Planters' Bank v. Neely , 8 Miss. 80 ( 1843 )

Mr. Justice Clayton

delivered the opinion of the court.

John G. Neely and wife, as the administrator and administratrix of William King, deceased, procured an order from the probate court of Claiborne county, for the sale of the personal estate of the decedent to pay its debts; and in December, 1840, the sale took place. About fifty-five slaves and other personalty, all of which had been appraised at the aggregate sum of twenty-one thousand two hundred and six dollars, were sold for the sum of four thousand four hundred dollars. At the December term, 1840, of the said probate court, the Planters’ Bank filed a petition, alleging that the estate was largely indebted to it, and praying that the sale might be set aside; and at the January term, 1841, the court did set it aside, upon the ground of fraud, collusion and inadequacy of price. It does not appear from the record that any bill of exceptions was taken at the time, or any appeal prayed. At the following February term, Neely and wife filed a petition for a rehearing, which was granted, and the order made at the previous term, setting aside the sale, was annulled. The petition for a rehearing states that a bill of exceptions, embodying the testimony given in upon the trial at the January term, had been signed by the court, and that they had prayed an appeal, which was granted; but that the day after the adjournment of the court, it was ascertained that the bill of exceptions bad been lost, and could never afterwards be found. This allegation was probably the ground on which the rehearing was granted. The cause was continued until the September term of the court, when the sale was confirmed and ordered to be recorded. From this order the case comes by appéal to this court.

As a general rule, a rehearing cannot be granted after the term is passed in which the decree was pronounced. A bill of review is then the only remedy. Hodges v. Davis, 4 Hen. & Mun. 400; 1 Caine’s Ca. in Er. 96; Dunham v. Winans, 2 Paige, 24.

The loss of the bill of exceptions does not, by any means, afford a satisfactory reason for the granting of the rehearing. An appeal had been prayed and granted, by which, if the then appellants had executed the bond as required by law, the court below had lost all jurisdiction of the cause. What was the course proper to be pursued upon the loss of the bill of exceptions, we will not attempt to indicate; but we are satisfied the one taken was not correct. As there are other grounds, however, on which the judgment will be reversed, we shall not dwell upon this.

An administrator is but a trustee, and the assets a trust fund, for the creditors and distributees of an estate. 1 Sto. Eq. 506; Cable v. Martin & Bell, 1 How. 561.

Any fraud upon the part of the administrator, which tends to defeat the ends of the trust, wilL justify the court in declaring his acts void, whenever it can be done without prejudice to the rights of innocent third persons. The title cannot pass unless for the purposes and in the manner prescribed by law. The probate court has the power to watch over the execution of its orders; to see that they are not made the instruments of fraud, and, when they are perverted to improper uses, to set aside the acts done under them. This results from the simple elementary principle that the power of all courts to apply the remedy is co-extensive with its jurisdiction over the subject matter. 4 Kent, 191; 4 John. Ch. R. 609. To hold otherwise, when it has been settled that its jurisdiction in matters of administration is ample and exclusive, would be to declare the utter impotence of the law, and to make the avenue to fraud in the administration of estates as broad and beaten as the public highway. But, in the application of the principle, regard must be had to the time when aid is asked, and to the rights of third persons innocently acquired. If, then, there is fraud in this sale, it must be set aside, as the application for that purpose Avas made at the earliest practicable day, and there are no third persons whose rights conflict.

The evidence in the record will show that Stamps, who acted as the agent of the Planters’ Bank, started to the place of sale with an intention to bid for the property, and that he fell into a strange delusion as to the place of the sale. That the petitioners contributed to create that delusion, and to take advantage of it, is most manifest. The testimony is, that Neely, one of the administrators, on the morning of the sale, called at the house of William Briscoe, one of the witnesses, and told him that Stamps was coming down to attend the sale, and that he would probably expect that the sale would take place at his house, and he requested the witness to Avait until Stamps came along, to accompany him to his house, to keep him company, and entertain him with a view to preAmnt his attending- the sale. The Avitness objected to doing so, but Neely insisted on his going to take dinner; this he did. He arrived there about eleven o’clock, found Stamps and William' Sims there, and they all remained at the residence of Neely, eating, drinking and talking until after dinner. Neely returned immediately before dinner, with four or five others; and after dinner the witness inquired when the sale would take place, and was informed that it was over.

Another witness, William Sims, states that he went to the residence of Neely to attend the sale, and to purchase negroes; that he arrived at his house at a quarter past nine o’clock, and was there all the time that Stamps was. The witness asked Mrs. Neely, the administratrix, at what time the sale would take place? she replied after twelve o’clock. He asked for the negroes, as he wished to see them before the sale; she replied that they were picking out cotton; that they would be there after a while, and that Mr. Neely had either gone or sent for them: He heard Mrs. Neely tell Stamps not to be uneasy or impatient, that the sale would not take place before twelve o’clock, and that she would not take any advantage, of him, but what was honorable. Stamps was also offered as a witness, but objected to on the score of interest, and excluded.

Thus it appears it was the plan of Neely to decoy Stamps to his house, and to have him entertained there, till the sale was completed. The witness to whom he applied refused to aid hirp; yet the plan was carried out. Stamps went to the house of Neely, was kindly entertained by one- of the parties; was desired not to be impatient; told that no advantage would be taken of him; kept in the belief that he was at the place appointed for the sale, and detained there under that belief until it was concluded. The witness, Sims, who went to>purchase slaves, was induced, by the conduct and conversation of Mrs. Neely, to believe that the sale was to take place at Neely’s residence, and was likewise detained there till it was over. If, in all this, there was no assertion of falsehood, there was at least a suppression of truth, which equally violates good faith, and avoids all transactions infected by it. Any subtle machinations, whether in words or deeds, designed to circumvent, amounts to a deceit which may be relieved against. Donelson v. Young, Meigs, 157; Story’s Eq. 200, 213.

There are other circumstances of suspicion, of no little weight, in the case. All the property was purchased by one man, at prices about one-fifth of the appraised value; the purchaser sets up no claim for himself, but alleges, it is said, that he bought for the children of Mrs. Neely, by her first husband, Mr. King. In many cases, equity will not permit parties to hold property acquired through the fraud of third persons. Story’s Eq. 258; 14 Ves. 289. Here the purchaser has parted with no money, and stands just as he did before the sale. It is not possible for the court to wink so hard as not to see the true character of'this transaction, and not to perceive in it a contrivance to secure the property to the family, without the slightest regard to the rights of creditors, who had the first claim upon it.

The sale could not lawfully commence till after twelve o’clock; it was concluded, the parties concerned in it went a mile, and dined at an hour so early, that after dinner one of the company inquired when the sale would commence. He was informed it was over. Fifty-five slaves, the stock attached to the farm, the crop of corn and fodder, the plantation utensils and household furniture, were all sold in so short a time that one of the witnesses after it was over, asked when it would begin. The loss was four-fifths of the appraised value, and about the same ratio compared with the advance offered to be made by the Planters’ Bank. Such indiscreet haste and ruinous sacrifice demand that a corrective should be applied.

The last order of the probate court will be reversed, and its first order setting the sale aside, because of fraud, affirmed.

Decree reversed.