44 Miss. 533 | Miss. | 1870
At tbe October term, 1886, of the probate court of Panola county, Blankinship, administrator of the estate of James H. Dyson, deceased, applied by petition for license to sell the
Prayer is for marshaling the assets, and that complainant may be first paid, before the general creditors, the cash paid on the first sale of the land, etc.
The question is, shall the complainant have relief, and to what extent. Is it allowed a purchaser who has adventured his money for property at probate sales, in any circumstances, to recover it back, if there has been a failure of title, either because of defect in the probate court proceedings, or for want of title in the testator or intestate, or the wards. Such sales are made under judicial authority and license, and the judiciary has no power to bind the heir, distributee, or ward, by a warranty.
Wood v. Ridley, 27 Miss., 149, et sequiter, contains, perhaps, as clear a statement of the principles discussed as is to be found in our books. The effort was to cast the onus of certain debts represented by promissory notes made by the administrator and other parties, on the estate. It was conceded that the administrator could contract no new liability, and that when he had given his own note in payment of the intestate, the estate would not be released, unless such was the agreement of the parties; and that the creditor could at his election proceed against the makers of the new note personally, or resort to the estate by bill in chancery. If, however, the administrator, with his own money, pay off the debts of the intestate, he should be credited in his accounts in the probate court, and might sell the effects for reimbursment, and if the estate had passed into the hands of the heirs and distributees, he could enforce payment from them by bill in chancery.
The administrator has no power to borrow money for the exigencies of the estate, and create a debt (on the note given for the borrowed money) on -the estate. The equity which underlies all these transactions and others in the name analogy, is this: If money is advanced, which is actually applied to exonerate the estate from debt, then the duty exists that the estate, or the heirs and distributees who have received the property, shall refund. The advancement is the inception, the application is the completion of the equity. Like many, perhaps most of the beneficent principles of equity, it is the dictate of good conscience springing out of natural justice; for it would be abhorrent to reason, and a reproach to jurisprudence, that an administrator should, out of his own funds, relieve the estate from debt, and
The law contingently chai-ges the lands with the debts. The administrator is the proper person, by appropriate judicial proceedings, to make that charge available for the creditor. He can obtain a license to sell. The purpose is, that he shall divest the title descended from the intestate to his heirs by sale. In this case, Biankinship, the administi-ator, failed to divest the title of the heirs by the sale, not because of the want of title in the intestate, but for neglect on his part to comply with the conditions of the statute. Porter, the purchaser, in good faith, and ignorant of such non-compliance, paid the cash installment. Yery shortly after the discovery there was a rescission of the sale made by the administrator de bonis non and Porter, not a formal rescission. But what is fully equivalent to it — -the administrator de bonis non treats the sale as void, and applies de novo for a license to sell. Porter i-ecognizes the propriety of this coui-se by making no objection to the sale, but actually appearing and becoming a purchaser of part of the property, paying cash, accepting a deed and making notes for the deferred payment. At the last sale a better price was obtained than at the first.
In what attitude did this place Porter ? It would not be questioned if there had been a formal rescission, that Porter should be refunded what he had paid, his notes should be
But the equity' of the complainant rests upon the further impregnable ground, that he, supposing that he was acquiring the title of the heirs of intestate, at the sale made by the administrator,1 made a cash payment of-dollars, which was actually used and applied by the administrator to discharge a preferred lien on the land. As to the heirs, that application of the money, exonerated their property pro tanto. It went to relieve an incumberance on the land. They would not be permitted to recover back the land, for the reason that the probate decree and sale was invalid, and therefore, did not divest their title, except upon the condition that they restored to the purchaser his money, or rather to the extent of the cash payment. The purchaser would have a charge and equity on the land, enforcable against the heirs. In Jayne et al. v. Boisgerard, 39 Miss., 799, a bill was brought by the heirs to set aside a sale and conveyance made by the administrator, on account of the invalidity of the order of the probate court, as casting a cloud and suspicion on their title. Conceding the invalidity of the order, it was nevertheless declared that there was an equity in favor of the purchaser, to the extent of the application of the money, “ actually appropriated for their benefit.” If it could be proved that the money was paid to the creditors of the' estate, then manifestly it was a payment for the benefit of the heirs, and within the principle recognized by the court, they ought not to disturb the purchaser, without first returning the money.
The defect in this title is that the administrator did not give the bond to properly apply the proceeds. That bond might have been given after, as well as before the decree, if made before the sale. It is inferable, therefore, that the circumstances authorizing the order, that is, insolvency and service of notice on the heirs, existed. There was, then, a judicial declaration that the lands should be turned into money for the creditors. The executor could not execute this power until he made the bond. Now, if this first sale had been reported to the court, and confirmation refused for lack of the bond, can there be a doubt that it would have been the duty of the court to have directed the cash payment to have been delivered back to the purchaser ? If that be so, on directing a new sale, on a subsequent discovery of the defect, was it not the plain right of the purchaser to be reimbursed his money ? Whilst there is no vrarranty of the title of the intestate, as held in the cases cited, and whilst the purchaser takes the hazard of title and quality, yet when the title is good, and money is paid for it, but it fails to pass by reason of imperfection in the probate proceedings, or irregularities in executing the decree, there is a most cogent equity that the purchaser should be restored to his former condition, if a re-sale is ordered. A court of equity, by virtue of the pliabilitiy of its remedies, will trace the money, and so deal with ibas to extend the most complete relief. If, as in this case, the- administrator has paid it over to a creditor who has a superior lien on the land, it will lay hold of the fund for distribution among the creditors of the insolvent, and deduct enough from it to indemnify the purchaser. If it has not been applied, and remains in the hands of the administrator, it will control it there.
There is an analogy between this case and that where money has been collected under an erroneous decree subsequently raised ; if it has thus been paid under a chancery
We concur with the chancery court, that there is equity in the bill, and therefore, affirm the decree.