Lewis v. Wells

50 Ala. 198 | Ala. | 1874

PETERS, C. J.

This record raises the sole question, whether the administrator of Eigh, deceased, could pass the title to the lands in question to the plaintiffs, by a sale under the power in the mortgage, after the death of the mortgagee. If he could, then the title of the appellants, who were plaintiffs in the court below, is sufficient to maintain this action. If he could not, then the ruling of the court below was without error, and the judgment should be affirmed.

In this State, the rules of the common law, regulating the powers of an administrator over the estate of the deceased, have been greatly altered by statute, which very much enlarges these powers. The whole estate of the decedent, except that portion reserved for the widow and the family, is charged with the payment of his debts. Rev. Code, § 2060. The administrator has, for this reason, power to reduce to his possession all the property, real and personal, of the decedent, subject to the payment of his debts. 15 Ala. 160, 705 ; 16 Ala. 494; 18 Ala. 9; 42 Ala. 280; 43 Ala. 628. The law vests in him all the rights of the decedent in the property thus subject to be charged with the payment of the debts of the deceased, except the right of disposition by sale or compromise, which is regulated by statute. Among these rights is the right to collect the debts owing to the deceased. This right the administrator is empowered to exercise, in like manner as the deceased could have exercised it, except so far as it is restrained and limited by the statute. In law, the administrator becomes by his appointment the assignee of all the choses belonging to the deceased, and he can sue to recover them in his own name as such, as the owner could have done. For the purpose of collection, he is the owner. Rev. Code, § 2523; Snodgrass v. Cabiness, 15 Ala. 160; Upchurch v. Norsworthy, 15 Ala. 705. In law, he is the assignee of the decedent, whom he represents. 1 Bouv. Law Diet. Assignee, p. 155. His powers, then, in collecting the debts constituting the assets of the estate, are just as broad as those of the deceased, where they are not trenched upon by the limitations of the statute. Then it follows, if the deceased could have closed the mortgage by a sale, this right passes also to the administrator.

The mortgage is but a security for the debt, and it passes, as such, to the owner of the debt, or to the party entitled in law to collect it. 4 Kent, (159), (160) ; 1 Hilliard on Mortg. pp. 215 et seq.; Emanuel & Gaines v. Hunt, 2 Ala. 190. Then, the mortgage, with all the rights arising out of it, passed to the administrator, with the debt it was intended to secure. Yery clearly, the mortgage gave Figh, the mortgagee, the right to sell the mortgaged property, on a failure to make payment of the debt by the mortgagor. The right to make the. sale is thus expressed in the mortgage itself: “ If default be made in the payment of said promissory notes at the time they may fall due, it shall be lawful for said John P. Figh, his heirs, and assigns, to take into his possession the said above described property, and sell the same to the highest bidder, at public auction, for cash.” This was obviously an authority to the mortgagee to sell. This authority passed, on the death of Figh, tho mortgagee and grantee, to his representative, by operation of our statute, if not otherwise. The language of the statute is this: “ Where a power to sell lands is given to the grantee in any mortgage or other conveyance intended to secure the payment of money, the power is part of the security, and may be executed by any person, or the personal representative of any person, who, by assignment, or otherwise, becomes entitled to the money thus secured.” Bev. Code, § 1589. Under this statute, the administrator had authority to make sale of the mortgaged premises, on default in payment of the debt therein secured. This appears to have been done.

We must look to the deed, for the evidence of the sale. This shows that it was made by the administrator, who had the right to make it. It was not made by Lewis. He does not participate in the conveyance. His acts were merely those of an attorney for his client, and not as an agent with a power to make the sale in the name of his principal. The administrator was the vendor, and the sale was made by him, and the conveyance is in his own name as principal. The sale was, therefore, not void, and it passed such title to the purchaser as the administrator could convey; that is, such title as was in the decedent as the mortgagee, after the law-day had passed.

2. The administrator, or executor where there is a will, is entitled to the possession of the whole property of the decedent, to hold it for disposition under the trusts attached by law to his office, or created by the will. He may hold it for these purposes, as the owner held it at his death. If this is conceded, he must have the authority to sue for and recover such possession, when it is withheld from him by any one with title inferior to his own. Without this power to reduce the property of the deceased to his possession, the administrator or executor, in many instances, would not be able to discharge the duties of his trust; that is, to pay the debts of the deceased, and the expenses of administration, and, after' the satisfaction of these charges, to distribute the residue among those persons entitled to such residue, as the next of kin or legatees. These are duties imposed by law, and for the due performance of which his office is created. Under our system, lands are assets, whether the title is legal or equitable, for the payment of the debts of the deceased ; and the administrator may recover them at law, for this purpose. Rev. Code, § 2060. Anderson v. McGowen, 42 Ala. 280; 22 Ala. 593; 9 Ala. 285; 8 Ala. 99; Golding v. Golding, 24 Ala. 172; Russell v. Erwin’s Adm’r, 41 Ala. 292; Rev. Code, §§ 2216, 2871. The administrator or executor may also rent the lands of the deceased, and the proceeds of such rents are assets. Rev. Code, § 2076; Boynton v. McEwen, 36 Ala. 348. In this case, the will disposes of the whole estate of Davis, and charges it with payment of his debts.

