(11 Del. Ch. 454) JOHNSON et al. v. MESSICK. (Supreme Court of Delaware. March 29, 1919.) 31, 1911, and letters of administration were granted upon her estate to Everett M. Barr, suit was brought against said administrator July 10, 1912, and the next day, July 11th, 171(4)-SALE-INJUNCTION of Hettie A. S. Kollock by Ella S. Johnson, While, in a proper case, action which would cast a cloud on title to real estate can be enjoined, a judgment creditor, acting in good faith, having reason to believe that conveyance by debtor prior to judgment was fraudulent and void, and seeking by execution sale to avoid it, should not be enjoined, and compelled to litigate the title in equity; whether there is fraud in any case being a question of fact, like other questions of fact, peculiarly within the province of the jury, and the party making the allegation of traud being entitled to have the question submitted to a jury. one of the appellants, and judgment for the sum of $1,207.50 recovered therein on February 18, 1913; that execution was issued upon said judgment to the other appellant, Jacob West, sheriff, under which a levy was made by him on said lot of land and the same advertised to be sold on May 9, 1916. It also alleges irregularities in the appointment and qualification of the administrator of Hettie A. S. Kollock, and claims the administrator had resigned his office before said judgment was rendered or the amount thereof ascertained. Said bill further al 2. INJUNCTION 125-ANSWER Under OATH leges that at the time it was filed (May 3, -GOOD FAITH. 1916) there was pending in the Superior action of ejectment brought by the appellee against John W. Johnson, who, with his wife, the said Ella S. Johnson, were in possession of said lot of land. It was claimed that under these conditions, if the sale was not restrained by the Chancellor, at least until said action of ejectment could be decided in the Superior Court, a cloud would be cast upon his title, and that he had no effective remedy at law. Answer under oath, in injunction suit, im- Court of this state, for Sussex county, an plies good faith till the contrary is shown. 3. EQUITY 323-ANSWER UNDER OATHBAD FAITH-WITHDRAWAL OF CROSS-BILL. It is not evidence of bad faith of defendant, who by answer under oath, in suit to enjoin sale under execution on judgment against plaintiff's grantor, charges that plaintiff's title is fraudulent, that she, having filed a cross-bill alleging in more detail the acts of fraud, withdraws such bill without introducing evidence in support thereof; she being entirely within her rights in doing so, having in mind her desire to try the question of fraud before a jury in a law court, rather than in a court of equity. Appeal from Court of Chancery. Injunction suit by William R. Messick against Ella S. Johnson and Jacob West, Sheriff. From a decree for complainant in accordance with the opinions of the court below (98 Atl. 218; 101 Atl. 865), defendants appeal. Reversed, and injunction dissolved. Argued before PENNEWILL, C. J., and BOYCE, CONRAD, RICE, and HEISEL, JJ. Robert C. White, of Georgetown, for appellants. Woodburn Martin and Charles W. Cullen, both of Georgetown, for appellee. HEISEL, J., delivering the opinion of the Court: To this bill the appellants demurred, and the case first came before the Chancellor on bill and demurrer. It was contended by counsel for the demurrer that the judgment, if irregular, could not be attacked in this proceeding, and, if valid, a sale thereunder could not cast a cloud upon appellee's title, because it appears by the public records of the county that said judgment was not a lien upon said lot of land, and for the further reason that it appeared by the bill that the appellee, having the legal title to the land, and not being in possession thereof, had a full and adequate remedy at law by an action of ejectment. The Chancellor held that, while the bill was framed upon the theory that irregularity in the judgment gave that court jurisdiction, it was unnecessary to determine that question, since he was satisfied that, even though the judgment was valid, it would not This is an appeal from the Chancellor. be a lien, but nevertheless, being against the The appellee, William R. Messick, filed a administrator of Hettie A. S. Kollock, who bill in the Court of Chancery alleging that in her lifetime conveyed the property to a he is the owner of a lot of land in George- prior grantor of the appellee, he was entitled town which was conveyed to him December to the relief sought, the Chancellor over16, 1915, by one Edwin C. Baker, to whom ruled the demurrer and required appellants it had been conveyed by John W. Messick, to answer the bill. on May 25, 1915; that said lot was conveyed to said John W. Messick by deed of Hettie A. S. Kollock, bearing date January 17, 1905, and recorded August 29, 1911; that said Hettie A. S. Kollock died intestate on August In the answer of appellant, Ella S. Johnson, which is under oath, she charges appellee's title to be fraudulent and therefore null and void. It is also stated in the record that she filed a cross-bill alleging