Ventress v. Smith,
35 U.S. 161 (1836)

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U.S. Supreme Court

Ventress v. Smith, 35 U.S. 10 Pet. 161 161 (1836)

35 U.S. (10 Pet.) 161


The power to sue for debts due to the estate of an intestate is implied in the authority given to administrators ad collegendum, issued under the authority of the statute law of Mississippi.

Construction of the statute of Mississippi providing for the substitution of executors or administrators when either party to a suit dies before judgment.

It is incumbent on a plaintiff in error to make out an alleged error clearly, and satisfactorily. Every reasonable intendment should be in favor of a judgment of a court.

The administrator, in Alabama, had sold slaves belonging to the estate of the intestate without an order of court authorizing the sale and by private sale. By the court:

"The statute of Alabama, Laws Ala. 334, declares that it shall not be lawful for any executor or administrator to dispose of the estate of any testator or intestate at private sale, except where the same is directed by the will of the testator, but that in all cases where it may be necessary to sell the whole or any part of the personal estate, application must be made to the orphans' court for an order of sale, which sale is required to be at public auction after giving notice thereof as pointed out by the statute. The sale of these negroes, although bona fide and for a valuable consideration, was not made according to the provisions of this law. It was a private sale, and made without any order from the court. The order of sale expressly excepts the negroes. The sale was then not only without authority, but in express violation of the provisions of the statute. Such a sale cannot be supported upon any principles of law."

Executors and administrators, in making sales of property, must comply strictly with the requisites of all statutory provisions on the subject, and unless every essential direction of the law is complied with, all whose interests are affected by the authority to sell are not concluded by the sale, unless from a long acquiescence a foundation is laid for a fair and reasonable presumption that the requisites of the law had been complied with. No such presumption can arise in this case. It is a general rule of law that a sale by a person who has no right to sell is not valid against the rightful owner.

Authority given to executors and administrators to sell is a personal trust and must be strictly pursued, and if they transcend their authority in any essential particular, their act is void.

It has sometimes been contended that a bona fide purchase for a valuable consideration and without notice was equivalent to a purchase in market overt under the English law, and bound the property against the party who had right. But we are not aware that this Saxon institution of markets overt, which controls and interferes with the application of the common law, has ever been recognized in any of the United States or received any judicial sanction. At all events, no local usage or custom has been shown, applicable to the present case, to take it out of the general principle of the law of sales.

Page 35 U. S. 162

John Clark, of the State of Alabama, died in 1818 owning and possessed of certain slaves, and after his decease administration of his estate was granted to his widow. She afterwards intermarried with John Farrington, and an inventory of the estate was filed, the slaves being included in the same. On the first day of November, 1819, Neal Smith and his co-security for the administratrix, by an application to the proper court, had the letters of administration revoked on the ground that the administratrix and her husband were embezzling the estate of John Clark, and they stated that the negroes had been sold. Administration was granted to Neal Smith. The slaves were carried from the State of Alabama to the State of Mississippi, and were there sold. The County Court of Clark County, in the State of Alabama, in August, 1819, authorized the administratrix of John Clark to sell all the personal property of the intestate except the slaves, and it did not appear that any order to sell the slaves had ever been obtained. Neal Smith, sometime after he had been appointed administrator of the estate of John Clark in Alabama, procured letters of administration ad colligendum from the Probate Court of Wilkinson County in the State of Mississippi. They were in the following terms:

"State of Mississippi, Wilkinson County. To all to whom these presents shall come, greeting:"

"Know ye that whereas John Clark, of Clark County, in the State of Alabama, as it is said, had, at his decease personal property within this state, the administration whereof cannot immediately be granted, but which, if speedy care be not taken, maybe lost, destroyed, or diminished, to the end, therefore, that the same may be preserved for those who shall appear to have a legal right or interest therein, we do hereby request and authorize Neal Smith to secure and collect the said property, wheresoever the same may be, in this state or in Wilkinson County, whether it be goods, chattels, debts, or credits, and to make, or cause to be made, a true and perfect inventory thereof, and to exhibit the same, with all convenient speed, together with a reasonable account

Page 35 U. S. 163

of his collection, in the office of the register of the Orphans' Court of the County of Wilkinson. Witness the honorable Thomas H. Prosser, Judge of probates of Wilkinson County."

"[No seal of office] C. C. WEST, Reg.W.C.P."

Neal Smith, under the authority of the letters of administration ad colligendum, on 5 April, 1822, instituted, in the District Court of the United States for Mississippi, an action of trover against Lovic Ventress for the recovery of the slaves which had belonged to his intestate, and with the declaration in trover, a copy of the letters of administration ad colligendum was filed. The defendant appeared and pleaded to the suit, and it was continued to April term, 1823, when the death of the defendant was suggested, the case continued, and a scire facias was issued to Elizabeth Ventress, his administratrix. The administratrix appeared by her attorney at the succeeding October term, and the cause was "legally continued" until April term, 1825, when the death of the administratrix was suggested and the cause again continued. On 21 February, 1827, a scire facias was issued to William C. S. Ventress and others, the plaintiffs in error, executors of the last will and testament of Lovic Ventress, and at January term of the district court, they appeared, and the case was tried by a jury, and a verdict was rendered in favor of the plaintiff, on which judgment was entered by the district court.

