29 Cal. 19 | Cal. | 1865
This action was brought to establish and enforce a trust in favor of the plaintiff, as the grantee and assignee of Mary Hina, the heir at law of Jack Hina, deceased, as to certain premises, that the defendant purchased at his own sale as administrator; and as incidental to the relief sought in respect to the alleged trust, the plaintiff, prayed for an account of the rents and profits, and for the delivery of the possession of the premises.
The mortgage executed by Jack Hina in his lifetime, which it is alleged the defendant fraudulently procured to be assigned and foreclosed, and the sale and conveyance of the premises which it is alleged were fraudulently made for the benefit of the defendant, may be dismissed from consideration except so far as those matters bear upon the question of fraud in procuring the order of sale from the Probate Court, as the legal title, which was then in Mary Hina, was unaffected by those proceedings, because she was not made a party to the foreclosure suit. The questions we shall first consider, grow out of the fact charged by the plaintiff and found by the Court below, that the defendant, while acting as one of the administrators of Jack Hina, deceased, purchased the premises per interpositam personam at his own sale, which he made under the order of the Probate Court. It is alleged in the complaint that the proceedings in the Probate Court, for the purpose of procuring the sale, and the sale itself, and all pro
Effect of purchase, by an administrator, at his own sale, made by order of the Probate Court, of land belonging to the estate.
We may say here, that we cannot assent to the latter position of the defendant. If it is admitted that anything passed by the sale, it must be conceded that the legal title passed ; and after the administration is closed it would be difficult to charge the defendant as trustee in respect to the real property, unless he was vested with the legal title; but in regard to the equitable title, we are of the opinion that Mary Hina, by her deed to the plaintiff, gave evidence of her determination to disaffirm the sale; that at the time of its execution she held the equitable title as fully as before the sale, and that by her deed she conveyed such equitable title to the plaintiff. And it admits of serious doubt whether the sale, confessedly in contravention of the rules of equity, even temporarily “ set afloat’-’ her equitable interest, so'that an act of disaffirmance was necessary in order to attach it again to the property. There are strong reasons for holding that upon a sale of this character, the relation of the cestui que trust is not, by that fact alone, shifted from the property to the proceeds of the sale, but that, in order to cut her off from any recourse upon the land, and restrict her to the proceeds, there must be either some positive act of affirmance of the sale, or such an'acqui
Sale of the trust estate and purchase of same by the trustee who holds the legal title.
In a case where the trustee holds the legal title, and the trust is to be executed by a sale of the property for money, and the trustee becomes the purchaser, and holds in his hands the money representing the purchase money, ready to be paid over to the cestui que trust, the money evidently is not the
Is the purchase, by an administrator of the land, of the estate, at his own sale, void or is it merely voidable ?
Is the sale void, or is it merely voidable ? The doctrine that a purchase of the' trust property, by a trustee for sale, made at his own sale, whether the purchase is affected by himself or through the interposition of another person, is voidable at the election of the cestui que trust, is as firmly established, and is supported by as clear and satisfactory reasons, as any rule in equity. Both parties hold that it was only voidable, and yet the question is involved in much perplexity, and when tested by the rules applicable to such cases, some doubt still remains. An administrator is the creature of the statute. He has no existence independent of the statute, and in taking upon himself the duties and trusts created by it, he assumes them with all the clogs and restrictions the statute has attached to the office. Those restrictions may be other or greater than those controlling persons acting under private appointment, in a capacity very analagous to that of an administrator, but the person accepting the trust, takes it not only with the powers,
A conveyance cannot be said to be utterly void, unless it is of no effect whatsoever, and is incapable of confirmation or ratification. The acceptance of the purchase money, with full notice .that the administrator was the purchaser, per interpositam personam, would unquestionably amount to a ratification of the sale. The Court would not countenance a partial disaffirmance of the sale, that would enable the cestui que trust to hold on to the purchase money, and at the same time recover the land. (Terrell v. Auchauer, 14 Ohio, 80.)
It is said by Mr. Chief Justice Spencer, in Anderson v. Roberts, 18 J. R. 528, “ Whenever the act done takes effect as to some purposes, and is void as to persons who have an interest in impeaching it, the act is not a nullity, and therefore, in a legal sense, is not utterly void, but merely voidable. Another test of a void act or deed is, that every stranger may take advantage of it, but not of a voidable one.” It is not declared by the statute that the purchase by the administrator is utterly void, but if it is held that the prohibition against his purchasing amounts to that, in effect, it does not necessarily follow that strangers can allege that the sale is void.
