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fore it was properly dismissed for that reason. The chancellor, we think, correctly decided the case, but for a wrong reason.
Let the decree be affirmed.
DEFECTIVE CONVEYANCE WILL BE EXECUTED IN EQUITY as an agreement for a conveyance: See Welsh v. Usher, 29 Am. Dec. 63.
LIMITATIONS IN EQUITY.—This subject is elaborately discussed in the note to Frame v. Kenny, 12 Am. Dec. 368; see also Wanmaker v. Van Buskirk, 23 Id. 748, and note thereto; and Collard's Adm'r v. Tuttle, 24 Id. 627.
OBJECTION AS TO WANT OF PROPER PARTIES, if not raised below, can not come up in the supreme court: Reeves v. Dougherty, 27 Am. Dec. 496. As to where proper parties omitted intentionally, see Rowland v. Garman, 19 Id. 54.
PLAINTIFF'S CLAIM TO RELIEF IN EQUITY MUST APPEAR FROM PLEADINGS: Tiernan v. Poor, 19 Am. Dec. 225.
LIEN OF JUDGMENT IS SUBORDINATE TO ALL PRE-EXISTING EQUITIES against the judgment debtor: Matter of Howe, 19 Am. Dec. 395; Sweet v. Jacocks, 31 Id. 252, and cases cited in note thereto; Freeman on Judg., sec. 357.
THE PRINCIPAL CASE IS CITED to the point that a court of equity may reform a deed so as to express the intention of the grantor, in Whitehead v. Brown, 18 Ala, 682; Larkins v. Biddel, 21 Id. 232.
SWINK'S ADM'R v. SNODGRASS.
(17 A LABAMA, 653.] EXECUTION UPON JODGMENT RECOVERED AFTER DEATH OF JUDGMENT
DEBTOR is void, and a purchaser under the execution against the estato
of deceased acquires no title. ADMINISTRATOR DE BONIS NON is ENTITLED TO ADMINISTRATION OF ALL
Goods of the deceased remaining unadministered. COLLUSION BETWEEN ADMINISTRATOR AND VENDEE OF GOODS OF DECEASED
renders the sale void. PURCHASER FROM ADMINISTRATOR ACTING IN VIOLATION OF HIS TRUST,
with knowledge of such violation, acquires no title. ACTION AT LAW MAY BE BROUGHT BY ADMINISTRATOR DE BONIS NON to
set aside a fraudulent sale by the administrator in chief, where it is not necessary to join the distributees or creditors of the estate. DETINUE to recover certain slaves, brought by plaintiff, admin : istrator de bonis non, against defendant in error. The slaveu belonged to the intestate at the time of his death, and the administrator in chief obtained an order from the proper court to sell them, together with other personal property, at public auction. An execution was levied upon the slaves on the day of the sale, by the sheriff, by virtue of an execution issued upon a judgment recovered against the intestate. The administrator interposed a claim and proceeded with the sale. The slaves were bid off by Stephen Carter, who purchased them for ono Harris. The next day, when Carter received them from the administrator, they agreed that he should keep them until their liability to the above execution had been determined, and in case they were held not liable, he was to give his promissory note for them, otherwise the sale was to be void. Carter then took the slaves to the house of Harris. It was further shown that Carter never paid for them, nor did the administrator give him a bill of sale of them. Harris afterwards removed the slaves into Mississippi, with the knowledge and consent of the administrator. An agent of the bank at Decatur, to which Swink, the intestate, was indebted on a bill of exchange, pursued Harris and brought the slaves back to Alabama. Judgment was obtained on the above bill of exchange after the death of Swink, and upon an execution issued upon said judgment the slaves were sold, and purchased by the bank, which afterwards sold them to the defendant. Upon the evidence, the plaintiff requested the court to instruct the jury that if they believed the sale to Carter was upon a condition which had not been complied with, this sale did not divest the estate of title, although possession was delivered, to continue until the administrator determined whether he could convey title. This instruction was given by the court, but qualified by saying that if it was a sbam sale, or fraudulent as to creditors, the conditional delivery did not affect the original sale; and to determine whether it was a sham sale, the jury should consider all the circumstances, and particularly the evidence tending to show the connivance of the administrator to the removal of the slaves by Harris. Plaintiff excepted to this qualification of the charge, and now assigns it as error.
