Adams v. Morrison

4 N.H. 166 | Superior Court of New Hampshire | 1827

By the court.

This is a very plain case Jackson the executor acting under a license from the judge of probate to raise $800, by a sale of real estate, and having raised $315 29 under and in pursuance of the license, sold and conveyed the demanded premises to the tenant for $53 i 37. This sum with what had been before raised exceeded the sum which he was authorized to raise and the sale to the tenant was clearly not warranted by the license.

We hold it to be clear law, that when an executor or administrator acting under a license from the judge of probate authorizing him to raise a particular sum by the sale of real estate, sells and conveys an entire tract of land for an entire sum of money exceeding in amount the sum he is authorized to raise, the whole sale is void. The reason of this is obvious. His doings are valid so far as he acts in pursuance of the license and no farther. When he goes beyond his authority his acts are void. And as in such a case the act is entire, and there is no way to ascertain what portion of the land he had authority to convey, and what not, the whole conveyance is necessarily pronounced to be void.

When separate tracts of land are sold under a license for distinct prices the law is otherwise. In such cases the sale of some parcels may be legal and that of other parcels not so.

These principles have been frequently recognized by courts and are believed to be sound law. 1 Levintz 150, Jenkins v. Keymis; Hardres 395, S. C.; Comyn’s Digest, “Poiar” C. 6; 2 Strange 992, Rattle v. Popham; 2 Johns. 48, Batty v. Carswell; 8 Coke 138, Whitlock's case.

It is clear then that nothing passed to the tenant by Jackson’s deed.

It is unnecessary to consider whether Jackson had any authority as executor to take back the estate conveyed to Perry and Merril by cancelling the deed ; or whether if the estate had been revested in the heir by that arrangement, it could have had any effect upon the conveyance to this tenant ; because we are clearly of opinion that a reconveyance merely for the purpose of enabling Jackson to sell again, could not make the title of the tenant valid. Judgment on the verdict.