On the trial, the defendant offered no evidence other than a bill of sale for the slaves made by James McDonald to Lovic Ventress, in consideration of $1,900, with proof that the same was paid at the time of sale, and that it was deemed a fair value for the slaves.

The plaintiffs offered in evidence the deposition of Neil McNair, and the defendant objected to the admission of a part of the same.

The court overruled the objection, and the following bill of exceptions was sealed:

"On the trial of this cause, the plaintiff offered in evidence the deposition of Neil McNair, the answer of which witness to the 10th cross-interrogatory:"

" 10th Cross-Interrogatory: Were they not sent away or entrusted to some person to be removed

Page 35 U. S. 164

and sold, by the administrator or administratrix, or other personal representative of said John Clark, in the State of Alabama?"

" Answer. Deponent saith that he hath reason to believe, and doth believe, that the said negroes were removed and sold, not by the authority or request of the administratrix or any other person representing said estate (the defendants, by their counsel, objected to as evidence to the jury on the ground of being inadmissible from the manner of its answer, and moved the court to rule it out as inadmissible testimony)."

"But the court overruled the application of the defendant's counsel and permitted the said answer to be read to the jury as evidence in the cause."

Upon the submission of the cause to the jury, the plaintiff's counsel requested the court to charge the jury:

"1. That it must appear in evidence to the jury that Abigail Clark was authorized by an order of the court in Alabama to sell the slaves or she could convey no legal title to the defendant."

"2. That it must also appear by evidence to the jury that James McDonald was authorized, either by a legal purchase or by a power from the administratrix, to sell the slaves, or his conveyance could not divest the estate of Clark of the legal title in his representatives."

"3. That unless both of the above facts appeared, to-wit, the authority of the administratrix to sell and the authority of McDonald, either by a legal purchase or power of attorney from the administratrix, that the title to the slaves still remained in the legal representatives of John Clark, deceased."

"4. That if the plaintiffs were entitled to recover, they were entitled to the value of the hire of the slaves, by way of damages, from the time the slaves came into the possession of Ventress."

The defendants' counsel also presented the court with the following points in writing, which they requested the court to give in charge to the jury:

"1. That if the jury shall believe from the evidence before them that Abigail Clark became the administratrix of the estate John Clark, deceased, in the State of Alabama, and, as such administratrix, held and possessed the slaves sued for, till her intermarriage with John Farrington, and that said Farrington and wife, in virtue of the administration of said Abigail, were also

Page 35 U. S. 165

possessed of the slaves sued for, and that the possession of these defendants, or their testator, of the slaves sued for, was acquired by, through, or from the said Farrington and wife, either directly or indirectly; then the plaintiff, as administrator to collect the estate of John Clark, deceased, has no right to recover in this action against these defendants."

"2. Will charge the jury -- if they shall believe, from the evidence, that the slaves sued for in this action were, since the death of said John Clark, held and possessed by Abigail Clark, his administratrix, in the State of Alabama, and that during her administration she intermarried with John Farrington, and that Farrington and wife possessing said slaves by virtue of the administration of said Abigail eloigned, wasted, embezzled, sold, or otherwise converted or disposed of them in violation of their duties as administrators of said Clark's estate, by which devastavit of said administrators, the slaves sued for passed to the possession of one James McDonald, who brought them to this state and sold them for a full and bona fide consideration, to Lovic Ventress, defendants' testator, who purchased in good faith, and without notice of such devastavit of said administrator, then the testator, Lovic Ventress, acquired a good title as against the plaintiff, and the verdict should be for the defendants."

3. Will charge the jury -- that if they believe, from the evidence, the slaves sued for belonged to the estate of John Clark, deceased, at the time of his death, and passed into the possession of his administrators, in the State of Alabama, who embezzled and disposed of the same in disregard of their duties as administrators, but that defendants' testator, Lovic Ventress, became an innocent purchaser of said slaves (in this state) for a valuable consideration, without notice of the maladministration of said Clark's estate in Alabama, then they should find their verdict for the defendants.

The court refused to instruct the jury in all or either of the several points as sought for and requested by the defendants' counsel as aforesaid, but did charge the jury as requested by the plaintiff, except upon the fourth point, in which the court was of opinion that hire, as damages, could be recovered only from the commencement of the suit.

Page 35 U. S. 166

The counsel of the defendants excepted to the opinion of the court in charging as requested by the counsel for the plaintiff and refusing to charge the jury as requested by them on behalf of the defendants.

The defendants prosecuted this writ of error.

Page 35 U. S. 167

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