Payne v. Turner

Jun 15, 1860
Versions:36 Ala. 623
STONE, J.

-In the case of McLane v. Spence, (6 Ala. 894,) speaking of a sale at which the executor became the purchaser of slaves sold by himself, this court said: “We think it clear that this sale could not be supported, if contested by legatees-or creditors; but, upon a proper proceeding, would have been set aside, and a re-sale ordered. * * * * But, however irregular and voidable such a sale maybe, it is not a nullity. The title would pass to the purchaser, ' until divested by a proceeding against the executor, having that for its object.” This is an authority for the proposition, that though a sale and purchase by the personal representative of an estate may be voidable on a direct proceeding, when there has not been fairness in, the sale; still the sale cannot be pronounced void, when it comes incidentally before the court. We have no statute, which either authorizes or requires a confirmation by the probate court of a sale of personal property made under its order. Hence, the direct proceeding necessary to set aside such sales, must be one instituted for that specific purpose. We do not doubt the power and jurisdiction of the chancery court, to entertain an application having this for its object.

[2.] The question of purchases by executors and administrators at their own sales has been frequently before this court; and while we have steadily refused to disturb the principles settled in the early cases of Brannon v. Oliver, (2 Stew. 47,) and Beene v. Saltmarsh, (4 Por. 283,) it has nevertheless been, and still continues to be, a source of regret, that so salutary a rule as that which forbids the union in one person of the antagonistic relations of seller *626and buyer, should ever have been broken in upon. 'It is, however, with us, a rule equally inflexible,, that we will not enlarge the exception, which' was inaugurated in the case of Brannon v. Oliver. — See McLane v. Spence, supra; Cunningham v. Rogers, 14 Ala. 147; McCartney v. Calhoun, 17 Ala. 301; Andrews v. Hobson, 23 Ala. 219; Montgomery v. Givhan, 24 Ala. 568, 584.

In McLane v. Spence, supra, it was said, “To support a purchase by an executor or administrator.at his own sale, there must be no Unfairness; the property must be exposed to sale in the usual and ordinary mode, and under such circumstances as to command the best price.” In McCartney v. Calhoun, supra, the language of the court was, that, “in order to give validity to such a purchase, it must appear that the sale was fair and bona fide.” Looking into the testimony in this cause,. we think the following facts are established: 1st, that the slave was sold for a sum less than her value, by; from two to four hundred dollars; 2d, that very few persons were present -at the sale — no competition in bids offered — and no effort made by the administrator to attract a crowd, so as to secure a sale at the best price; 3d, that Mr. Payne knew that the elder Mr. Turner wished to purchase the slave, and, to use a mild expression, he betrayed a hesitancy, if not a reluctance, in having him informed when the sale would take place; and this, tod, when the sale had been advertised, and Mr. Payne knew the time when the sale would come off. The sale was not made under such circumstances as to secure the best price; and it is difficult to resist the conclusion that there was unfairness in the sale.

[3.] It was not necessary in this case to make to Mr. Payne any offer’ of indemnity. If the purchase-money had been paid by him, it’had been paid to himself. If he has paid out money, hé has paid it in his own wrong, and, on another sale, will have the means of. indemnifying himself.

The decree of the chancellor is affirmed.