Page images

the truth of such acts having been done, until the contrary is shown."

It is not necessary, at this time, to express any opinion, as to the validity of the order under which this sale was made. Oue of my brethren is very clear, that this order is insufficient; that our courts of ordinary, like all other probate courts, both in England and in this country, are courts of limited jurisdiction, and that if no warrant is found upon the face of the proceedings of the court, that then their acts must be taken to be coram non judice; that the fact does not appear in this order that it was made fully and plainly to appear that the contemplated sale was for the benefit of the estate, and that, consequently, the court of ordinary had no more cognizance of the question of sale than a justice of the peace had.

On the other hand, and without intending to confound the distinction between courts of general and special jurisdiction, some of us think that courts should give a liberal construction to statutes authorizing the sale of real estate and slaves in Georgia, by executors and administrators; that public policy requires that all reasonable presumptions should be made in support of such sales, in favor of bona fide purchasers, especially respecting matters in pais. The number of titles thus derived, and the too frequent inaccuracy of clerks and others concerned in effecting these sales, renders this absolutely necessary; that if a different rule prevailed, purchasers would be timid, and estates, consequently, sold at a diminished value, to the prejudice of heirs and creditors; moreover, that mere paper work of this sort will afford no guaranty for the security of estates, it being a notorious fact that the fraudulent and selfish are the very pharisees of the law, as to all formal observances, and that widows and orphans, as well as creditors, must look alone for protection to the vigilance of our courts of ordinary.

I allude to this point at this time, simply for the purpose of calling attention to it, and of suggesting to all concerned, the importance of reciting, in all orders for the sale of property, the facts which, under the law, authorize the court to interfere; and, further, that as a part of the proceeding, it may be of vital consequence to send up a copy of the petition of the party, upon which the action of the court is predicated, as this may be sufficient, under any view of the law, to confer jurisdiction.

It is conceded, on all hands, that executors and administrators, in making sales of property, must comply with the statutory provisions authorizing them, in every essential direction;

[ocr errors]

otherwise, the interest of heirs and creditors will not be precluded: Monroe v. James, 4 Munf. 200; Knox et al. v. Jenks, 7 Mass. 492; Wiley & Gayle v. White & Lesley, 3 Stew. & P. 358.

And while this rule may be somewhat relaxed in favor of innocent purchasers: Wyman v. Campbell, 6 Port. 219 (31 Am. Dec. 677]; Couch v. Campbell, Id. 262; Doe ex dem. Duval v. Dlc Loskey, 1 Ala. 708; Jennings v. Jenkins, 9 Id. 285; yet it will certainly operate with full force against executors and administrators, who purchase, at their own sales, as well as against those who have subsequently derived title, through a judicial sale, from them, as execution debtors.

The statute of limitations has been relied on in the discussion, and this objection may be taken, no doubt, as a defense by demurrer, if it appear on the face of the bill. At common law, the plaintiff replies to the plea of the statute, if he would take bimself out of it; but in equity, if le be within any exception of the statute, it is incumbent on him to state it in his bill; but here the pleader bas intentionally or otherwise omitted to state the time when the negroes in controversy were sold by the executors, when the statute would begin to run in favor of the defendants, unless prevented by some special reason, Under these circumstances, it can only be taken advantage of by plea.

Some of the matters of which I have treated, might have been avoided. Having, however, determined to overrule the demurrer, and to send this bill back, to be pleaded to or answered, I thought it best to advert to them now, as they would be necessarily involved in a trial upon the merits.

Judgment reversed.

This case was before this court again and is reported in 10 Ga. 358.

PURCHASES MADE BY Suci TRUSTEES AS EXECUTORS, ADMINISTRATORS, AND SHERIFFS AT THEIR Own Sals, and on their own account, are voidable only, and not void. The principal case is cited to this effect in Grubbs v. McGlawn, 39 Ga. 674; Alexander v. Alexander, 46 Id. 291; and Harrison v. Mcllenry, post, 435, in which last case it was decided, however, that sheriffs, on the ground that they are not only trustees but also agents to sell, can not, on the principle of agency, purchase either for themselves or others at their own sale. On this subject, seo Munro v. Allaire, 2 Am. Dec. 330; Ry. der v. Jones, 9 II. 660; Harrod v. Norris, 13 Id. 350; Brannan v. Oliver, 19 I. 37; Bruch v. Santz, 21 Id. 458; McClure v. Miller, Id. 522; Scott v. Freeland, 45 Id. 310, and note citing other cases in this series; Pearson v. Moreland, Id. 319, and note; Baily v. Dilworth, 48 Id. 760; Rosser v. De. priest, 50 Id. 91.

