Upchurch v. Norsworthy , 15 Ala. 705 ( 1849 )

DARGAN, J.

At the time the plaintiff in error sold .the slaves, neither letters of administration nor testamentary, had been granted of the goods of Thomas Woolf oik, deceased, and no authority whatever, to sell, had -been obtained from the orphans’ court. -Such a sale, beyond doubt,-is void, and gives the purchasers no title whatever: See 4 Ala. 442; 9 ib. 908; 12 ib. 298.

Yet, it does not follow, that the plaintiff in error can plead his want of authority to sell the slaves, in bar of this action to recover of him the money he has. received upon such sale ; or that he can insist, that his purchaser has no title, in order to defeat an action, brought against him for a’conversion -of the goods of the deceased ; for the title of ah administrator in chief, relates, back to the death of the decedent,; aiid he may,, after obtaining letters, bring trover, against those who have converted the" goods of the. estate, in the interim,-between the death of the deceased, and.thegrant of letters. 1 Williams Ex’rs. 396, 397; 8 East, 418; 12 Mass. 309; 23 Pick. 128. Our statute, regulating thejsale of the personal estate of deceased persons, does not take away from an administrator, any of the common law remedies, given him, for injuries done the estate; consequently although the title to the slaves be not vested in the purchasers, by their purchase from the plaintiff in error andas against the defendant in error the sale be absolutely void, yet the defendant cannot by insisting on his want of authority to sell, or that the sale conveyed no title, relieve himself from responsibility. If this were so — if the purchaser was unknown, or the property had been removed beyond the reach of the administratar, he might be without remedy.

Without, regard, therefore, to the character of the title, acquired by the purchaser, or whether the sale was void or not, as the plaintiff in error assumed the authority to sell the slaves, it was a conversion of them, and he was liable, in an action of trover, for the value of the slaves thus converted; and the question arises, if he is liable for the conversion, may not the administrator waive the tort, and bring assumpsit, for the money actually received by the plaintiff in error, by means of the sale.

We think it is well settled, that if the goods of one have been taken from him tortiously, and the wrong doer has sold them, and received the money, the owner may waive the tort, and bring assumpsit for the money. Willett v. Willett, 3 Watts, 227; 10 ib. 431; 5 Hill, 577; 12 Pick. 120; 2 Gill. & John. 326; 3 Dana, 552.

These authorities all show, that after a sale, apd receipt of the money, by the wrong doer, the owner has his election, either to bring trover for the conversion, or assumpsit for the money received.

But it is contended, that this rule will not apply, in this State, to an administrator, because he has not the authority, under our statute, to confirm the sale made by the wrong doer. We think it useless to enquire, what effect, the recovery against the wrong doer, either in trover or assumpsit, would have on the title of the purchaser; for, we have seen, that the plaintiff in error, cannot protect himself from his wrongful acts, even if his purchaser acquired no title, and we can see no reason, why an administrator may not as well waive a tort, and sue for the money received, as any other - owner of goods. We therefore, come to the conclusion, that the court did not err in the charge given, in reference to the money received by the plaintiff in error, on the sale of the two slaves.

But we think the court erred in the charge given, in reference to the proceeds of the crop, of 1840. It was shipped by the widow of the deceased, in her own name, was sold on her account, and the proceeds handed to the plaintiff in error, to be delivered to her; and there is testimony, tending to show, that he delivered the money to his principal, on his return home.

The rule of law, is, that where an agent receives money for his principal, to which the principal is not entitled, as against a third person, if the agent pays the money over to his principal, before any demand is made or notice given him, not to pay the money to the principal, such payment by the agent will discharge him from all liability. Thompson v. Stickney, 6 Ala. 579; 7 John. 179; 7 Cowen, 456.

At the time, the plaintiff in error received the $725, the proceeds of,the crop of 1840, from the commission merchant, there was no person in esse, who ' had the right to receive it from him, except the widow of the deceased, and he was legally bound to pay it to her, for he had received it as her agent. If the plaintiff did pay it over to her, he discharge ed his legal obligation, and he is not responsible to any one else, unless the money had been demanded of him, or notice given him, not to pay it over, by some one, whilst he had possession of the money, whose title to it was superior to the title of the principal.

For this error, let the judgment be reversed and the cause remanded.