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
MR. JUSTICE THOMPSON delivered the opinion of the Court.
This case comes up from the District Court of the District of
Mississippi, upon a writ of error. It is an action of detinue to
recover five negro slaves of which John Clark, deceased, was the
owner. The plaintiff in the court below, prosecuted as
administrator
ad colligendum under letters of
administration granted by the Judge of Probate of Wilkinson County
in the State of Mississippi. The action appears by the record to
have been commenced in the year 1822 against Lovic Ventress, and
after the cause was at issue and before trial, Lovic Ventress died
and a
scire facias, tested the first Monday in April,
1823, was issued against Elizabeth Ventress, administratrix,
&c., who afterwards appeared in court, and the cause, as is
stated upon the record, was legally continued. At a subsequent term
of the court, the cause being legally continued, as is alleged, the
death of the defendant, Elizabeth Ventress, the administratrix, was
suggested and admitted to be true, and thereupon a
scire
facias was issued to the present defendants in the court
below, as executors of Lovic Ventress, tested the first Monday in
October, 1826, and due service thereof upon the defendants was
returned. The record then states that afterwards, in January term,
1834, to which term the cause was regularly continued by consent,
the
Page 35 U. S. 168
parties appeared by their attorneys, and the cause was tried,
and a verdict found for the plaintiff. Upon the trial two bills of
exceptions were taken. One in relation to the admissibility of
evidence, and the other upon instructions given by the court to the
jury upon the merits of the case, which will be noticed
hereafter.
It will be necessary in the first place to dispose of two
objections, arising upon the record, which have been raised against
the plaintiff's right to maintain the present action:
1. That the letters of administration
ad collegendum,
granted by the Court of Probates in Mississippi, did not vest in
the plaintiff any right or title to the possession of the property
in question, or authorize him to maintain an action to recover it,
even if a good title was shown in the legal representatives of John
Clark in Alabama.
2. That the record shows a discontinuance of the cause, and a
mistrial.
It may be proper to observe, with respect to the first of these
exceptions, that as it rests upon the disability of the plaintiff
to sue, it ought to have been pleaded in abatement, but as we think
the objection untenable, in whatever form it is raised, we shall
proceed to notice it in the manner in which it is now
presented.
These letters of administration recite that 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 be immediately granted, but which, if speedy care be not
taken, may be 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 a true and perfect inventory thereof, &c.
These letters of administration were granted under the authority
of an act of the Legislature of Mississippi, Laws of Mississippi
281, which empowers the chief justice of the orphans' court in the
county in which such justice resides, whenever he may deem it
necessary, to appoint an administrator to collect together the
goods of the deceased, for the purpose of depositing
Page 35 U. S. 169
them in the hands of the Chief Justice, out of which he shall
pay the debts of the deceased, and be liable, in law, as other
administrators. The argument at the bar is that the power given to
the administrator does not authorize him to bring a suit. That no
such power is expressly given, nor is it implied in the power to
collect. The words of the statute are, general, to collect together
the goods of the deceased. The power vested in the magistrate to
appoint such administrator is discretionary whenever he may deem it
necessary. And if the words of the act, upon any reasonable
interpretation, will admit of a construction which will uphold the
authority given by the letters of administration, they ought not to
be so construed as to impute to the magistrate an unauthorized
exercise of power. And if we look to the letters of administration,
the power to sue is necessarily implied in the language there used:
"We do hereby authorize the said Neal Smith to secure and collect
the said property, whether it be goods, chattels, debts, or
credits," &c. These words are amply sufficient to authorize the
bringing of suits, if necessary for the purpose of executing the
power, and is certainly no forced interpretation of the word
collect, as used in the statute, to consider it as implying the
authority to bring suits. In the case of
Irwin and Wright v.
Peak, Walker 386, decided in the Supreme Court of Mississippi
in the year 1831, it was held that an administrator
ad
colligendum, may bring suits. This power, however, in the view
of the court, rested upon a statute referred to in the opinion, but
which has not been produced on the argument of this case. But the
decision is so recent, and referring expressly to the statute, we
think we may safely rely upon it as an authority to sustain the
right to sue, under the power given by the letters of
administration in this case. And we the more readily adopt this
conclusion, because we think the right to sue is necessarily
implied in the authority to collect the goods, chattels, rights,
and credits. The grant of the power carries with it all the usual,
ordinary, and necessary means to effectuate the beneficial exercise
of the power.
