Neal v. Patten , 40 Ga. 363 ( 1869 )

McCay, J.

1. It is the positive provision of our statutory law that sales by administrators and executors shall be at public outcry, except sales of annual crops sent off to market, and of vacant lands, and in case of sale, by direction of a will, wheu the bill directs or, permits-a private sale : Code, sections 2514, 2526, 2412.

Some question lias been made whether in ease of a sale of mere personal estate, it is necessary to gét an order of the Ordinary to make the sale such as will pass the title out of the estate. It-is contended that the legal title is in the administrator, and that the provisions of the Code directing that the sale is to be under -the order of the Ordinary, is only directory to the administrator, and that if ho fail to act under such order, it does not affect the purchaser. This is a very nice question, and we do not now decide it. It is not necessary, in the decision of this case. However, it may be true, as contended, that the purchaser is not bound to see that the administrator is acting under the order of the Ordinary, as required by section 2513 of the Code, it is certainly true that the purchaser is bound to see to it that the sale is by public outcry. The purchaser is bound to see that the sale is apparently under the prescribed forms. A private sale, when the law requires a public one, is plainly and notoriously not apparently under the prescribed forms, and such a sale of property required by law to be sold ai public salé, conveys no title at law: Code, see. 2586.

2. As to annual crops. The statute expressly provides that they must be 'carried to market in order to supercede the necessity of a public sale. The reason is obvious. / Sale in the public market is in effect a public sale. In practice, there is a competition among the buyers, and there are certain' established usages as to weights, storage, etc., which answer all the purposes of a public sale. At any .rate, this is the clear language of the law, and a crop sold upon the plantation, and not carried to market, is not sold “ apparently under the prescribed forms,” if sold at a private sale: Section 2514, Code.

3. Nothing is better settled than that a mere direction in a will to pay the debts does not authorize an executor to sell without an order of the Ordinary, (Code, section 2526,) much less does it authorize a private sale, since by section 2526 of the Code, even though the power to sell be given, yet if the mode is not directed by the will, it is the duty of •the executor to pursue the mode prescribed for administrators. Prom the whole of this record it appears that th§re was no 'legal sale of this property, because it was not a public sale, and because, though it was cotton, (whether it was annual crops does not appear,) it was not carried to market. It seems to have been an admitted fact that this cotton was sold, not by the executor, but by a Mr. Polhill, who, it is claimed, was the agent of the executor.

4. It was, we think, proven by parol evidence that Polhill was taking care of and managing the property for the executor. But we do not think proof of this is any proof of a power to the agent to sell. The real question here was not whether Polhill was superintending the plantation, and taking care of the property for the executor; that, perhaps, might be proven by Polhill’s acts, and we are not sure that to this extent the parol proof was not right. The Court seems, however, to have gone further, and allowed Mr. Smith to prove the agency by a statement that he saw the power of attorney.

As the Court presented this case to the jury, the whole case turned upon the power of Polhill to sell. The fact that he acted as agent does not prove his poAver to act any more than the fact that he sold proves his power to sell, and even if the proof were plain, that Avith the approbation and consent of the executor, Polhill Avas in general charge of the plantation and effects of the estate, Ave do not think that any proof of a poAver to sell. Indeed, Ave doubt if at that time an executor could clothe an agent with power to effect a private sale, even of property which the executor himself might sell privately. Section 2154 of the new Code was not passed until 1865, and this transaction took place in 1863.

5. But it was plain in this case that whatever powers Pol-hill had, were in writing. Patten is a privy of Polhill; he claims under him, and his title depends upon Polhill’s powers, and their . extent. Those powers were defined by a Avriting, and so long as that writing is accessible, it is the best proof of its own terms. Perhaps the mere fact that Polhill acted as agent, and that the executor recognized him as an agent, might have been proven properly .by parol, but an agent and an agent with power to sell, are different things. The real question here was the extent of the agent’s power, and the fact that he was agent in the management of the plantation, did not establish, or go to establish, his power to,^ sell the property which, might be found there. His powers were defined by the written power, and,, that ought to have been produced.

6. The bill in this case charged that Patten and Polhill had combined and confederated together to move this cotton, that a portion had been moved and sold by Patten, and that they were about to move the remainder. Patten replies that he had bought the cotton in'1863 from Polhill, and that Pol-hill was the agent of the executor, with authority from him, by power of attorney, to sell, and the answer sets forth what purports to be a copy of the power, and adds further, that the proceeds of the sale were paid out by Polhill to the debts of. the testator. The Court charged the jury that the answer of the defendant responsive to the bill was evidence, and could only be overcome by a witness, and circumstances equal to a witness, and that Patten’s answer as to the agency was responsive.

