Bogan v. Camp , 30 Ala. 276 ( 1857 )

WALKER, J.

-We construe tbe instrument which, is the foundation of this suit, from the import of its language, as follows: 1. There is an assignment to Bogan of one third of the undivided part of the estate, after paying certain expenses. 2. There is a stipulation that Bogan shall have and receive that third part. 8. John Camp individually, and as administrator, and Robert B. Camp, are the parties who make the assignment and stipulation. That Robert B. Camp is a party making the assignment, and binding himself primarily, and also as surety for John Camp, is proved by the recital, at the commencement of the instrument, that he, a brother of the deceased, and a distributee of the estate, is a party to it; and by the assertion that he “doth, on his part, as distributee, sanction said compromise, and become a party thereto, and surety for the said John that the terms of said compromise shall be complied with, and doth hereby firmly bind himself to the same.”

Upon this construction of the instrument, we must treat it as an assignment by John and Robert B. Camp, accompanied by a stipulation that Bogan shall receive the interest so assigned. It is within the jurisdiction of the chancery court to divide the property, and to distribute to Bogan the interest transferred to him, if the assignment is valid, and conveys any interest, and the proper allegations and parties are made in the bill. Smith v. Dunn, 27 Ala. 315.

We fully concur with the chancellor, that the assignment by the administrator, in his official capacity, is in palpable violation of the statute which prohibits private sales by executors or administrators. — Clay’s Digest, 223, § 13; see, also, the authorities cited in the chancellor’s opinion. The argument, that an administrator may transfer a certain interest in the net estate, after it has been converted into money, and all expenses have been paid, has no application; because the instrument mentions the property in general terms, and then transfers a certain part of it to Bogan, to be his own absolute property. If an administrator were to transfer the property of the estate in payment of an undisputed debt of an ascertained amount, it would not be disputed that this was a private sale of the property for the amount of the debt. — Fambro v. Gantt, 12 Ala. 298. That the debt was one of doubted obligation, and its amount not ascertained, so that the precise value set upon the property could not be determined, cannot contribute to the validity of the transaction' It is true that, if the contract of sale had been consummated by a delivery of the property sold, the administrator who made the sale could not have recovered back the property. But the contract, so far as it purports to be an assignment by the administrator, and an agreement to set off the interest assigned, is void on its face; and this court will not aid the complainants in the enforcement of such a contract. The maxim applies, In pari delicto, potior est conditio possidentis. — Brantley v. West, 27 Ala. 542.

We proceed, next, to consider the effect of the instrument as an assignment by John Camp and Robert B. Camp. They were distributees of the estate, and had, therefore, an equitable interest in it which they might transfer. The release of a claim against the estate would tend to increase their respective shares, and would, therefore, be a consideration beneficial to them. Whether their interest as distributees., at the time of the assignment, was equal to one third of the estate then undivided, does not appear; and no data are afforded by the bill, from which it could be ascertained. Now we are of the opinion, that it was competent for John and Robert Camp to transfer their equitable interest as distributees; but all the distributees would be necessary parties to a bill to recover such an interest, unless thei'e had been an ascertainment and allotment of the several shares. Chapman v. Hamilton, 19 Ala. 121; Hartley v. Bloodgood, 16 Ala. 233; Julian v. Reynolds, 8 Ala. 680, overruling Cherry v. Belcher, 5 Stew. & P. 133; Goodman v. Benham, 16 Ala. 625; Watts v. Gayle & Bower, 20 Ala. 824.

But we are persuaded that there is an objection to this bill still more fatal. It is impossible to ascertain, from the bill, to what measure of relief the complainants are entitled. It cannot be said that they are entitled to one third of the property undivided, after paying expenses, because it cannot be known whether the interest of the two distributees amounts to that much. It cannot be said that they are entitled to the entire interest of the two distributees, because that interest may exceed the one third. Most important of all, it does not appear that the two distributees who made the assignment had any interest in the property then undivided. That would depend upon the number oí distributees, and the amount previously received by them. Every thing in the bill may be true, and yet it may also be true that the assignors have no interest whatever in the property undivided. It does not follow, it will be perceived, that they are interested in the particular property because they are distributees of the estate.

The draughtsman of the bill manifestly did not regard the instrument as an assignment of the interest of the obligors as distributees in the undivided assets of the administration, and did not frame the bill with that view. It does not contain the allegations, and does not appear to have brought before the court parties, necessary to entitle the complainant to relief in that respect. Viewed in that aspect, therefore, it was properly dismissed.

The decree of the chancellor is affirmed.