Henderson v. Winchester, 31 Miss. 290

Henderson v. Winchester

31 Miss. 290 | Miss. | 1856

Handy, J.,

delivered the opinion of the court.

We think it manifest that it was error, and unwarrantable in the chancellor, to quash the execution of the plaintiff in error, issued in obedience to the mandate of this court, for several reasons :—

1. The execution, issued in conformity to the decree and mandate of this court, was against John C. Jenkins, administrator of John F. Carmichael. The motion to quash it was made by Josiah Winchester, administrator of Jenkins. The execution was wholly *294against the estate of Carmichael, with which the administrator of Jenkins had no right to interfere, it not even running against him for costs; and he could not be heard as a party in court competent to take any legal step to defeat that execution. He was neither a party to the record, nor privy to the subject-matter of the execution against Carmichael’s estate, and should not have been heard by motion to quash it.

2. The suit, both in the Chancery Court, and afterward, on appeal, in this court, was conducted by Jenkins, acting as administrator of Carmichael. When the decree of this court was pronounced, the presumption of law was, that every fact necessary to its validity, was duly brought to consideration, and settled by this court, including the right and capacity of the parties to the record to conduct the litigation. Voorhees v. Bank United States, 10 Peters, 472. Every matter adjudicated and involved in the record, became a part of the record, which proved itself. The decree was sent down to the Chancery Court solely for execution ; and that court had no power to inquire whether that decree was erroneous for matter of fact existing at the time of its rendition, any more than it had power to pronounce it erroneous for matter of law. As to the enforcement of the decree as rendered, in obedience to the mandate of this court, the power of the chancellor was ministerial rather than judicial. Upon any other principle, there would be no end to litigation, and however a question might be incidentally, but yet materially involved, and solemnly decided by this court, it would be the subject of re-examination in the court below, and that, too, when the decree was sent there upon a mandate for execution ; and the power exercised by the chancellor in this case, if sanctioned, would subject to his revision every decree of this court sent to him for execution, and in which it did not affirmatively appear that a particular question of law or of fact was adjudicated; and which the party thought ought to be settled by the chancellor, by re-opening the litigation.

8. It appears by this record that Jenkins was the party beneficially interested in the property of Carmichael’s estate. According to the showing upon this motion, if this litigation is re-opened, it is for his benefit. Under such circumstances, should he or his *295representative be heard to say that, although he had carried on a protracted litigation in reference to the property, as the administrator of Carmichael, yet he was not administrator, and that he was all the while imposing himself falsely as such upon the courts, which disclosure is made after he has been unsuccessful in his litigation ? Conceding that he was not competent to bind Carmichael’s estate, as a party to the suit here, (a position which we do not think tenable,) yet he shows himself to be the party interested in the litigation; and upon every principle of law and equity, neither he nor his representative can be heard to say that, though he appeared and submitted to the jurisdiction, and was active in carrying on a protracted litigation, he was all the while acting without authority, and committing a fraud upon the court. And further, that he committed a fraud upon the Probate Court, in representing the 'estate of Carmichael as settled, when the large claim involved in this litigation was outstanding, and in a course of judicial prosecution against it.

Under these circumstances, we think it clear, that the order of discharge made by the Probate Court, on the final settlement of Jenkins, as administrator, can only be regarded as a discharge, so far as the particular matters appearing by the face of that account are concerned. The terms of the account and of the affidavit annexed to it, justify this conclusion ; and the subsequent action of Jenkins himself, shows that he continued his functions as administrator. He had not accounted for the specific property of the estate in his hands; and until he did so, the control of the court over him as administrator continued; and of course his functions as administrator, as to all matters not previously and finally settled, continued. This rule is clearly held by this court, in the case of Smith et al. v. Hurd, 7 Howard, 188. And it is founded upon the well-established principle, that the office of a trustee ceases only with the 'final execution of his trust. Our statutes provide, that an administrator may be removed by the court for cause, and that he may resign his trust by consent of the court. From the nature of these acts, they necessarily put an end to his capacity to act for the estate. But the Probate Court has no power to discharge him from his trust, upon the mere settlement of a final *296account, and without a final distribution. No such power is given by our laws, and none such arises from the general principles of law, applicable to the powers of courts in relation to such trusts.

The decree of the chancellor, quashing the execution, is, therefore, clearly erroneous, and is reversed, and the cause remanded to that court, with directions to issue an alias venditioni exponas to sell the property levied on, in execution of the decree of this court.