14 N.C. 303 | N.C. | 1832
Pleas — general issue and the statute of limitations.
ON the trial before his Honor, Martin, J., at SAMPSON, on the fall circuit of 1830, the plaintiff offered in evidence a bill of sale from the defendants' intestate to her daughter, who afterwards intermarried with one Burton, by whom the slave was conveyed to the plaintiff. It was proved that the slave remained with the defendant's intestate, by consent of the plaintiff, until her death, and afterwards came into the possession of the defendants, her administrators.
The defendants offered evidence that their intestate was entitled to a life estate only in the slave, under a decree of the county court of Sampson. *254
Under the directions of his Honor a verdict was returned for the plaintiff, and the defendants appealed. I will not in this case discuss the question, upon which there is a difference of opinion in the Court, whether an action of detinue, such as the present is, can be sustained against administrators, as administrators, for a detention by them. The question in principle is fully discussed in Eure v. Eure, ante, 206, to which I refer, only observing that administrators may settle an account, may indorse a bill, receive a bill, and promise as administrators. And I can see no reason why they should not detain property in the same capacity, and that it would be unjust in the highest degree to throw upon them the responsibility of reconsidering at their peril a question which has been already determined by their intestate. If there be error in the decision it should fall on him who made it; that is, in such case on the estate and not on them who, as it were, acted in obedience to the intestate's orders as his agents. Nor do I think the argument by any means conclusive, that their letters give them authority to take into their possession what is of the estate of their intestate only and not the property of another. Such rigid construction is not compatible with our nature. For the most astute of us are not gifted with the power of determining, with absolute certainty one-half, nay one-tenth of the questions on which we must decide, if we act at all. And without any great violation of the common intendment of such a phrase, it may well be taken to mean such goods as were understood to be of the estate of the intestate; and where his estate is to be the gainer or the loser, the understanding of no one can be so well referred to by the administrator as that of the intestate himself. And further an estate means interest, and although we have not in personals the same divisions of estates or interests as in lands, to wit, the possession in one, and the right of possession in another, and the mere right or title in a third, yet we have something analogous thereto, as possession gives right against all but the rightful owner, or against one whose presumption of rightful ownership is better (305) than the possession. A bailee must deliver possession to his bailor, although he may be the rightful owner, recognizing very clearly a presumptive estate or interest arising from possession. And these words may well justify, nay, direct the administrator to take into his possession, as administrator, all the goods of which the intestate died possessed, for thereby he was presumptive owner. I am speaking now of the construction of those words, as between those interested in the fund and the administrators, not as between the administrators and *255 mere strangers, for as to them the administrators certainly act at their peril. No authority derived from their intestate can justify them in taking the property of another. They are, if he chooses to consider them so, mere wrongdoers and individually liable; but he may, if he pleases, consider them as acting in obedience to the directions virtually given to them by their intestate. I have endeavored to show that those interested in the fund have no right to complain if they are charged as administrators, for it is to guard their interest that the opposite rule is endeavored to be supported to prevent the wrongful acts of the administrators or executors to be thrown upon the assets. I will therefore consider the declaration as having two counts, one for the detention of the intestate, and one for their own detention as administrators.
I think the evidence supports neither count; not that for the detention of the intestate, for it appears from the plaintiff's own evidence, introduced I suppose to repeal the plea of the statute of limitations, that the intestate held the slaves by consent of the plaintiff. Her detention therefore could be no wrong to the plaintiffs. The proofs not only do not support the first count, but disprove it. As to the latter count the proof is that at the time of her death the intestate set up no title in herself, but that she held possession at the will of the plaintiff, and the defendants show that she had at most but a life estate. Take it therefore either way, this action cannot be supported. For to support the latter count, it must be shown that the possession was in the representative character; that is, but in affirmance and continuance of the claim set up by the intestate. If the intestate held but for (306) life, a detention by the administrators afterwards could not be thrown on the assets. It would be no violation of duty in them to surrenderup the possession immediately.
