Baines v. M'Gee

delivered the opinion of the court.

The complainant filed her bill as sole distributee of her deceased father, to which one of the defendants demurred. The record shows no disposition of the demurrer, although the case has been argued as though the demurrer was overruled; and probably this Was so, but we must be governed by the record. Immediately following the demurrer is an answer; and the record thus presents the defendant as demurring and answering. On this state of case the answer overrules the demurrer, and leaves the defence to rest upon the answer. Depositions were taken, and the defendant set the case down for hearing on bill, answer and proofs, which disclose in substance the following facts, to wit:

Baines, the father of complainant, died intestate, in 1833, leaving a widow and one child, the complainant. Administration was taken, but not long afterwards the administrator died, and *217in 1837, administration de bonis non was granted to the widow, who afterwards intermarried with the respondent, MbGee. It is alledged that Baines left considerable personal property, which came to the hands of the administrators, amongst which was a' negro man named Joshua; that, on the 25th of May, 1838, the administrator and administratrix sold this negro at public sale, and that McGee, the administrator,'became the purchaser at $1601, which sale was made on a credit of twelve months. McGee afterwards sold the negro to Matthews, another respondent, and Matthews sold to respondent, Ford. The bill alledges that no part of the price has’been paid, and that McGee is also largely indebted to complainant, and is insolvent. It seeks to enforce the statutory lien, and it also charges that the purchase was void and did not divest the right. The answer admits most of the allegations of the bill, and states that Baines died possessed of four negroes, one of which complainant has, and that, although the property never was divided, yet that Mrs. McGee was entitled to half the estate, and that, consequently; McGee’s sale was valid, he having acquired a right by marriage, and on this ground resists the relief prayed. It is also stated that Matthews paid McGee for the negro. It appears from both bill and answer that the debts of the estate had been paid.

From the proof it appears that Baines left four negroes, one of which the complainant has, and also other personal property. That a witness had paid him $2100, which sum was due to Baines’ estate. That the estate was used by McGee and wife, except the negro delivered to complainant. That the estate never was divided, and thht the complainant had never received any of it except the negro mentioned. That there was a large amount of unpaid claims against McGee, and that he had.sold a large amount of property. On this state of facts the vice-chancellor decreed for the defendants, and dismissed the'bill.

The bill, we are constrained to remark, is rather inartificially drawn. The case would have justified a statement much more comprehensive and definite; and, unaided by the answer and proof, it would present a much more doubtful case for relief. But when we look at the whole case as exhibited by the ,record, *218a case for relief is made apparent. The object of the bill seems to be in the alternative, either to have the sale set aside and the negro declared to be a part of the estate, or to have the statutory lien enforced for the purchase money.

The first question then is, was the-estate divested of the right of property by the sale 1 On this question there is scarcely a feature in the case which is not fully covered by the case of J. & J. Cable v. Martin & Bell, 1 Howard, 558. It is conceded in argument, that the purchase of property by an administrator, at his own sale, is voidable for purposes of justice. This admission is certainly not repugnant to law, and goes far enough for the present case. Whether we would go further, and pronounce such a purchase void, we leave to be determined when it becomes necessary to'pronounce an opinion. Justice certainly requires that the purchase by McGee should be avoided in this case. It seems to be admitted on all hands, that the estate was out of debt. The answer is clear on this subject. He could only sell for the purpose of paying debts, or to enable him to make distribution. We cannot presume that the sale was necessary for the payment of debts; because there is a direct negative to such necessity. Nor is there any pretext that the sale was necessary in order to enable him to make a just distribution ; the proof is next to positive that it was not necessary. The estate owned four negroes, and twenty-one hundred dollars in cash, besides perhaps some other property, and it would be worse than rashness to say that this could not have been divided into two shares of equal value. Besides all this, it is quite apparent, that, if permitted to stand, the sale must work serious injustice to the distributee. The debts of the estate being paid, the distributee is entitled to her share, and she has not received one-fifth, probably not one-tenth of the whole amount. And it is made quite apparent that she never can receive her just proportion unless this sale is set aside. Setting aside this public sale, then, and the right of the respondent, Ford, rests upon the private sale made by McGee to Matthews, which affords no title which can prejudice the distributee. It is, then, like the case of Cable v. Martin if Bell, which was a private sale of negroes by *219an administrator, who had married the widow and was entitled to her portion of the estate; but the right of the purchaser was held to yield to the right of the distributees, on a bill in chancery to set aside the sale. In that case it was held that the husband, having acquired the wife’s right by marriage, his vendee would be protected to the extent of that right, but not beyond.it. And it was also held, that the.court of chancery had jurisdiction for the purpose of ascertaining and adjusting the respective rights of the parties. So in this instance, if the share of the distributee remains untouched, then the respondent will be protected. But her right is paramount to his, and if, on taking an account of the estate and profits, it should turn out that there is not enough to make out her distributive share, without the negro Joshua, then the respondent’s right must yield to her superior claim. Ford does not even pretend to be a purchaser without notice; so that if ignorance of the complainant’s rights would have saved him, he is still without excuse. The rights of the parties standing on this footing, it is plain that there is no adequate relief in the probate court. If the administrator were the only party it would be otherwise. Nor is there an adequate remedy in the circuit court. The administrator might maintain an action for property belonging to the estate, but in this instance he stands charged with a fraudulent disposition of the property to the other respondents. In order to get at the merits, it is necessary that he should be a defendant. It is no answer, either, to say that the distributee has a remedy on the bond. An illegal disposition of property by an administrator, is no disposition at all, and a court of chancery will not permit an estate to be squandered, and turn the distributee over to his remedy on the bond. Mal-administration is not merged in the bond; it affords a mere collateral remedy.

If we regard the public sale as valid, it does not change the result. The mortgage given by statute is intended for the benefit of the estate, not for the benefit of the administrator. When the administrator became the purchaser, the mortgage operated to secure the purchase money from him to the estate, for the use of those interested. He then occupied the place of mortgagor. *220He is usually the trustee for creditors and distributees, and when he places himself in a condition to defeat the trust, the cestui qui trust is entitled to his remedy to coerce it. If, then, the administrator purchased by a valid sale, the law created the mortgage for the purchase money; for it is express that the property shall remain liable for the purchase money ; and it remained liable in the hands of all purchasers under McGee. When Matthews purchased of McGee, his payment of the purchase money to McGee was not necessarily a discharge of the mortgage, for this was a mere individual transaction; payment to the estate was the only thing that could have discharged the mortgage.

As the defendant’s,counsel seem to think they are entitled to the benefit of the demurrer, we will say a few words on that subject, although it is not fairly presented by the record. This is not unlike the case of Murphy v. Clark * decided at the present term. The bill was framed, as it is in this instance, with a twofold aspect, either a specific delivery of the property, or an enforcement of the lien; and it was held that the demurrer was properly overruled, although in that instance the administrator was complainant. The bill’ contains a prayer for an account, and for general relief. The stating part of the bill contains only legitimate subjects for the interposition of a court of chancery, and the prayer for an account, must be construed to extend only to the subject matter of the bill. Its language does not go beyond what may be properly decreed.

The decree must be reversed,- and the cause remanded for such interlocutory order as may be necessary.