McLane v. Spence , 6 Ala. 894 ( 1844 )

ORMOND, J.

In Brannan v. Oliver, [2 Stewart, 47,] it was held by this court, that a purchase by an administrator at his own sale, was not void, but was prima facie valid, and would be supported if no unfairness-appeared. This decision is explained in Saltmarsh v. Beene, [4 Porter, 283,] to be confined to that class of trustees, having an interest in the property so purchased. ín this case it appears, that the executor purchased a lot of slaves, twelve in number, at his own sale — that they were put up in one lot, and purchased by him for less than they would have sold, if sold separately — that he made no return to the orphans’ court, of sale, nor executed any note for the purchase money with surety, but converted the slaves to his own use.

We think it clear, that this sale could not be supported if contested by legatees or creditors, but upon a proper proceeding, would have been set aside, and a re-sale ordered. Nor would it avail to validate the sale, for' the executor to show, if in his power, that he did not intend by his purchase to defraud the creditors of the estate. support a purchase by an executor orad-Iministrator at his own sale, there must be no unfairness; the pro-j perty must be exposed to sale in the usual and ordinary mode,, and under such circumstances as to command the best price.^Jn. this case, the sale of twelve slaves in one lot, many of whom were grown, was directly calculated, if it was not intended to enable' the executor to buy them in at an under value; and although it would doubtless be proper to sell husband and wife, or parent and small children together, it could not be tolerated that twelve slaves, most of whom were grown, should be sold in one lot, thereby diminishing the range of purchasers, and the prospect of obtaining 'a fair price; the result of which was in this case, that the slaves were bought in below their value. The creditors and legatees have also a right to the security afforded by such sales to strangers, and if this is omitted to be afforded, they are prejudiced by the purchase by a representative of the estate.

y'But, however irregular and voidable such a sale may be, it is not a nullity. The title would pass to the purchaser until divested by a proceeding against the executor, having that for its object. Although the sale may be irregular, until it is set aside, the purchase money is assets of the estate in the hands of the executor,-'and it results necessarily, that the slaves could not be also, assets of the estate-^such being the fact, if there was nothing else in the case, as the estate of King had no property in the slaves at the time of the levy by the coroner, the levy was illegal, and he would be answerable to the representative of Calhoun’s estate. There is, however, another important fact disclosed in the case, which changes its aspect entirely.

Upon the death of Calhoun, Spence, as sheriff of the county? became ex officio, the legal representative, both of his estate and that of King, and as such, received the assets of both. It became necessary for him to determine •whether the slaves purchased by Calhoun at his own sale, were his property or the property of King’s estate, and it appears that he elected to consider them as the property of the latter. This is demonstrated by his acts, showing most unequivocally, that he did not consider the estate of Calhoun entitled to the property. He hired out the slaves as the property of King’s estate, and after the sale made by the coroner, of the same slaves, to satisfy a judgment obtained against him as the representation of King’s estate, he reported to the orphans’ court, the balance of the judgdtent not satisfied by the sale, as the debt due the judgment creditor, on reporting King’s estate insolvent.

He had the undoubted right to consider the property as belonging to the estate of King, and to treat it as such, if justified by the facts of the case, and if the same result would have been produced by a proceeding in equity, to set aside the sale; as it cannot be doubted that a party may do that voluntarily, which a court of equity will compel him to do, and from the previous examination, it appears that he did precisely what a court of equity would have directed, upon a proceeding to set aside the sale and purchase made by Calhoun. He is, therefore, estopped by his own act, from saying, that the slaves sold by the coroner, were not assets of King’s estate. It would be the grossest injustice, to permit him to treat the slaves as the property of the estate of King, until they are seized and sold for the payment of its debts, and then claim them as belonging to the estate of Calhoun.

The principle upon which this portion of the case rests, was the ground of the decision in Draughon v. French’s adm’r, [4 Porter, 352] — that where one becomes possessed of two estates, as the legal representative of both, as he cannot sue himself, he will be presumed to retain what is due from one to the other, whether it be a debt, or unliquidated damages.

Without, therefore, examining the other questions raised upon the record, it follows from the view here taken, that the court erred, in the refusal to give the third charge moved for by the defendant.

The other charges of the court affirming the validity of the purchase by Calhoun, unless there was an express intention found by the jury to defraud creditors, were wrong in point of law, and although to a certain extent abstract, yet its direct tendency was to mislead the jury, by placing the decision upon a question not materia] to the inquiry before them. Let the judgment be reversed, and the cause remanded.