The statutes of the 13th and 27th Elizabeth, and the statutes of the States having the same general purpose, declare that sales, etc., made to hinder, delay, or defraud creditors shall be absolutely void, and the cases both in England and the United States holding that those sales are void only at the instance of the parties injured, are too familiar and numerous to
An examination of the Probate Act will disclose the intent of section one hundred and ninety-three; and it is apparent that the object was not to declare who might or who might not become a purchaser of the property of the estate; but it was to prevent the property from being sold at a price less than its true value, which might be the case if the administrator, either directly or indirectly, prevented competition among the bidders, by entering into the market, either personally or by his agents, or if, with a view of purchasing, he was tempted to undervalue the property in his proceedings respecting the sale. The .protection to the estate designed by that section, can be as fully secured by permitting the parties interested in the estate to set the sale aside and have the administrator declared a trustee, as it would be to construe the section so as to allow strangers to impeach the sale, with the consequent risk to the bona fide purchaser, without notice, from the administrator’s agent, of losing the premises he purchased, relying on the apparent regularity of the probate proceedings and the confirmation of the sale.
The terms void and voidable are not always employed, either in the statutes or reports, with strict legal accuracy, but we find no case which, when critically examined in connection with the character of the action and the facts of the case, holds sales made in the face of a prohibition, such as is
Hardy v. De Leon, 5 Texas, 211, appears, by a series of amendments, to have been converted from an action to recover the possession of the premises, into a suit in equity to set aside a certain tax sale and an administrator’s sale, which had been procured by the fraudulent combination of the defendants. The plaintiffs were the heirs at law of De Leon, deceased, and the defendants were the administrators of De Leon and the purchasers at the tax sale and the administrator’s sale. The person who, it was alleged, purchased and took the title for the administrator, and who still held the title, was made a defendant. No other person than the administrator and the purchasers were made defendants, and .consequently the question whether the sale was absolutely void did not arise. On this subject the Court limit their remarks to one short paragraph and say that “ a person cannot be both buyer and seller
We have very clear and pointed authority on this question in the case of Terrell v. Auchauer, 14 Ohio State R. 80. It is provided by the statute of Ohio that “ho Sheriff or other officer making the sale of property, either personal or real, nor any appraiser of such property, shall either directly or indirectly purchase the same; and every purchase so made shall be considered fraudulent and void.” The defendant, who had been one of the appraisers of the land at a foreclosure sale, pur
We are of the opinion that by holding the sale to be void at the election of the heirs or other persons interested in the estate, the mischief intended to be prevented by the statute will be obviated, and at the same time those who, in good faith and without notice of the constructive fraud of the administrator, have acquired the title through the agent who purchased the property for the use of the administrator, will be protected from losses, which otherwise could only be effectually provided against by an utter refusal to purchase property that had been sold at an administrator’s sale..
Actual fraud is alleged and relied on by the plaintiff, and he assigns as error the finding of the Court against him on that issue. The fraud complained of, stated generally, consisted in the administrator’s having procured an order of sale from the Probate Court, when there was no necessity for it. He represented in his petition, filed December 18th, 1850, that the estate was indebted seven hundred and seventy dollars on the Biron mortgage, and about two hundred dollars for other debts, and that the personal property was insufficient to pay the debts and the expenses of administration. His final account, filed April 2d, 1851, shows that on the 2-3d of October, 1850, he received from Mary Hina eight hundred and ninety dollars on account of the estate. Instead of applying the money to the satisfaction of the mortgage, he purchased it in the name of Bidleman, for his own benefit. Doubtless the interest for two months—one hundred and forty dollars—was paid out of the money paid to him by Mary Hina. So far as the order of sale is concerned, and the fraud imputed to the defendant in procuring it, without any necessity, it would make no difference whether he left the mortgage unpaid in Biron’s hands or caused it to be assigned to himself or to some third person for his use, for he having the funds in his hands, that might and ought to have been applied to the satisfaction of the mortgage, he should have taken the necessary steps to have procured an order that the funds in his hands be applied to that purpose; and the wrong consists in the fact that he procured an order of sale to raise money to satisfy a debt, which either had been paid or ought to have been paid out of moneys in his hands belonging to the estate. The administrator was without justification, so far as appears from the evidence, in procuring an order of sale to raise means to pay that debt. The payment might have been made soon after the receipt of the money in October, and at
And the same may be said in respect to the order of sale, so far as it is founded on the alleged indebtedness on the mortgage, conceding that it had been paid (considering the assignment to Bidleman for the defendant as a payment by the estate, or as vesting the mortgage in the estate,) or that it was not a subsisting claim against the estate, or that it ought to have been paid by the administrator, still those were facts to have been proven before the Probate Court, on the hearing of the petition for sale. It is manifest that it was quite suscepti
Ignorance as a ground of relief in equity.
It is proper to remark here that we do not concede as much force and consequence, as do the counsel for the plaintiff, to the fact that Mary Hina was an ignorant Kanaka woman, unacquainted with legal proceedings and almost ignorant of our language. We cannot obliterate the recognized rules of law, requiring of all persons the diligence and attention demanded of a prudent man in the transaction of his own business, and establish a measure of care and diligence for each particular case. If she did not understand the value of the receipt she said Blankman gave her for the money she paid him, or if she did not comprehend the meaning or the object of the petition .for sale, unless it is also proven that she relied upon Blankman for information respecting those mat
Statute of Limitations.