in detail the fraud relied upon, but submitted no evi-holder of the legal title has a full and adedence in support of said cross-bill, which, quate remedy at law. upon motion of her counsel, was dismissed After the filing of Ella S. Johnson's anby the Chancellor. The only evidence taken consisted of but few pages covering the question of the granting of letters of administration on the estate of Hettie A. S. Kollock to Everett M. Barr, and is not important in the determination of the case. In granting a perpetual injunction against the appellants the Chancellor affirmed his finding on the demurrer, and in closing said: "It is not necessary to decide whether that judgment was irregular and invalid by reason of the resignation of the administrator before the institution of the action in which the judgment was rendered, for the result would have been the same even if the judgment be valid. The complainant as the owner of the land may, though he be not in possession thereof, enjoin a sale thereof to collect a judgment obtained against a prior owner who, before recovery of the judgment, had conveyed the land to one under whom complainant took title, and the basis of the jurisdiction is the prevention of the creation of a cloud on the title of the complainant which would result from such sale, where the complainant could not attack the validity of the judgment." swer, there was the sworn allegation of The assignments of error are two: First. That the Chancellor erred in not is a question of fact, and the determination dismissing the bill of complaint. Second. That the Chancellor erred in granting the relief prayed for by the said appellee in his bill of complaint. of questions of fact, under our system of jurisprudence, is peculiarly within the province of the jury, and the party making the allegation is entitled to have that question submitted to a jury, if he so elects, and cannot be obliged to try it before a different tribunal. After reviewing several cases, the court, in Welde v. Scotten, supra, said: "We are all clearly of opinion that the appel [1] The question to be determined by the Chancellor on the demurrer was, we think, a different one from that to be determined after the answer of Ella S. Johnson had been filed. Upon the demurrer there was no allegation of fraud against the title of the appellee. There was presented the single ques-lee ought not to have been awarded injunction tion whether the Court of Chancery will intervene to prevent by injunction the sale of land by the sheriff upon execution issued against a prior owner of land, when the complainant, holding the legal title, is not in possession, in order to prevent a cloud from being cast upon his title. There are two lines of cases on this question, about equal in number, one holding the affirmative, the other the negative. The general basis upon which the affirmative line rests is that, even though the judgment is not a lien, yet, being against a person in the line of title, a sale thereunder would affect the marketability of the title, its availability as a security for loans, and will cause unnecessary anxiety and expense to the owner, and that injunction is the only remedy that can be invoked to prevent this. The other line of cases hold generally that the judgment not being a lien, [2, 3] We agree with the law as laid down and this appearing upon the face of the rec-in that case. If, in the case at bar, the apord, an execution and sale thereunder can- pellants' judgment was valid and unimpeachnot in any manner cast a cloud upon the title, able in this proceeding, about which there because there is no cloud to cast, and the seems to be no contention now, we then have to stop the appellant, Welde, from selling as he desired, in order that the question of fraud in the appellee's title, as charged, might be tested at law. Welde being the party who claims to have been defrauded by the conveyances under which the appellee takes title and possession, we think he is entitled to select the tribunal in which he will have his grievances inquired into and redressed, if he is entitled to redress; and although, it might be within the province of the court of equity to interfere, if it appeared that he was fraudulently setting up this claim for the purpose of wantonly injuring the appellee, as is charged in the bill, yet, inasmuch as there is not the slightest evidence in support of that allegation, and there is no reason to suppose he is doing otherwise than making an honest endeavor to secure his legal rights, we cannot sanction the arrest of his proceedings in that direction, by injunction." ters. 178(3) COMPETENCY CROSS-EXAMINATION-WAIVER. a case where a judgment creditor of a prior | which his testimony is incompetent, he becomes owner is endeavoring by execution upon said so far as accredited by opposite party, a comjudgment to sell property formerly owned petent witness for himself as to all such matby his creditor, in order that he may contest the bona fides of the several conveyances 4. WITNESSES from said former owner and debtor to the appellee, the present owner. There is nothing in