6 Johns. Ch. 353 | New York Court of Chancery | 1822
The only question is, whether the
On the 19th of Juñe, 1811, Arthur Magill employed him by letter, and put into his hands a mortgage executed by William Jenhs, and assigned by the mortgage to Magill, which the defendant, S., was directed to put in suit, and if the land should not sell for money enough to pay the debt, Ma-gill requested the defendant to buy in the land for Magill, and to sell it, payable partly in cash and partly on credit, by instalments, secured by a mortgage. Magill likewise requested the defendant to sell for him 129 acres of other land, on credit and security. These were the outlines of the instructions, but the letter concluded, by leaving “ the whole management” to the defendant. The defendant states, that he did not deem it prudent to go on and enforce a sale of the mortgage, by foreclosing the equity of redemption, but judged it best to give time and indulgence to the mortgagor, as being most for the interest of Magill; and in the autumn of 1811, he communicated these facts to Ma-gill, who resided at Middletown, in the state of Connecticut, and from whom he never heard again on the subject. Magill died on the 7th of February, 1812; and on the 20th of that month, and before the defendant had heard of his death, he received of Jenhs 50 dollars ; two other sums of 100 dollars and 50 dollars, were paid by Jenhs to the defendant, in 1814, and 1816, and which were received in the absence of the defendant from his office, and on behalf of the lawful representatives of Magill, who might be entitled thereto. A son of Magill administered on his estate, by letters of administration taken out in Connecticut, but no administration was granted under the authority of this state. The defendant, in April, 1813, contracted to sell 40 acres of the 129 acres, to the defendant, Felshaw, and he received part of the payment then, and the residue in 1814, amounting in the whole to 213 dollars and 62 cents. He continued to act as agent in respect to those
The father of the infant plaintiffs was not entitled, in his relation of father, to demand the infants’ money in the hands of the defendant, and it was requisite that a guardian should have been appointed here, to be enabled to make a valid demand. (Genet v. Tallmadge, 1 Johns. Ch. Rep. 3. Morrell v. Dickey, id. p. 153.) It is equally well settled, that an administrator of an intestate’s estate, where letters of administration were granted out of the state, has no legal authority over the intestate’s effects within this state. All his power over the estate is derived from the Court that appoints him, and the appointment does not operate, and is not recognised out of the jurisdiction of that Court. The order of the administrator in Connecticut was not binding, and could not have been enforced here; and the defendant was not under any obligation in law to obey it, though, I apprehend, a voluntary payment under it would have protected him. The cases
There was not then, stricto jure, any default on the part of the defendant, in refusing to pay to persons not. having authority to demand. He received the money, not strictly as a trustee, in confidence and without interest, but as an attorney, or agent, or bailiff, instructed to cause the land to be sold, in his discretion, and to collect and receive the money. It was sufficient, if he kept the money safely, and paid it according to the request of the party entitled to demand and receive. His duty was, to be ready to pay upon demand; and I think it would be too rigorous a doctrine, unless under very special circumstances, which do not exist in this case, to exact from an attorney, or agent, interest upon the moneys of their principal in hand, when they are not chargeable with any default, and are ready to pay when called upon for that purpose. If the agent had received moneys, and neglected, for a long time, to inform his principal of the fact, and wilfully suffered him to remain in ignorance that the debtor had paid to the agent, there would be equity in requiring the agent to pay interest, for here would be a case of default, and breach of duty. But there is no averment, in the present case, of a want of notice, and, therefore, none is to be presumed. So, if the agent had employed the money for the purposes of gain to himself, a ground might be laid for a charge of interest; and the question is, whether the admissions in the answer will warrant that conclusion. The defendant says, he received the moneys as agent of the representatives of Magill, and that, as the money was received from time to time, it was indiscriminately placed with his other moneys, received as attorney or agent, and not set apart or preserved separately from the mass of his funds. That since 1812, there has passed through his hands, probably, 30,000 dollars of moneys collected and received front others, as an attorney or agent, and that the moneys in
Upon these facts, 1 do not think the defendant can be made chargeable with any profit made out of the moneys he so received, nor with any breach of duty in not paying, before he was authoritatively called upon to pay, and, therefore, he ought not to be chargeable with interest. I shall, accordingly, so far correct the decree, recently pronounced in this cause, as to exempt the defendant, S., from interest on the 413 dollars 62 cents, which he received in the course of his agency, and, also, from the payment of costs.
Decree accordingly.
