Nosworthy v. Blizzard

Trippe, Judge. 1. The act of December 17, 1859, makes valid all sales of real estate theretofore made by executors, administrators, etc., by private contract, and afterwards advertised and sold at public outcry for the purpose of perfecting titles. The sale in this case was made at public outcry, after the passage of that act, to-wit: in May, 1860. It appears that the person who bid off the land for defendant in error was both his agent and the agent of the administratrix. At the time of the sale it was declared publicly that it was made to perfect titles to the defendant in error. We think this brings the sale within the rule that makes such sales open to review at the option of the •parties at interest: Code, section 2566; and that under the evidence there should be a rehearing of the case. 2. If such a purchaser can show that he gave the value of the land, and that though it was paid for in other property, [674] yet the administratrix was a creditor of the estate to the amount of such value, and did in fact receive the property in which payment was made, and never made any other collection of her debt from the estate, he can, in equity, protect his title fo the .extent that his purchase was of benefit to the estate. This principle is always recognized where one has dealt with a trustee, and the beneficiaries of the trust estate have had the benefit of what was received from him. Although his contract with the trustee may not be legal and valid, yet he has a right to reimbursement to the extent of what he has added to the trust estate, or to the .extent that the cestui que trusts have had the benefit of his property. 3. But the difficulty with the defendant in error is, that the evidence did not sufficiently show such a state of facts as will authorize him to claim the benefit of this rule. There was a statement in writing appended by the administratrix to her returns, looking that way, and this statement appears in the record. But it also appeared that it was ruled out as evidence, upon being objected to, and of course the defendant can take no benefit from it in this court. 4. The further question was presented, whether a widow who did not elect to take a child’s part in the land of her husband, was thereafter debarred by the acts of December 10th, 1807, and December 9th, 1841, from asserting that right. This case is controlled by those acts, the husband having died in 1853, intestate. By both of said acts it is declared that if a widow shall fail to make her election out of the estate of her husband within the time prescribed, she'shall be considered as having taken her dower, and shall forever after be debarred from taking any other part. The act of 1807 makes the time within which this election is to be made, one year from the death of the husband. By the act of 1841 it is changed to one year after letters testamentary or of administration have been granted, and this latter act reaffirms the disability on .her failing so to elect. The terms of both acts are clear and positive, and are a bar to the right of a widow to assert any claim to an interest except dower in these lands. [675] This being so, and she having been barred at the time the land was purchased by the defendant, he cannot set up such an interest in her for the purpose of protecting his title to that extent.» Judgment reversed.