the record to show lack of good faith on the part of the appellant in charging fraud in the conveyances. Her answer, in which the charge is made, is under oath, which would imply good faith until the contrary be shown. Having filed a cross-bill alleging in more detail the acts of fraud, and then withdrawing such bill without introducing evidence to support it, is not evidence of bad faith, because appellant was entirely within her rights in doing so, having in mind her desire to try the question of fraud be fore a jury in a law court, rather than in a court of equity. In reaching this determination, we, of course, express no opinion upon the merits of the allegations of fraud, nor is it necessary that we should determine the question raised upon the demurrer. For the reason stated, we are constrained to hold that the injunction should not have been granted, and that the decree of the Chancellor should be reversed and the injunction dissolved, costs on the appellee. Upon exceptions filed by parties in interest to surcharge an accounting executor with assets claimed to be unaccounted for, and to avoid certain credits claimed, the executor, who had acted for deceased in her lifetime by letter of attorney, was competent to testify as to occurrences after her death, but incompetent to testify to occurrences in her lifetime. 2. APPEAL AND ERROR 1047(3)-HARMLESS ERROR-RULING ON EVIDENCE. Though a ruling virtually excluding all of an accounting executor's testimony was technically erroneous, in that testimony as to transactions subsequent to death of testatrix would be admissible, the ruling was harmless, where the only testimony he gave related to transactions prior to death of testatrix. 3. WITNESSES 178(3) CHIEF CROSS-EXAMINATION-EFFECT. If an accounting executor sought to be surcharged is called as a witness in his own behalf and testifies to facts occurring since death of testatrix, as to which his testimony is competent, and on cross-examination is interrogated as to matters occurring in her lifetime as to - TESTIMONY IN On exceptions by parties in interest looking to surcharging of accounting executor, wherein he was called on his own behalf and was permitted, over objection, to testify as to matters occurring in the lifetime of testatrix, as to which his testimony was incompetent, his crossexamination thereon was not a waiver of objection to his competency so as to make him a competent witness as to such matters. 5. EXECUTORS AND ADMINISTRATORS ~511(3) - · SURCHARGING ACCOUNT-DELAY SPONSIBILITY. RE Where exceptions to an executor's account were passed upon by three successive auditors and proceedings were delayed four years in the distribution of a small estate, the executor would not be surcharged for any of costs, where responsibility for delay attached to first auditor's refusal to properly rule upon objection to competency of a witness. Appeal from Orphans' Court, Beaver County. Appeal by Walter A. Rose, as executor of the estate of Christina Goehring, deceased, from a decree dismissing exceptions to auditor's report. Modified and affirmed. Argued before STEWART, MOSCHZISKER, FRAZER, SIMPSON, and FOX, JJ. James L. Hogan and Louis E. Graham, both of Beaver, for appellant. William A. McConnel, of Beaver, for appellee. STEWART, J. The appellant, Walter A. Rose, is the executor of the will of Christina Goehring, who died January 26, 1912, an old and feeble woman who had for years been a confirmed invalid. She was illiterate, and, because of this circumstance added to her physical infirmities, she was dependent upon others for the management of her business affairs. For years she had intrusted her business to Garrett T. Bentel, since made one of the legatees under her will. As manager of her business, though without written authority to so act, he continued until June 26, 1908, when, by letter of attorney, giving most ample and complete power over her estate, she constituted the appellant her attorney in fact, a relation which continued until her death. Some 15 months after the death of the testatrix, April 7, 1913, the appellant as executor of the will filed two separate accounts of his trust, one designated a first and final personal account, the other a first and final real account. In subsequent proceedings these are treated as one account. Upon exceptions filed by certain parties in A careful examination of the evidence abundantly sustains this finding of the auReferring to the cross-examination ditor. of this witness, the auditor finds: "That it was germane to the matter; and, in view of the fact that it was made specifically subject to the objection taken when the witness took the stand in his own behalf, we do not think the counsel for exceptant went beyond this common-law right to cross-examine, nor did he go beyond the scope of the examination in interest, with a view to surcharge account-('the little book' which covered alleged payments ant with assets said to be unaccounted for to Mrs. Goehring from 1904, the date of her All and avoid certain credits claimed, the mat- death, which was offered in evidence. ter was referred to an auditor to