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 �
John G. B. Sims, adm'r de bonis non, etc. v. Samuel
R. Walker & others," filed, by leave of the court (but, so
far as the record discloses, without notice to Halliday), a motion
to set aside the decree theretofore rendered, and the sale and
order of confirmation made under it. On the same day, the cause was
heard on that motion, and on the mandate of the Supreme Court of
Arkansas, and it was ordered:
"It appearing that the decree of foreclosure and sale was
rendered when there was no representative of the estate of Junius
W. Craig, deceased, who could prosecute said suit, and that the
sale was made and confirmed when the cause was pending in the
supreme court on the appeal of John S. Whittaker, as executor of
Horace F. Walworth, deceased, and this Court had no jurisdiction,
etc., on consideration whereof the court doth adjudge, order, and
decree that said decree and sale and order of confirmation are null
and void, and that the same be set aside."
On the same day, Halliday not being before the court in any
form, that cause was finally heard, and the lands ordered to be
again sold to pay the claim of Craig's estate, which was declared
to be a lien on the lands, subject to certain claims of Stuart and
of Whittaker, as executor of Walworth.
Page 151 U. S. 234
The last sale occurred on the 10th of July, 1882; Stuart and
Whittaker, as agents and attorneys of the heirs of Walworth,
becoming the purchasers at the price of $2,000. That sum was
credited on their respective claims, which exceeded the amount of
their bid. The sale was confirmed, and a deed by the commissioner
to the purchasers was made and approved by the court.
Whittaker, as executor of Walworth, prosecuted his appeal from
the decree of February 2, 1878, without supersedeas, and the point
is much pressed by the present appellant that, independently of the
agreement of February 27, 1879, that appeal did not prevent the
sale of May 1, 1879 at which he purchased. This contention is based
upon sections 1293, 1294, and 1295 of the statutes of Arkansas, by
one of which sections it is provided that "an appeal or writ of
error shall not stay proceedings on the judgment or order, unless a
supersedeas is issued." Mansfield's Dig. 1884, Title Court --
Supreme, p. 386. The appellees insist that these sections do not
apply to judgments or orders affecting the estates of decedents,
and that, by section 1387 in the chapter relating to appeals to the
circuit courts from the judgments or orders of probate courts,
administrators, executors, and guardians are relieved from giving
bond on appeal, and "all orders against them as such shall be
superseded by the appeal." Mansfield's Dig. 1884, Title, Courts of
Probate, p. 405.
In the view this Court takes of the case, it is not necessary to
determine this question of statutory construction. In our opinion,
the appellees are estopped by the agreement of February 27, 1879,
from questioning the validity of the sale at which Halliday
purchased, upon the ground of its having been made pending the
appeal by Whittaker, as executor of Walworth. That agreement is
exhibited with the bill, and there is no dispute that it was signed
by the attorneys of the appellees after Whittaker had taken his
appeal. It is true that in their answer, appellees
"deny that pending said appeal an agreement was entered into
between these defendants and the plaintiff in said suit by which
these defendants agreed that the proceeds of any sale of property
under said decree should
Page 151 U. S. 235
be paid into court, and there held in place of the property, to
abide the decision of the case on appeal."
Upon comparing the allegations of the bill and the answer, it is
manifest that the defendants purposely restricted their denial to
those averments of the bill which stated what the plaintiff
supposed was the legal effect of the agreement. It is not denied
that the signatures of Carlton and Wilshire are genuine, or that
they were the attorneys of appellees in the foreclosure suit, nor
is it suggested or hinted that they acted in the matter of that
agreement without the authority, knowledge, or consent of
appellees, so that the answer only intended to make the point that
appellees themselves did not agree that the proceeds of any sale
should be held by the circuit court "in place of the property, to
abide the decision of the case on appeal." That is simply playing
upon words. The agreement was made after Whittaker asked and was
allowed an appeal, and it was one which the attorneys of appellees
might well have made in the exercise of their general authority and
as incidental to the management of the interests entrusted to them.
Saleski v. Boyd, 32 Ark. 74;
Holker v.
Parker, 7 Cranch 436,
11 U. S. 452;
Jeffries v. Mut. Life Ins. Co., 110 U.
S. 305,
110 U. S. 309;
Moulton v. Bowker, 115 Mass. 36, 40;
Cox v. New York
Central &c. Railroad, 63 N.Y. 414, 419. It was not, to use
the words of Chief Justice Marshall in
Holker v.
Parker,
"so unreasonable in itself as to be exclaimed against by all and
to create an impression that the judgment of the attorney has been
imposed on, or not fairly exercised in the case."
It was simply an arrangement by which a sale that all the
parties desired to take place at some time should not be delayed by
the pendency of Whittaker's appeal, and those who were parties to
it, directly or indirectly, should not be permitted to disregard it
to the injury of one who purchased in good faith at a judicial
sale.
