Litchfield v. Cudworth

Morton J. delivered the opinion of the Court. The whole of the real estate described in the demandant’s declaration, and of which he demands certain undivided shares, was m 1807 the estate of John Cudworth. In that year Cudworff conveyed the same to his-son John Cudworth junior, who mortgaged it back to secure the support of his father ana mother during their lives. The son, having survived the father, died, leaving the mother alive, who is still living. This estate, upon the death of John Cudworth junior, descended to his children, subject to the mortgage aforesaid, and liable for the payment of his debts, if his personal property proved insufficient for that purpose. The portion of each heir vested in him upon the death of his father, and thereupon became liable to be attached and taken on execution in payment of his debts, and might be conveyed by deed, like other real estate. The demandant claims to hold the shares of three of the heirs ; one, by a deed from Azotus and Mercy Litchfield, another, by the levy of an execution on the right of Charles Cudworth, and the third, by the levy of an execution against Nathan Curtis, upon the improvement of the estate of his wife; Mrs. Litchfield, Mrs. Curtis and Charles Cudworth, being three of the heirs of John Cudworth junior, There appears to be no valid objection to the demandant’s — 27 — utle to Mercy’s share. By this deed, she and her husband convey “ all our right, title, interest and estate, in and to all the estate, real, personal or mixed, which John Cudworth and John Cudioorth junior died seised or possessed of. ” The argument that this will pass only their joint estate, is quite too technical and refined, especially when it is recollected, that they had no joint estate. It was the manifest intent of the parties, that the grantors’ right in all the estate, whether joint or several, of their father and grandfather, should pass. And such must be the operation of the deed. It is not uncommon to construe and to mean or, and or to mean and, when necessary to carry into effect the intention of the parties. To each of the levies, several objections are made, which will be considered. And first, those which apply to the levy on Charles’s share. The estate being under mortgage, the equity of redemption only could be taken on execution. The mode of levying upon equities is prescribed by St. 1798, c. 77, § 3 and 4. That this is the most proper mode cannot be doubted ; and it was, at first, very questionable, whether it did not supersede every other mode. And even now it may be considered doubtful, whether the judgment creditor, knowing of the existence of a valid incumbrance, may have his election to sell the equity of redemption by auction, or to extend upon the land by appraisal without regard to the incumbrance. But as it sometimes may happen, that mortgages may exist with-, out the knowledge of the creditor, or that he may not know whether they are genuine or fictitious, or may suppose that the incumbrances have been removed, or may desire to contest them on the ground of fraud or collusion, it has been holden, that he may extend his execution upon the whole estate, by an appraisal of its full value. Warren v. Child, 11 Mass. R. 222 ; White v. Bond, 16 Mass. R. 400. Such a levy will "pass all the debtor’s interest, whatever it may be. But an equity of redemption as such, cannot be taken in this form. If the amount of the incumbrance be deducted in the appraisal, the levy will be void. Barnard v. Fisher, 7 Mass. R. 71. And this rule is founded upon good reasons ; for the mortgager may voluntarily remove the incumbrance, or may bn compelled on his personal security, to pay the debt, and — 28 — thus the creditor may get the estate relieved of an incumbrance, which was considered in the appraisal. As this is a statute mode of conveyance, all the requirements of the statute must not only be complied with, but this must appear in the return itself. It cannot be supplied by evidence aliunde. Williams v. Amory, 14 Mass. R. 20 ; Allen v. Thayer, 17 Mass. R. 299 ; Tate v. Anderson, 9 Mass. R. 92 ; Bott v. Burnell, 9 Mass. R. 96 ; S. C. 11 Mass. R. 163 ; Eddy v. Knapp, 2 Mass. R. 154; Whitman v. Tyler, 8 Mass. R. 284. And upon this principle it should appear, with reasonable certainty, that the whole estate, and not the equity of redemption, was appraised. The return does not show this. The appraisal was of the debtor’s right in the premises, which would apply quite as well to the debtor’s interest in the equity, as to his portion of the land itself, and renders it doubtful whether the incumbrances were not deducted, and indeed probable that they were. If we were at liberty to go beyond the return and to compare the appraised value of the debtor’s share with the inventory ol the estate, this view would be confirmed. We are therefore of opinion, that this levy is invalid, and that the demandant’s title to this share fails. The objections to the levy of the execution against Curtis are more numerous. 1. The return shows, that the officer chose two of the appraisers ; and the cause assigned is, that Cudworth, the debtor, neglected to choose one. Curtis was the debtor, and this objection must prevail, unless the error, which doubtless is merely clerical, may be corrected by liberty to amend from the proper tribunal. 2. The estate was set off during the life of Curtis. It does not appear, whether Curtis was entitled to the curtesy or not. But whether he had an estate for his own life, or limited by that of his wife, whatever he had would pass. A good levy upon a larger estate than the debtor has, will operate upon all that he in fact has. Pond v. Pond, 14 Mass. R. 403. 3. Although the return does not describe the estate as nolden by Curtis in right of his wife, yet as all his interest, — 29 — right and estate in the premises was taken, it will pass all that he owned, from whatever source his title to it may have been derived. It is not necessary to describe the nature of the estate or title. General words, if sufficiently comprehensive, will be effectual ; although a greater estate than the one described cannot pass, yet a less estate may. 4. Although somewhat variant views have been taken of the subject at different times ; Barber v. Root, 10 Mass. R. 260 ; Chapman v. Gray, 15 Mass. R. 439 ; yet there now is no doubt, that the husband’s right in his wife’s real estate may be levied upon, either by taking the rents and profits for a definite period, or by taking the whole estate at an appraisal of the value founded upon a proper estimate of the probability of human life. When the judgment does not amount to a sum large enough to require the whole life estate, it would be difficult if not entirely impracticable to adopt the latter mode. And situated as this estate was, it would seem, that the more proper if not the only mode, would have been to levy upon the rents and profits until they should satisfy the execution, if they were sufficient for the purpose. 