Opinion
(June Term, 1846.)
1. Where a person had agreed to purchase a horse, which was delivered to him and was to be his when he paid the full price, and he died before he completed the payment, this was a bailment coupled with an interest, which, on his death, vested in his personal representative.
2. Goods of a deceased person in the hands of an executor de son tort cannot be taken in execution for the personal debts of such executor, no more than in the case of a rightful executor or administrator.
APPEAL from DUPLIN Spring Term, 1846; Manly, J.
D. Reid for plaintiff.
Warren Winslow for defendant.
Trover for a horse. John Farrier had been the owner of the horse in question, and sold him to Hezekiah Grant, the plaintiff's intestate, upon an agreement that he should be the property of Grant upon the full payment of the purchase money. At the time of Grant's death $250 of the agreed price was still unpaid, but Farrier, who was a witness in the case, stated that he considered the horse as Grant's property at the time of his death. The widow, the present plaintiff, after the death of her husband, continued or took into her possession the horse, and kept him for twelve months. During this time an execution against her for her own debt was levied upon the horse, and at the sale the defendant became the purchaser. The plaintiff, who was present, forbade the sale and explained to the company that the horse belonged not to her, but to (342) the estate of her husband. She subsequently was duly appointed administratrix on the estate of Hezekiah Grant, and brought this action.
Under the charge of the presiding judge the jury rendered a verdict for the plaintiff. A new trial was asked for upon three grounds: first, that Hezekiah Grant was a mere bailee of the horse, and no right of property vested in his representative; second, that at the time of the conversion the plaintiff was an executrix in her own wrong of her husband, and the property in her hands was liable to the payment of her debts; and, third, the plaintiff, by her acts and claims in respect to this property, is estopped from claiming in any other right.
The presiding judge decided all these points against the defendant, discharged the rule for a new trial, and gave judgment for the plaintiff, from which judgment the defendant appealed.
We concur with his Honor in his opinion upon each of those points. From the evidence in the case the horse was not bailed to Grant; the right of property was in him by virtue of the contract. Although at the time of his death the whole of the purchase money was not paid, yet from the declarations of Farrier it is evident he had abandoned and given up any lien which he might have had on the horse, and that it belonged to Grant. If, however, Grant was but a bailee, it was a bailment coupled with an interest, which passed, upon his death, to his personal representatives. It cannot be necessary to cite authorities to prove that the goods of a deceased person cannot be taken in execution to satisfy the debts of his representative while in his hands as such representative. If it were, McLeod v. Drummond, 17 Ves., etc., and Satterwhite v. Carson, 25 N.C. 549, would be sufficient. In the (343) latter the Court do not so much decide the question as recognize it as established law. And, indeed, it has not been, in the argument here, denied; but while it is admitted, it is said that the principle is true only as respects rightful executors, and does not extend to executors in their own wrong. In other words, the shield which the law throws around the property of the deceased, while in the hands of him who has taken it into possession by permission of the law and under its sanction, is withdrawn when in the hands of a freebooter, who has taken them not only without the sanction of the law but in defiance of its authority. The cases to which our attention has been drawn upon this point do not sustain the argument. With one exception, they are all cases of rightful administrations. The one in 1 Sal., 295, Whitehall v. Squires, as reported by him, is in point. The deceased had put a horse into the possession of the defendant to agist, and, after his death, the plaintiff had promised the defendant to bury him, and in part payment of his bill agreed he should keep the horse. Subsequently, he took letters of administration upon the estate of the deceased, and brought the action in trover to recover the value of the horse. The majority of the Court decided the plaintiff could not recover, but Lord Holt differed with them. No reason is given in Salkeld for the judgment of the majority, but in Carthew, 108, it was held that the defendant was guilty of a wrongful act in keeping possession of the horse, and had thereby made himself executor in his own wrong, and that the plaintiff, by assenting to his so doing, was a particeps criminis, and was not at liberty to take the property from him. The opinion of Lord Holt is sustained by the whole Court in Mountford v. Gibson, 4 East, 441. But the case before us is essentially different. Here the plaintiff never did assent to the sale or agree the defendant should take possession of the horse. On the contrary, she forbade the sale. Se was in no wrong in that particular. And it is further to be remarked that the claim of the (344) defendant was for a debt which the plaintiff, as the rightful administrator, would have been compelled to pay — being for the burial of the intestate. It was said by Lord Ellenborough, in Mountford v. Gibson, that Lord Holt's opinion was founded upon the fact that the plaintiff had been guilty of but a single act, not done in the character of an executor, and, therefore, he was not an executor in his own wrong. The defendant's counsel urges that the long continued possession and use of the horse by the plaintiff in this case constituted her an executrix in her own wrong, and thereby subjected the property to her debts. Here, too, the cases referred to are those of rightful executors or rightful administrators. In Quick v. Staines, 1 Bos. Pul., 293, the wife of the plaintiff had been the widow of McPherson, and his executrix. She took