Roumfort v. McAlarney

Mr. Justice Gordon delivered the opinion of the court, June 5th 1876. At and before the decease of William H. Miller, he and the defendant were partners in the law business, occupying the same office, and, as we understand the evidence and the statements of the parties through their counsel, the property in suit remained in the [197] possession of the defendant until the bringing of the present action, and perhaps until this time. The defence rests solely on the ground of title acquired through the sale by Mrs. Miller. Though Mc-Alarney claims to be a creditor of the decedent, yet it is certainly not law that he can on this ground withhold the property in his hands from the lawful administrator. A creditor cannot be permitted thus to pay himself, to the detriment of the estate: Lomax on Ex’rs 80, 81. Besides this, the defendant’s claim is subject to a settlement between himself, as the surviving member of the firm of Miller & McAlarney, and the administrator, and until such settlement occurs and a balance is found in his favor, he has no debt which he can enforce against the estate of his co-partner. As, however, the court below rightly refused to consider this as a legitimate defence, we need pursue the subject no farther. What then was the title which he acquired through Mrs. Miller? If we assume that she is to be regarded as an executrix de son tort of her husband’s estate; that she took possession of the property in question, sold it to the defendant, received the money and applied it to the debts of the decedent, in such case it plight be that we should treat the title as having vested in the defendant; for under such circumstances the property would have passed into a quasi administration which it would be inequitable to disturb. But two important elements in the above proposition are wanting in this case: (1) Mrs. Miller had neither the possession of, nor the right of possession to the property ; (2) McAlarney did not pay her for it, and hence there was no administration thereof for the benefit of the estate. Hence, as we have already intimated, the 'defence must rest solely on the title acquired by the bargain and sale of Mrs. Miller ; as, however, she had no title her sale could confer none: Sellers v. Licht, 9 Harris 98. That, she paid debts of the estate does not help the matter, for in an action against her for the conversion of the goods of the estate, she could not plead the payment of such debts, but would-be allowed only to recoup them in mitigation of damages on the general issue : Saam v. Saam, 4 Watts 432; Mountford v. Gibson, 4 East 441. If, however, we accept the doctrine of Hardy v. Thomas, 23 Miss. 544, even this rule of recoupment fails where the action is for property remaining undisposed of in the hands of an executor de son tort. This same doctrine is intimated as probable in Buller’s Nisi Prius 48. This case, however, does not require us to endorse* the rule thus enunciated, for under any view, the defence admitted in the court below fails to bear the test of authority. The plaintiff’s point should have been affirmed. The judgment is reversed and a venire facias de novo is awarded.