Worthy v. Johnson , 10 Ga. 358 ( 1851 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] In Pendergrast and others vs. Foley and another, (8 Geo. R. 1,) this Court held, that where the title to personal property-vests in an executor, administrator or other trustee for an infant, who neglects to sue within the time prescribed by law, that the Statute of Limitations shall bind the infant, and that the interest of the minor, under such circumstances, will not be protected by the Act of 1817..

Apply this principle to the case before the Court.

[2 ] The sale by the executor and executrix in January, 1839, being a nullity, and so declared by this Court, (8 Geo. Rep. 236,) the title of the estate in the properly was not divested ; on the contrary, it was the right and duly of the executor and executrix, to have instituted suit forthwith against the purchasers to recover the negroes. Nor would they be estopped in their trust character, from maintaining the action, the law looking upon the void sale as their individual act. Paschal, administrator, vs. Davis, 3 Geo. Rep. 256.

The Statute, therefore, run against them immediately, as to so much of the property as was bought by third persons at this sale; and more than four years having elapsed from the date of the sale in January, 1839, to March, 1843, when the executor and executrix were removed from office, the bar was complete at that time, as to them, and consequently, to the present complainants also, who are the legatees of Thomas Worthy, the testator.

But suppose it were otherwise, and for this breach of trust by the executor and executrix, they had no right to maintain an action against the purchasers at their own sale, to repair the devastavit, and thus avoid the responsibility by recovering the slaves against a sale that must be treated as their own, because made without authority of law : In that event, it is clear that the Statute would commence running, as to this portion of the property, against Lewis Lovelace, the administrator de bonis non, from his appointment in March, 1843, and the bar would be complete as to him, before suit was instituted.

Wh ether a trustee who has converted the property of the cestui que trust can avoid his own wrongful acts or not, we should be reluctant to hold; we should be reluctant to hold* that the only remedy in favor of creditors and distributees or legatees, was against the defaulting trustee for waste or mismanagement. But one thing is very certain: if the vendee is protected against the administrator de bonis non, he is equally so against those who are beneficially entitled to the property of the tesiator.

In June, 1843, the negroes purchased by Mrs. Worthy were sold under an individual execution against her; and in February, 1844, those bought by Robinson, were sold under an individual execution against him. Lovelace qualified as administrator de bonis non, in March, 1843, but no action was commenced until September, 1848, and then by the legatees, and not by the administrator. At that time, the bar was equally full as to all that portion of the negroes bid in by the executor and executrix at their own sale, and subsequently re-sold to pay their private debts. Whether Lovelace has made himself personally liable for failing to sue in time, is a question we will not anticipate.

Judgment affirmed.