We think this charge was error for two reasons. The general charge was right enough, but under the circumstances it was entirely too meagre. Here was in fact a statement by Patten that the proceeds of the cotton had been used by Polhill to pay the debts of the testator; clearly this was not responsive, and as the Court had made the general charge, it was"clearly the duty of the Court to charge the alternative rule, that when the answer was not responsive it was not evidence. We do not intend to say that in all cases it is the duty of the Court to .charge this alternative. But if there be in fact matter not responsive, which is material, and the Court lays down the general rule in such cases, be ought also to lay down the other rule, that matter .not responsive is only pleading, and is not evidence. We think, too, as it is p question of law, what is and what is not responsive, that in cases where there is in a bill both classes of matter, the Court ought to point out to the jury the distinction, and inform them, either by general principles or by specific mention of the irresponsive matter, of the bearing of the rule on the bill and answer before the Court. If the Court enters upon the question of the effect of the answer, he ought to do it .so as to do equal justice to bbth parties, according to the case before him.

It is very possible that under this general charge the jury may have considered Patten’s answer, as to the disposition of the proceeds of the cotton, as evidence, and in this way have done great injustice to the complainant. But we do not think' Patten’s answer, that Polhill was the agent of the executor, was responsive to any charge in the bill. The bill charges that the cotton was the property of the, deceased, Allen Cochran, and that Polhill and Patten had illegally assumed control of it, that thirty-seven bales of it had been taken away from the place by Patten and sold, and that there was danger that the remainder would also be taken away. To this Patten replies, admitting thafche had taken the thirty-seven bales, and claiming that he had bought the whole from Polhill as executor, but finding this was a mistake, he adds by a subsequent answer, -That he bought from Polhill as the agent of the executor, and he then sets forth what purports to be a copy of the power of attorney. It is assumed that this answer as to Polhill’s agency is responsive to the bill, and that the statement by Patten of this fact, and the production of the copy of the power proves the agency.

Is the statement in the answer and the exhibit proof that Polhill was the agent of the executor, responsive to the bill ? It is settled that when the defendant admits the charges of the bill, he cannot discharge himself by setting up new facts. The bill charges that the cotton was'the property of the deceased, and that Patten and Polhill had gotten the custody of it, and were proceeding to remove and dispose of it. The answer admits the fact charged in the bill, but sets up that Pol-hill is the agent of the executor, and that having been clothed with authority to do so,'he had sold the cotton to Patten. Iti seems to us that this is within the meaning of the rule to which we have referred. In the English Chancery Courts the example put, of responsive and irresponsive matter is,that an admission in an answer of the receipt of money, and a statement that at the same time it was disbursed, is all responsive, because the whole is stated as one act. But if the statement be' that it was disbursed next day, or at some future time, then the statement of disbursement is not responsive : Hart vs. Ten Eyck, 2 John. C., 94.

Here is an admission by Patten that he had taken and disposed of thirty-seven bales of the cotton, an admission that the whole had belonged to the deceased, aqd a statement of a wholly new and distinct avoidance, to-wit: that the executor had made Polhill his agent, with power to sell, that uncjer this he had sold, and that Patten bought and paid for the cotton., It is the setting up of a title, it is a new and distinct state of facts, not alluded' to in the bill, and entirely matter of avoidance.

7. But the charge of the Court on this point is error for another reason. Admitting that the bill had denied any authority in Polhill to sell, and called for an answer, yet if it appeared by the answer that the authority was in writing, then the answer does not prove the agency. An answer is but parol evidence. .If the fact stated be a fact that the law requires to be proven in a particular way, then it must be proven in that way. The execution of a deed must be proven in equity, as well as at law, by the subscribing witnesses, and it does not follow that because a fact stated in an answer is in contradiction'of certain charges in the bill, if the fact be one that must be proven, by the production of a paper, that the necessity of producing and proving the paper is dispensed with. The point of this case was, did Polhill have power to sell? Whether he did or did not, (assuming that the executor could give the power,) depends upon a written paper, as admitted by the answer. How does the defendant know that the copy he offers of this paper is correct? How does he know that it is not a forged paper? Does he profess to have been present at its execution, or to know anything upon the subject? His statements are mere hearsay. He refers to a paper, and professes to set forth its contents, yet there is no proof that such, a paper ever existed, nor is there any excuse given why the paper itself is not before the Court. By the English rule, and by the Chancery practice in this country, when there is a replication to the answer, all deeds and other exhibits must be proven as at law. Chancery does not dispense with the, rule that the best evidence must be produced, that deeds must be proven by 'the subscribing witnesses, that parol evidence will not be heard when the parties have reduced their agreements to writing, etc. These are as much rules of equity evidence as of legal .evidence. An answer is but parol evidence, and can only, if there be a replication, be proof of such matters as parol evidence can 'establish.

For these reasons we think the Court’below erred, and we reverse the judgment.