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V.

JULY 1829. If ignorance of the law does not excuse private person.

much less can it a public officer, who in accepting the ofRoberts and Battle

fice, impliedly undertakes that he has the necessary skill,

and that he will perform all its duties correctly. Neither is Henry.

it an excuse for the sheriff that Mulkey was insolvent, for it was the very object of a ca. sa. to compel him to discover and yield up such property as was concealed and had been by him fraudulently conveyed away, and was out of view.

It is urged that the law is one of great rigor; but to this it may be answered, that the Legislature have ever since thought differently; and have in fact, since that time, made one days notice sufficient instead of three; and in fact no law can be considered too rigorous that compels an officer to perform ordinary duty; and this does nothing more. The grounds of accident and necessity cannot, in this case, afford to the sheriff a more safe reliance, as an excuse for not making his defence at law; for the record furnishes no facts from which any conclusions can be drawn, warranting relief on those grounds; and we need not look out of it for such reasons.

Another view of the case is, that by the decree rendered below, a positive statute of the State has been set at nought; and the rights of the appellants under it have been wholly disregarded. If the law is rigorous, it is not the business of a Court to abate its rigor. The law commanded, and

wisely too, that the sheriff should return the execution Laws of Ala. three days before Court, absolutely;a he shews that he did 319, 316. not even try to do so; then by what rule of right can neg

ligence of this kind be excused, and how can the penalty given by the statute, absolutely, for such default, be withheld? It is certainly important to be settled whether in

any case, and what class of cases, a chancellor can control, bronblanques disregard or repeal a positive statute;" Courts of law and Equity p. 5.

Courts of equity, do not differ in the exposition of statutes.c conblanques In all the high handed measures of the English Chancery

A.n.g. & B. Courts, it is believed no analogous case can be found; and p. 26 n. j. and surely it will not be considered good policy here, to exceed p. 38. v. to the English Courts in their control over common law or

statutory proceedings

MARDIS, for the defendant in error.

note e.

By CHIEF JUSTICE LIPSCOMB. The complain. ant has shewn, by the answer and testimony, that he used a reasonable degree of diligence to have the ca. sa. returned

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three days before the session of the Court He has shewn that it was not in his power to attend Court, and resist the rule against him. He has, therefore, fair claims to the interposition of a Court of chancery. The statute requiring a sheriff to return executions three days before the next ensuing term, will admit of a reasonable excuse for failing to do so. Such a case we believe has been made out.

Henry.

Decree affirmed: Judge CRENSHAW not sitting.

BRANNAN et al. y. OLIVER.

2 47 128 214 128 215

1. A purchase by an administrator at his own sale, by auction, is not void

l per se: But is prima facie valid, if no unfairness appears. 2. Nor will such a sale made in South Carolina be held void, though made

without an order of Court; the laws of South Carolina not being produced, to shew that such order is necessary.

DYONISIUS OLIVER, a minor, by his next friend and guardian ad litem, Gorge Bowie, filed his bill in equity in Monroe Circuit Court, in April; 1823, against Mary Ann Brannan, James D. Godbold, James Wade, and Edward Stedham. To this bill Mrs Brannan, Wade and Sted ham, filed their answers.

By the bill, answers, exhibits and admissions of the parties, it appeared, that Seaborn Oliver, the father of Dyonisius, the complainant, resided in South Carolina, and died there intestate in 1813, leaving some negroes and other property; that he was but little indebted; that Dyonisius was his only child, and that the widow Mary Ann, and he, were entitled to his estate; that the said Mary Ann was, in 1814, regularly appointed, in South Carolina, administratrix of said estate; that she gave security, and was duly qualified. After administration was granted, the widow, as it appears, sold the slaves in controversy and which belonged to said estate, at public auction; but without the order of the Court of ordinary, and bought them herself. In 1817, she intermarried with James E. Brannan, who removed with her and the slaves to Monroe county Alabama. Brannan died in Monroe county, leaving judgments against him unsatisfied; and the said Mary Ann, his widow, administered also on his estate, and thus became re-possessed of said negroes as

JULY 1829.

Brannan et al.

Oliver.

his administratrix; on those judgments in 1823, executions were issued, which were levied by the defendant Godbold, as sheriff, on the negroes; six in number. Four of the negroes were sold by the sheriff under those executions; Stedham bought three of them, and Wade one; for a fair price. The two others remained unsold in the hands of the sheriff, Godbold, who during the pendency of the suit, intermarried with Mrs Brannan, and they remained in their possession.

The complainant prayed that an account should be taken, and that two thirds of the residue of the estate should be paid him, being his proportion under the laws of South Carolina; and that the property should be decreed liable to satisfy his claim. It was admitted that Wade and Sted. ham were fair and innocent purchasers, for a full consideration, without notice; and the cause was submitted to the Court below to decide, if the purchasers were entitled to the property, or if it was liable to satisfy the complainant's demand.

At March term 1827, a final decree was rendered by the Chief Justice, establishing the distributive share of the complainant at $1609 64, and to satisfy the same, ordering the two slaves remaining unsold, valued at $800, to be delivered up; and that Wade should pay $337 35, and Stedham $472 29 their respective proportions, to the complainant, or that they should surrender the slaves; and that the defendants pay their respective shares of costs.

