Kingsbury v. Wild

| Superior Court of New Hampshire | Oct 15, 1823

Richardson, C. J.

It is contended in this case, that the deed of Adams to the demandant is not valid, because the word “ administrator” is not added to the signature of Adams. But we are not aware, that this word, if it had been added, could have had any effect, unless it were to denote the capacity in which he acted ; and as it is recited in the body of the deed, that he is administrator, and that lie acts by virtue of a power granted to him as such, it seems to us, that this objection is without any valid foundation. Indeed, it is very questionable, whether it is essential to the validity of the deed, that it should state at all in what capacity the grantor acted. Com. Di. Poiar, C. 4.—1 Levintz 150, Jenkins vs. Keynies.—6 Coke 18, Clere's case.

It is also urged, that nothing passed by the deed of Jldams, because it does not recite, that the sale was by public auction, and that the demandant was the highest bidder. But admitting that the power of the administrator to convey was limited to a conveyance upon a sale by public auction, mid to the highest bidder, we are aware of no rule of law, requiring those facts to be recited in the deed ; and we are much at a loss to conjecture any good reason why they should be there recited.

Another objection to the demandant’s title is, that the deed of the administrator purports to convey only the right, title, interest, claim, and demand, which Thomas Baker had at the time of his decease ; and as Thomas Baker had, by deed, previously conveyed all his interest, nothing passed by the administrator’s deed to the demandant. This objection is certainly ingenious, but it cannot prevail. We are bound to look beyond the mere forms of the conveyances, to the real substantial nature of the transactions ; and when we do that, this objection vanishes. It is true, that Thomas Baker had no right to the land, which he could assert, at the time of his death. He would have been estopped by his deed. But that deed is now found to have been made with an intent to defraud creditors, and is, so far as regards creditors, altogether void ; so that the law considers the estate always to have remained in Thomas Baker, and gives to his creditors the right to treat it as his. When the administrator, then, for the purpose of paying the debts of T. B., conveys all the right of T. it is not competent to the tenant to say, that T. B. had conveyed before all his right, by a deed made to defraud creditors, and so had nothing to be conveyed by the administrator ; because, as against creditors, such fraudulent deed is altogether void, and is so declared by statute. 1 N. H. Laws 182.

It is also objected, that no notice was given to the tenant of the application for license to sell the real estate. It is a good answer to this objection, that the statute does not require such notice. The heirs at law have a right to give bonds to pay the demands against the estate, and thus prevent a sale. The law, therefore, requires notice to be given to them, in order that they may have an opportunity to avail themselves of this right. But the statute contains no such provision in favor of a fraudulent purchaser ; and such a purchaser seems to us not to be within the equity of the provisions made in favor of heirs.

It is further contended, that the license to sell is insufficient, because it does not specify the particular land, which the administrator is authorized to sell. But we are not aware, that there is any good reason why the particular lands, to be sold, should be specified in the license ; and as the license in this case was in the usual form, we have no hesitation in overruling this objection.

Judgment on the verdict.