Strodes v. Patton, 1 Brock. 228

Strodes v. Patton

1 Brock. 228 | U.S. Circuit Court for the District of Virginia | 1812

MARSHALL, Circuit Justice.

1. The first exception is general, and will therefore be passed over.

2. That the commissioner set aside the award of Hening & Green. This exception is not entirely and literally true in its statement of the fact. The commissioner did not set aside the award of Hening & Green. He gave the plaintiff credit for the amount ol that award, and the defendants have ex*239cepted to this item of the report. The commissioner, however, has debited the plaintiff, in the account of his intestate with James Hunter’s estate, with several sums supposed to have been omitted by the persons by whom the award was made, and by doing so, has, in fact, overturned the award, and has made the representative of Vernon, a debtor, instead of a creditor, of Hunter’s estate. This exception involves an inquiry into the validity of the award, and into the power of an executor, or administrator, to submit any question respecting the estate he represents to arbitration.

It has been laid down, in broad terms, that an executor has no power to submit any account of his testator to arbitration, and that, as to creditors, a submission by him is an absolute nullity. I know not where this law was found. The gentleman who advanced it, did not produce a single dictum in support of it, nor have I been able to find any case in which it has been so decided. No reason can be perceived for such a rule. The executor has a right himself to settle the account; and if he submits it to the settlement of others, and adopts their award, he is as much concluded by it, as if he himself made the settlement. The executor necessarily acts for the creditors; for as his act binds the fund to which creditors may have recourse, they are bound by his act, where it is a fair one. If an award be glaringly unjust, I will not say, .that the executor may not, under certain circumstances, be made personally responsible, nor should I feel much difficulty in allowing items unknown to an executor, and not acted on by the referees, to be set up, either by the executor himself, or by the creditors, notwithstanding the award of a general balance. That such an opinion would be affirmed by a superior tribunal, is far from being certain. It is, however, my opinion. But to go beyond the award, either to charge the administrator, or the person who claims under it, the award itself must be controverted by the pleadings in the cause, and the objections to it distinctly stated. In the present instance, this has not been done. The bill relies on the award, and the answer neither contests it, nor alleges any claim on the part of Hunter’s estate, which had not been submitted to and decided by the referees. In such a case, the award must be considered as a complete adjustment of the affairs of the two estates, up to the time when it was given.

3. Upon this reasoning, the third exception must also be sustained. This exception refers to the sale of a final settlement certificate, by Vernon, as executor of James Hunter, much below par, which is alleged by the plaintiff to have been sold for the highest market price, and that the sale was necessary in a course of administration. The plaintiff farther insists, that all inquiry with regard to it is precluded by the award. Upon this exception, however, it may not be improper to add, that if the sale of the certificate was really necessary in a course of administration, there can be no doubt of the power of the administrator to sell it. It cannot be tendered in payment, and can only be converted into specie by a sale. In this, it differs from a bond, which may be put in suit, and payment coerced. An executor, however, ought to be well satisfied of the necessity, before he sells a certificate at a price greatly below its nominal value.

Upon the point of necessity, no evidence is furnished, except' what may be found in the commissioner’s report. He states that the sale was not necessary, and that no account of it was laid before the arbiters. These facts would be very material, if the pleadings were such as to bring the award, or the accounts existing before its rendition, into controversy. The other exceptions are chiefly to debits against Abner Vernon, in his accounts with Hunter’s estate, for debts due to that estate, and supposed to have been lost through the negligence of Abner Vernon, and for payments made on account of that estate, as is supposed, improperly. The testimony on which these charges are made, is not laid before the court. It might, perhaps, be taken as sufficient to support them, since no exception was made to it before the commissioner. But this inquiry is also precluded by the state of the pleadings.

The exceptions are sustained, and the report set aside.

The equity suggested in the bill, in consequence of a deficiency in the quantity of land sold, will next be considered. The land was sold under a decree of this court, directing commissioners, therein appointed, to sell the lands whereof James Hunter died seized and possessed, and which remained unsold by his executors. Acting under this decree, the commissioners sold a tract of land called the marsh tract, which had been purchased of three different persons by James Hunter. At the sale, they exhibited the title papers, which expressed the quantity of 1120 acres, and sold the land contained in those deeds by the acre; declaring, however, that they undertook neither for quantity nor title, and that the purchaser would buy at his own risk. It is now stated, that under one deed, that made by Reuben' Wright, for 420 acres, James Hunter was not entitled to, nor ever in possession of, a single acre. That 39 acres, part of the land conveyed by a different person to Hunter, were surrendered by one of the executors,' in an adjustment of boundary made with one Wyckoff. That there is also a deficiency of 50 acres for land under the third deed. If the land sold had existed, but had not measured 1120 acres, the plaintiff admits that he would have had no right to apply for the interposition of this court. By consent, the quantity specified in the deeds was substituted for the quantity which the tracts might *240•contain in survey, and the survey was dispensed with. But had it been known to this court, that nothing was held under Wright’s deed, this court would not have authorised a sale of it. In fact, the terms of the order do not authorise such a sale. Had the fact been known to the commissioners, they could not have offered it for sale. It is, then, a sale made without authority, or by mistake. Had the truth of the case been reported to this court before a conveyance, the justice of the case would have imperiously demanded, that the mistake should be corrected, either by setting aside the sale altogether, or so much of it as was improperly made, as circumstances might require. A court could not tolerate such an imposition, practised, in fact, by itself. The conveyance having been made, the doubt is, whether the relief prayed for shall be granted unconditionally, or on conditions. If it had appeared that the land sold so far below its value, as to justify a suspicion that the purchaser took into his estimate this deficiency in the quantity, I should be much inclined to require that things should stand as they are, unless the purchaser would consent to vacate the contract. But this being neither alleged nor proved, cannot be presumed. The court, therefore, will enjoin the bond given for the purchase money, to the extent of the deficiency in the land.

Decree. 1st. That the report ought to be set aside. 2d. That the plaintiffs are entitled to a deduction as to so much of the purchase-money for the land sold them by the •defendants, as is equal to the deficiency in the quantity of the said land. One of the commissioners of the court, is ordered to state and report to the court, the amount and nature of the deficiencies in the said lands, with the comparative value of such deficiencies at the time of the sale, and the amount which ought to be deducted from the purchase-money on account of those deficiencies, agreeably to the foregoing opinion. Leave given to the defendants to amend their answer in the cause, and to the representatives of John Backhouse, who claim to be creditors of James Hunter, to file their cross bill in this suit, and to assert any claim they may have against any of the parties.