116 Ala. 416 | Ala. | 1896
Lead Opinion
Barton B. Smith, the executor of the will of Henry F. Smith, without legal authority, sold to the defendant the timber growing upon certain lands of his testator. Under the contract, the defendant cut and converted a large quantity of timber, paid for the greater portion of it, and refused to pay for the balance. This suit was to recover that balance. Under the facts in the case, the court did not err in refusing charges No. 2 and 3 requested by the defendant. The essential facts upon which the plaintiff's right of action depends, are not materially controverted.
The legal questions are, can a vendee in possession of property of an estate, and who acquired possession of it under a purchase from an executor or administrator, retain .that possession and defend, when sued for the pur
We propose next to examine some of the authorities which declare a different rule. In Hickson, Extr. v. Lingold, 47 Ala. 449, the action was upon notes given for the purchase of lands sold by the executors. The defense was that the lands were sold without authority. The court held that the defense could not be made if the purchaser retained possession of the land. The inva
Rehearing granted, former judgment set aside, and the judgment of the trial court affirmed.
Affirmed.
Dissenting Opinion
dissenting . — There are several assignments of error raising questions not material in the view I am constrained to take of the case. The evidence adduced was directed to the fourth count of the complaint only, which is founded on an alleged breach of a contract in writing, by which the plaintiff bargained and sold to the predecessors in interest of the defendant,, the growing white oak timber suitable for stave bolts, standing on the lands of Henry F. Smith, deceased, and granting the right to sever and remove it for the purpose of conversion into staves. The breach of the contract assigned, is the failure to pay the agreed piices of the timber. The will of Henry F. Smith was introduced in evidence, and nominates two executors, but the plaintiff alone appears to have qualified; and on these executors a discretionary power to sell the lands for the purpose of reinvestment is conferred.
The power of salé conferred by the will lends no assistance to the contract, for it will not admit of an interpretation or construction authorizing the sale of a partial
An executor, unless the estate or interest be created by the will, like an administrator, takes no estate or interest in the lands of the testator» If the lands are devised, they pass to the devisee ; or if not devised, eo ininstanti the death of the testator, • they descend ió the heir. A- personal representative, by statute, is clothed with authority to rent lands, and by the exercise of the power, the possession of the devisee or of the heir, may be intercepted ; and he is clothed with power to obtain from the court of probate orders or decrees for the sale of lands, and by the exercise of the power and a sale, the estate of the devisee or the descent to the heir may be interrupted. These powers do not vest in a personal representative any estate or interest in the lands ; and they must be exercised in the mode and manner the statutes appoint, or the possession of the heir or devisee can not be disturbed, or their estates or interests affected. — 3 Brick. Big. 464, §§ 146-151; 1 Biiek. Big. 937, §§ 332-33.
A sale of growing timber, by which a present transfer of title is intended, is a sale of an- interest in lands ; if not in writing, it is offensive to the statute of frauds.— Mitchell v. Billingsley, 17 Ala. 391; Heflin v. Bingham, 56 Ala. 566; Riddle v. Brown, 20 Ala. 412. In its primary aspect, the case presents directly the question, whether a personal representative who has made a private sale of an interest in the lands of his testator or intestate, not having any other power than that which is derived from his office, may recover the purchase money; and that question on authority and principle must be answered negatively. As we have said, virtute officii, a personal representative succeeds to no estate or interest in the lands of the testator or intestate. Powers derived from and dependent on the statute he may exercise ; but to these powers the statutes do not annex, and it is not essential to their due execution, that an estate or interest in the lands should have been annexed. An order or
The bargain and sale was a nullity — absolutely void— because in contravention of the statutes prescribing the order or decree of a court of competent jurisdiction, as the sole and exclusive authority of a personal representative to make sale of the lands of a decedent. All the safeguards for the protection of the parties in interest these statutes so carefully provide, are vain and useless, if a contract of this character can be supported. The opportunity, and the temptation to fraud and wrongdoing on the part of a personal representative, of collusion with strangers, of the destruction of the inheritance of heirs, for his own profit, would be afforded. An executor or administrator is the exclusive representative, and has the exclusive legal title to the personal property or estate of a testator or intestate. A long line of decisions, reaching back more than fifty years, has settled the principle, and if he make sale of visible, tangible chattels, otherwise than under a regular order of the court of probate, the sale is void. He can not recover of the purchaser the purchase money, nor can he recover the chattels, though to the purchaser no title passes.— 1 Brick. Dig. 932, §§ 274-77; Riddle v. Hill, 51 Ala. 224. The decisions rest on the theory and reasoning,
In its real significance and essence, the contract is an agreement for the commission of a deliberate trespass. If the lands had been in the possession of a tenant of a particular estate, and the estate of the devisee had been a reversion or remainder, without being guilty of waste, the commission of which a court of equity would have enjoinedj or for which compensation in damages would have been compelled, the tenant could not have severed and removed timber from the freehold, for the mere purposes of sale. — Tiedeman on Real Property, § 74; Alexander v. Fisher, 7 Ala. 514. There was no particular estate, no rightful possession intervening — the immediate estate and possession resided in the devisees. The contract intends an invasion of the possession ; the forcible severance and .removal of things affixed to and forming part of the freehold, a deliberate trespass. All contracts for the unlawful invasion of property, or rights of property, are illegal, offensive to public policy and sound morality. — Renfro v. Heard, 14 Ala. 22; Moore v. Appleton, 26 Ala. 633. The law leaves all who share in the illegality, where it finds them — it lends no aid to the enforcement of the contract while executory, nor after execution to its rescission, or to the restitution of whatever may have passed as its consideration. — Clark v. Colbert, 67 Ala. 92; Williams v. Higgins, 69 Ala. 517.
The court below, in my judgment, erred in refusing to instruct the jury, on the evidence, to find a verdict for the defendant.