pass upon through his evidence he was questioned about the exceptions filed and make distribution of payments made to Mrs. Goehring and others out of these various sums he had received, about the balance. A series of interruptions in payments evidenced by the receipts and set the proceeding followed, with the result that down in his day book. In fact there was not it was not until June, 1917, that the auditor's a single item of debit or credit that was not report came before the court for adjudication. touched on and inquired about." These interruptions suggest more or less irregularity in the proceedings, but, since the parties are not complaining with respect to these, and no error is assigned in connection therewith, we pass them by with the single observation that, when a delay such as this occurs, four years in a proceeding before an auditor, in the distribution of an estate no greater than this, some sufficient explanation ought somewhere to appear. In this record we find none beyond the fact that three successive auditors were appointed and no sufficient reason given. When finally the report of the third auditor, who had little, if anything, before him in the way of testimony except that taken before the auditor first ap-on cross-examination, little remains in suppointed, it was found that the exceptions filed to the account were for the most part sustained, and that the balance on the account due the estate was increased from $543.77 to $5,600.83. Exceptions in great numbers were filed to the report which were overruled, and the report, with certain modifications reducing the balance for distribution from $5,600.83 to $4,500.39, was confirmed, and a new schedule of distribution ordered. [1-4] This general statement of facts will be found quite sufficient in view of the legal question which we are now called upon to consider. Before the auditor the accountant was called as a witness in his own behalf. Objection was made to his competency. We do not find any specific ruling by the court on the question, but the witness was allowed to proceed, evidently with a view to striking out the testimony later should it be found incompetent. During the proceeding the witness was repeatedly called to the stand on his own behalf, and on each occasion the objection to his competency was renewed, but not passed upon, and the witness was allowed to proceed with his testimony. The auditor in his report finds with respect to the period covered by the examination in chief of accountant as follows: chief." If the testimony of this witness be eliminated from the evidence, both in chief and port of the appellant's contention. Certainly nothing would warrant a reversal of the auditor's findings approved as they have been by the court below. Upon a careful review of the case, every finding by the auditor will be found supported by evidence, and without material contradiction except as the contradiction appears in the testimony of the accountant relating to the matters occurring in the lifetime of the testatrix. As we have said, the auditor's report was, with certain modifications, approved by the orphans' court, in an opinion by the learned judge which thus disposes of the question of the competency of the accountant as a witness, and the disregard by the auditor of his testimony. "The accountant took the witness stand in his own behalf and under objection testified fully as to all matters occurring both before and after the death of Mrs. Goehring. Counsel for the accountant concede that when he took the stand he was not a competent witness as to matters occurring before her death, but maintain that the cross-examination made him such. The auditor ruled against this contention, and his conclusion is fully warranted by the facts in the case and by the authorities cited by him. All such incompetent testimony of the accountant, including his cross-examination, must therefore be wholly excluded from consideration. The direct testimony being incompetent, the cross-examination rises no higher and cannot be treated even as declarations against his interest." Further on this appears in the opinion: "When Rose took the stand in his own behalf, he was interrogated fully and at length, and testified explicitly about Mrs. Goehring's condition between 1898 and 1912, and with specific reference to the period between January 1, 1903, and June 26, 1908, the period during which he was acting as attorney in fact, he was asked about the letter of attorney, the giving "If it be kept in mind that accountant was the mortgage for $2,000, the Rochester Trust not a competent witness as to matters occurCompany stock, and the Central Building As-ring before the death of the decedent, it is not sociation stock, the Rochester Township prop- a matter of extraordinary difficulty to detererty, the Tezell notes, the bunch of receipts cov-mine the credits to which he is entitled. ering a period from 1903 to 1911, both inclusive, We have examined the testimony carefully, and it is apparent that the auditor in the fifty- | on cross-examination is interrogated as to seventh finding sets forth all the items