Opinion
April Term 1818.
Death, or the removal from the State of attesting witnesses, is sufficient to allow the introduction of secondary evidence. (Acc. Stump v. Hughes, 5 Hay., 93, and cases cited.)
An executor or administrator may, under 1794, 5 (Code, 2025-2029), convey land sold by the decedent, though the bond for title be not registered. (Acc. Carter v. Parrot, 1 Tenn., 237; Bartlett v. Watson, 3 Sn., 287; Hale v. Darter, 5 Hum., 79.)
But if the obligation be for part of a tract of land so described as to adroit of its being located on one of two different boundaries of the tract, the case falls within the fourth section of the act, and must be adjudged by application to the County Court. (Changed by Code, 2029, so that the conveyance may be made according to the description in the contract.)
[Cited in: 5 Pickle. 587.]
In Error in Ejectment. —
On the 14th of February, 1786. Southerland Mayfield, the ancestor of John the defendant, made a bond with condition to Haggard for 200 acres of land on Indian Camp Creek, beginning at a big sycamore and coming down the creek. He had a grant beginning at the sycamore dated April 14, 1785. He died 1789; and Gibson, after marrying his widow, died in 1792. In April, 1789, letters of administration were granted to the widow. And on the 14th of April, 1705, she conveyed 200 acres, on the waters of Mill Creek (formerly called Indian Camp Crook). part of the land granted to Southerland Mayfield, on the 7th of March, 1786, beginning at a sycamore, then west 280, then north 114, thence cast 200, theme south to the beginning. This bond was never registered. If was proved thus, by one witness, that the body and signature was in the handwriting of S. Mayfield; that No len, one of the three subscribing witnesses, is dead, and that his name subscribed to the bond is in his handwriting; that the name John M'Gee he believes to be in the handwriting of S. Mayfield; that M'Gee lived in the station with Mayfield; at the date of the bond had left the county, and had not been heard of for ten years, and was reported to be dead. He said further that a person of the name of Gibson lived in the station at the same time, and married the widow of S. Mayfield, and is dead, but believes he could not write. He was the third subscribing witness.
The questions are: Is this bond well proved? Could the administratrix convey, without registration of the bond, under the Act of 1794, c. 5? Could she convey unless the land were laid off as directed by sect. 4? Were the heirs of Haggard barred, as against the administratrix, or heirs of S. Mayfield?
First, that the proof of the bond was sufficient, we refer to a decision at this term, and to the cases cited P. Evidence, 105. The handwriting of M'Gee and Gibson never can be proved, as they could not write at all.
Secondly. The next question is decided in Tenn. 237; that the executor or administrator may convey though the bond be not registered.
Thirdly. The fourth section of 1794, c. 5, section 4, relates to part of a tract to be conveyed, the position whereof is not ascertained in the bond, Here it is stated in the bond to be "200 acres, on Indian Camp Creek beginning at a big sycamore, and coming down the creek for complement, including a spring on the east side of the creek." This will admit of placing the 200 acres on the south boundary or on the east boundary, and, in either case, would be down the creek from the sycamore. But as the placing it one way might be more to the disadvantage of the heirs than placing it on the other, and as the law did not mean to vest any discretion in the executor as to which of several places the land should He at. therefore this case is within the fourth clause. This is a power which the executor ought not to have; for, in case of the personal estate, he might be tempted to give an option to the obligee, such as be might very unreasonably require, rather than pay the value of the bond out of the personalty.
As to the Act of Limitations of 1715, c. 41, section 9, and of 1789, where is the obligee in such a case as the present barred as against the heir? He has no demand against the executor when he elects the land, and can not therefore be barred as to him. His demand is only against the heir, and that too in equity, upon a trust to be performed by the heir, who. until performance, holds the land for the obligee; and he is only barrable, as in the case of equities, by the lapse of twenty years unaccounted for.
Upon this view of the case, though the evidence was improperly rejected, yet for want of the division directed in 1794, c. 5, section 4, the power given by the act to the administratrix has not been pursued; therefore the deed made by her is void, and the plaintiff's remedy is in equity for a specific performance.
The judgment of the Circuit Court ought not to be reversed, but affirmed.
Affirm the judgment.
NOTE. — The remark of the learned judge that the demand of the obligee in such a bond is in equity, upon a trust to be performed by the heir, and therefore barrable, as in the case of equities, by the lapse of twenty years, is clearly not law. See 5 Hay., 1, 69, 224. — ED.