The defendants below, here assigned for error, a variety of matters in the proceedings there had, which are not noticed; as the points decided are fully stated in the opinion deliver ed in this Court.

Bagby and Lyox, and Parsons and Cooper, for the appellants.

HITCHCOCK, for the appellee.

By JUDGE COLLIER. This cause presents for the decision of the Court the following questions: 1st. Can an administratrix become a purchaser at a sale, made by her. self, of her intestate's estate? 2d. Will a sale made by an administratrix of her intestate's estate, in another state, without an order of Court, be considered regular, when it does not appear what is the law of that State?

An administrator is considered as a trustec for the benefit

JULY 1920.

of the creditors and distributees of his intestate's estate; ani, upon that hypothesis. I proceed to consider this case.

Brannan etal. The weight of English authority is against the right of the trustee to purchase the estate of his cestui que trust, and Oliver. is predicated upon reasoning, the force of which must impress itself upon every mind. To permit a trustee to purchase, while he is enjoying the confidence of his cestui que trust, it is said, would be to license him to speculate, by abusing his situation. Ilis duty obliges him to communicate all information, and to exert all the care and industry necessary to dispose of the estate as advantageously, for his cestui que trust, as if he were selling it for hin self. His interest would sometimes thwart his duty, and the infirmity of human testimony would render it impracticable at all times, to prove its violation; hence the policy of the rule which divests him of a legal capability to purchase. In its correctness, when not carried to too great an extent, I most cordially acquiesce. Iadmit its wisdom, when applied to a purchase by an agent, at a sale by himself, of his prinpal's property, and to other purchasers under the same circumstances; but I must repudiate its application in the case I am considering.

The rule, with reference to a purchase by an administrator, has been frequently considered, both in the English and American ('ourts. By the former, it has been held to , apply in all its strictness. The case of Fox and Mackreth, noticed in 2 Brown's Chancery Cases," which scemsto have'a Page 400. engaged a full portion of the time of the Court of Chancery

63 Brown's ani the House of Lorils, goes the entire length. The case Ch. Cases, p. of Crow and Bullard, the cases in 5 Ves. jr.c and 6 Ves. jr.," are to the same point. It is worthy of remark, that in Campbell v.

Walker page only one of these cases, was the sale at auction.

678. E, parte The reasoning on which the rule is founded, inclines Reynolds 707

d Ec parte my mind to the opinion, that it does not extend to a pur Hughes 617. chase by an administrator, at a sale made by himself, of his

Lister v. Lis intestate's estate; or, that if it extends to such purchase,

ter, p. 631. it cannot be considered as applying, where the sale was made fairly. Let the case be examined by an application of this criterion to the facts on the record. Mary Ann Brannan, one of the appellants, and the mother of the appellee, administered on the estate of her husband, the father of the appellee, in South Carolina, where he died and before his death resided; and after the grant of the letters of administration, she sold the negroes mentioned in the appellee's bill, at public auction, without an order of the

117.

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JULY 1829., Court of ordinary, purchased them herself, for any thing

appearing to the contrary, at a full price, and made a return Brannan et al. of the sale to the proper

Court. Oliver. These facts develope no unfairness in the purchase by

the appellant, Mary Ann. The idea of unfairness is repeiled, by the circumstance that the sale was not made privately, but openly, where all persons who wished had an opportunity of bidding. There is no allegation in the bill that the slaves were sold at an under price, and there is no proof that such was the fact. It is not alleged that the slaves were not sold pursuant to the laws of South Carolina; nor is there any thing on the record, from which such a conclusion can be legitimately deduced. If the laws of that State do not tolerate a sale made in the manner this was, it should have been shewn by proof, what formalities the law required there to make it legitimate. In the absence of proof upon this point, the Court can only look to the common law to aid it in its determination, and suppose that it has been adopted in South Carolina as the gove erning rule on this topic. What says that system of jurisprudence? That an administrator may sell, or otherwise dispose of his intestate's personal estate, ar countable however, for a correct discharge of his duty in this particular, and for an honest application of the proceeds. This sale may be made privately without a license from Court. The

law under which he receives his appointment confers the lia Toller's Ex

cense, and makes him answerable for its abuse.a Had the ec'rs 133210.

appellant have designed to defraud the appellec, and by that means derive a benefit to herself by a purchase of the slaves of her intestate, would she not, under the circumstances, have acted differently? It cannot be true that she would have exposed the slaves for sale publicly at auction; or if she had, she would never have returned to the Court an account of the sale. Had shc intended to act dishonestly, and disregarded that moral duty she owed to the creditors and distributees of her intestate'sestate, as well as to her securities for a correct administration of the estate, it would not have been difficult to have acted otherwise. It is beyond the power of the human mind to fathom her intentions; but be they what they may, there is nothing in the record which manifests an unfairness of fact or intention; and it would be against a settled and charitable rule of law gratuitously to presume it.

Let us examine the reasoning of the rule which maintains the invalidity of a purchase by an agent or trustee, with a view to ascertain if it embraces the case we are consider

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