Caverly v. Simpson

132 Mass. 462 | Mass. | 1882

W. Allen, J.

This bill cannot be maintained as a bill to redeem a mortgage. The bond given to Daniel Eastman, Sen. cannot operate as a defeasance of the deed given by Daniel Eastman, Jun. The transactions were different, at different' times, and between different parties, and cannot be treated as constituting a mortgage without violating the intention of the parties and the rules of law. Flagg v. Mann, 14 Pick. 467.

As a bill to compel the specific performance of a contract to convey land, it cannot be maintained by the plaintiff under his general authority as administrator. The interest in such a contract goes to the heirs and devisees, and they, and not the personal representatives, are the proper parties to enforce it. To meet this obvious objection, the bill alleges that the plaintiff has been licensed by the Probate Court to sell the real estate of the deceased for the payment of debts, and presents the question whether, having been so licensed, he can maintain this bill to obtain possession of the land, for the purpose of selling it under the order of the Probate Court. This depends upon the construction of the statute; for, without express statute provision, an administrator cannot enter upon, or maintain an action for, real estate of the deceased. Drinkwater v. Drinkwater, 4 Mass. 353. Hathaway v. Valentine, 14 Mass. 501. The bill does not ask the court to exercise a jurisdiction to order the application of the personal estate to the relief of the real estate. It is not framed with that aspect, but rests on the naked power of sale given to the administrator by the order of the Probate Court, and the authority of the administrator incident to that. The statute provides that “ an executor or administrator, licensed to sell lands fraudulently conveyed by the deceased, or fraudulently held by another person for him, or to which he had a right of entry or of action, or a right to a conveyance, may first obtain possession thereof by entry or by action, and may sell the same at any time within one year after so obtaining possession.” Gen. Sts. c. 102, § 12. Is this an action brought to obtain possession of land to which the deceased had a right to a conveyance? It is unnecessary to determine whether a bill in equity will lie in any case by an administrator to acquire the title and possession of lands under this provision, because the allegations of the bill do not show a case within the statute. The deceased had no right of entry or of action to the land, and no right to a conveyance. He had a contract under which he had an option to acquire such a right by the performance of certain conditions; but he did not perform them, and, until performance or tender, he had no right to a conveyance. The plaintiff now offers to perform the condition and acquire the right. The deceased had a contract under which he had a right to secure the title to certain land; but he did not avail himself of that right, and now his administrator seeks to apply the personalty of the estate to the purchase of the land, that it may be sold to pay debts. He does not propose to apply the personal estate to pay a debt due from the deceased, nor to remove a lien or charge upon the estate, nor to do anything which the deceased was, or which his administrator is, under any obligation to do, or which is for the advantage of the estate in any other sense than any improvement on real estate which might be of advantage to the sale of it would be.

The question is not whether the contract gave the deceased a right or interest in the land which would descend to his heirs, and which might be sold by the administrator under the Gen. Sts. c. 102, § 11; but it is whether he had a right to a conveyance under § 12, which his administrator can enforce. He had no such right, and the administrator cannot acquire it without the performance of a condition which is beyond his authority.

. Decree affirmed.