Jackson ex dem. Bear v. Irwin , 10 Wend. 441 ( 1833 )

By the Court,

Savage, Ch. J.

The lessor, as one of the heirs at law of S. Bear, deceased, is entitled to recover, unless the heirs have been divested by operation of law. The statute of 1801 gave to the surrogate power to make an order authorizing the executors or administrators to sell and convey the real estates of their testators or intestates, whenever it should be shewn to be necessary for the payment of debts. It has been decided, in Jackson v. Robinson, 4 Wendell, 440, that the suggestion of the administrator by way of petition, accompanied by an account, is sufficient to give the surrogate jurisdiction of the subject matter. Upon due examination of the matter, if the application is well founded, the surrogate was authorized to make an order directing a sale of a part or the whole of the real estate of the deceased ; that the sale should be made and the conveyances executed by the executors or administrators applying for such order; that the conveyance should set forth the order, and should be valid and effectual against the heirs and devisees of the testator or intestate and all claiming under them. If therefore the proceedings by the administrators in this case have been regular, and the lot in question has been sold and conveyed according to the directions of the g¿ajUf e; ¿he defendant has the better title. It is proper, therefore, to examine the objections which have been made to the deed.

It is said the deed is void for want of certainty in description in the order of the surrogate. The description is this : “ So much of the hundred acres on lot No. 4 as is known and distinguished by the town plot called the village of Jefferson.” It seems that a map was referred to, called the town plot, and on that map a portion of a 100 acre lot was laid down as the village of Jefferson. Such a description, I apprehend, is sufficiently definite. Whether it was necessary and proper to order the whole plot of a village to be sold is not a question of inquiry in this cause. If the parties interested had any objection to the order when made, they might have appealed from it to the proper tribunal, and thus have corrected the error, if any. The order of the surrogate authorized a sale of the whole of the village plot not already sold ; it of course authorized a sale of every part, and there is nothing in the order ■compelling the administrators to sell the whole at once, and to be included in one conveyance ; it would have been indiscreet ■to do so, but with that we have nothing to do at present. The surrogate had the power; he has exercised it, and in a manner which was legal. The administrators, therefore, had authority to sell and convey the lot.

It is objected that the lot should have been sold at public sale. The statute of 1801, which we have been considering, gives no direction as to the manner in which sales should be made; they might be at public or private sale, in the discretion of the executors or administrators who were to make the sale. Were it not for the act of 1813,1 apprehend that objection would not have the appearance of plausibility. In the revision of that year, the provisions of the act of 1801, relating to the surrogate’s powers, are substantially re-enacted, and then follows a new provision, 1 R. L. 451, § 25, that no lands or tenements shall be sold by virtue of any such order, unless such sale be at public vendue, specifying the hours between which the sale shall be made, and directing what notice shall be given. If this statute governs in the present case, the sale must be admitted to be void, as it is not pretended that it was public, or after notice. But it is contended that the statute of 1813 can have no influence upon this sale; all statutes are prospective, and prospective only, unless they cannot have full operation and effect without a retrospective construction. The order spoken of in the 25th section is an order obtained under that act; of course, previous orders, obtained under the act of 1801 are not within its terms, nor is it necessary that they should be construed to be within it; the 25th section can have a fair and reasonable operation without such construction. The deed from the administrators bears date May 13, 1814, subsequent to the act of 1813; but as it was executed by virtue of an order'granted under the act of 1801, which did not require either notice of the sale, or a public sale, neither was necessary. I am now supposing that the sale was made in 1814. The defendant offered to prove that the contract was in fact made by parol, and the consideration paid anterior to the act of 1813. This evidence was rejected, but on what ground the case does not inform us; probably because the judge was of opinion that the administrators were to be governed by the act of 1813. It is true that a sale of lands in contemplation of law is not made, that is completed, until the conveyance is executed ; but if a parol contract was made before 1813, for the sale of the lot in question, had the purchaser paid the consideration and received possession, there can be no doubt that a court of equity would have decreed performance, and compelled the administrators to convey. This consideration raises an additional argument in favor of the conclusion that the sale and conveyance must be under the law of 1801, notwithstanding the intervention of the act of 1813, between the payment of the consideration and bargain, and the actual conveyance. Were it not in the power of the administrators in 1814 to execute a valid conveyance, without reciting notice of a sale at auction, and shewing a sale so made, it will be seen that in the case supposed no conveyance could be executed; the sale could not be completed; the purchaser could not receive a title, and possibly must lose the consideration paid. Neither of the acts of 1801 or 1813 are limited as to (he time within which sales shall be made by virtue of the orders obtained under them. I am therefore of opinion, upon the facts in the case, without the evidence which was offered and rejected, that the sale and conveyance were legally made to Ephraim Bear.

In 1810 an order Was obtained authorizing the administrators to lease property to pay the debts; and it is contended that this order operated as a revocation of the previous order for sale. The order, in its terms, certainly is not a revocation. The power of leasing was not authorized until the year 1810, and therefore could not have been obtained when the order to sell was granted. The act of 1813, which gives the surrogate power to authorize a sale, contains the authority to lease, and for aught I can find, either in the terms of the statute, or in its policy, I can see no impropriety in authorizing the administrators, in their discretion, either to lease, mortgage or sell the property, as they may find it can be most advantageously disposed of. The object is to dispose of the real estate to the best advantage, for the purpose of raising money to pay the debts. So far, then, from the one order operating as a revocation of the other, I apprehend they stand well together.

I think the judge was correct in refusing the evidence to shew the amount raised by leasing. Its only object could be to shew an abuse by the administrators of the powers vested in them. This is not an action calling upon the administrators to give an account of their trust; nor has this court any such power; nor is it a case where the purchaser is bound to see that the money raised by the sale is faithfully applied. There are other tribunals before which the heirs may call the administrators to render an account; but here we are pursuing the legal title, which is vested in E. Bear and his assignees.

The defendant is entitled to judgment.