Shepherd v. Todd

Lumpkin, Justice. Mrs. Shepherd filed an equitable petition against Todd, one of the executors of her father’s estate, and one Wey, upon the trial of which action a nonsuit was granted, and she excepted. The reporter’s statement sets forth, in substance, the contents of the plaintiff’s petition; the evidence introduced in support of it, and the answers of the defendants. There was no waiver of discovery, and consequently these answers, in so far as they relate to facts within the knowledge of the defendants and are responsive to the allegations of the petition, are to be treated as a part of the evidence properly to be considered in passing upon the question of nonsuit, it not appearing that the responsive statements were rebutted in the manner prescribed by law. Indeed, they were not seriously disputed, in any material particular, by anything contained in the evidence of the plaintiff or of her husband. We deem it unnecessary to repeat or summarize the contents of the official report, but will content ourselves with mentioning a few of the most important facts, in view of which the judgment of non-suit was, we think, unquestionably right. The executor’s sale took place on the first Tuesday in February, 1889. The plaintiff knew in advance that the sale was to take place, and her husband was present when it occurred. While, according to her testimony and his, he was not there representing her as agent, he nevertheless promptly reported to her all that had been done. She was informed, not only that the property had been bid off' by John T. Harper, but also that the latter had transferred his bid to Wey, and that the executor had conveyed to Wey accordingly. With a full knowledge of these facts, she not only silently acquiesced in the sale, but consented to the payment by the executor of a physician’s bill for her mother out of its proceeds, and also, with a full knowledge that a deed to 31 the land had been made to Wey and that the purchase money paid by him had gone into the hands of the executor, received the benefit of her full share in the same without objection of any kind. The sale by the executor was fairly made; the land brought its full value; and the plaintiff, although she had consulted an attorney in 1890 with reference to instituting proceedings to set the sale aside, did not in fact begin her action until more than three years after the sale had taken place. It also appears that Wey bought in perfect good faith and .without knowledge of any complaint or objection on the part of the plaintiff or any other person interested in the estate. Without referring more particularly to other facts appearing in the record, enough has been stated to show clearly that the plaintiff fully ratified all that was done by the executor, by John T. Harper and by Wey; and that she accepted her portion of the fruits of the transaction which resulted in a conveyance of the land to Wey, without objection and with full knowledge of all the facts. Upon every principle of law and j ustice she is now estopped from attempting to set this conveyance aside. Indeed, matters have gone so far, she would not be permitted to do this even if she offered to restore to the estate the-money she has actually received and that of which she has had the benefit through the hands of the executor. Judgment affirmed.