Halliday v. Stuart
151 U.S. 229 (1894)

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U.S. Supreme Court

Halliday v. Stuart, 151 U.S. 229 (1894)

Halliday v. Stuart

No. 25

Argued October 12, 1893

Decided January 8, 1894

151 U.S. 229




The attorneys of record on both sides, in a suit in equity to enforce a lien on real estate in which a decree for sale had been entered and an appeal taken without a supersedeas, made and signed a written agreement that the property might be sold under the decree pending the appeal, and that the money might be paid into court in place of the property, to abide the decision on the appeal. The property was sold under the decree, and the money was paid into court. Held that the agreement was one which the attorneys had power to make in the exercise of their general authority and as incidental to the management of the interests entrusted to them, and that the principals should not be permitted to disregard it to the injury of one who purchased in good faith at a judicial sale.

The case is stated in the opinion.

Page 151 U. S. 230

MR. JUSTICE HARLAN, after stating the facts in the foregoing language, delivered the opinion of the Court.

This case presents a dispute as to the ownership of certain lands in Chicot County, Arkansas. The appellant, who was the plaintiff below, holds a commissioner's deed made by order of the circuit court of that county in a foreclosure suit brought by the personal representative of Junius W. Craig, while the appellees hold a commissioner's deed made by order of the same court, in the same cause at a subsequent date. The relief sought is a decree restraining the defendants from all attempts to take possession of the lands, or from obtaining a writ of possession for them. The bill having been dismissed, the present appeal has been prosecuted.

The transcript does not contain the pleadings in the suit in which the lands were sold, but from various orders made in that cause, copies of which are made exhibits to the bill in the present suit, the following facts appear:

On the 2d day of February, 1878, the equity suit of Emma J. Wright, Executrix v. Samuel R. Walker et al. came on to be heard in the Chicot Circuit Court on the answer and cross-bill of John S. Whittaker, executor of the estate of Horace F. Walworth, deceased, the motion to strike out a part of that answer and cross-bill, and a demurrer to the remainder thereof, the petition of Richard H. Stuart, and the motion to strike out the same, and the original pleadings in the cause. These motions and the demurrer were sustained, and it was adjudged that there was a lien on the lands here in question to secure the payment of a certain sum found to be due the plaintiff in that suit. The lands were ordered to be sold at public auction in satisfaction of that amount, on the notice required in cases of sales of land under execution, the terms being one-half cash and the balance in eight months, with a lien retained to secure the deferred payment. James R. Martin was appointed commissioner to make the sale. Whittaker, as executor of Walworth,

Page 151 U. S. 231

excepted to the decree and prayed an appeal, which was granted.

An order was entered February 5, 1879, appointing R. M. Gaines commissioner, in the place of Martin, to make the sale.

On the 27th of February, 1879, a written agreement, signed "C. H. Carlton and W. W. Wilshire," as "attorneys for Whittaker et al.," and by D. H. Reynolds, as "att'y for receiver," was filed in the cause, and was as follows:

"In the above-entitled cause, it is hereby agreed that the proceeds of any sale or sales that may be made under any order or orders of sale or decree of the court aforesaid shall be paid into said court by the master or commissioner appointed by said court, sitting in chancery or at chambers, for the sale of the property, or any part thereof, ordered or decreed to be sold by said court in said cause, and held by said court until the disposition of an appeal taken by said John S. Whittaker, in said cause, to the supreme court of this state, and now pending, is disposed of, and the mandate of said supreme court therein is filed in the office of the clerk of said circuit court, and then only in pursuance of such mandate in the further proceedings in said circuit court."

Commissioner Gaines made his report July 15, 1879, showing a sale of the lands under the above decree, upon due notice, on the 1st day of May, 1879, at which sale Halliday, being the highest and best bidder, became the purchaser at the price of $1,200, one-half of which was paid at the time in cash. The commissioner brought the cash payment into court, and reported for examination and approval a deed to Halliday retaining a lien for the deferred payment. The court confirmed the sale in all things, and approved the deed, directing its approval to be entered of record, endorsed on the deed, and recorded with it.

From the exhibits attached to the answer the following facts appear:

On the 30th day of October, 1880, the Supreme Court of Arkansas, in the above case, on the appeal of John S. Whittaker, executor, made the following order:

"This cause came on to be heard upon the transcript of the record of the Circuit Court of Chicot County, in chancery, and was argued by

Page 151 U. S. 232

solicitors, on consideration whereof it is the opinion of the court that there is error in the proceedings and decree of said circuit court in chancery in this cause in this, that said circuit court in chancery erred in striking out a part of the answer, as stated in the opinion, and also in sustaining the demurrer to the cross-bill and in decreeing in favor of the complainant. It is therefore ordered and decreed by the court that the decree of said circuit court in chancery in this cause rendered be, and the same is hereby, for the error aforesaid, reversed, annulled, and set aside, with costs, and that this cause be remanded to said circuit court in chancery for further proceedings to be therein had, according to the principles of equity, and not inconsistent with the opinion herein delivered, with instructions that an administrator de bonis non of J. W. Craig may be appointed, if there is none, and that he be made a party complainant."

The opinion of the Supreme Court of Arkansas, referred to in that order, was rendered at the May term, 1880, of that court, and is reported as Whittaker v. Wright, 35 Ark. 511, 514. That case was first before the court at the May term, 1875 (Wright v. Walker, 30 Ark. 44, 46) upon the appeal of Emma J. Wright, to whom letters of administration upon the estate of Junius W. Craig had been granted, and who had been substituted as plaintiff in place of Joshua M. Craig, former administrator of the same estate. The same opinion states that in Whittaker's cross-bill in the original cause, it is averred that Emma J. Wright, the plaintiff therein,

"had married and removed from the state, and so had ceased to be executrix, and that she had previously, on the 15th day of December, 1867, entered into an agreement in writing with certain of the principal creditors of the estate that the whole assets of the estate should be placed in the hands of a receiver, and to retire from the administration, in accordance with which agreement, and upon her application, a receiver was appointed, and he had taken possession and charge of the same, and her connection with the estate, and authority in respect to it, had from that time ceased."

The court, among other things, said:

"We therefore think the court erred in

Page 151 U. S. 233

sustaining the demurrer to the appellant's cross-bill. It also erred in striking out of his answer the averment that the complainant had married and removed from the state, and so had ceased to be executrix. Neither a married woman nor a nonresident of the state can be an executrix or administratrix. Gantt's Digest, secs. 9, 17, 35. If the averment was true, the complainant had no authority to further prosecute the suit, and though the assets of the estate were in the hands of a receiver, as alleged, there was no representative of the estate who might prosecute it, and it could not be further prosecuted until an administrator, with the will annexed, was appointed."

The decree was therefore reversed,

"and the cause remanded, that an administrator with the will annexed, of Junius W. Craig, may be appointed, if the complainant has ceased to be executrix, and for further proceedings."

On the 30th day of January, 1882, Stuart and Walker, as executors, etc., and as defendants in the cause which was then entitled

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