Hughes v. Hatchett & Trimble

55 Ala. 539 | Ala. | 1876

STONE, J. —

The contract of purchase, if it may be so called, by which, it is contended, Jenkins, Starns, McMorris, and Thrasher acquired an interest in parts of the lands in controversy, was, in each case, an oral agreement, never reduced to writing; and there is neither averment nor proof that either of them has ever paid any part of the purchase-money. Such negotiation, or agreement, is void under the statute of frauds (Eev. Code, § 18(32, subd. 6); — and it results, that there was no necessity for making them parties. A void contract, if it be not a solecism to call it a contract, can confer no rights. They were neither necessary nor proper parties.

An argument is made, which seeks to distinguish Jenkins’ case from the others, and to show that he had made full or partial payment of his purchase, and should have been made a party. The position taken is, that by the terms of his agreement, he paid for his forty acres by negotiating the sale to the others. We do not so understand the testimony. His statement agrees substantially with that of Hatchett. He purchased at $10 per acre, but was to be allowed a credit on his purchase for ten per cent, of all moneys realized by Hatchett, on sales effected by Jenkins’ agency. Nothing was ever realized on such sales, and hence Jenkins was entitled to no credit on that account. He paid nothing. It may not be out of place to add, that all of said parties have left the possession of the lands they had agreed to purchase, and, it would seem, now set up no claim whatever to the lands.

On the question of the waiver of lien for rent, given by Hatchett for the accommodation of some of said purchasers, his testimony and that of Hughes are not in exact harmony. He testifies, that Hughes agreed that such waiver should be made.' Hughes says, “there was some conversation in reference to a waiver of lien for 1874, but witness says he never agreed to any waiver.” The chancellor, in his decree, overruled all defenses, and therefore disallowed this claim. We suppose he was convinced by the evidence that Hughes had agreed to the waiver, and we are not convinced he erred in so holding.

2. It is contended, that the devisees of Howell Bose were necessary parties to this suit. The reason urged is, that because Hatchett and Trimble, who were the executors of Bose’s will, purchased this land with assets which were of Ms estate, the devisees are clothed with the option of ratifying the purchase, as made for their benefit, and thus claiming the land, or of renouncing the purchase, and holding the executors accountable for the money. This is by no means a universal rule. When the circumstances' are such as to make it appear that a purchase of lands is necessary to the performance of the high trust and duty of collecting the assets and making them available, the personal representative, if he act in good faith, and with reasonable diligence, will not be held accountable as for a devastavit, even if by such purchase loss to the estate ensue; and property thus purchased, though it be land, is treated as personalty. “An administrator, having purchased for the estate land soid for the payment of a debt due to the estate, held, under the circumstances, not bound to keep the land and account for the price; but the land is to be treated as the property of the estate.” — Powell v. Stratton, 11 Grat. 792. “ The trustee, in such case, must make a careful investigation, and exercise a sound discretion, or his advances will not be allowed in case of a loss. * * So, an administrator may buy in the land of a debtor to his estate, to save his debt. Such an investment is a mere temporary expedient, and is to be treated-as personal estate.” — Perry on Trusts, § 458; Oeslager v. Fisher, 2 Penn. St. 467. No bad faith, nor want of diligence, is charged or shown in this record; and we think the case falls directly within the principle above stated. This land must be regarded simply as personalty; and it follows, that the devisees were not necessary parties.

3. Another principle, if necessary to invoke it, may possibly be fatal to the defense of incumbrance on the title, here relied on. Hughes remains undisturbed in the enjoyment of the land purchased, and he fails to aver fraud in the sale, and fails to prove insolvency of his vendors. — See Strong & Wife v. Waddell, at present term.

Decree of the chancellor is affirmed.

