Cummings v. Johnson ( 1887 )

Cooper, C. J.,

delivered the opinion of the Court.

The bill in this cause is exhibited by the administrator of James Betts, who was administrator of Joseph Betts, and is against William Cummings, the purchaser at the administrator’s •sale of the lands of Joseph Betts and Martha J., his wife, to whom he has conveyed the lands so purchased. It charges that though James Betts reported to the court that Cummings had paid the purchase money in full, the truth is that no part thereof had been paid, and there is filed with the bill a note executed by the purchaser at the time of the sale for the amount of his bid. The purpose of the bill is to fix upon the lands in the hands of Mrs. Cummings (who is a volunteer) a lien for the purchase money in favor of the estate of James Betts, he having accounted to the estate of Joseph Betts therefor.

The defendant answers and defends the suit on the following grounds:

1. That the sale of the lands was void and conferred no title. '

2. That James Betts, the administrator, intended the purchase price of said land as an advancement to his daughter, the defendant, Mrs. M. J. Cummings, and took the note of her husband, Wm. Cummings, the purchaser, as a mere memorandum of the amount so advanced and not as an evidence of debt.

■ 3. An offset is interposed consisting of a claim against James Betts for care and attention bestowed by the defendants on the non compos Minnie Betts, widow of Joseph Betts, at the request of James Betts.

■ We dispose of the second and third defences by the simple statement that the evidence is insufficient to support them.

■ The sale of the land is said to have been invalid : 1. Because there was no valid order of sale. 2. Because the homestead,of the intestate, Joseph Betts, was sold under the order when the same had descended to his widow Minnie, and was not subject to administration.'

It is asserted by counsel for appellants that the order of the clerk for the sale of the lands was not entered upon the minute's of the court, but is evidenced only by a paper found in the files of the administration in the form of a decree signed by the clerk in vacation, and it is insisted that such an order is insufficient to .uphold the sale.

We decline to pass upon the question.of the sufficiency of an order of sale evidenced, as it is asserted this order is. We do not know from the record whether the order was spread upon the minutes of the court and signed there by ..the clerkdn vacation, and approved by the court at its succeeding term, or was written upon a separate paper and filed among the papers. The note of evidence does not show what parts of the record are from the minutes of the court, and what from the files of the papers in the administration; there is no bill of exceptions giving us information on the subject, and in 'the absence thereof, we must in support of the order assume that such proceedings in the cause of the administration as were proper to be entered of record were so entered.

The defence that the notes given for the purchase-money cannot be enforced, because the sale was made of the whole tract of land, including the homestead, cannot avail.

If the court, proceeding in administration, had jurisdiction to determine whether the widow was entitled to the homestead, and, consequently, whether the whole tract should be sold, or only so much of it as remained after-the allotment of the homestead, then its,decree is conclusive against the right of the widow to claim the homestead right, on the familiar principle that - a .decree is conclusive not only of those things which actually were decided by it, but also of all things which under the pleadings might have been decided.

If, on the other hand, the court had no jurisdiction to .pass upon the homestead claim, the defect in the title of the purchaser would not be in reference to any part.of the estate which thp administrator had .power to sell under the law, and the, rule of caveat emptor would. apply and preclude the defence. The purchaser-at an administrator’s-sale cannot defend against the payment of the purchase-money, upon the ground that a paramount -.title ,is outstanding in .another, by .reason .of which Ais purchase will be ineffective. It is only where he fails to get the title which is proposed, to be sold that he may defend against the purchase price; and a sale by an administrator only purports to be of so much of the estate as by law is made assets for the payment of debts.

If by the sale, therefore, the homestead right of the widow was defeated, the purchaser must pay the purchase price,because he gets the land. If the sale was ineffective to convey the homestead right, he is liable for the full amount of his bid, because the homestead right is in the nature of a paramount •outstanding title, of which he should have taken notice at his peril.

The decree is affirmed.