Duncan v. Stewart

GOLDTHWAITE, J. — Although the main question in the case is one of first impression, we regard it as a very clear one. The party on whose estate the letters were granted was not dead ; consequently the court acted without jurisdiction, and the administration was void. — Wms. on Ex. 400-1-2, and cases there cited. Davis,' who acted as administrator, was a trespasser, and he stands as a wrong-doer selling property without title; but under such circumstances, the purchaser, while he holds under the contract of sale, cannot resist the payment of the purchase money. — Ogburn v. Ogburn, 3 Por. 126. There is nothing in the form of the note, which would prevent Davis from suing in his own name, and declaring on the note as made to himself personally, as the additional words “ administrator,” &c., would be held merely as words of description (Harbin v. Levi, 6 Ala. 399); and if he could recover, his assignee could, if the assignment passed to him the legal right of action in the note. Here a technical principle is invoked in behalf of the appellants, and it is urged that, as the record shows that Davis, the payee, took out letters of administration, and made the [414] sale in bis representative capacity, and the note was given upon this sale, Davis is concluded from denying that he was administrator, or from recovering in, ail action brought in his own name upon the contract, as if made to himself personally; that the appellee, as his privy, by assignment, occupies no better position, and the note, in this aspect, must be regarded as assets, and therefore no title or right of action could be derived from the assignment. Conceding, as to this argument, that the administrator could not, by virtue of his authority, assign a note which was assets of the estate he represented, so as to invest the assignee with the legal title, the question is, whether Davis, upon the facts as we have stated them, would, in a suit upon the note, be concluded from showing that it was not assets. As to the proceedings of the court which granted the letters and ordered the sale, as there was no jurisdiction, these acts amount to nothing, and Davis would not be bound by them, any more than a plaintiff would be bound by a judgment in his favor, rendered by a court which had not power to take cognizance of the case. But is he concluded, without reference to the action of the court, because he made the sale in his representative character ? It is true, that where one assumes to act in a particular capacity, he will be estopped from denying the position he has taken, when such denial will operate to defeat rights attaching to the contract itself, — the law regarding his assumed character as a real one, so far as it enters into it; but we do not understand the doctrine of estoppel to extend to matters, affecting the remedy only, entirely foreign to and disconnected from the contract, or the character with which it was entered into by the contracting parties. Here, the rights of the appellants, growing out of the purchase, have no legitimate connection with, and are not in the slightest degree affected by, the fact as to whether it was assets or not. They can assert all the rights arising from the contract by way of defence, precisely the same as if the note was assets and had not been transferred, and can avail themselves of every equity against the assignee equally as against the assignor. As there was nothing that forbid the plaintiff below from showing that the note was not assets, and as the necessary proof was made upon this point, the assignment invested Stewart with the legal title. Con [415] sidering the right of Davis to recover on the note, nntil the purchasers had taken the necessary steps to rescind, or nntil the real owner had recovered the property or received satisfaction for the wrong, as clear, and the right of the appellee follows necessarily. Had the former collected the note, or had he received the proceeds of the sale in money, or anything in the place of money, the real owner could have waived the tort, and recovered in assumpsit. — Young v. Marshall, 21 Eng. Com. Law 215; Sturtevant v. Waterbury, 2 Hall (N. Y.) Rep. 453. So he could have received any property in satisfaction. Here the evidence shows he received a note, on which the payee could have sued and recovered, and became invested with the right to sue by his assignment. The purchaser has got everything that he contracted for, and thus complete justice is done. - Judgment affirmed.