2. The proceedings, as stated upon the record to continue the
cause, appear to have been in conformity to a statute of that
state, Mississippi Statutes 238, which provides that when any
Page 35 U. S. 170
suit shall be depending in any court and either of the parties
shall die before judgment, the executors or administrators of the
deceased, in case the cause of action by law survives, shall have
full power to prosecute or defend such action, and the court is
authorized and required to render judgment for or against the
executor or administrator, as the case may require, and a
scire
facias is authorized to be issued to call in the executor or
administrator to make himself a party, and such was the course
adopted in the present case, as appears from the record. Upon the
death of Lovic Ventress, a
scire facias issued to
Elizabeth Ventress, the administratrix, who appeared and became a
party to the suit, and the cause was continued, and upon the death
of the administratrix another
scire facias issued to call
in the defendants, the executors of Lovic Ventress, who appeared
and became parties to the suit, which, according to the record, was
regularly continued, by consent, to the term of the court when the
cause was tried. For what reason or under what circumstances
Elizabeth Ventress was appointed administratrix of Lovic Ventress,
when the defendants were his executors, does not appear. But the
court will not intend that it was without authority. Circumstances
may readily be supposed to have existed, that would require the
appointment of an administration for some special purpose. Whether
she was a general administratrix, or only one with limited powers
for some special purpose, does not appear. But when the record
states that the cause was regularly continued, by consent of the
present parties, who were fully competent to give such consent,
there can be no ground upon which this Court can now consider the
cause discontinued.
3. The next objection arises upon a bill of exceptions taken at
the trial relative to the admission of evidence.
The plaintiff offered in evidence the deposition of Neal McNair,
and the objection arises upon the answer to the tenth
cross-interrogatory, which is as follows:
"Were they not sent away or entrusted to some person to be
removed and sold by the administrator or administratrix or other
personal representative of John Clark, in the State of
Alabama?"
"Answer: Deponent saith he has reason to believe and doth
believe that the said
Page 35 U. S. 171
negroes were removed and sold, not by the authority or request
of the administratrix or any other person representing said
estate."
This answer was objected to on the part of the defendant, but
admitted by the court, to be read to the jury. The whole deposition
is not set out in the bill of exceptions, and this question and the
answer standing alone, unconnected with the antecedent and
subsequent interrogatories and answers, are in a great measure
unintelligible. The very form of the interrogatory shows the
question to have had relation to some antecedent inquiry, and is
vague and indefinite.
"Were they not sent away, or entrusted to some person (naming no
one) to be removed and sold by the administrator or administratrix,
or other personal representative of John Clark?"
It seemed to be a fishing inquiry, that would hardly admit of a
direct and positive answer. Had it been a direct question to some
specific fact, the belief of the witness would be no legal answer.
The belief of a witness is a conclusion from facts. The witness
should state facts, and the conclusion to be drawn from them, rests
with the jury. Although this answer, standing alone, may not be
strictly admissible, yet, when connected with other facts of the
deposition, it might not be objectionable. Subsequent inquiries
might have drawn from the witness the facts upon which his belief
was founded, and all being submitted to the jury, the belief of the
witness might be at least rendered harmless. It does not appear how
or under what authority this deposition was taken, or whether the
parties were present or not. If they were, and no objection was
made to the answer, it ought to be considered a waiver, and the
exception not allowed at the trial. It is incumbent on the
plaintiff to make out the error clearly and satisfactorily; every
reasonable intendment should be in favor of the judgment, and we
think the exception too vague to justify a reversal of the
judgment.
4. This second bill of exceptions embraces the merits of the
case, and turns upon the validity of the purchase of the slaves by
Lovic Ventress in his lifetime. The facts upon which the court was
called upon to instruct the jury on this question, are briefly
these:
The slaves in controversy were the property of John Clark,
Page 35 U. S. 172
of Alabama, and in his possession at the time of his death, in
the year 1818. This widow, Abigail Clark, was appointed
administratrix of his estate, and in May, 1819, intermarried with
John Farrington, and in June, 1819, filed an inventory of John
Clark's estate, including therein the slaves in question. On the
first of November of the same year, the letters of administration
to her were revoked and administration granted to Neal Smith, the
present plaintiff, in the court below. In August, 1819, the County
Court of Clark County, in the State of Alabama, authorized Abigail
Farrington, the administratrix of John Clark to sell all the
personal property of John Clark except the negroes, and it does not
appear that any order of sale of the slaves of John Clark had been
obtained. The defendants offered no other evidence of title to the
slaves, then a bill of sale from James McDonald to the defendants'
testator, in Wilkinson County, in the State of Mississippi, dated
November 2, 1819, for the consideration of nineteen hundred
dollars, which was paid at the time of sale, and which was deemed a
full and fair value of the slaves. Upon this evidence, the
plaintiffs' 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 of Alabama to sell
the slaves, or she could convey no legal title to them."
"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. These instructions the court
gave. A fourth was requested, which the court refused to give, and
which it is unnecessary here to notice."
The defendants' counsel also requested the court to instruct the
jury upon certain points, substantially as follows:
"1. That if they believe from the evidence that Abigail
Clark
Page 35 U. S. 173
became the administratrix of John Clark, deceased, and as such
held possession of the slaves in question, and that after her
intermarriage with John Farrington, she and her husband were in
possession of them, and that the possession of the slaves by the
defendants or their testator was acquired directly or indirectly
from or through Farrington and his wife, then the plaintiff, as
administrator to collect the estate of John Clark, has no right to
recover in this action against the defendants."
