Daniel v. Hollingshead

16 Ga. 190 | Ga. | 1854

By the Court.

Starnes, J.

delivering the opinion.

[1.] When an executor or administrator finds it necessary to bring suit upon a debt, which, in the management of his testator’s or intestate’s estate he has suffered to be contracted with him, for and on account of said estate, he may, at his option, declare upon that debt, as one due to him in his representative character, or as due to him personally.

'[2.] If he mean to bring the suit in his representative, character, apt and fit words should be used, for the purpose of manifesting such intention. When, in such case, he declares on such a nontract, it seems, by the rules of pleading, not enough that he should simply style himself executor or administrator — ■ that he should describe himself in his petition, for example, as ‘f- A B executor of C Dfor this, it is held, only shows that the debt was contracted with him in that character, but does not show that he has elected, in his suit, to treat it as the debt of the estate. It is said, that subjoining to his name, in such a suit, the word “executor” or “administrator” is simply a designatio persones; and that if he mean to have the debt treated as one due to him, strictly in his representative right, he must describe it as such, by annexing the words “ as executor” or “ as administrator” to his name. Brigden vs. Parkes, (2 Bos. and, P. 424.) Henshall vs. Roberts et al. (5 East. 150. 6 East. 405. 2 Bing. 177. 9 Moore, 340.) Hollis and another vs. Smith, (10 East. 293. 1 Ch. Plead. 233, 234. 2 Saund. 117 d and notes, 5th ed.) Gilbert vs. Hardwick, (11 Ga. 599.)

This rule seems to be rather arbitrary, and the reasons for it not very satisfactory: but this does not matter much, perhaps, if it be well understood to be the law. As a rule, it seems very well settled indeed, and the case before us must be tried by it.

[8.] The judgment for costs, under which this land was sold, was entered up in a suit which had been instituted upon a promissory note, made and executed by Solomon P. Kent and others, in favor of, and payable to “ the administrators of John W. Harper.” We find by the record, that suit was brought in .the name of “ Anselmn L. Harper and William Shaw, administrators of John W. Harper, deceased.” The verdict is for the “plaintiffs”; the judgment follows the verdict, and the execution issued in favor of “Anselmn L. Harper and Wm. Shaw, administrators,” &c. They have not sued as administrators, and, therefore, according t'o the above rule, they did not elect to treat the debt other than as one personally due them.

Of course, if the recovery was their’s, personally, and the costs were due to them personally, all the incidents of such recovery must take effect with reference to them, and in no wise have relation to their intestate’s estate. The officers, then, should have issued their fi. fa. against Anselmn L. Harper and Wm. Shaw, the plaintiffs in the ease, and have caused a levy to have been made upon their property; for, according to the law which prevails on this subject, they had no right, whatever, to have this execution levied upon the land in question, belonging to the plaintiffs in error, and received from this estate; and the title of plaintiffs in error, was, of course, not divested by the sale.

The Court erred, therefore, in rejecting the exemplifications of the record from Clark County, offered for the purpose of showing that these administrators had declared on said note in their individual, and not their representative character.

Not only, does the record, which was thus rejected, show that these administrators had elected to treat this debt as their own, and not a debt of the estate ; but the settlement between them and the heirs, as proven by the depositions of Green B. Haygood, Esq. seems to encourage this conclusion, andhence, these depositions should have been admitted.

[4.] The doctrine that a purchaser without notice, for a valuable consideration, is entitled to the protection of the Courts, which was invoked by the Counsel for the defendant in error, does not apply to such a case. That doctrine is applicable, where there is prior equitable title only; but where there is prior legal title the rule is caveat emptor.

Here, if there was no foundation for an execution for costs, against the estate of John W. Harper — if the officers were not entitled, as they clearlyjrere not, to enter up judgment against the goods and chattels, rights and credits of John W. Harper, in the hands of Anselmn L. Harper and William Shaw, as administrators, ¿-c. they should not have caused their execution for costs to be levied on property of the plaintiffs in error, which had been property of the estate ; the levy was a trespass and the title of plaintiffs in error was not divested by the sale. Such title remained in them, and the purchasers cannot bo protected against that title.

These considerations dispose of the ease, and make it unnecessary for us to examine any other point made by the plaintiffs in error.

Let the judgment be reversed.’