If, as appellees now insist, the appeal itself, without
supersedeas bond, stopped all proceedings under the decree until it
was disposed of in the supreme court, the only possible object of
an agreement declaring that the proceeds of any sale or sales made
under any order of the court "shall be paid into
Page 151 U. S. 236
court," and held there until Whittaker's appeal was determined,
was to enable a sale -- a real, effective sale -- to take place
notwithstanding the appeal, leaving the parties to continue their
contest over the proceeds of sale, rather than over the lands in
suit. And if a sale took place under the decree pursuant to that
agreement, it was intended, so far at least as the parties to the
agreement were concerned, that the purchaser should take title to
the lands, if the sale was in conformity with the decree and was
approved by the court. Under all the circumstances, it must be
taken that the sale at which Halliday purchased occurred with the
assent of the appellees. Any other interpretation of the agreement
would impute bad faith to the parties by whom it was executed.
It is said the agreement was not effectual for any purpose,
because the only parties to it were the receiver of Craig's estate
and the counsel for Stuart and Whittaker. But it was assumed by the
parties to the agreement that if signed by those attorneys and by
the attorney of the receiver, it would be sufficient for all the
purposes therein expressed. If Craig's estate was not then before
the court by a personal representative competent to bind it, that
fact was known to those who were parties to the agreement.
Appellees in effect said, by the agreement, to all who might attend
a sale under the decree of 1878 that so far as they were concerned,
and notwithstanding Whittaker's appeal, they would look to the
proceeds of the sale of the lands, and not to the lands. Halliday
having purchased at a sale that took place with their assent, if
not by their procurement, and his purchase having been confirmed by
the court, the appellees ought not be heard now to say that they
will look to the lands, and not to the proceeds of sale.
The argument in support of the opposite view assumes that it
must be taken as true, as against Halliday, that Emma J. Wright
married, and removed from Arkansas, before the first decree of sale
was rendered, and therefore had ceased to be the personal
representative of Craig's estate. But no such fact is established
against Halliday in this case. It is true that the order of January
30, 1882, recites that when the original decree of foreclosure and
sale was rendered, "there
Page 151 U. S. 237
was no representative of the estate of Junius W. Craig,
deceased, who could prosecute the suit," and that the Chicot
Circuit Court at that date, "had no jurisdiction." But the want of
jurisdiction does not appear on the face of that decree. Nor does
the answer in the present case allege that, at the date of the
original decree of foreclosure, the estate of Craig was without a
personal representative to prosecute the suit, by reason of the
executrix's having married and removed from the state. Upon this
point, the answer only says that the Supreme Court of Arkansas
reversed the decree for the reason, among others, that "there was
no party plaintiff to said suit." But the supreme court did not
say, in its opinion or mandate, that such was the fact. It sent the
cause back 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." If the appellees desired to
make the point, as against Halliday, that Emma J. Wright, executrix
of Craig's estate, had married, and removed from the state, before
the decree under which he purchased was rendered, they should have
alleged that fact in their answer in this case, and established it
by evidence, if it was not admitted. But they did not adopt that
course. They have proceeded upon the ground that the mere recitals
in the orders of the Chicot Circuit Court, made long after Halliday
received his deed and without notice to him, would establish in
this case the fact that the original decree of sale, which shows no
want of jurisdiction as to parties or subject matter, was passed
when there was no personal representative of Craig's estate
entitled to prosecute the suit. But as against Halliday, they can
take nothing under the proceedings in the Chicot Circuit Court
after the return of the original cause from the supreme court of
the state, and in virtue of which the second sale took place. Of
those proceedings, as already suggested, he had no notice. No
direct issue was made with him as to the validity of the sale at
which he purchased. Not even a rule was taken against him to show
cause why his deed should not be annulled. The title he acquired
was of record in the very cause in which appellees obtained the
order setting aside the decree under
Page 151 U. S. 238
which he bought and the confirmation of his purchase, as well as
the order directing another sale of the lands, and yet he was not
notified that any steps were being taken to annul his purchase and
to cancel his deed. When appellees present a decree of sale under
which they purchased the lands, and in virtue of that decree, and
the sale had under it, claim the lands, Halliday may well say,
"Whatever may be the rights of Craig's estate in respect to the
lands, and whatever may be your right to the proceeds of the sale
at which I purchased, you cannot claim the lands purchased by me
under a former decree, which sale occurred with your consent, and
which purchase was confirmed, and a deed made to me, without
objection from you"
and this position is consistent with the principles of
equity.
As the decree of sale under which Halliday bought does not
appear to be void for want of jurisdiction in the court which
rendered it, and as, pending Whittaker's appeal, the sale at which
Halliday purchased took place with the assent of the present
appellees, and was confirmed by the court without objection from
them, the appellant should have been awarded, as against them, the
relief asked by him.
The decree is reversed, and the cause is remanded for
further proceedings consistent with this opinion.