Jay v. Stein , 49 Ala. 514 ( 1873 )

BRICKELL, J.

— When one of several defendants in ejectment dies, pending the suit, the action abates as to him. It is not capable of revivor against his personal representative, and heirs or devisees, so as to proceed jointly against them and the surviving defendants. The suggestion of the death is entered of record, and the cause proceeds against the survivors. It is said, in such case, if the defendants had made joint defence, and the plaintiff recovered, the judgment against the survivors ought to be general, —that the plaintiff recover his entire term in the premises, — because, by survivorship, the whole comes to the other defendants. If the defendants made separate defence, then the plaintiff is entitled to judgment against the survivors, only for «the parts of the premises in their possession. How this may be under our statutes, it is not necessary for us now to inquire and decide. It is sufficient to declare, that the death of Larkin W. Lindsey operated an abatement of the suit as to him, and that it was incapable of revivor. Adams on Ejectment, 382; Jackson on Real Actions, 137; Farr v. Den, 1 Burr. 362. This rule prevailed as to actions ex contractu, until the enactment of the statute, R. C. § 2546. Rupert & Cassidy v. Elston, 35 Ala. 79. When an action of ejectment, abating by the death of a defendant, is capable of revivor, if the plaintiff seeks a full recovery in the action,, the revivor, under our practice, must be against the personal representative, and the heirs or devisees of the deceased defendant. If he abandons all claims to a recovery of possession, and seeks only a recovery of damages, by way of mesne profits, he can revive against the personal representative alone. If, waiving all claim to mesne profits, he seeks only a recovery of the possession, he may proceed against the heirs or devisees, without joining the personal representative, for in them the title is vested. Jordan v. Abercrombie, 15 Ala. 580; Ex parte Swan, 23 Ala. 192. The action abating as to the deceased defendant, Lindsey, and not being capable of revivor, the judgment of the court, finally pronounced, produced that result. If any errors intervened in the rendition of that judgment, or in overruling the demurrer of the appellants to the pleas of Lindsey’s executor, they produced no injury.

2. The appellants offered in evidence, as the bill of exceptions states, for the sole purpose of identifying the lands in controversy, an order of sale granted by the Orphans’ Court of Monroe County, to the executor of John Jay, deceased, and the report of the sale, made to the court by the executor. The court refused to permit the plaintiff to give them in evidence, limiting them to that specific point, but admitted them generally. If they were admissible for the specific purpose to which appellants proposed to limit them, they had the benefit of them for that purpose; and we cannot see how they could possibly be injured by being required to offer them in evidence generally. There are cases in which a party may offer evidence for a specific purpose; and if he was compelled to offer it generally, his adversary would be enabled to use it as evidence for himself of other facts, of which it would not have been for him competent evidence. In such case, it would be erroneous not to allow the party to use the evidence for the specific purpose. This case, however, does not belong to that class of cases. That the appellants gave in evidence the order and report of sale, could not malee them evidence for the appellees, to any extent to which they would not have been if they themselves had introduced them. Richardson v. Hobart, 1 Stew. 500.

3. The witness Watson testified that the ancestor of appellants died in possession of the lands, the subject of this suit; that after his death the lands were rented for several years, — a part of the time by the witness, a part of the time by one McIntyre, and a part of the time by the mother of the appellants ; and that these rentings were for the use of the appellants. The appellants were minors, and the witness stated that he had no authority for renting the lands, except what he derived from one McNair, their step-father. This evidence was excluded by the court, and, we think, erroneously. It tended to prove a prior possession, on which the appellants could maintain ejectment, against one subsequently entering, and who could not show or connect his entry with title. It also tended to show an adverse possession, which, if continued for the period prescribed as a bar to an entry, or to an action for the recovery of possession, would ripen into title. But there was no error in refusing to permit this witness to state all that McNair said relative to the land at the time he gave authority to rent and pay taxes on the land. If McNair’s declarations could, in any aspect of the case, be legal evidence for the appellants, it is not shown by the record.

4. The payment of taxes can only be material in the event it appears that, when paid, the appellants, by themselves, or persons holding under them, and claiming in subordination to their title, were in actual possession of the lands, or some part thereof. Payment of taxes is not, in any sense, evidence of possession. If there is an actual possession, it may be a fact tending to show the extent of such possession. Sorber v. Willing, 10 Watts, 141.

5. The record from the court of probate, showing the appointment of Rikard as administrator de bonis non of John Jay, and all the proceedings in reference to the sale of the lands, under which appellees claim, were properly received in evidence. They were necessary links in the chain of the title of appellees, and are evidence for them whenever their title is drawn in question. Richardson v. Hobart, 1 Stew. 500. Nor was there error in admitting the evidence of the witness Riley, that he purchased the land claimed by him, at the sale made by Rikard as administrator. This may not have been sufficient, but it was admissible evidence. Robinson v. Tipton, 31 Ala. 595.

