8 Paige Ch. 12 | New York Court of Chancery | 1839
As it was expressly denied by Hooker that he was present at the sale, or ever authorized the auctioneers or any other person to bid upon the property for him or in his name, there is no pretence of claim against him. He was therefore very improperly made a party to this appeal. The order of the surrogate dismissing the petition as to him must be affirmed with costs
The case as to the other respondents, and particularly as regards the administrator de bonis non, presents a great variety of questions, some of which I will now proceed to consider. In addition to the objection made by the counsel for the respondents, however, it may be proper to remark that the petitioner does not appear to be entitled to the benefit of the proceedings on the petition of Wilkins to the surrogate, presented on the 17th of November, 1835, and the supposed allowance of the estate of Ann Smyth of $10,000 by the surrogate upon the proceedings founded thereon; for it appears by the petition of the appellant, that he had purchased all of Wilkins’ interest in that judgment on the 9th of November previous. Wilkins, therefore, was not a creditor of the estate of C. Smyth, either in law or in equity on the 17th of November, and had no authority to institute proceedings to compel a sale of the real estate for the benefit of Butler. Even if the judgment for the benefit of Mrs. Smyth had been standing in his name as trustee, I am inclined to think the proceedings could not have been instituted in his name after he had assigned all his interest in the judgment to another. But as the judgment was in the name of T. Addis Emmett, the elder, and Wilkins, as administrator of his mother, was a mere cestui que trust, it is very evident that he had no right to institute such a proceeding in his own name after he had assigned all his beneficial interest in the judgment to Butler.
Again ; the judgment, if valid, was a subsisting lien, as against the heirs at law of the defendant therein, upon all the real estate of which the intestate died seized in the city of New-York, or elsewhere in this state. And I am in dined to think the objection is well taken, that a judgment creditor standing in that situation cannot institute proceedings before the surrogate to compel a sale of the real estate on which his judgment is a lien. The thirty-second section
It is not necessary for the decision of this case to inquire whether the administratrix was authorized to apply for a sale of the real estate, before she had made and filed an inventory of the personal property,or a statement showing that none existed, duly verified in the form prescribed by the sixteenth section of the article of the revised statutes relative to the duties of executors and administrators in taking and returning inventories, (2 R. S. 85.) In every respect, except as to the form of the inventory and the manner of verification prescribed,sworn statement in the petition
I do not understand, however, the heir as consenting to any subsequent sales, except such as had been authorized by the order of the tenth of March, 1834, and to satisfy debts which had been already ascertained and allowed. And I presume the order of the 8th of December, 1834, did not authorize the sale of any lands not specified in the previous order ; although there is no copy of that order in the surrogate’s return. The surrogate is required, in his order of sale, to specify the land to be sold. (2 R. S. 103, § 20.) And if there were no lands specified in the order of the 8th of December, then it is perfectly clear that the administrator de bonis non was only authorized under that order, to sell the lands specified in the previous order of the 10th of March, if any of them- still remained unsold. The administrator, however, acted upon the supposition that the order of the 8th of December authorized him to sell the lands purchased by Lowerre and others, in July, 1836; as his return to the surrogate shows that he sold them under that and the previous order, and not under the supposed order of the 5th of January, 1836, which was not entered until after that sale.
If the order of the 5th of January, 1836, was actually made at that time by the surrogate, and if he was then authorized to make such an order, he probably had the right afterwards to enter it nunc pro tunc, as of that date, if by any inadvertence it was not entered in the books of his office at the time it was made, I am satisfied, however, that
For these reasons I think the surrogate was right in the conclusion at which he arrived, that this sale was unauthorized ; that no conveyances which could be given by the administrator de bonis non, would be sufficient to protect these purchasers in the enjoyment of the premises. The appellant’s remedy, therefore, if this is a valid judgment, is to revive it in the name of the personal representative of the nominal plaintiff, with his assent, and to sell the real estate on execution ; or to come in before the vice chancellor upon the decree of foreclosure, which it appears has been entered there, and establish his claim to the surplus as against the people of the state to whom it is said the property now belongs by escheat. This is sufficient to dispose of the whole case upon this appeal, as the appellant has no claim to relief as against any of those whom he has made parties to these proceedings. It is not necessary, therefore, that I should examine and decide the question whether a surrogate has jurisdiction and power to compel the purchasers under a regular order of sale made by him to take the title and pay the purchase money. I think, however, there can be very little doubt that the decision of the judge a quo was right upon that point also.
The order appealed from must be affirmed, with costs, as to all the respondents who have answered the petition of appeal. And they are at liberty, after the decree of affirmance is enrolled, to take out their executions for costs in this court.