of dis- matters occurring in the lifetime, that he bebursements of which there was any competent comes a competent witness for himself as to proof excepting one or two small items to which all relevant and material matters. Clad's reference would be made later." Estate, 214 Pa. 141, 63 Atl. 542. The rule is wholly inapplicable in a case like the present. Where the examination in chief of the witness has been confined to matters occurring after the death, and the cross-examination is extended so as to contain matters occurring in the lifetime, to whatever extent, so far the witness is accredited by the opposing party, and because of this he becomes a competent witness in his own behalf as to all such matters. The party responsible for the removal of the disability of the witness is the cross-examining party; he may not remove it for his own purpose and deny to the other party equal share in the resulting advantage. The logic of the rule is that by extending the crossexamination beyond the limit the law prescribes the party so cross-examining makes the witness his own, and accredits him just as though he had called him in chief in the first instance, without qualification or restriction. In the present case the witness was called on his own behalf and was permitted against objection to testify fully and freely as to matters that had occurred in the To hold that a lifetime of the testatrix. cross-examination of the witness as to such matters was a waiver of the objection to his competency, and accredited him as a witness, would be nothing less than a perversion of the rule robbing it of all reason. The contention on the part of appellant is that this incompetency to testify was removed by the fact that the cross-examination of the witness extended to and covered occurrences which happened in the lifetime of the testatrix. It is quite true that the crossexamination did so extend, but it is no less true that it related to nothing that was not germane to the subject inquired of in the examination in chief, and, as found by the auditor, it was made specifically subject to the objection taken to the competency of the witness when he was offered. The decision as to the competency was not passed upon when the objection was first made, as it should have been, since the answer which was required was so obvious, and the examination proceeded subject to the reservation. It was not until the hearing before the auditor had been concluded, and the case was under review preparatory to the filing of the report, that the question of competency of the witness was decided; the auditor then reaching a conclusion that the objection to the witness should have been sustained. Having reached this conclusion, he decided to disregard the testimony, which was in effect a ruling to strike it out. It will be observed that in the ruling no distinction was made in the testimony relating to occurrences after the death of testatrix, in regard to which the witness was competent, and that relating to occurrences before the death, in regard to which he was incompetent, but that the entire testimony was disregarded. The same is true with respect to the ruling of the court on the exceptions to the report. This was technical error at most; no prejudice to appellant could have resulted therefrom, since his testimony taken as a whole related exclusively to occurrences that hap pened during the lifetime of testatrix, covering the period between the years 1903 and 1912. If any of it related to a period sub-lect and carelessness of the accountant, and sequent, affecting in any way his debit or credit account, it has not been called to our attention and has escaped our own examination. The responsibility for this protracted and prolonged litigation attaches to the failure of the auditor first appointed to rule promptly upon the objection made to the competency of the witness. With his testimony eliminated, as it should have been, the case is free from embarrassing questions. The present contention that the cross-examination of the witness restored his competency rests on a misconception of the rule that where a claimant is called as a witness in his own behalf, and testifies to facts oc [5] We have referred to the undue delay One result that attended this proceeding. of this delay may be seen in the costs taxed. The costs taxed and allowed on the first two audits amounted to $287.50. The orphans' court, in disposing of an exception filed to this taxation, says: "It is certain that all the costs of these audits amounting to $806.50 should not be paid out of the fund for distribution under the circumstances in the case. A considerable portion of these costs have been rendered necessary by the neg he should be required to pay a portion of these paid out of the fund." In this order we cannot concur, so far as it directs the payment of any part of the costs by the appellant. He certainly was not responsible for whatever it was that necessitated a third auditor in the case. We sustain the exceptions filed to this order. Let the report be so amended, and, as thus amended, we overrule all the exceptions |