Fambro v. Gantt , 12 Ala. 298 ( 1847 )

COLLIER, C. J.

By the common law, an administrator was authorized to sell the personal estate of his intestate, when in his opinion the interest of those concerned, required it; and a purchaser from him, it is said, would only be held responsible when charged with notice of a devastavit. [Colt v. Lanier, 9 Cow. R. 321; Braman, et al. v. Oliver, 2 Stew. R. 47,] Our statutes, however, have materially modified the common law, and restricted the powers of the administrator in this respect.

The act of 1809, “ concerning the duty of executors, administrators and guardians,” &c. (Clay’s Dig. 223, § 13), inhibits an administrator, &c. from taking any part of the estate represented by him at its appraised value, or from disposing of the same at private sale, except where the same is authorized by a will of the testator. “ But in all cases where it may be necessary to sell the whole or any part of the personal estate of any testator or intestate, it shall be the duty of the executor, administrator or guardian, to apply to the orphans’ court of their county, for an order of sale, and upon obtaining the same, to advertise the time and place of such sale, in three or more public places in their county, at least thirty days previous to the day of sale, and then and there proceed to sell the same, at public sale, to the highest bidder, giving at least six months’ credit, the purchaser giving bond with approved security.”

Under this statute, it was held by the supreme court of the United States, that a private and unauthorized sale by an administrator in chief, did not have the effect to defeat the right of a subsequent administrator ad colligendum. [Ventris v. Smith, 10 Pet. Rep. 161.] This decision is cited with approbation in Weir v. Davis and Humphries, 4 Ala. Rep. 442. In the latter case we held that a sale made otherwise than the law provided, was invalid, and that the property illegally sold, might be subjected to the claims of creditors, or the dis-tributees of the estate.

In Dearman v. Dearman and Coffman, 4 Ala. Rep. 521, the validity of a private sale by an administrator was considered; and it was there said: “ We will not inquire whether some portions of the act regulating the sale of the estates of deceased persons may not be directory merely, because here the sale (if indeed it can be called one) was without any order of court directing a sale to be made, and it was made privately. ■ This the statute declares unlawful, and certainly no right can be derived from an unlawful act.” “If then there had been an actual sale made of the slaves in question to the plaintiff by the administratrix privately, and a full consideration paid, the title would not have passed as against the heirs, distribu-tees or creditors.” Under the influence'of the same statute, it was decided in Cable v. Martin, 1 How. Rep. Miss. 558, I and in Baines v. McGee, 1 S. & Mar. Rep. 208, that executors and administrators can only sell the property of the dece'Y'dent in the mode prescribed by law; a private sale passes no I title, and the vendee acquires no title to the property against I the distributees. See also Worten v. Howard, 2 S. & Mar. Rep. 527; Edmundson v. Roberts, 2 How. Rep. Miss. 822; White v. Beard, 5 Ala. Rep. 94. As to the right of a purchaser under a void sale by an executor or administrator, to resist the payment of the purchase money, while he retains the uninterrupted possession of the property, see Wiley & Gayle v. White & Lesley, 3 Stew. & P. Rep. 355; Planters’ Bank v. Johnson, 7 S. & Mar. Rep. 449. We do not deem it necessary in the case before us, to inquire what is the general rule upon this point; for the invalidity of the sale by the plaintiff to the defendant, is a palpable sequence from the fact that it was private, and without an order of court. The cases cited conclusively settle this point, and establish that the defendant acquired no title by his purchase, though the plaintiff himself may be estopped by his act from recovering the slaves in an action in his own name. [Pistole v. Street, 5 Porter’s Rep. 64.]

If the sale was unlawful, because the statute so declared it, and passed no title to the vendee, it may be asked if it imposed a liability upon him to pay the purchase money ? Certainly the plaintiff cannot coerce its payment, if, as was said in Dearman v. Dearman and Coffman, “ no right can be derived from an unlawful act.”

Even if it were not allowable for the defendant to prove the illegality of the consideration for his promise to pay the debt of Lawson Thomas, the plaintiff could not make out his case without proving it; for a promise without any consideration, would be a mere nudum pactum, which imposes no legal duty. And the consideration being unlawful, the promise which rests upon it, would be unsupported, and cannot be enforced.

The contract of the parties is opposed to public policy as declared by the statute, and to entitle the defendant to resist a recovery, it was not necessary that he should have returned the slaves to the plaintiff. In Carrington v. Caller, 2 Stewt. Rep. 175, 197, it was said, “that in relieving against a contract denounced by the policy of the law, the relief is not afforded with a view to favor the defendant, but to discourage contracts which restrain or oppose the policy of the law ,• therefore, those principles of justice, by the application of which individual rights are settled, are not permitted in such cases to have a controlling influence. In Holman v. Johnson, 1 Cowp, Rep. 341, Lord Mansfield says, that it is not in favor of the parties that the objection is ever allowed, but it is founded on the principle of public policy, ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an illegal or an immoral act. If, from the plaintiff’s own stating, or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of the positive law of the country, there the court say he has no right to be assisted.” After citing with approbation, Mitchell v. Smith, 4 Dallas’ Rep. 269, in which the purchaser of land was permitted to avoid the payment of a promissory note given for the purchase money, though he was in possession, on the ground that the contract was against the legislation of Pennsylvania, it was added (in Carrington v. Caller,) “that the doctrine of statui quo, does not apply to a contract void in its inception for illegality, but only to one which, by some post factum circumstance becomes so; as if on a breach of contract by the vendor, the vendee elect to dis-affirm, where it has been executed by him, either in the whole or in part, he must offer to place the vendor in statu quo before he can recover back the money he has paid.” The view we have taken, most conclusively shows the illegality of the contract, and that the promise of which the plaintiff predicates the right to- recover, is a mere nullity, and cannot be enforced. In refusing thus to rule,, the county court misapprehended the law.

The objection to the declaration- was- directed mainly to the first count, and supposed it was bad, because it did not alledge that the promise of the defendant was in writing. Although it may be necessary to prove on the trial that an undertaking to pay the debt of a third person was in writing, to relieve it from the influence of the statute of frauds, it is not necessary to alledge the fact specially in the declaration. [Kizer v. Lock, 9 Ala. R. 269.] In respect to the second and third counts, we think they substantially state a sufficient consideration, though to support the latter, it might be necessary to show, that Thomas was discharged, or that the promise was in writing. What has been said relieves us from the necessity of examining the other questions raised; and we have only to add, the judgment is reversed and the cause remanded.