Swink's Adm'r v. Snodgrass

17 Ala. 653 | Ala. | 1850

DARGAN, C. J.

It is very clear that the Bank obtained no titles to the slaves on account of the sale under the execution against George Swink, the intestate, for the judgment on which it issued was rendered after his death. The judgment as to him was void ; no execution could issue upon it, nor could a purchaser under the execution, issued against the deceased, acquire any title. — Snodgrass v. Cabiness, 15 Ala. 160.

An administrator de bonis non is entitled to all the goods of the deceased that remain unadministered, after the death or removal from office of the administrator in chief. In the case of Wankford v. Wankford, 1 Salk. 306, Chief Justice Holt, speaking of the rights of an administrator de bonis non, said, “If the goods of the intestate remain in specie they shall go to the administrator de bonis non, because it is notorious whose goods they are, and they can be easily distinguished and so in the case of The Attorney General v. Hooker, 2 P. Williams, 840, Lord Chancellor King held, that if an executor die intestate, all the personal estate of his testator, which has not been altered but remains in specie, goes to the administrator de bonis non. Mr. Williams, in his work upon Executors, says, “that an administrator de bonis non is entitled to all the goods and personal estate, such as terms for years, house-hold goods, See. which remain in specie, and were not administered by the first executor, or administrator.” — Vol. 1, 594. These authorities show that the title of the plaintiff in error depends on the question, whether the fraudulent or pretended sale of the administrator in chief gave to Harris such a title as precludes the administrator de bonis non from a recovery at law, for the slaves can be readily identified, and there was no question but that they belonged to the intestate at the time of his death-.

The evidence tended to show that the administrator in chief never executed a bill of sale for the slaves, nor received the purchase money, nor any security for its payment, but that he fraudulently consented that Harris, into whose possession the slaves had come, should remove them from the State. Although it is certain that the conduct of the administrator would render him liable for the value of the slaves to the creditors or distributees, had they sought to charge him with their value, yet it is equally clear that such a sale could not defeat the rights of those interested to the slaves themselves, for if an executor fraudulently alien the assets of the testator .in collusion with the vendee, the sale will be void. Fraud and crime will vitiate any transaction, and turn it into a mere color. If, therefore, a man concerts with an administrator and obtains the goods of the deceased at a nominal price, or a fraudulent under-value, the contract will be void, and the seeming purchaser will be held liable for their full value. — Lomax on Executors, vol. 1, 346-7; Williams on Executors, (2d American edit.) 672. Thus when the person, to whom the executor passes the property, knows that the executor is acting in violation of his trust and in fraud of the rights of others, the fraud will vitiate the transfer and render it null and void, as against those whose rights are injured by the transfer. — Doe v. Fellows, 2 Crampt. & Jerv. 481; Dodson v. Simpson, 2 Rand. 294.

But it may be urged' that a court of equity alone can interfere and- set aside a fraudulent sale of the'assets, made by an executor. This is certainly the usual course, and if the suit is brought by the creditors or distributees of the deceased, it can be brought only in a court of equity, because'as distributees á'nd creditors, they have but an equitable title; but an administrator de bonis non may apply to a- court of chancery to set aside a fraudulent sale of the assets, without joining with him either the distributees or creditors, and in his individual name recover as the representative of the estate: — Cubbedge v. Boatwright, 1 Russ: 549; William on Executors, (2d American edit.) 657. Now, if the administrator de bonis non may file a bill in equity in his own name to recover the assets fraudulently conveyed by the administrator in chief, I see no‘reason why he may not sue at law, when the assets can be identified, and the fraudulent vendee has paid nothing for them. The fraud vitiates the sale and renders'his title void. Wbydhen should we'force the administrator'to go into a court Of equity agpinst the'vendee, whose title is void for fraud, and who has no equitable right to the •goods? In-our opinion,fit is unnecessary. The court, therefore, erred in the charge given to the jury, for after giving the Charge, that if the sale was conditional the title did not pass, unless the condition was -performed, he in effect added, that if ■:the condition was fraudulently waived by the administrator in ■chief, then the plaintiff could not recover. Now it is the fraud ‘that vitiates the sale, and'renders the title v'oid, and how it can become the source of title, I cannot percieve. The defendant, so far as we can gather from the record, placed his defence on no other ground than that the fraudulent sale made by the ad•ministrator in chief was a bar to the plaintiff’s recovery. In 'this particular case, we think, the administrator de bonis non might have sued Harris, through whom the defendant claims, ■at law, and as the defendant occupies the same position that Harris did, the suit may be sustained against him.

Let the judgment be reversed and the cause remanded.

Parsons, J., not sitting.