Robinson, for the plaintiff.
By Court, DardaN, C. J. It is very clear that the bank obtained no titles to the slaves on account of the sale under the execution against George Swink, the intestate, for the judgment on which it issued was rendered after his death. The judgment as to him was void; no execution could issue upon it, nor could a purchaser under the execution, issued against the deceased, acquire any title: Snodgrass v. Cabiness, 15 Ala. 160.
An administrator de bonis non is entitled to all the goods of the deceased that remain unadministered, after the death or removal from office of the administrator in chief. In the case of Wankford v. Wankford, 1 Salk. 306, Chief Justice Holt, speaking of the rights of an administrator de bonis non, said: “ If the goods
of the intestate remain in specie, they shall go to the administrator de bonis non, because it is notorious whose goods they are, and they can be easily distinguished;" and so in the case of The Attorney General v. Hooker, 2 P. Wms. 340, Lord Chancellor King held, that if an executor die intestate, all the personal estate of his testator, which has not been altered but remains in specie, goes to the administrator de bonis non. Mr. Williams, in his work upon Executors, says, “ that an administrator de bonis non is entitled to all the goods and personal estate, such as terms for years, household goods, etc., which remain in specie, and were not administered by the first executor or administrator:” Vol. 1, p. 594. These authorities show that the title of the plaintiff in error depends on the question, whether the fraudulent or pretended sale of the administrator in chief gave to Harris such a title as precludes the administrator de bonis non from a recovery at law, for the slaves can be readily identified, and there was no question but that they belonged to the intestate at the time of his death.
The evidence tended to show that the administrator in chief never executed a bill of sale for the slaves, nor received the purchase money, nor any security for its payment; but that he fraudulently consented that Harris, into whose possession the slaves had come, should remove them from the state. Although it is certain that the conduct of the administrator would render him liable for the value of the slaves to the creditors or distributees, had they sought to charge him with their value, yet it is equally clear that such a sale could not defeat the rights of those interested to the slaves themselves, for if an executor fraudulently alien the assets of the testator in collusion with the vendee, the sale will be void. Fraud and crime will vitiate any transaction, and turn it into a mere color. If, therefore, a man concerts with an administrator and obtains the goods of the deceased at a nominal price, or a fraudulent undervalue, the contract will be void, and the seeming purchaser will be held liable for their full value: Lomax on Ex’rs, vol. 1, 316, 317; Wms. on Ex’rs, 2d Am. ed., 672. Thus where the person, to whom the executor passed the property, knows that the executor is acting in violation of his trust and in fraud of the rights of others, the fraud will vitiate the transfer and render it null and void, as against those whose rights are injured by the transfer: Doe v. Fallows, 2 Cromp. & J. 481; Dodson v. Simpson, 2 Rand.
But it may be urged that a court of equity alone can interfere
and set aside a fraudulent sale of the assets, made by an executor. This is certainly the usual course, and if the suit is brought by the creditors or distributees of the deceased, it can be brought only in a court of equity, because as distributees and creditors, they have but an equitable title; but an administrator de bonis non may apply to a court of chancery to set aside a fraudulent sale of the assets, without joining with him either the distributees or creditors, and in his individual name recover as the representative of the estate: Cubbidge v. Boatwright, 1 Russ. 549; Wms. on Ex'rs, 2d Am. ed., 657. Now, if the administrator de bonis non may file a bill in equity in his own name to recover the assets fraudulently conveyed by the administrator in chief, I see no reason why he may not sue at law, when the assets can be identified, and the fraudulent vendee has paid nothing for them. The fraud vitiates the sale and renders his title void. Why then should we force the administrator to go into a court of equity against the vendee, whose title is void for fraud, and who has no equitable right to the goods? In our opinion, it is unnecessary. The court, therefore, erred in the charge given to the jury, for after giving the charge, that if the sale was conditional the title did not pass, unless the condition was performed, he in effect added, that if the condition was fraudulently waived by the administrator in chief, then the plaintiff could not recover. Now it is the fraud that vitiates the sale, and renders the title void, and how it can become the source of title, I can not perceive. The defendant, so far as we can gather from the record, placed his defense on no other ground than that the fraudulent sale made by the administrator in chief was a bar to the plaintiff's recovery. In this particular case, we think, the administrator de bonis non might have sued Harris, through whom the defendant claims, at law, and as the defendant occupies the same position that Harris did, the suit may be sustained against him.
