56 Tenn. 727 | Tenn. | 1872
delivered the opinion of the Court.
This bill was filed in March, 1860, by the heirs of ~V. D. Barry, to set aside a sale of real estate made by order of the County Court of Shelby county. The facts are, that V. D. Barry died in April, 1853, •and at the May Term of the Court, thereafter, Isaac Y. Gibson was appointed his administrator. On the 1st day of August, 1853, said Gibson, together with the widow, Henry A. Barry, and the other heirs, filed a petition in the County Court asking a sale of sev
The same day the petition was filed, a decree was entered, reciting that the Court was satisfied that the allegations of the petition were true: — and directing the slaves and lot of ground to be sold, for the purpose of paying debts; and, for distribution among the parties, as therein mentioned. The prayer of the petition was granted, commissioners were appointed tn
It is now insisted, that this sale is void under the-Act of 1827, ch. 54, secs. 4 and 5, providing for the sale of the real estate of deceased persons} and for-other reasons, that will be hereafter noticed.
The Act of 1827 provides, that when an administrator has exhausted the personal estate of an intestate-in the payment of debts, leaving just debt's against such estate unpaid, and where such intestate dies seized' of real estate situated in any county of this State, it. shall be lawful for any Chancery or Circuit Court of the district or county where such lands or part of them may lie, — on the prayer of the administrator, or any bona fide creditor, whose debt may remain unpaid, — to decree the sale of such lands, or so much thereof as may be sufficient to satisfy the debt set forth and shown to exist:
“Provided, That before any decree shall be entered,, it shall be made satisfaetorily to appear that the personal estate has been exhausted in the payment of bona fide debts, and that the debts for which the salé-is sought, are justly due; and,
Provided further, That said Court shall decree the-sale of such part of the real estate as will be least injurious to the heirs or legal representative.”
It would seem that this Statute, so plain and unambiguous, when taken in connection with the well-known purpose of the Legislature in its passage, ought to be of easy. construction. Yet, as we know, it has given birth to some, apparently, diverse decisions, growing mainly out of an effort on the part of our Courts to meet the supposed exigencies of what are known as hard eases. We have found, however, that whenever an effort has been made to strain the construction of a plain Statute, or of a Constitutional Provision, the result almost inevitably is to make a set of hard precedents, which embarrass the Courts in their future action. We therefore think the safe plan is to follow the plain intent of the law as it is written; and, if evils arise, leave them for correction by the Legislature.
It is conceded that the County Court has the same jurisdiction to make sales of real estate as the Circuit and Chancery Courts; that is, has concurrent jurisdiction with these Courts: and, we may add, that the Act of 1827 should be liberally construed, in order to attain the end designed, so as to carry out the true intent and meaning of the Legislature: — so we understand the leading case on this subject of Dulles v. Read, 6 Yerg., 53. Still it must not be overlooked that this is a special and limited jurisdiction: — Statutory alone: — and that we must look to the Statute
The first and leading case construing the Act of 1827, is that of Dulles v. Read, 6 Yerg., 53. The bill was filed in that case by - the creditors of Bacchus against the administrator, heir, and other creditors, asking a sale of the real estate. It alleged that the personal estate had been exhausted; that, the real estate was insufficient to pay all the debts; and sought to have the proceeds of the sale of the realty divided pro rata among all the creditors of the deceased. It also alleged, that the administrator, though all the personal assets had been exhausted, intended to let certain creditors have judgment upon the plea of fully administered in his favor, in order that those favored creditors might proceed by scire facias upon tbe real estate in the hands of the heir. The alleged favored creditors demurred to the bill. The Court
We hold, then, the true principle to be, that where the bill or petition alleges all the facts required by the Statute, in order to sell the land; and the decree states these facts to have been made out
Several cases are cited, apparently holding that the evidence before the Court pronouncing the decree for sale, may .be looked .to in .a .collateral proceeding; but on careful examination of them it will be seen, that they are not at variance with the general principle here announced. We may here refer to a few of them. The case of Crippen v. Crippen, 1 Head, 128, was ,a case where, the .widow ,and heirs appealed ,,from a decree ordering the sale. Judge Wright says,
The case of Crabtree v. Niblett, 11 Hum., 488, was a case of a sale void because the minor heirs of the-deceased were not made parties, and the purchaser, by petition, came in and asked to be relieved from his purchase. The sale was clearly void, and. the petitioner was entitled to relief. The Court below attempted to remove the difficulty, and make the sale valid by an amended proceeding. This was held erroneous, and the original sale being void, Niblett was entitled to be relieved. And so we might distinguish other cases.