I confess I should have some doubts as to the obligation of the administrators, as such, to surrender up the property to the bailor if the plaintiffs had relied upon their bailment alone. But they have exposed their title and shown that, making the most of it, it expired with the life of the defendants' intestate, from whom they derived it. I think this discharges the obligation which the bailee is under to restore the property bailed at the expiration of the bailment, which is founded on the presumption that the bailor has the property, a presumption which in ordinary cases the law will not permit the bailee to controvert by proofs. But when the bailor himself exposes his want of title, the court will not decree the possession to be changed.
As to the question of estoppel arising from the bill of sale to the daughter, under whom the plaintiff claims, disposing of the whole interest in the slave, there is nothing. Estoppels are not to be favored, at least such as arise from the act of the parties. They exclude the *256 truth and are admitted only for the sake of repose. But there is no estoppel in this case, because some interest passed by the deed, to wit, the life estate. And the same deed never passes an interest, however small, and also creates an estoppel. The reason is not very satisfactory, but the law is certainly so. Co. Litt. passim on Estoppel. Put the strongest case. Son, tenant per auter vie; reversion in the father. The son makes a feoffment in fee. The cestui que vie and the father die; the reversion descends on the son as heir to the father. The son may recover against his own feoffee, and the reason given why he is not estopped by his feoffment in fee is that something (his estate per auter vie) passed to the feoffee. But if a son having no interest had made a feoffment, he would have been estopped. So here the intestate, but having an interest she is not.
(307) I will here add an additional reason, why the action of detinue ought to lie against executors or administrators, as such, for a detention in their representative character. The executor may be a poor but an honest man. The estate may be rich. The owner may prefer onerating the assets to a judgment against an insolvent executor who will not but by the direction of the court touch the assets, to pay a judgment recovered against him individually. Although I have no doubt that in such case if the executor did pay out of the assets he would be protected. But I doubt whether the claimant, after he has chosen to sue him in his individual character, could recover against him as administrator. It is right, therefore, for the creditor to onerate the assets if the facts will warrant him.
RUFFIN, J. I think the action of detinue will not lie against the defendants, in their representative character, for a detention commenced by them after the death of their intestate. The act is a wrong by them personally. It cannot affect the estate, but charges the defendants in their own right. The letters of administration go only to the goods of the intestate, and do not justify or excuse the administrator in taking the goods of another, under pretense that they belonged to the intestate. It is like a sheriff seizing under a fi. fa. against one, the property of another. The action is not brought against him as officer, but personally, because the act was beyond his duty or authority, and he is a trespasser.
I do not mean to say that detinue will not lie against executors, but it must be on the testator's detention. If it were otherwise a charge might be thrown on the assets at the mere will of the plaintiff, without any wrong by the testator, but upon that of the executor acting beyond his rights. Nor do I mean to say that where the executor has detained the property honestly, upon a fair claim of right in his testator, and *257 defended bona fide by himself, he shall be indemnified for the costs out of the assets as between him and the legatees. That is a different question. But this I mean to say: that for a matter arising wholly in the executor's time, no action against him as executor will lie. (308) The contract or wrong is altogether the executor's own.
For the same reasons, I think, counts on the detention of the testator and executor cannot be joined. Jennings v. Newman, 4 T. R., 347; Bridgen v.Parks, 2 Bos. Pul., 424.
But if they can, surely it must appear that the testator did set up a right in himself, and that the executor took the possession again, claiming upon that right. Nothing less than that would be allowed by the most liberal confounder of actions.
Here the plaintiff himself shows that the intestate had the possession by his leave during her life. Such evidence was indispensable to prevent the bar of the statute of limitations. The wrong therefore commenced in the defendants' own time, and upon a right or pretended right distinct from their intestate's.
The evidence given did not support the action, if it be founded on the detention of the intestate. If the detention be that of the defendants alone, they cannot be declared against as administrators; and if there be two counts, one on detention by each, I think the declaration would be bad, because they cannot be joined; but if they can, the evidence here goes altogether to a detention of the defendants upon a right and claim different from those of the intestate. Wherefore, my opinion is for a new trial.
PER CURIAM. Judgment reversed.
