Ferguson v. Morris , 67 Ala. 389 ( 1880 )

BB.ICKELL, C. J.

— The legal estate in the premises in -controversy resided in Joseph W. Ferguson, the ancestor of appellants, at the time of his death. It was not divested by the sale to Sawyer, or the bond he executed with condition to make titles on the payment of the purchase-money. The sale, coupled with the' bond, created but an equity, imperfect until the purchase-money was finally paid. The appellee, who by his purchase and the conveyance to him, has succeeded to Sawyer’s rights under his contract of purchase,' and to his interest in the lands, is also subjected to his duties and liabilities. As SaWyer could not have claimed that the legal estate residing in the ancestor, and eo instanti his death, descending to the appellants, should be divested, until there was full payment of the purchase-money, according to the terms of his contract of purchase, the appellee can have no other or higher claim. The question decisive of the case, in any of its aspects, is whether there has been payment of the purchase-money, either by Sawyer, or by the appellee ; and that question can not be answered otherwise than in the negative.

If we assume that the appellee stood in the relation of agent of the administrators of the ancestor, appointed and residing at. his domicil in Texas, aod that they could have clothed him with authority to collect Sawyer’s note for the purchase-money of the lands, he would not have been authorized to receive in payment any thing else than money, and, certainly, not his own debt. The law would have confined and limited him to a collection of the purchase-money, in that which was a legal tender for the payment of debts, or that currency which, passing at par, was considered and treated as money.— Ward v. Smith, 7 Wall. 447; Chapman v. Cowles, 41 Ala. 103; West v. Ball, 12 Ala. 340. Whatever may have been the usage, or custom, or necessities of business, at the place of residence of Sawyer and the appellee, though there may have been no other than a depreciated currency in circulation, fluctuating in value with the fortunes of war, thereby the authority of the appellee was not enlarged. It was not capable of modification, or change, or adaptation, to meet such events, whether the probability is that they were foreseen or unforeseen by the principals. If they required new or other authority than that which the principals had conferred, it was for them alone to determine, whether authority adapted to them should be given, or whether they would repose on the authority which had been given, awaiting results and future events. —West v. Ball, supra; Alley v. Rogers, 19 Gratt. 366; Evart v. Sanders, 25 Gratt. 23. It is alike unreasonable and unjust to suppose that the principal's, residing in Texas, to whom prompt and safe transmission of funds under the circumstances existing, when it is claimed the purchase-money due from Sawyer was paid, could have contemplated or intended to authorize its payment in a currency of such uncertain and evanescent value, as were Confederate treasury-notes. Their value was really dependent upon the immediate uses to which they could be applied. And it may, or may not, be true that if payment of them could have been made to the principals, when it is claimed they were received by the appellee, that they would have been accepted, and could have been advantageously employed for the benefit of the estate of their intestate. They had not the opportunity of accepting and using them, and it is useless to speculate upon what they \vould have done, if it had been afforded.

We are not .departing from, nor do we intend any modification of, our repeated decisions, that if debts were paid to an executor, administrator, or other trustee, clothed with the legal title to them, in Confederate treasury-notes, in the absence of fraud or collusion, the debt is extinguished. The distinction and difference, clear and marked, between that class of cases and the present, was pointed out in Waring v. Lewis, 53 Ala. 632. An attorney, or agent for collection, is in no sense an owner of the debt — he has but a special authority, and all who deal with him must, at their own peril, inquire into and ascertain its nature and extent. There can be no presumption that it extends beyond the reduction of the debt into money, or that which, because it circulates at par as money, has by general consent in the transaction of business, the qualities and uses of money. An executor, administrator, or other trustee, clothed with a legal- title to choses in action, of which the power of disposition is an incident, is not in any sense an agent, nor as an agent is he confined and limited in authority and duty. It is his duty to collect the choses in action ; to reduce them into possession ; and he may do whatever his judgment may dictate, subject only to his liability to his cestui que trusts for his good faith and diligence.

But it was not competent for the administrators appointed in Texas, deriving authority only from letters of administration there granted, by the mere force of such letters, to collect or receive the purchase-money of the lands due from Sawyer. Until they had caused the record of their letters, duly authenticated, to be recorded in the probate, court of the county in which thgy_soaght, .io~r-educ’e to possession the choses in action of th§ intestate, and given bond as required by the statute, they were without authority to receive payment of such ch-dses in action ; and a payment to them would have been unavailing against the claim of a domestic administrator, or/of creditors, or next of kin. — Code of 1876, §§ 2637-40; Hatchett v. Berney, MSS. A principal can not confer authority on an agent to do that in his behalf which he has not$\e ability to do for himself, if personally present and .Jteting. Beside, it is clear, that the appellee was not the agent of the foreign administrators — from them he derived no authority, nor had they any voice in his selection. Whatever of authority he exercised, was derived from the delegation of Caldwelí, who had himself a bare power or authority, incapable of delegation without tbe consent of- his principals. Story on Agency, § 13; Johnson v. Cunningham, 1 Ala. 249; Couthway v. Bergham, 25 Ala. 393; Hitchcock v. McGehee, 7 Port. 556. Without dwelling now upon other facts in the case, which seem to indicate that Sawyer’s debt was paid only by an extinguishment pro tanto of the debt due to him from the appellee, and which it would not be insisted could operate as a payment, entitling the appellee to a divestiture of the le.gal estate residing in the appellants, for tbe reasons stated, we must pronounce that debt unpaid, and that tbe appellee’s claim to relief can not be supported.

ido far as the appellee paid debts of the intestate, if be bad not other funds which were, or ought to have been, appropriated to that purpose, be is entitled to. a credit for them in the computation of the debt of Sawyer, and has an equity to redeem on paying that debt. By the amendment of the bill, the equity may be asserted, and we remand the cause, that he may, if he so elects, have the opportunity of amendment.

Reversed and remanded.