22 Conn. 272 | Conn. | 1852
This was an action of disseisin, to recover
the possession of premises lying in New Hartford. The plaintiff’s title was by a deed from Hiram Goodwin, under authority derived from the court of probate, appointing him to sell real estate of Sylvester Seymour deceased, sufficient to.pay certain debts and charges, allowed by said court against said Sylvester’s estate. The order empowered and ordered said Goodwin, to sell so much of said estate as should be-required, to raise the sum of nine hundred and sixty-six dollars and seventy four cents; and, as the land sold to the plaintiff, by the deed under which he claimed title, was less than that sum, it is now claimed, that the deed is void upon its face, on the ground that the order to sell was not strictly complied with. We see nothing objectionable in this : we know of no rule or law, that requires an administrator to sell all the real estate he is ordered to sell, at one and the same time, and to the same purchaser; Where the sum to be raised is large, it would often be very difficult, and perhaps impossible to do so. He can not sell
The plaintiff and the defendant Sylvester Seymour, were two of the sons and heirs-at-law, of the deceased, Sylvester Seymour, and the plaintiff was one of the administrators on his estate. The debt which was the foundation of the order of sale, was a note which had been executed by the deceased, to the town of New Hartford, and the plaintiff had joined in the execution of it, as surety for his father. The heirs wished to procure a distribution of the estate, before it could be known, what debts would be allowed against it, and, so-far as we know, before any administration account was settled in the court of probate. For this purpose, the administrators, on the 17th of September, 1829, made a representation to the court of probate, that certain turnpike stock, belonging to the estate, would be sufficient to pay the debts and charges that would probably be allowed against the estate, and they, thereupon, requested a distribution of all the estate, except said turnpike stock. Such a distribution was accordingly ordered, and, on the 30th of September, was made and returned to the probate court; and, on the same day, all the heirs of the deceased executed to the plaintiff an indemnity against his liability on said note to the town of New Hartford, and, thereupon, the distribution of the estate of the deceased, made as aforesaid, was assented to, by the widow, and all the heirs, and such mutual assent was indorsed upon the distribution, signed by all the parties in interest, and, being also executed under their respective seals, was also acknowledged, before the judge of
Upon these facts, and especially upon the distribution so agreed to, signed, and acknowledged by the plaintiff, the defendants insisted, in the court below, and still insist, that the plaintiff is estopped to set up a title in himself, against the title then acquired by the defendant; and whether he is so estopped, is the main, and only important question in the case. The agreement to indemnify the plaintiff against his liability on the note, was not under seal,' and was, therefore, a simple contract merely, and did not merge his claim against the estate, for the money afterward advanced by him. We do not see, therefore, how he could have been prevented from presenting his claim against the estate for payment, or how the court of probate could have refused to allow it. Indeed, the case shows that, although the allowance of it was contested, and the order of the probate court, allowing it, appealed from, yet the claim was sanctioned by the superior court, which refused to disaffirm the decree of probate.
If the plaintiff could not be prevented from prosecuting his claim against the assets belonging to the estate generally, the question then arises, whether, in consequence of his agreement to the distribution, executed, as we have seen it was, under his hand and seal, he is precluded from doing anything which may have the effect of breaking up that distribution. The defendants claim, that the assent of the
Now, as there are only these two modes of making a distribution, and they are both alluded to, in the same section of the statute, and the mode of making either of them effective is particularly pointed out and prescribed; it seems rather unnecessary to make any distinction in the effect which they áre to have upon the rights of parties under them. And, in regard to this particular distribution, it is not unworthy of notice, that it was made at the same time the defendant, with the other heirs, made their written agreement to indemnify the plaintiff against the payment of the note he had signed with his father. The two instruments, being parts of the same transaction, the presumption is, that the plaintiff assented to the distribution, upon the faith that the defendant, and the other heirs, would perform their agreement to indemnify him. It is their neglect, alone, to make such indemnity, that has laid the foundation of the order If) sell, and made it necessary to sell, to indemnify himself against this very claim. The defendant could have prevented the sale, by performing his agreement to indem
In this opinion, the other judges concurred.
New trial not to be granted.