Higley v. Smith

The opinion of the Court was delivered by Williams, J. The plaintiff claims a right to recover in this case, on the ground of a want of consideration for the sum paid to the defendants on the last purchase. He contends that the deed executed in May, 1818, was wholly inoperative as to conveying any title. And that the title attempted to be conveyed still remains in the defendants, as before the quit-claim deed was executed.— That if the title was, at the time this deed was executed, vested in the defendants, in their personal or private capacity, the deed was inoperative, inasmuch as it purports to convey their title as administrators. And, if the title was in them, in their representative capacity, the deed was void for want of authority to make it, the administrators having before sold real estate in pursuance of the order of the Court of Probate, sufficient for the purpose for which the sale was authorized; and that purpose having been once answered, the power ceased. If these premises were correct, it would not follow that the plaintiff is entitled to recover in this action. The deed which was executed by the defendants, purported to convey to the plaintiff in this action a certain tract of land, and the plaintiff might have protected his purchase, by such covenants as he deemed necessary for securing his title. If they attempted to convey as administrators, they could have been required to covenant that they were duly authorized. This does not compare with that class of cases where the purchaser, who has paid the purchase money and has been ousted, before the conveyance is executed, has been permitted to recover [416] back the money paid in this form of action. Nor does it appear from the facts offered to be given in evidence, that the plaintiff was evicted from the land, in consequence of any defect in the title conveved to him by the defendants; but on the contrary the recovery was had by these defendants, by virtue of the mortgage deed execute£¡ j^y tpe plaintiff, on the forfeiture of the lands therein granted, by reason of the non-performance by the plaintiff, of the condition threin contained. And we cannot say that this case is similar to any of those which have been cited, where this form .of action has been maintained. It is unnecessary however, to examine those cases particularly, as the case is, on another ground clearly with the defendants. The defendants, as administrators, had no interest in the land of their intestate. By virtue of their appointment as administrators they had only an authority to sell for the purposes which the law designates, when thereto authorized by the Court of Probate.— When thus authorized, they can pass to a purchaser, whatever title their intestate had, and take such security for the purchase money as may be satisfactory to themselves, either by' a mortgage of the same land or of any other land, or in any other way, but they are at all events accountable for the sum for which they sell. If they take security by mortgage, on the foreclosure of the mortgage, whatever title was conveyed by the mortgage deed, becomes absolute in them in their individual capacity. It follows from this, that the defendants by their deed executed in September, 1814, complied with the order of the Court of Probate, and had no further authority to sell the real estate of their intestate, by virtue of that order. And on the foreclosure of the mortgage executed by Iiigley at that time, whatever title he derived to the land by the administrators’ deed to him became vested and absolute in them in their individual capacity; and no order from the Court of Probate was required to entitle them to convey the land the title of which was thus vested in them. The only inquiry then is, whether by the deed of May, 1818, this title was conveyed to the plaintiff. The deed purports to convey all their the defendants’ title. The grantors do not say that they convey in pursuance of any authority .from the Court of Probate, or that they convey the title of their intestate, but all their right. It is true they describe themselves as administrators, [417] and in that capacity quit-claim to the plaintiff, and covenant in that capacity to warrant and defend the land, granted. Describing themselves as administrators, is merely descriptive of the character in which they had acted, or the manner in which the estate came to them. And the covenant of warranty, notwithstanding they use the expression, “ in óur capacity as administrators,” binds them personally. 8 Mass. 162, Sumner administator v. Williams et al. 3 Barnwell and Anderson 47, Burrell v, Jones. 2 Brod & Bing. 460, Childs v. Monins et al. The defendants, as administrators, could have no title to pass . they had no authority at that time to convey any real estate of their intestate, and they could make no covenant which could affect the estate which they represented. On the whole the Court are of opinion, that the deed executed by the defendants, in May, 1818, passed the title of the defendants to the land in question, to the plaintiff j and the covenant of warranty contained in the deed created a persnal obligation on the defendants. The plaintiff takes nothing by his motion, and judgment musí be entered on the verdict.