Ives v. Ashley

Chapman, J. The authorities cited by the petitioner’s counsel do not sustain their position that if an administrator, who is about to sell real estate, procures a person to purchase it on his account, the sale is therefore void. The heirs may, within a reasonable time, elect to avoid it, and the purchaser is in such case regarded as a trustee; or they may allow it to stand, and in such case it is valid without any further act. But the testimony of Whitman in this case tended to show that he bid off the property on his own account, and not as the agent of the administrator. He was influenced to do so by the assurance of the administrator that he would take it off his hands, if Whitman should desire him to do so. If an administrator gives such an assurance for the purpose of procuring a purchaser and preventing a sacrifice of the property, but leaving the purchaser at liberty to keep the property if he elects to do so, such an arrangement does not constitute an agency, nor does [205] it necessarily contain an element of fraud, or unfaithfulness. This part of the case was properly submitted to the jury with correct instructions. The evidence relied upon to prove a sale of the reversion to Chapman was that he bid it off at an administrator’s sale on the 2d of March 1844; and that on the 9th of the same month he made a deed to Matthew Ives which described the premises and contained the following recital: “ being the same land said Chapman bought at auction March 2, 1844, of Matthew Ives and Rhoda Ives, administrators of Matthew Ives.” And in that year or in one of the two following.years he gave a paper to his son, which he Spoke of as a deed, and told his son to carry it to Mrs. Ives, the wife of Matthew Ives, her husband being then absent from home, and it was not the deed made by him on the 9th of March 1844. But the fact that he bid off the property at auction does not tend to prove that the administrators executed a deed to him; for the execution of a deed is a separate transaction from a sale at auction; and the remark made by him to his son, even if it were admissible as part of the res gestee, would not tend to prove that the paper was a deed of the administrators to him. If there had been other evidence to prove the execution of a deed to him, and that it was lost, the recital would have been competent, even against strangers, as secondary evidence to prove the contents of the lost deed. This point is fully discussed in Carver v. Jackson, 4 Pet. 83. See also Cruise Dig. tit. 32, c. 21, § 26; 1 Greenl. Ev. § 23, note. But there being no evidence to prove the execution and loss of a deed, the recital was inadmissible; and therefore there is no evidence of a conveyance to Chapman. The exceptions are overruled as to the land sold to Whitman, and sustained as to the other tract, and the verdict should be set aside as to the la-Hw •