STATUTES AUTHORIZING EXECUTORS AND ADMINISTRATORS TO SELL AND Cosvey ESTATES OF DECEDENTS must be strictly complied with: See Clements v. Ilenderson, 48 Am. Dec. 216, and note. The remarks of the court in the principal case, that these statutes should receive a liberal construction in favor

[ocr errors]

of bona fide purchasers under them, were quoted with approval in Tucker v. Harris, 13 Ga. 10. That a bona fide purchaser from an executor having no power of sale acquires no title, see Williamson v. Williamson, 41 Am. Dec, 636, and note; but see Herron v. Marshall, 42 Id. 444; Woods v. North, 44 Id. 312, and note. Bond v. Zeigler, Id. 656, is in favor of relaxing strict rules in case of bona fide purchasers.

JURISDICTION OF PROBATE COURTS, WHETHER GENERAL OR SPECIAL.-In the principal case the court declares that “all reasonable presumptions should be entertained in favor of the jurisdiction of the court of ordinary." This language is referred to with approval in Tucker v. Harris, 13 Ga. 10, Lump'kin, J., expressing it to be his own opinion that courts of ordinary were courts of general jurisdiction with respect to estates of decedents. In Perkins v. Attaway, 14 Id. 31, the court decides that courts of ordinary are, as regards testate and intestate estates, courts of general and not special jurisdiction, citing both the above cases. To the effect that the jurisdiction of probato courts is special, see note to Fisher v. Bassett, 33 Am. Dec. 239; Bloom v. Burdick, 37 Id. 299.

EXECUTORS AND ADMINISTRATORS CAN NOT BIND THE ESTATE by a warranty of the property sold. The principal case is cited to this effect in Aven v. Beckom, 11 Ga. 3; Chastain v. Statey, 23 Id. 29; both of which cases decide that if such warranty is made, the executor, administrator, or trustee will be personally bound; also Shacklett v. Ransom, 54 Id. 353; Colbert v. Moore, 64 Id. 503.

SUIT BY HEIRS OR CREDITORS should be brought through the executor or administrator: See Horskins v. Williamson, 4 Am. Dec. 703; Ruffners v. Lewis' Ex'rs, 30 Id. 513; Wi mson v. Williamson, 41 Id. 636.

BILL BAD FOR MULTIFARIOUSNESS, WHEN: Childs v. Clark, 49 Am. Dec. 164, and note 170, collecting prior cases in this series; Rubey v. Barnett, 49 Id. 112. The principal case is cited to the effect that all parties need not have an interest in all the matters embraced in the suit, in Booth v. Stamper, 10 Ga. 117.

STATUTE OF LIMITATION MAY BE TAKEx ADVANTAGE OF BY DEMURRER, in equity, when the objection appears from the face of the bill: See note to Sluth V. Murphy, 41 Am. Dec. 234; Coles v. Kelsey, 47 Id. 661; McClenney v. Mc.' Clenney, 49 Id. 738.

MARKET OVERT: See this subject discussed at lengt in note to Williams 7. Merle, 25 Am. Dec. 607.



GRANTED according to the constant practice of the courts. AFFIDAVIT or WIFE SUING FOR DIVORCE IN HER OWN NAME is sufficient

foundation for the issuance of a ne exeat republica. THAT DEFENDANT 18 GOING OUT OF STATE, or that lie has said so, must be

charged positively by complainant in a bill for the writ ne exeat republica. BEFORE DECREE OP ALIMONY, the courts, under statutes of this state, may,

giving due weight to the rank of the parties and the fortune of the hus.