5. It appears that all Curtis’s right was appraised and set off for a gross sum. If the estate had been unincumbered, or if it had appeared, that it was set off as if unincumbered, the levy might have been valid. But if the appraisers made a deduction on account of the outstanding mortgage, this would be a fatal error. It was the duty of the administrator to redeem the estate by paying off the mortgage, if he had assets wherewith to do it. Neither the creditor, nor appraisers could know whether this would be done or not. Had it been redeemed, the creditor would have obtained it for much less than its real value. ' Now it does not appear, nor is it to be inferred, from the return, or believed on any ground, that the appraisers excluded the incumbrance from their considera tian, in appraising Curtis’s right. And this defect is fatal to the demandant’s title. From the foregoing view of the case it appears, that the demandant has established his title to one share, and failed as to the other two. He must therefore have judgment for Mercy’s share, unless upon examination of the tenant’s claim it shall appear that he is entitled to the whole. — 30 — The teiiant claims the estate by virtue of a deed made by himself as administrator of the estate of John Cuaworth junior, to his brother Urbane, who soon after reconveyed to him. This sale was made under a license from the Probate Court. To the validity of this sale there are three objections. 1. The demandant’s counsel contend, that this sale was void, because the Probate Court had no power to license a sale of the whole real estate ; it not being necessary for the payment of the intestate’s debts, nor even of a part, the personal estate being sufficient to pay all the debts. Whether the court had power to grant a license to sell the whole real estate, it is not necessary to inquire, because no such power was exercised. Deducting the allowance made to the widow, the personal estate would not have been sufficient to pay the debts and expenses of administration ; and if a license to sell a part was necessary, it is immaterial to the present question, whether it was limited to one sum or another. Now the St. 1805, c. 90, § 2, authorizes the judge of probate to allow the widow such necessaries as may be proper, regard being had to the state of the family under her care. The general words used in the fifth section, rightly understood, do not conflict with this provision in the second, but are qualified by it. The whole statute is to be construed together, and each section and provision to be so understood, that it will conform to all the others. If any person be dissatisfied with the allowance by the Probate Court, his remedy is by appeal. And we cannot collaterally inquire into the exercise of this discretionary power, however disproportionate to the whole estate the allowance may seem to us. Brazer v. Dean, 15 Mass. R. 183. 2. The tenant, who as administrator made the sale, requested one Bailey to bid off the estate for himself and his brother Urbane. Bailey did so, for a much less sum than he was authorized to bid. The deed was made by the tenant directly to his brother, who soon after reconveved it to him. The demandant’s counsel contend, that this sale was void, because the administrator could not convey to himself either directly or indirectly. It is a salutary and sound principle, that agents to sell cannot be purchasers ; that the characters of seller and buyer — 31 — are so entirely incompatible, that they can never be united in the same person. And generally, that trustees of every description, who have power to sell, can never by direct or indirect means become the purchasers of the trust property. Copeland v. Mercantile Ins. Co. 6 Pick. 204; Church v. Mar. Ins. Co. 1 Mason, 341 ; Barker v. Same, 2 Mason, 369 ; Paley on Agent & Pr. 32; Ex parte James, 8 Vesey, 337 ; Ex parte Kennett, 10 Vesey, 381. But these principles do not render the sale absolutely void. Strangers to the property cannot call it in question. It is voidable. It is an abuse of authority which may be taken advantage of by any one whose interest is affected. Hence cestui que trusts and all for whom the trustee or agent acted, have an option to avoid the sale and retain the property sold, or to confirm the sale and receive the consideration, as may be for their interest. Jennison v. Hapgood, 7 Pick. 1 ; S. C. 10 Pick. 77. In the case at bar, the creditors, having received their debts, have no interest in the estate • or the validity of the sale. They never can be required to refund. The heirs are the cestui que trusts. The assignee of an heir would seem to stand in the same relation to the estate, as his grantor. The heirs therefore, or their assignees, have an election to avoid or confirm the sale. And in doing this, hey are not bound to act jointly. Each one has an indi vidual election. If the affirmance of the sale by some, and the avoidance of it by others, will produce great inconvenience m the final settlement of the estate, it will fall, where it lught, upon the administrator, who has violated his trust and Dy his wrongful act caused the embarrassment. Houghton v. Hapgood, 13 Pick. 154 ; Grout v. Hapgood, 13 Pick. 159; Jennison v. Hapgood, 14 Pick. 345. 3. But there is one other, and, if possible, a more fatal ob/ection to the proceedings of the administrator. He exceeded the authority given him. He was licensed to sell to the amount of $640 ; and he sold the whole estate for $953*33. And we think for this cause.the sale was void. An administrator, without a license from a competent court, has no power to sell the real estate of his intestate. — 32 — His authority is derived wholly from the decree of the court. The court has a discretion. He has none. He is bound strictly to execute the authority given him. And a deed by him, not given in pursuance of his authority, would have no more operation to pass the estate of his intestate, than a deed made by a stranger, or his own deed of a stranger’s land. If under an authority to sell a part, he sells the whole, the act is unauthorized and void. ' The sale cannot be holden to be good to the amount of the license and void as to the remainder. It must be wholly valid or wholly invalid. How can it be apportioned ? Who shall determine which part and how much the purchaser, and which and how much the heirs shall hold ? But even if this were not so, and the sale were deemed only voidable, we are of opinion that the conveyance by the heir and the commencement of this action by his assignee, is a sufficient avoidance of the administrator’s sale. And the demandant must have judgment for the share to which he has shown a good title. Tenant defaulted