Clapp v. Beardsley

1 Aik. 168 | Vt. | 1826

Hutchinson J.

delivered the opinion of the Court.

This case has been argued upon a motion for a new trial, after a verdict for the defendant. The exceptions allowed by the Court present several points that were decided in the course of the trial, and the briefs exhibit compends of the arguments, with minutes of the authorities relied upon by the parties, in support of the positions taken by each. It is unnecessary for the Court to occupy much time in noticing any other points-, than those on which their decision rests.

It appears that the plaintiff claims to recover the land described in the right of Gordon, the deceased, as his administrator, and the defendant, without setting up any title in himself, attempts to set up an outstanding title in one Philo Berry, formerly co-administrator, with the widow of Gordon, of his estate. There is, therefore, no dispute but that Gordon once owned the land. The dispute is, whether the title has passed from Gordon, or his administrators, to Berry, and whether the decision of the Court was correct in admitting and excluding evidence offered upon that point.

To support this outstanding title, the defendant offered in evidence, an order from Solomon Miller, as judge of probate for the district of Chittenden, in which this land lay at the date of said order, in the words and figures following, to wit:

[Here the judge recited the order, as given above.]

This order, standing alone and unaccompanied with any probate records, showing any proceedings before the court of probate, to ascertain the necessity for a sale of the real estate, was objected to by the plaintiff, but was admitted by the Court.

It seems that the administrators, under this order, deeded the premises to one Asa Robinson, and that said Robinson deeded back the same premises to said Berry; both deeds name the consideration of $3,226.

It also appears, that the plaintiff offered to prove, that the deed from said administrators to Robinson, and the one from him to Berry, were without consideration, and intended as a fraud upon the heirs, and all concerned in the said estate. This was objected to by the defendant, and was excluded by the Court.— The Court see no reason why this last testimony should not have been admitted. The defendant does not stand in the place of a bona fide purchaser, without notice of fraud in his grantor. He, at best, can make no more of a title outstanding in Berry, than Berry himself could have made of the same title. And Berry could make no use at all, as against the heirs or creditors of Gordon, of a title obtained as this evidence imports. That the creditors and heirs would have their remedy upon the administration bond, too slightly removes the difficulty. It may shift the burden of the fraud upon the unfortunate bondsmen: but this neither the creditors nor the heirs are obliged to do. Deeds thus fraudulent, are void, and may be treated as void; and the plaintiff, armed with the strength of both creditors and heirs, may hold the land, in defiance of such deeds, if he can furnish the proof thus offered.

The Court are also of opinion, that the order from the judge of probate ought to have been excluded. It contains no recital of any finding by the judge, that a sale of real estate was necessary, to pay the debts; no records are produced, showing such necessity. The statute then in force, is plain in its provisions, that the personal estate must first be applied to the payment of the debts, then the real estate, so far as necessary; and, in a certain event, the whole may be sold. But it must appear, either from tbe order or from the records of the probate court, that such facts are found to exist, as warrant such an order as in fact issues. Here no records are produced; the order recites no decree; no finding of facts that warrant the order; nothing, ¿n fa.c t, but that it appears to him, the judge, that a sale of the whole will best serve the interest of all concerned. This order, thus standing alone, and unsupported by any record from the court of probate, is as no order. It authorizes no sale, and does not support the deed from the administrators to Robinson, and the one back to Berry. The Court consider that either, et afortiori, both of these points furnish a sufficient reason for a new trial.

Seth Welmore, and Bates Turner, for the plaintiff. A. Aldis, B. Szuift, Jas. Davis and J. Smith, for the defendant.

But the defendant contends, thbugh not with great assurance, that he offered evidence of another, distinct and sufficient title to the premises, which was excluded by the Court; the admission of which would have shown a conclusive title in Berry. He contends, that Gordon having, before his decease, mortgaged the premises to Benjamin Boardman, the assignment by Boardman to Berry of that mortgage, by deed, dated September 25, 1805, was sufficient title for Berry to hold the premises, till the redemption money was paid. On comparing dates, the Court perceive, that this assignment of the mortgage was nineteen days after Berry and Polly Gordon had deeded to Robinson. It was the duty of Berry, from the time he was administrator, and especially after he had sold the land, to redeem the mortgage with any property of the deceased, and do it for the benefit of the creditors and heirs, to whom it might belong. In such case, the title should not be made out to himself, in his individual capacity; and an assignment, so placing it in him, is a fraud upon the creditors and heirs of Gordon, in whose behalf the plaintiff claims, and ought not to be set up against them, and was rightly excluded by the Court. This last point being thus disposed of,

A new trial is granted, upon the two principal points herein before explained.