Dorsey v. Smithson , 6 H. & J. 61 ( 1823 )

The opinion of the court was delivered by

Earle, J.

The bill of sale, which gate rise to the dispute between the parties in this cause, was executed and acknowledged before a justice of.the peace, but was not recorded as the act of assembly directs.

It is void as to creditors, if made to their injury, but it Is binding on the donor, her executors, administrators and assigns, and all claiming under her or them, both at common law, and under the act of assembly of 1729, ch. 8, s. 6. Being an obligatory instrument on the donor, and those claiming under her, the appellant, as her executor, has m right to the goods and chattels mentioned therein, nor is there any legal excuse for his possessing himself of them even for a time. He is estopped to allege that the deed is in fraud of the creditors, and there being lio other ground on which he can contend for the property with the donee, William Smithson, the same is not assets in his hands, and he, as executor, is not accountable for it. The responsibility of an executor must depend on the means the law places in his power, to possess himself of the property-lie is to hold in aider droit, and where he is not armed with authority to tate possession of any specified chattel, he is Rot answerable for it. The goods and chattels in dispute not being assets belonging to the personal estate of Eled~ nor Smithson, it necessarily follows, that the appellant, as her executor; is without a legal excuse for attempting to possess himself of them, even for a limited ti me He could only do so for the purpose of administration, and they, wfere clfearly riot Objects tó be administered on by him. If the bill of sale under Consideration is fraudulent to creditors; William Smithson, the appellee, is chargeable to'them, to the full extent Of the articles, transferred, as executor, de son tórt of Eleanor Smithson. Any or all of lier creditors may süe.him, as exfecutor, in liis own' wrong, rind secure their debts' by executions on the property.' And nd reason appears to the court; why the appellant himself, if he is a prejudiced creditor, rimy riot sue in this character, and recover his debt of Smithson, the rippellee. His being the rightful executor Will not obstruct bis action, for there are many instances, rind if fraud exists in this, it is one of them, where there may be a rightful executor; and an executor de son tort, of the same person, at the same time. See 3 Bac. Ab. tit. Executors & Administrators, (B) 22. The appellant also claims the right to possess himself of the property mentioned «rthfe bill of sale, because beds a creditor of his testatrix, the deceased. Mrs; Smithson. This is not allowable to him more than to any other creditor. It is not for a Creditor tct carve for himself and seize oil his debtor’s property wherever it is tó' be found, but he must resort for redress, when his right is withheld from him, to his action at law. Neither can the appellant defend Iris possession of the disputed property as a creditor, against this replevin, on the' score of fralud in the donor. But if it were conceded .to him to be a legal defence, yet it would not avail in this cause. For it is distinctly admitted, in the' case stated, that the' cfonor executed the bill of sale upon a lawful consideration, and Without an intention to defraud her creditors, and that at her'death, she left estate sufficient to pay all her debts, exclusive of the property transferred by that instrument.-

In every view we have taken of the decision of the court below, we approve of it¿ and therefore we affirm their judgment.

JUDGMENT' AFFIRMED._