Caperton v. Ballard , 4 W. Va. 420 ( 1870 )

Berkshire, J.

The first, second, fourth, and seventh errors assigned in this ease were considered, and the objections suggested by them overruled, in the case of Caperton vs. Martin, infra, and therefore it will be unnecessary to consider them. The third error assigned is, because no issue was made up on the defendant’s additional plea, No. 6. It purports to be a plea of accord and satisfaction with the administrator of the plaintiff, by'the 23ayment to him of a certain sum which, it is alleged, was the proceeds of the sale of the property described in the declaration which was received and accepted by the said administrator in full satisfaction of the trespass complained of, and prays judgment, &c.

The plaintiff, it appears, filed a special replication to this plea, traversing the fact that the sum of money mentioned in the plea, or any part thereof, was ever paid to the lawful administrator of the plaintiff’s intestate, or to any other person having authority to receive the same, and concludes to the country. If does not appear, however, that any issue was made up on the replication, by adding the similiter or-rejoinder. When a plea, replication, or subsequent pleading concludes to the country, the adding of the similiter being all that is necessary to complete the issue, the omission to do so is not error after verdict which will avail in the appellate court; but it is otherwise when the plea, replication, &c., concludes with a verification, and without anything more, a trial is had and a verdict or judgment rendered without any issue on such plea or replication. B. and O. R. R. vs. Faulkner, infra; Code 1860, ch. 181, sec. 3.

The fifth assignment of error is the ruling of the court in excluding evidence of the contents of a certain letter written by the defendant to Wilson Lively, mentioned in the defendant’s first bill of exceptions. From all that is disclosed in the record, I do not think any error was committed in rejecting the evidence referred to, nor do I think the letter in question, if produced, would have been pertinent evidence, or have any effect whatever, on the question before the jury. It appears that the property in controversy was sold under the defendant’s authority, or by his permission and acquiescence, and the measure of damages being the value of the property, it is not perceived how a letter, written by him to his deputy, by whom the sale was conducted, directing a 'postponement of the sale, which sale the defendant nevertheless allowed to be made, whereby bis liability was fixed, could help him or have any influence on the verdict of the jury.

The next objection which is assigned as error, is embodied in the defendant’s second bill of exceptions, and relates to what was said by the court in the presence of the jury in the delivery of its opinion in refusing the evidence offered of the contents of the letter from the defendant to Lively, before referred to, in reference to its knowledge of the official relations existing between the defendant and Lively, and the latter’s subordinate position under the former at the time of the trespass complained of.

It appears, however, that the court, at the same time, instructed the jury and explained to the counsel, that what had been said on this point was not evidence in the cause, nor intended to be, or to have any effect whatever on the deliberations of the jury, but that what was said was only intended to illustrate the opinion of the court then being delivered, and that the jury must disregard the same. If the impropriety of the statements of the court referred to were conceded, still I fail to discover any sufficient ground for reversing the judgment, from anything disclosed in the bill of exceptions we are now considering.

The remaining error complained of, which we are required to consider, relates to the action and ruling of the court on the first, second and third instructions asked by the defendant and set forth in his fourth bill of exceptions. The first instruction was refused and another given in lieu thereof. The other two were refused and no others given in their stead.

As to the first: I think it was clearly inadmissable, and that the one given in lieu of it properly propounded the law, and consequently there was no error in refusing the one and giving the other. The second, I think, was also properly refused. It involves the question of the validity of a settlement by accord and satisfaction of a debt or demand due the estate of a decedent by an executor de son tort, as against the rightful executor or those legally authorized to receive payment or to make such settlement. The proposition, I think, is untenable. It is well settled that an executor de son tort, so far as he is concerned himself, will be bound by, and held responsible for, all his acts as such, and those who deal with him as such, knowing his true character, may likewise be bound by their dealings with him. But it cannot, it seems to me, be so as to the rightful executor and others interested, except in so far as his acts are proper and legal, unless they have assented to, or acquiesced in, the illegal acts and proceedings of such wrongful executor; otherwise an irresponsible party would have it in his power to seize on an estate and, by fraud and collusion, convert it to his own use; a position, in my judgment, wholly indefensible. If such executor would have the right to collect the debts of a decedent for the legitimate purpose of paying the funeral expenses, for instance, or the payment of the debts generally, he would, in my judgment, have no right to compound or release the same, or anything else that would prejudice the rightful executor, or others interested in the estate; and as the executor de son tori, in this case, could not have sued the defendant and recovered in this case in the name of the decedent, William Ballard, I think it must follow that he had no authority to settle, by accord and satisfaction, or to release the cause of action to the prejudice of the rightful executor or administrator. 2 Tuck., 414.

The third instruction, in ipy view, involves a more difficult proposition than tfye two preceding. It is in these words: “If the jury believe from the evidence that the legatees or distributees of the estate of William Ballard, deceased, the former owner of the property in controversy, at the sale of the property by Wilson Lively, purchased any part thereof and paid for the same in confederate money, and afterwards had the said .confederate money returned by said Lively, then the plaintiff cannot recover in this action for such property.” If it was shown by the evidence in the pause, or could be justly implied from anything in the record, that the property referred to in the instruction was, in point of fact, purchased in by the legatees or distributees of the owner, ’William Ballard, and was held by them for the benefit of the estate, and there being, at the time ©f the sale, no legal representative of said estate, I would think there would be no such a case of conversion of the property thus purchased, as would make the defendant liable for the same. But it appears from the record that William Ballard, the owner, was then living, and, in legal contemplation, the sale to his children must be regarded, in the absence of evidence, that they purchased for the father, or that the property was in fact returned to, or came into his possession, as a sale to any cither person, and consequently a legal conversion of the property by the defendant to his own use.

TJpon the whole, I am of opinion to affirm the judgment with costs and damages.

The other Judges concurred.

Judgment aeeirmed.