Union Stave Co. v. Smith , 116 Ala. 416 ( 1896 )

COLEMAN, J.

Barton B. Smith, the executor of the will of Henry F. Smith, without legal authority, sold to the defendant the timber growing upon certain lands of his testator. Under the contract, the defendant cut and converted a large quantity of timber, paid for the greater portion of it, and refused to pay for the balance. This suit was to recover that balance. Under the facts in the case, the court did not err in refusing charges No. 2 and 3 requested by the defendant. The essential facts upon which the plaintiff's right of action depends, are not materially controverted.

The legal questions are, can a vendee in possession of property of an estate, and who acquired possession of it under a purchase from an executor or administrator, retain .that possession and defend, when sued for the purchase money by his vendor, upon the ground that the vendor administrator or executor, from whom he purchased and received possession, had no authority to make the sale, and could convey no title? The other question is, when a person in possession of land, not claiming it in his own right, sells the same for a consideration, and puts the vendee in possession, can the vendee defend against the recovery of the purchase price, without surrendering possession, upon the ground, that his vendor had no authority to sell, and conveyed no title? At the time of the sale of the timber, the lands were vested in the children of the testator, one of whom and probably both had attained their majority, of full age, but the executor had not settled the administration of the estate. The decisions in this State are not consistent, at least upon the first proposition. In the case Riddle v. Hill, Admx., 51 Ala. 224, the administratrix Iiill sued upon a promissory note given for four mules sold by plaintiff as administratrix. The defense set up in the plea was, in effect, that the mules belonged to the estate of Charles W. Hill, and were sold by the plaintiff without authority, and that the sale was void. In the opinion the court declared, “as settled law, that a sale of personalty made by an administrator without an order of court, or under an order void on its face for want of jurisdiction passes no title to the purchaser.” There is no conflict of authority that we know of under our statute as to this proposition. This was all the plea asserted. The court went further, however, and declared that “it was. also settled, that there can be no recovery on the purchaser’s promise to pay the purchase money bn such sale,” citing Beene v. Collenberger, 38 Ala. 647, and authorities there cited. In the case of Beene v. Collenberger, supra, the facts showed, that Beene as the administrator of Ellen Chapman, without authority, sold two slaves to Collenberger and received the purchase money. Subsequently the administrator de bonis non of Ellen Chapman recovered from Collenberger the slaves, the court holding that the sale by Beene was without authority and null and void. After the recovery of the slaves, Collenberger filed a claim for the purchase money against the estate of Beene, who had died. The question before the court was, as to the allowance of the claim. There was really no question in the cáse which called for an adjudication of the question under consideration in the present case. The court, however, did declare as a proposition arguendo, that Beene could not have maintained an’ action on the contract of sale to Collenberger, the sale being contrary to law; citing in support of the proposition Pettit v. Pettit, 32 Ala. 288, and Fambro v. Gantt, 12 Ala. 298. The only principle decided in the case of Pettit v. Pettit, supra, bearing upon the question under consideration was, that the proceeds of a void sale of land sold by an administrator are not assets of the estate. This question was fully considered and re-affirmed in the case of Woods v. Legg, 91 Ala. 511, where a distinction was drawn as to the proceeds of an unauthorized sale of personal property by an administrator and a void sale of realty. In the case of Fambro v. Gantt, supra, the decision of the case was rested fairly upon the proposition that an administrator could not coerce payment of the purchase money for an unauthorized sale of slaves made by him, that such a contract was unlawful and void in its inception, and that no right of action can arise from an unlawful act. This decision announces the proposition that though the sale was unlawful and void, the administrator could not recover back the property from the purchaser by an action in his own name, on the ground that he was estopped. The general rule is that estoppels are mutual, and we do not well see why the doctrine of estoppel should apply to the administrator, and not apply to the purchaser, and not estop him from denying the right of his vendor to recover. In the case of Wilson, Admr., v. Armstrong, 42 Ala. 168, the question came fairly before the court, and it was held that “the order of sale was void, and the plaintiff (who was the vendor) cannot recover the purchase money.” Says the court: “We regret such is the law, yet it has been long so settled in this State.” It would seem from the foregoing examination of the decisions, the question was fully settled in this State.

We propose next to examine some of the authorities which declare a different rule. In Hickson, Extr. v. Lingold, 47 Ala. 449, the action was upon notes given for the purchase of lands sold by the executors. The defense was that the lands were sold without authority. The court held that the defense could not be made if the purchaser retained possession of the land. The invalidity of the sale was no defense to the action. Many decisions are cited in support of the proposition, among them that of Harbin v. Levi, 6 Ala. 399, in which it was declared that when a purchase is made from an administrator, and the property delivered under the sale, the purchaser can not defend upon the ground of an insufficient or defective title. It is said that “the general, if not the universal, rule is, that .one in this condition is estopped from denying his vendor’s title.” And in Ogburn v. Ogburn, 3 Port. 126, also cited, it was held that a vendee of a slave in possession, could not retain the slave and defend on proof of want of title in the vendor. In this caso the court declared, that as a vendee could not recover back the purchase money and retain the property, he was equally estopped from denying the vendor’s title, when sued for the purchase money. The decision in Hickson v. Lingold, supra, has been cited with approval in many subsequent decisions of this court. Bland v. Bowie, 53 Ala. 152; Sively v. Scott, 56 Ala. 555; Meeks v. Garner, 93 Ala. 17. In Morris v. Morris, 58 Ala. 443, it is declared as a general proposition, in support of which many authorities are cited, that “the executor and purchaser from him cannot be heard to controvert the legality of their own sales and purchases, because each is estopped, so far as they are personally concerned.” In the case of Martin, Extr. v. Truss, 50 Ala. 95, the action was upon notes given for the purchase money of land sold by the plaintiff as executor, and the defendant had been let into possession. It was held, that retaining the land, he could not defend on the ground that the sale was irregular, erroneous or even void. Others might be cited, but enough has been to show that the decisions are at variance. The principle prevails almost universally that where there has been a sale and delivery of property, and payment of purchase money, to authorize either party to rescind the sale, and recover back that which he has parted with, he must restore that which he has received; and that a purchaser of property on a credit, retaining possession, can not defend when sued for the purchase price, upon the ground of fraud, mistake, want of title in his vendor, or invalidity of the sale. Estoppels are mutual. If the purchaser retains the property, he can not set up the invalidity of the sale, by which he acquires the possession, when sued for the price. Why should a different rule be applied to sales by executors and administrators? We can perceive no good reason for it. In the present case, there are other considerations also 'why the defendant should pay for the timber. The contract shows on its face that plaintiff sold the timber on the lands of the estate of Henry F. Smith. No doubt both parties supposed the executor had authority under the will; but whether this be true or not, the defendant was not deceived or imposed upon. It knew precisely what it was purchasing, and as matter of law knew whether the plaintiff had authority to make the sale. It cut and converted the timber under the purchase, retains the timber and refuses to pay the purchase money. Again, it is in evidence that the children were informed of the sale, have accepted in part the purchase money paid under the contract to plaintiff, and have given no evidence of any intention to dissent from the sale. The general charge requested by the defendant (No. 1) was properly refused. There is no error in the record.

Rehearing granted, former judgment set aside, and the judgment of the trial court affirmed.

Affirmed.