The widow and the children of the testator are the legatees ; and the estate is to be divided equally among them. The evidence shows that Davis was the highest bidder at the mortgage sale for the lands in controversy; that his bid was accepted by the vendor; and that the purchase-money has been paid; but that Davis died before the conveyance was made. After the death of Davis, the conveyance was made to his executors, the present plaintiffs in the court below. The objections to the manner of conducting the sale by the vendor, by his agent, Lewis, or to the bid of Davis, by his agent, Nabors, are not of such force as to render the sale void. I cannot see that they were even serious irregularities. The owner of property, in this State, is not bound to offer it for sale in any particular manner. He may offer it for sale privately, or at public sale. When the mode by public sale is adopted, as was done in this case, the sale need not be conduóted by a licensed auctioneer, but it may be conducted by the owner himself in person, or by his agent for him. When the property to be sold is land, and it is offered to the highest bidder, the person who offers this bid, if it is accepted, is the pui’chaser. This binds the parties on both sides. The essentials of such a sale are not different from those of other sales. The sale is a contract, the terms of which are proposed on one side, and accepted on the other, and both parties assent to it. It must- also be supported by a sufficient and lawful consideration, and not be made on the Sabbath. When the contract thus agreed upon is reduced to writing, and executed by the parties with the proper formalities, the sale is complete. 1 Pars. Cont. pp. 492, 498; Rev. Code, §§ 1534, 1535, 1862, 1863. The contract being so completed, there is then no longer any question as to the sufficiency of the sale under our statute regulating “ conveyances for the alienation of lands,” or the statute for the “prevention of frauds and perjuries.” Rev. Code, §§ 1534, 1535, 1862, 1863. A conveyance, made in conformity with such a sale, which is satisfactory to the vendor and the purchaser, passes the legal title to the purchaser, or to such person or persons as can receive it in his stead. It has already been shown that the administrator of Figh could make the sale in this case, under the power given in the mortgage. He could also complete the sale by a proper conveyance to the purchaser. This is necessary for a completion of the sale. But the question remains, whether the administrator could make the conveyance to any one else than the purchaser, without the purchaser’s consent. This he certainly could not do, had the purchaser remained still alive. But his death, before the conveyance was executed, did not avoid the sale. On the payment of the purchase-money, the title of Davis became a perfect equity, which rendered the lands subject to his debts, and to his widow’s dower. Rev. Code, §§ 1624, 1928, 2871.

3. The memorandum of the agent who conducted the mortgage sale is obviously less fully and accurately made, than might have been done. It is in these words, which are indorsed upon the mortgage. “ The within property was this day by me sold, as agent of George M. Figh, as administrator of the mortgagee, J. P. Figh, dec’d, for $>2,300.00, at public auction, to Ed. Davis. March 23, 1869.” It is signed by the agent who conducted the sale as auctioneer. Properly, such a memorandum should show: 1st, the property sold; 2d, the price at which it was sold ; 3d, the terms of the sale ; 4th, the name of the purchaser; 5th, the name of the person on whose account the sale is made. Rev. Code, § 1863. I think the memorandum in this case comes up to these requirements, in substance. The reference to the mortgage makes the mortgage a part of it, and in like manner the deficiencies of the mortgage are supplied by the reference in the mortgage to the deed. Lee’s Adm’r v. Chapman, 47 Ala. 143, and cases there cited. With these references, the memorandum is sufficient in substance. It shows the terms of the sale, and the lands that were sold. The demands of the memorandum are sufficiently stated.

4. But the memorandum is only necessary as between tbe parties to the sale. If they choose to be bound without it, they may go on, and complete the title by a proper conveyance. This conveyance then becomes the proper evidence of the title. The title of the testator vested in his legatees by his will; but the title so vested charged with his debts. The sale was not void. It bound the vendor to convey, upon the payment of the purchase-money; and it bound the purchaser to pay the purchase-money, upon a readiness to convey by the vendor. The statute makes the alienation or transfer of the property complete on the execution of the conveyance in a proper manner. Rev. Code, § 1534, 1535. If there is any mistake made in such a conveyance, it ma,y be reformed; but it is only the parties interested in the reformation, who are entitled to have the reformation made, or who can repudiate the instrument without correction and reformation. 2 Hilliard, Real Prop, p. 331, § 50; Trapp & Hill v. Moore Border, 21 Ala. 698; Goodwin v. Younge, 22 Ala. 553; Whitehead v. Brown, 18 Ala. 682.

As the conveyance under the mortgage sale is not a nullity, it vests such title in the plaintiffs as to enable them to bring this action, and to recover against the defendants, unless they show a better title. White v. Saint Girons, Minor, 331; Wilkins & Smith v. Sorrells, 45 Ala. 272. The court erred, therefore, in the rejection of the deed offered by the plaintiffs in support of their title, for the reasons shown in the bill of exceptions, and no other reasons will be considered in this court.

The judgment of nonsuit in the court below is reversed, and the cause is remanded for a new trial.