14 S.C. 229 | S.C. | 1880
The opinion of the court was delivered by
The principal object of this action was to have the sale of a certain tract of land set aside, the deed given therefor cancelled, and an account from the purchaser for the rents and profits since the sale. Indeed the only question made by the appeal is as to the validity of the sale.
It is very clear that at the time all parties interested considered the sale a good and valid sale, and that there is not a shadow of ground for saying that there was any fraud or concealment, or misrepresentation which would tend to invalidate it. On the contrary, all the circumstances go to show that the sale was, at the time, satisfactory to all parties concerned, unless it be W. I>. Jennings, who, as a creditor,, may be regarded as interested in the estate. But even he, taking all his conduct together, can scarcely be regarded as making any opposition to the sale, but merely expressing a dissatisfaction with the terms of sale by which purchasers were allowed to pay their bids in Confederate money.
But, conceding all this, the validity of the sale is challenged upon the ground of a want of power in the executor to make the sale. First. Because there were two executors appointed, and one could not sell even though the other never qualified. Second. Because the power to sell was conditional, and as the condition never happened the power never vested. As to the first ground, it is very clear that it cannot be sustained. The very object of the statute (21 Henry VIII., Oh. IV, 2 Stat. 457,) which was in force at the time this sale was made, was to obviate this objection. Britton v. Lewis, 8 Rich. Eq. 271.
As to the second ground, it is quite clear that the power of sale was a conditional one, and it is equally clear that the condition was, in its nature, precedent and not subsequent, and that, such being the case, until the condition was performed, or the contingency, upon which the power was conferred, happened, the-power could not be lawfully exercised. So that the real question in this case is, whether the contingency upon which the power to sell was given had happened at the time the sale was made, and as subsidiary to this, who was to determine whether the contingency had happened. To solve these questions it will be necessary to inquire what was the nature of the condition. Was it the happening of a distinct and independent fact, or was it a condition, which, in its very nature, involved the exercise of judgment or discretion for the determination of whether it had hap
It is perfectly manifest that the testator in this case intended to invest his executor with power to sell in a certain contingeucy, the happening of which must necessarily be determined by an exercise of judgment, and unless his executor — the person whom he has selected as possessing more of his confidence than any one else — is authorized to determine this question, then the purpose of conferring upon the executor the power to sell would be practically defeated. That purpose, doubtless, was to avoid the necessity of obtaining an order of the court for the sale, which would involve delay and expense; but if the executor is denied the power of determining the time for the sale, or if his honest determination is liable to be revised and reversed by the court, then, clearly, it would have been better to have required a resort to the court in the first instance, rather than to give an apparent
When, therefore, as in this case, a power of sale is given to an executor, upon the happening of a contingency which can only be ascertained by the exercise of judgment and discretion, and the executor, in the honest exercise of his judgment, determines that such contingency has happened and accordingly makes the sale, such sale cannot be invalidated, even though it should be made to appear, in the light of subsequent events, that the executor had committed an error of judgment in determining whether the contingency had happened upon which he was authorized to
The judgment of the Circuit Court is affirmed.