12 Ala. 298 | Ala. | 1847
By the common law, an administrator was authorized to sell the personal estate of his intestate, when in his opinion the interest of those concerned, required it; and a purchaser from him, it is said, would only be held responsible when charged with notice of a devastavit. [Colt
The act of 1809, “ concerning the duty of executors, administrators and guardians,” &c. (Clay’s Dig. 223, § 13), inhibits an administrator, &c. from taking any part of the estate represented by him at its appraised value, or from disposing of the same at private sale, except where the same is authorized by a will of the testator. “ But in all cases where it may be necessary to sell the whole or any part of the personal estate of any testator or intestate, it shall be the duty of the executor, administrator or guardian, to apply to the orphans’ court of their county, for an order of sale, and upon obtaining the same, to advertise the time and place of such sale, in three or more public places in their county, at least thirty days previous to the day of sale, and then and there proceed to sell the same, at public sale, to the highest bidder, giving at least six months’ credit, the purchaser giving bond with approved security.”
Under this statute, it was held by the supreme court of the United States, that a private and unauthorized sale by an administrator in chief, did not have the effect to defeat the right of a subsequent administrator ad colligendum. [Ventris v. Smith, 10 Pet. Rep. 161.] This decision is cited with approbation in Weir v. Davis and Humphries, 4 Ala. Rep. 442. In the latter case we held that a sale made otherwise than the law provided, was invalid, and that the property illegally sold, might be subjected to the claims of creditors, or the dis-tributees of the estate.
In Dearman v. Dearman and Coffman, 4 Ala. Rep. 521, the validity of a private sale by an administrator was considered; and it was there said: “ We will not inquire whether some portions of the act regulating the sale of the estates of deceased persons may not be directory merely, because here the sale (if indeed it can be called one) was without any order of court directing a sale to be made, and it was made privately. ■ This the statute declares unlawful, and certainly no right can be derived from an unlawful act.” “If then there had been
If the sale was unlawful, because the statute so declared it, and passed no title to the vendee, it may be asked if it imposed a liability upon him to pay the purchase money ? Certainly the plaintiff cannot coerce its payment, if, as was said in Dearman v. Dearman and Coffman, “ no right can be derived from an unlawful act.”
Even if it were not allowable for the defendant to prove the illegality of the consideration for his promise to pay the debt of Lawson Thomas, the plaintiff could not make out his case without proving it; for a promise without any consideration, would be a mere nudum pactum, which imposes no legal duty. And the consideration being unlawful, the promise which rests upon it, would be unsupported, and cannot be enforced.
The objection to the declaration- was- directed mainly to the first count, and supposed it was bad, because it did not