Let the judgment be reversed and the cause remanded.
ADMINISTRATOR DE Bonis non is ENTITLED TO ALL Goods of the decedent unadministered: Slaughter v. Froman, 17 Am. Dec. 23.
BOND PAYABLE TO ADMINISTRATOR AS Such is assets in hands of adminis. trator de bonis non: See King v. Green, 19 Am. Dec. 46.
FOR EXTENSIVE REFERENCES AS TO POWERS AND DUTIES OF ADMINIS. TRATORS DE BONIS NON, see note to Potts v. Smith, 24 Am. Dec. 359; also, Chamberlain v. Bates, 27 Id. 667; Stubblefield v. McRaven, 43 Id, 502; Sheeta v. Peabody, 38 Id. 132.
Ax. DEO. VOL. LII-13
PERSON IS LIABLE WHO ACTS TOGETHER WITH DISHONEST TRUSTEE, in a matter relating to the trust funds: Bunting v. Ricks, 32 Am. Dec. 699.
LIABILITY OF TRUSTEES WHO VIOLATE THEIR Trust: See Ringold v. Rin. gold, 18 Am. Dec. 250; but a deed by such trustees can not be impeached by a stranger: Coxe v. Blanden, 26 IJ. 83, and note.
JUDGMENT RENDERED IN FAVOR OF OR AGAINST A DECEASED PARTY is void: Stewart v. Nuckols, 15 Ala. 225; Moore v. Easley, 18 Id. 619.
DONNELL V. JONES ET AL.
[17 ALABAMA, 689.) IN ESTIMATING DAMAGES, IT IS COMPETENT TO CONSIDER loss of mercantile
credit, stoppage of business, and prevention of sales caused by the
wrongful levy of an attachment. NET PROFITS Which PARTY WOULD PROBABLY HAVE MADE by the prosecu.
tion of his business may be considered in estimating his damage by the
stoppage of his business. WHEN EVIDENCE OF FUTURE NET PROFITS CAN BE INTRODUCED, discussed. IN CONSTRUING DOUBTFUL BILL OF EXCEPTIONS, that construction will be
adopted which is most favorable to the validity of the judgment. PARTY COMPLAINING OF ERROR MUST AFFIRMATIVELY Show IT. COURT MAY WITHDRAW INSTRUCTION GIVEN TO JURY, before they retire. ATTACHMENT WRONGFULLY SUED OUT THREE DAYS BEFORE FRAUDULENT
ASSIGNMENT is not justified by such assignment, unless the intent ex. isted at the time said attachment was sued out. ACTION on the case against the plaintiffs in error by the defendant, for the wrongful and vexatious suing out of an attachment. Plaintiffs, on or about January 1, 1845, were partners and merchants in the city of Montgomery, in which city, and in the city of New York where they bought their goods, they enjoyed good credit. On said January 1, 1845, defendants sued out a writ against plaintiffs, returnable into the circuit court of Montgomery county, at the spring term thereof. At the same time they sued out an ancillary attachment. Plaintiffs offered in evidence the writ of attachment and proceedings thereon. Defendants' objection to this evidence was overruled. A statement by Hughes and Brame, two deputies of the sheriff, was by consent then introduced, showing the levy and seizure. Plaintiffs further offered to show that at the time the attachment was levied, they had a good run of custom; that they carried a stock of about twenty-six thousand dollars, and that the profits on sales was from fifty to sixty per cent. Defendants objected to this testimony, but their objection was overruled. Defendants showed that three days after the suing out of the attachment, plaintiffs made a general assignment, which