumption is the very contrary, unless, indeed, one’s absence from, and want of communication with, his former place of abode, may be supposed to shorten his life. But we desire not to impugn the validity of the Act, but only to show that, of necessity, it must be strictly construed, and that a living person can be deprived of the enjoyment of his or her property only under a strict compliance with its terms and conditions. They have, in this case, not been complied with, and we must therefore concur in the opinion of the court below, and affirm its judgments.

The judgments in the above stated cases are severally affirmed.