"2. If they believe from the evidence that Farrington and his
wife, so possessing the slaves by virtue of the administration
aforesaid, had wasted, embezzled, sold, or otherwise converted the
slaves in violation of their duty as administrators, by which
devastavit the slaves passed to the possession of one
James McDonald, who brought them to the State of Mississippi and
sold them to Lovic Ventress, the defendants' testator, for a full
and valuable consideration, and that he purchased them
bona
fide without notice of such
devastavit, then Lovic
Ventress acquired a good title as against the plaintiff, and the
verdict should be for the defendants."
"3. That if they believed that the slaves belonged to the estate
of John Clark, and passed into the possession of his
administrators, who embezzled and disposed of them in disregard of
their duty as administrators, but the defendants' testator, Lovic
Ventress, became an innocent purchaser of the slaves for a valuable
consideration, without notice of the maladministration of said
Clark's estate in Alabama, then they should find a verdict for the
defendant. These instructions the court refused to give."
It is unnecessary to notice separately the several instructions
prayed by the parties, respectively. The general question arising
under them, and one which lies at the foundation of the action,
relates to the sale of the negroes by Abigail Clark, the
administratrix of John Clark. The several instructions prayed on
the part of the plaintiff and given by the court, assume that, in
order to divest the plaintiff of the right to recover as the
present administrator of John Clark, it must be shown that his
first administratrix had authority to sell the slaves by an order
of the court in Alabama, and that James McDonald was authorized
either by purchase from the administratrix or by authority from
her, to sell the slaves
Page 35 U. S. 174
in order to divest the representatives of Clark of the title,
and take from the plaintiff the right to recover. The principle
assumed in the instructions asked on the part of the defendants, is
that the administratrix of Clark being in possession of the slaves,
and that possession having passed directly or indirectly to the
defendants, the plaintiff, as administrator
ad colligendum
of John Clark, cannot recover in this action. And that admitting
the administratrix had, by her conduct with respect to the slaves,
committed a
devastavit; yet if the defendants' testator
purchased them
bona fide and for a valuable consideration,
without notice of such
devastavit, he acquired a good
title to the slaves, and the plaintiff had no right to recover.
It may be observed here that the case is entirely silent in the
statement of the evidence with respect to notice by the defendants'
testator, of the situation of these slaves. The instruction prayed,
however, was subject to the decision of the jury upon that point,
and we assume, in the consideration of the case, that Lovic
Ventress was a
bona fide purchaser without notice, and
rest the question entirely upon the want of authority in the
administratrix of Clark to sell the slaves. It may be observed in
the first place that the letters of administration to her were
revoked before the sale to the defendants' testator. The revocation
was on the first of November, 1819, and the bill of sale bears date
on the day after. There may be some mistake, however, in this, and
we place no reliance upon it, as the want of authority in the
administratrix is clearly established on other grounds.
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
Page 35 U. S. 175
authority, but in express violation of the provisions of the
statute. Such a sale cannot be supported upon any principles of
law. In the case of the executors of
Emos v. James, 4 Mum.
194, it was held by the Court of Appeals of Virginia, that the sale
of a slave belonging to the estate of the testator by a person
named in the will as one of the executors, but who, at the time of
the sale, had not qualified or given the bond required by a statute
of that state, was void against the executor who had qualified,
although the sale was
bona fide and for a valuable
consideration.
It was admitted that if the question was to be decided upon the
principles of the common law, without regard to the act of
assembly, the sale would have been valid, the power of the executor
being derived from the will. But he not having qualified and
complied with the statute by giving the bond required, the
foundation of his authority was done away, and all his acts were
invalid, and the sale illegal and void. The present is a much
stronger case. The want of authority in the executor to sell in
that case rested upon the construction of the statute, influenced
in some measure by the policy which governed its enactment. But in
the present case the sale was against the express exception in the
order of sale, and in violation of the positive prohibition in the
statute to sell at private sale. The law in this class of cases is
well settled that executors and administrators, in making sales of
property, must comply strictly with the requisites of all statutory
provisions on the subject; and that 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, 7
Mass. 488, 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. 4
John.Ch. 368, 6 Con. 387. It was a maxim of the civil law that
nemo plus juris in alium transferre potest quam ipse
habet, and this is a plain dictate of common sense.
Page 35 U. S. 176
It was also a principle of the English common law that a sale
out of market overt did not change the property from the rightful
owner, and the custom of the City of London, which forms an
exception to the general rule, has always been regarded and
restricted by the courts with great care and vigilance that all
such sales should be brought strictly within the custom. Com.Dig.
Tit. Market E. 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. 1 John.
478. 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 principles of the law of sales. And although the
defendants' testator was a
bona fide purchaser, for a
valuable consideration and without notice, the sale being without
authority and against law; he acquired no title that will bind the
property against the party who has right.
The judgment of the court below must accordingly be
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the District of
Mississippi, and was argued by counsel, on consideration whereof it
is ordered and adjudged by this Court, that the judgment of the
said district court in this cause be and the same is hereby
affirmed, with costs and damages, at the rate of six percentum per
annum upon the sum adjudged by the said district court, to the
plaintiff in this Court in case the said plaintiff cannot have the
said negro slaves delivered to him.
