4 Wend. 436 | N.Y. Sup. Ct. | 1830
By the Court,
However extraordinary or erroneous be the determination and proceedings of a court of limited authority, if it acts within its proper jurisdiction as to the subject matter, place and person, its judgment or decree cannot be impeached or invalidated in a collateral action.
. This case presents the question—what is necessary to give a surrogate jurisdiction where real estate is directed to be sold to supply a deficiency in the assets to pay the debts of a testator or intestate? The argument on behalf of the defendant seemed to proceed on the assumption that an actual deficiency in the assets must exist in order to confer jurisdic
It was not made a question but that the surrogate of Jefferson county was the proper officer to entertain the application, and to make the order for the sale in case a sale was proper; but it was contended that all the admimstrators should have joined in the application. When there are several executors, the acts of any one are deemed inlaw to be the acts of all. (2 Ves. sen. 267. Toller, 324). A distinction in this respect between executors and administrators is found in some books. Gomyn does not notice it, and I believe if it ever was established, it is now exploded. It was demed in the case of Jacomb v. Harwood, (2 Ves. sen. 265;) and this court has passed on that question, and said that executors and administrators stand on the same ground, and their powers and responsibilities in respect to each other are the same. (Douglass v. Satterlee, 11 Johns. R. 16. Murray v. Blatchford, 1 Wendell, 583.) If these cases were
The phraseology of the section directing' the proceedings' when the real estate is to be sold, would justify an application by one administrator, if the general rule was that where there are several they' must act conjointly. It is, that “ when any executor or administrator, &c. shall discover or suspect” a deficiency in the personal estate of his testator or intestate to pay the debts, &c: Tie may make the application in the manner' therein provided! Upon general principles, and by the construction of the statute, I am' satisfied that' a single administrator, when he has an associate, has the right to call in the aid of the surrogate of the r roper county to sell real estate, to supply the deficiency in the personal estate, to pay the debts of the intestate.
Some minor questions _ are raised in this case, upon which We ought to express opr views. It is certain that an unreasonable length of time elapsed between the granting of the letters of administration and the period when the proceedings were instituted for the sale of the real property. This might have been, and, without some explanation, should have been a reason for the surrogate to- reject the application; The laws fixes no definite limits within which the proceedings must be commenced; we cannot therefore say that they are void. The time is- left to the discretion of the officer, and" his error, if any, in relation to it, can be corrected only on appeal. ,
The judge erred, it is said, in receiving an exemplified copy of the letters of administration without evidence or suggestion of the loss of the original.' Where the judgment, decree or proceeding of a court of record is to be proved", it may be done by producing the original or a copy duly authenticated. (Starkie’s Ev. pt. 2, 151.) This is the general rule- I cannot find that_ there- is, nor do I know why
The want of notice to quit did not, in my opinion, form an objection to the plaintiff’s recovery. The question of notice can never arise where the relation of landlord and tenant does not exist. The defendant was not in possession as tenant of the lessor. He did not enter by his permission or with his acquiescence; nor did he enter under any person from whom the lessor claimed title. The lessor’s title did not come from the heirs, but from the ancestor, and. overreached the title of the heirs. The statutes declares that the sale, by order of the surrogate, conveys a title to the purchaser valid and effectual against the heirs and devisees, and all claiming from or under them. There is no pretence for saying that the relation of landlord and tenant exists, or ever did exist, between the lessor or those from whom he claims and the defendant, or those under whom he held; and therefore no notice to quit could be required.
Motion for new trial denied.