The defendant relies on the Statute of Limitations as a defense to the action. The statute is applicable alike to all causes of action—to a cause of action in equity as well as one at law. The statute governing this case, is found in the fourth subdivision of division third of section seventeen of the Act concerning the limitations of civil actions, which is as follows : “ Within three years * * * an action for relief on the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.” The cause of action accrued in 1851, the date of the purchase by Beis for the defendant at his sale as administrator. The defendant in his answer says “ that the pretended cause, of action in said complaint set forth, did not accrue at any time within five year’s next before the commencement of this action, and he sets up and relies upon the statute in such case made and provided in bar of said action, as if herein specially pleaded.” The plaintiff in his replication denies “ that the pretended cause of action in said complaint set forth did not accrue at any time within four years next,before the commencement of this action and for a further replication he says “ that the several acts of fraud set forth and alleged in said complaint were not discovered by said Mary Hina or this plaintiff until within three years next preceding the commencement of this action.” The Court found “ that the knowledge that the purchase of said premises at the probate sale, and at the foreclosure sale were made, and the lands held thereunder for the benefit of, and in trust for the defendant Blankman, did come to Mary Hina more than five years before the commencement of this action.” As the acts constituting the fraud complained of are alleged to have been committed more than three years before the commencement of the action, the complaint should have stated the discovery of them within the three years, (Sublette v. Turner, 9 Cal. 423,)
It is objected that the defendant has not set up the particular Statute of Limitations applicable to cases of this nature, and that in order to avail himself of the benefits of any of the provisions of the statute, he should have pleaded all the statutes upon which he intended to rely, in separate defenses.
The defendant, relying for answer upon any provision of the Statute of Limitations is not required, nor do the rules of pleading permit him to allege matter of law. The facts are required to be stated which bring the case within the operation of the statute, and the Court will apply to them the law. To an action of ejectment the defendant pleads that the cause of action did not accrue within ten years next before the commencement of the action. This, though negative in form, is in fact an affirmative answer, and is in effect an averment that the cause of action accrued more than ten years before the commencement of the action. When tested by a demurrer, it will be found to be sufficient, for if it accrued more than ten, it must have accrued more than five years, next before the commencement of the action. The nature of the action, not the allegations of the defendant, will determine what statute is applicable as a bar to a recovery.
When the defendant demurs on the ground of the Statute of Limitations to a complaint, on the face of which it appears that the cause of action accrued anterior to the longest period prescribed as a bar, the demurrer is sustained, not because the complaint states as the time when the cause of action accrued, any period, the time from which to the commencement of the action, corresponds with the time prescribed in any particular-statute as a bar, but because the time as stated since it accrued exceeds the time defined as a limitation of actions of that nature. If the plaintiff fails to state truly one of the essential parts of his cause of action, to wit: the time when it accrued —which, if stated, truly would show that he had no subsist
The Court below found that the knowledge that the purchase of the premises at the probate sale was made for the benefit of and in trust for the defendant, came to Mary Hina more than five years before the commencement of this action, and the plaintiff complains of the finding on the ground that it was unsupported by the evidence. The defendant contends that the saving clause of section seventeen of the Statute of Limitations is applicable only to actions founded on fraud in fact. The rights'of a party seeking relief on the ground of constructive fraud in an action cognizable only in equity, were conserved until a discovery by the aggrieved party, of the facts constituting the fraud, and as the Statute of Limitations is now applicable alike to all causes of actions, it would be but reasonable to hold that parties should have the benefit of the saving clauses of the statute in that class of cases as well as those that were formerly within the statute, if it can properly bear that construction ; and as neither the limitation nor the saving clause is confined to cases of actual fraud, we see no reason for giving the statute the restricted construction claimed for it by the defendant.
The evidence in the record fails to show a discovery by Mary Hina of the fact constituting the fraud—that is, of the purchase of the property by the defendant, per interpositam personam, at his own sale—within three years next before the commencement of the action; nor does it appear that the facts actually or presumptively within her knowledge were sufficient to have put her, as a person of ordinary intelligence and prudence, upon inquiry. She is chargeable with knowledge of the state of the account between , the defendant and the estate; of the petition for sale and the orders and proceedings thereon, and of the conveyance to Reis; and it may be conceeded for the purpose of this question that she knew that the defendant, instead of satisfying the Biron mortgage, procured it to be assigned to Bidleman, who foreclosed it and
Judgment reversed and cause remanded for a new trial.
Mr. Justice Cürrey and Mr. Justice Sawyer being disqualified, did not sit in the cause.