Another class of cases is referred to, to sustain the proposition, that unless there is a report of the-Clerk and Master showing an insufficiency of the personal estate for the payment of the debts, the sale is void. The cases of Reid v. Huff, 9 Hum., 345, and Frazer v. Pankey, 1 Swan, 75, are of this class; but it will be seen that each of them is a proceeding under our Laws for winding up insolvent estates, and that the Act of 1838, Sec. 3, carried into the Code, Sec. 2388, expressly requires this report, in order to authorize the sale of the real estate; and the Court put its decis
With these principles settled, let us look at these proceedings: i. e. the petition, its allegations, and
We need scarcely look at the decree, but take the petition itself and its allegations as true, as if a demurrer had been filed to it. Would the facts stated authorize a sale of the land for the payment of debts under the Act of 1827, ch. 54? We do this because the decree could not do more, fairly, than grant the relief, upon the establishment of the facts alleged. On the face of the decree, it only assumes this much: to quote its language again, it recites: — “ The Court being fully satisfied that the allegations therein contained are true, and that the slaves and land therein mentioned should be sold for the purpose of paying the debts, and for a distribution, it is therefore ordered,” etc. This can only mean, that the facts alleged in the petition, are assumed to be true by the Court; or are found by the Court, (upon what evidence we do not inquire) to be true: and thereupon the Court orders the sale.
The allegations are, in substance, that from his inventoiy returned into Court, — of the personal property and effects coming to his hands, and also from the list of debts due by his intestate, so far as the same have come to his knowledge, — the administrator is satisfied that the personal estate belonging to the decedent, in his hands, and which may come into his possession, is insufficient to pay the debts after setting apart a year’s support for the widow; and that the peti
“Provided, that before any decree shall be made, as herein directed, it shall be made satisfactorily to appear, that the said personal estate has been exhausted in payment of bona fide debts, and the debt or debts for which the sale is sought, is justly due and owing.”
If these facts had been alleged, and found by the Court to be true, in its decree then under the rules laid down by Judge Green, in the case of Dulles v. Read, even though other debts, in the course of the investigation originated by the petition, than those mentioned in the petition had been found due, or even if it had been found in that investigation that assets by mistake, or oversight, still remained in the hands of the administrator, yet the decree would be valid and the sale proper; and, we add, that it would be the duty of the Court to apply the assets so found to the debts found due; but whether done before or after the order of sale, would not render the decree void. ' The application to these debts as a matter of fact, is the vital point: i. e. the precise sum, as near as possible, for which the land is to be sold, must be known by the Court; so that it may be able to
While the principles of this opinion may affect a 'few sales, yet we deem them sound, and the law to have been always so clear, that no purchaser can complain if he buys, under proceedings that, on their face, do not authorize the Court to sell. But the petition asks the sale on another ground; that is, because it will be necessary to sell in order to partition. The Court clearly had jurisdiction to order a sale of the lot, (except the .remainder interest), for partition. The fact that this ground is joined in the same bill or petition with the other for the payment of debts, will not affect the validity of the sale; although the practice is certainly irregular.
The facts stated in the petition and the decree -can alone be looked to, as in the other case, to see if the Court was authorized to sell for this purpose. The facts stated in the petition are, that the complain•ants, — except Gibson and the widow, — were the only heirs of the said Barry, were all of age, and consisted of five persons, — naming them, — and that it would be necessary for the purposes of a distribution, that the lot mentioned should be sold. The decree of the ‘Court finds these allegations to be true; and that the Hot should be sold for distribution among the parties
They have asked the Court in this case to make-
But it is earnestly insisted that the two married women, Mrs. Miller and Mrs. Kindell, are not hound,, by reason of the want of authority on the part of the Attorney to use their names in the proceeding and that as they stand on different ground, no estop-pel can affect them unless by reason of fraud. The-facts show that their husbands knew of the suit, and recognized it; and that Mrs. Miller lived in Memphis.. We are satisfied that the wives of each of them knew of the suit: having as much knowledge on the subject as is ever had in such cases. By the settled; custom of our State, the husband, in all matters of business, represents his wife: and we will not infringe-the custom, and push women forward into the arena of business farther than strict law requires. The-receipt of Mrs. Kindell in connection with her husband is in the record, showing that she received, her share of the surplus; also the receipt of Mrs.. Miller. But it does not appear that there was any special power of attorney or authority given by either-of them to Mr. Turnage, who acted as Counsel in the case. We can not see upon what ground this-cari be claimed to be necessary, as it is well settled that, ordinarily, married women are incapable of making a power of attorney or of appointing an agent for any purpose, except under special circumstances. Story, in his work on Agency, says: that while she is
The costs, so far as the married women are concerned, will be paid by the defendants; and the balance by the two sons, and the next friend of the minor.