Note by Bepoetee. — The chancellor’s order in this case, granting an appeal, required the appellant to give bond, “ payable and conditioned as required by law in the cases of appeals intended to operate as a supersedeas of judgments and decreesand the condition of the bond was, that the appellant should “ prosecute the said appeal to effect, and satisfy such decree as the Supreme Court may render in the premises.” On tlie delivery of the foregoing opinion, a judgment of affirmance was rendered, in the usual form, with the addition of these words : “It is further considered, that the appellant and John D. Letcher, John A. Logan, and John Edwards, sureties on the supersedeas bond, pay the amount of the decree of said Chancery Court, five per cent, damages and interest thereon, and the costs in this court and in said Chancery Court.” The sureties thereupon applied to the court by petition, through their attorneys, 3). CloptON and L. E. PARSONS, Jr., asking an amendment, or modification of this judgment, “so as to direct a sale of the land condemned by the decree of the court below, before execution shall issue to collect the amount of said decree from said sureties, or for such other amendment or modification of said judgment as may be proper.” No brief or argument on the part of the counsel for the petitioners has come to the hands of the Beporter, and he has included the brief of the appellees’ counsel in the brief on the merits of the case, supra. In reply to this petition, on a subsequent day of the term, the following opinion was delivered:

STONE, J. — The question is raised, what judgment should we render on an affirmance of the chancellor’s decree ? Can a money decree be rendered against the sureties ? Can damages be awarded against them ? The latter question is dependent on the solution of the first.

The present is not a judgment or decree for the payment of money, within section 3489 of the Bevised Code. It comes under section 3490, which enacts that, “when the decree rendered is for the performance of any other act than the payment of money (except in cases otherwise provided by this Code), the party wishing to supersede the execution of such decree must apply to the chancellor, or register, either in term time or vacation, who must direct the amount and the condition of the appeal bond.” This section was amended (Acts of 1874 — 5, page 256), but in no respect material to this case.

The object of the bill in this case was to have land sold in payment of the purchase-money. Such was the special prayer of the bill. Under it, there could be, and was, no decree for the payment of money. True, the chancellor ascertained the amount due, that he might decree for what sum'the property should be condemned to sale. There was no order that the money should be paid. In Hooks v. Branch Bank, 18 Ala. 451, this court said, “We think it too clear to admit of doubt, that this court can only award ten per cent, damages upon affirming the judgment of an inferior court, when tbe judgment of tbe inferior court is for a specific moneyed demand; for it is only on sucli judgments that we can compute or ascertain damages at tbe rate of ten per cent.” That case bas been followed in tbis court ever since; and it bas been uniformly held, tbat its principles apply to suits to foreclose mortgages, and to enforce vendors’ liens.

We bave been referred to sections 3479 and 3480 of tbe Bevised Code, as declaring a different rule. We do not so understand those sections. Tbeir object was to do complete justice in one suit, and to avoid tbe expense of a suit at law, theretofore necessary, to enforce tbe collection of any balance left unpaid, after exhausting tbe property subject to tbe mortgage or vendor’s ben. Under such decree, no money judgment can be rendered, or money execution ordered, “until tbe property ordered to sale shall bave been sold, and tbe sale confirmed, and tbe balance due ascertained by tbe decree of such court.” Till then, there is no decree for money.

We observe in tbis case, as in others, a want of attention to what should be the condition of a supersedeas bond, in cases like tbe present. It should be framed in reference to tbe damages likely to ensue from delay. Tbe order for a supersedeas bond in such case, and tbe bond itself, should not bave tbe sole condition prescribed in section 3489. Tbat condition is inadequate in such a case. They should require and provide indemnity against such damage and loss as tbe appellee may sustain by tbe appeal, in addition to tbe condition prescribed in section 3489. We will not declare wliat shall, in all cases, be tbe condition of tbe supersedeas bond under section 3490. Security and indemnity should be of prime consideration. This, doubtless, will require tbat tbe judge, or officer prescribing tbe condition, shall take into tbe account any peculiar circumstance tbat may distinguish the case in band; and counsel should give attention to it. We need scarcely add tbat, upon a bond so given, tbis court can render no judgment against tbe sureties, except for costs. Any recovery beyond tbat must be in a suit on the supersedeas bond. And these remarks apply to section 3490 of Bev. Code, as amended by tbe act of March 2, 1875.

Tbe clerk will so modify tbe judgment entry, as to make it a judgment against tbe sureties for only tbe costs of appeal. There is no decree for money which we can affirm, or award damages on.