[ocr errors]


band, and taking care that the writ is not used for oppression and extor.

tion, grant the writ of ne exeat republica. DEFENDANT MAY SHOW THAT NE EXEAT OUGHT NOT TO HAVE

GRANTED, notwithstanding a statutory provision discharging him on his giving a sufficient bond not to leave the state, or for the satisfaction of the ultimate recovery. LIBEL for divorce a mensa et thoro, and praying alimony under provision of statute. Libelant, pending the suit, filed her bill, verified by her affidavit, for a writ of ne exeat republica against her husband. The court overruled a demurrer to the bill, upon exceptions to which, fled by the defendant, error was assigned.

W. Akin, for the plaintiff in error.
C. Peeples (representing W. H. Underwood), for the defendant.

By Court, LUMPKIN, J. The first objection taken to the decision at the circuit is, that the evidence was incompetent on which the order for the writ of ne exeat republica was grantedbeing founded on the affidavit only of the complainant, the wife of the defendant.

It is true, that the case of Sedgwick v. Watkins, 1 Ves. jun. 49, sustains this objection; but Chancellor Kent, in Denton v. Denton, 1 Johns. Ch. 441, says that this case is not founded on just principles; and, besides, he considered it as virtually overruled in Shaftoe v. Shaftoe, 7 Ves. 171, where a similar application was made, on the oath of the wife, and no objection was taken, but the chancellor proceeded at once to consider the merits of the motion. And it would seem, that if the wife is permitted to sue her husband, in her own name, as she has done, without objection, in this case, her affidavit as complainant is admissible, on the same ground as that of any other complainant; and it is the constant practice of the courts to grant this writ on the oath alone of the party.

It is contended that, admitting the evidence to be competent, it was not sufficient, in connection with the charges in the bill, to obtain the writ. The complainant alleges that she " enter

è tains serious apprehensions that the defendant will depart the realm, and remove his property beyond the limits of the statewhich he has threatened and declared he would do;" and her affidavit is in the usual form, namely, that the facts stated in the bill, so far as they concern herself, are true; and that, so far as they concern the acts and deeds of others, she believes them to be true.

We admit the law to be, that the complainant must not only


show that the demand will be endangered by the defendant's going abroad, but must charge, positively, that the defendant is going out of the state, or that he has said so: Rhodes v. Cousins, 6 Rand. 188 (18 Am. Dec. 715). And this, we think, is substantially done. Had the complainant said, as it is assumed in the argument she did, that she had been informed by others of his threat, the affidavit of this third person should, if practicable, have been filed; but from anything which appears to the contrary, the threat may have been made to the complainant herself. At any rate, in the language of the authority, she does charge, positively, that she entertains just fears that he will remove, and that he has said so.

But the main point in this record is, that in cases of alimony, courts of equity will not grant the writ of ne exeat, unless there has been a decree, and then only for what is actually due; and further, that courts of equity, in Georgia, have no jurisdiction in the premises in this state.

As this last proposition was not insisted on in the argument, I shall consider it as abandoned. The writ of ne exeat regno was a high prerogative right, originally applicable only to the purposes of state, but afterwards extended to private transactions. In England, formerly, it was confined to cases of equitable debt, and was equivalent to equitable bail; and the doctrine of chancery was, that the debt for which the writ issues must be due and certain, and must be such that the sum to be marked upon the writ could be ascertained; and that, in cases of alimony, the courts of equity would not interfere, unless alimony has already been decreed, and then only to the extent of what is due; and that if there was an appeal from the decree pronouncing alimony, and, a fortiori, if no alimony has been decreed, and the case is a lis pendens, courts of equity will abstain from granting the writ: 2 Story's Eq. Jur., sec. 1472, and authorities cited.

This rigid rule, however, has not been strictly adhered to in this country-even in those states where the common law, as in Georgia, has been adopted. Accordingly, we find Chancellor Kent declaring, in Denton v. Denton, 1 Johns. Ch. 365, that “the allowance of a ne exeat, where the husband threatens to leave the state, and his wife without any support, is essential to justice, and has been allowed in such cases."

In 1813, the legislature of Georgia passed an act “ to authorize the judges of the superior courts to grant writs of ne exeat, in certain cases therein mentioned;" and the preamble recites,

« PreviousContinue »