6. In the charges given and refused, the court did not materially err. It is an undisputed fact that John Jay, who died in 1845, was at his death seised in fee of the premises in controversy. The appellants deduce title from a sale made by his executor, under an order of the former Orphans’ Court of Monroe County. This sale was a nullity, and did not divest the title of the heirs or devisees of John Jay, nor interpose any impediment to the decree of sale rendered by the court of probate, on the application of his administrator de bonis non, in 1860. At common law, an executor or administrator was the representative of the personalty only. He had no interest in, or authority over, the lands of the testator or intestate. All the power which he may now exercise over lands is derived from statute, or from the will. The jurisdiction of the former Orphans’ or County Court, and of the present court of probate, to order lands to be sold, on the application of the personal representative, is purely statutory. This jurisdiction cannot be called into exercise, except by an application in writing, disclosing a statutory ground of sale, filed and recognized by the court. Wyman v. Campbell, 6 Port. 219; Bishop v. Hampton, 15 Ala. 761. The order of sale granted to the executor in this case, was made without an application disclosing any cause or ground of sale whatever; and the sale, therefore, stands as if it had been made by the executor without an order of court, and, of consequence, is a mere nullity, if dependent on that order alone.

7. By the will, the testator devised his estate, real and personal, to his wife for life, and empowered her to sell any part thereof, at her discretion, and divide the proceeds amongst his heirs. At her death, he declared all his estate remaining unsold must be sold, and the proceeds divided amongst his heirs. It is now insisted, that the widow having dissented from the will, the time of the sale, authorized by the will at her death, was hastened, and the executor, under this discretion, had power to sell the lands; and that the sale made may and should be referred to this discretion in the will. Some of the charges asked by the appellants, and refused, were intended, doubtless, to present this question. We do not intend to decide now, whether this discretion in the will creates a power which the executor could exercise without the intervention of a court. Nor do we intend to decide that the dissent of the widow hastened the time prescribed in the will for the execution of this discretion or power. For it is certain the sale was not made in the execution of this discretion or power, but under the invalid order of sale granted to the executor by the Orphans’ Court. Judge Story says : “ It is a general rule, in the execution of a power, the donee of the power must clearly show that he means to execute it, either by a reference to it, or to the subject matter.” 2 Story’s Eq. § 1062. This is a simple, intelligible rule, which was recognized and declared by this court in a case not dissimilar to this. Ala. Conference v. Price, 42 Ala. 39. The executor here, in effect, repudiated the power of sale conferred by the will, if any was conferred. He did not intend or pretend to act under it. He obtained an order from the Orphans’ Court, invalid it is true, authorizing him to sell. He made the sale under that order, as is expressly recited in his conveyance to the purchaser, without any reference to the will of the testator, or any power, real or supposed, conferred by it. He reports the sale for confirmation to the Orphans’ Court. It is impossible to refer this sale to any power contained in the will, if there is such power.

For the single error in excluding that part of the evidence of the witness Watson, to which we have referred, the judgment is reversed, and the cause remanded.

SAFFOLD J.

— I admit the rule, as stated in the opinion of the court, that a power cannot be considered as having been executed unless the intention of the donee to do so is made to appear. But I cannot concur in the application of it made to this case. It is as impossible to ascertain intention by rule, as it is to define fraud. What a person says of his intention is no more indicative of it than his acts. When we know all that he has said and done about a matter, then we form an opinion of his intention from the whole evidence. William A. Jay, as executor, had authority, under his father’s will, to sell the land in question. The order of sale made by the Orphans’ Court, and his reference to it in his deed to the purchaser, are facts tending to prove the intention as to the power under which he acted. But are they so dominant as to restrict his intention to that authority alone ? I think not, because the one is not necessarily exclusive of the other. He blight very reasonably have thought the sanction of the court, to which he was accountable, would have aided his authority under the will, instead of destroyed it. He was executor by the will, yet he knew he must obtain letters testamentary. If he had not, in his deed, referred to any power under which he acted, his sale would be supported by the will. The opinion of the court, as I construe it, makes his declaration of a sale under the order conclusive of his intention. Is not the sale itself evidence of an intention to make a valid sale ? Is not his purchase of the land afterwards, with the payment of the purchase money, further evidence of the same intention ? Are not the imperfect, proceedings in the court some indication that he did not rely on the order of sale, as in Lee & Lewis v. Glover, at June Term, 1872. If the intention with which an act is done is doubtful from all the evidence, ought it not to be left to the jury to ascertain it ? The devisees of the testator acquiesced in this sale for fifteen years.

When all the circumstances admissible in evidence convince us that the vendor, acting in proper capacity, could not reasonably have intended to forego the exercise of any authority operative at the time, which would make his sale valid, can his declaration of an intention different, but not necessarily incongruous, exclude the other evidence of intention to refer his act to whatever authority he had which would support it ? I cannot conceive how the executor, Jay, in selling the land as executor, could voluntarily repudiate his authority under the will. If he applied to the court, because he doubted about his power, such deference to the law and to right ought not to prove a snare to him.

When the will was made, an administrator with the will annexed could not exercise a power of sale given in it to the executor. Section 1609 of the Revised Code was passed subsequently, but before the sale made by the administrator cum test. an. in 1860. It is general enough in its terms to extend the authority given to the administrator over an antecedent will. No constitutional provisipn forbids such application. Perhaps construction ought to limit it to wills made after its adoption, as the law of personal trusts might have influenced the testator in bestowing only a naked power. But if it should be held to apply to wills made before its passage, the authority of M. E. C. South v. Price (42 Ala. 39) would invalidate the sale made by the administrator with the will annexed. The objection I have to that decision is, it ascertains the intention from a part of the testimony only.