possession of the goods in question and used them as her own for three months; she then married Quick and delivered over the goods to him; they were executed and sold for his debt, and the action was brought to recover them back. The Court decided the action could not be sustained, because the plaintiff, Mrs. Quick, had committed a clear devastavit in delivering the goods to her second husband after using them herself three months as her own. In remarking on this case, our object is to show it does not apply to the one we are considering, but not for the purpose of sanctioning the doctrine it contains. In Gaskill v. Marshall, 1 Mo. Rob., 132, and also reported in 5 C. R., 31, 24 E.C.L., Lord Tenterden ruled that an administrator who had taken possession of goods of the intestate and used them in the house of the intestate for three months might, as administrator, maintain trespass against the sheriff for seizing and, after notice, selling them under an execution for the administrator's own debt. This case is cited and approved by Lord Denman in delivering the opinion of the Court in Fenwick v. (345) Laywick, 2 Adol. Ellis, 42 E.C.L., 590. His lordship observes: "In that case, it is true, he ( Lord Tenterden) is reported to have said if the plaintiff had been in possession of the goods a very long time it might have been otherwise." What length of time will suffice to have that effect is not stated. And it may safely be laid down that no length of possession and use of the property of a deceased person by his personal representative, and which is not inconsistent with the trust by which he holds it, will subject the property to be sold under execution for the debts of the executor. In Fenwick v. Laywick, just referred to, Lord Denman, in remarking upon the length of time the goods had been in possession of the defendant, says: "Here the possession has been long, but then it is a possession consistent with the will and necessary to the trusts reposed." That, it is true, was not the case of the sale of an intestate's or testator's property to pay the debt of his representatives; but he considers the principles as the same. If such be the law as regards a rightful executor or administrator, upon what sound principles can it be said that it is different with an officious and tortious intermeddler? A rightful executor may sell the personal property of his testator; the legal title is in him, and the bona fide purchaser will acquire a good title: and this notwithstanding a misapplication of the purchase money by the executor in the payment of his own debt. Not so with an executor in his own wrong; he cannot, as against the rightful executor, pass a good title by sale except in making such payment as a rightful executor might be compelled to make. And yet, it is contended, the same property may be taken by execution to satisfy his individual debts. This cannot be so. It is directly in the teeth of Satterwhite v. Carson, 25 N.C. 549, and White v. Ray, 26 N.C. 14. In the former it was decided that whatever doubts might have rested on the question as it (346) respected a full executorship, it could never have been supposed that the testator's goods could be taken for the debt of an administrator pendente lite; and this because such an administrator has the right only to take care of the goods. But the law gives to the executor de son tort no such right. Is it possible a principle can be sanctioned whereby the estate of a deceased person is rendered less secure in the hands of an intruder than in those of him who is in the rightful possession of it? It cannot be. It would be offering a premium to fraud and violence, inconsisent [inconsistent] with the good order and justice of the country. But White v. Ray fully answers the question. In substance, it is the same with the one we are now considering. Upon the death of Pierce Roberts, his wife and children took possession of his personal property. The widow married Oliver, who lived with them and used the property for ten or twelve years as his own. The defendant, a constable, levied an execution, which he held against Oliver for his individual debt, upon the horse sued for. Administration was then granted to the plaintiff, who brought the action in trover for the conversion. The Court decided that the possession of the next of kin, though for such a length of time, where there was no personal representative of the deceased, gave them no legal title; and they acquired no such interest in the horse as was liable to execution for their debts, and that an administration granted after that lapse of time from the death of the intestate vested in the administrator the legal title, and he could recover. In that case, as in this, the long continued possession of Oliver and his use of the property were urged as a fraud upon his creditors; but it was held that did not divest the administrator of his legal title or prevent him from recovering. The only difference between that case and the present is that in the one we are now considering the plaintiff is the individual who was in possession of the horse and for whose debt it was sold; in the former, the administration had been granted to a third person. That surely (347) can make no difference; it is the right which appertains to the office of representative of the person who fills it that supports the action. And this is an answer to the last objection of the defendant. The doctrine of estoppel does not arise in the case; the plaintiff does not sue in her own right, but in auter droit. Fox v. Fisher, 3 Barn. Ald., 243, has no application to the present case. That arose under the bankrupt act of 21 James I., whereby all the property in the possession, order, and disposition of the bankrupt pass into the hands of his assignee. The bankrupt was in the possession of the goods of the deceased at the time of her bankruptcy, and a creditor of the deceased was appointed administrator, and brought the action against the assignee, and judgment was given for the defendant upon the wording of the statute. But for the statute the defendant would have been entitled to recover.
PER CURIAM. No error.