Rowland v. Thompson

PeaksoN, C. J. 1. The position taken by the plaintiffs that the deed of the Clerk and Master is void because the Court had no power to order it to be executed, and consequently that the plaintiffs are entitled to judgment for the laud and mesne profits, cannot be sustained. It is most usual for sales made by the order of a Court of Equity to be public sales, but the Court, as the guardian of [515] infants, lias full power in regard to the mode of sale, and under special circumstances not only has power, but should, in the exercise of its discretion, authorize and confirm what is-called a private sale; that is, a sale without advertisement and public outcry. The question, has a Court of Equity power to order the sale of the land of an infant to be made either at public or private-sale, is not an open one ; it is settled. See the cases in Battle’s Digest. We will add, assuming that it was for the interest of the wards that the land should be sold, and this matter was adjudicated by the order that the Clerk and Master sell at public sale, we think his Honor used a prudent discretion, after no> sufficient bid could be obtained at public outery, in accepting the bid of defendant Goodwin and in making-an order confirming the private sale. The usual modes of selling by order of Court or by executors and administrators is after advertisement and public outcry or vendue, i. e., auction, as the traders term itbut if an-executor or administrator sells a horse to A at private- sale, he-acquires title against the world. For the executor- or administrator had the title and the power to sell. The only difference is, that if it be a public sale, the executor or administrator is only chargeable with the price obtained. If it be-a. private sale, the executor or administrator is chargeable with- the full value. The statutes which require advertisement and a public sale being considered directory only, and not affecting.; the substance. 2. The position taken by the plaintiffs, that “ the deed to-Godwin, by reason of a departure from the terms of the-order, will be treated as a lien only for the sums he has actually paid, leaving the equitable estate in the plaintiffs, subject to re-payment to Goodwin of the money paid by him, with interest, charging him in account with the rents and profits^ which he has realized from the land,” cannot be sustained. [516] There was no material variance between the terms of the order and the mode in which the sale was completed. The $8,000 bond of Sanders endorsed by Godwin, and the cash paid was a fair equivalent for the first two instalments, and it is admitted this amount has been accounted for, so there was no loss to the fund in that respect, and the three notes taken for the balance were in strict accordance with the order. 3. The position taken by the plaintiffs, that these three notes have never been paid by Godwin except to the amount of the value of the Confederate notes received by Thompson, has ■force in it. As respects the first note which was due at the >time of payment, we can see no reason why that shall not bo treated as satisfied in full. It was due, the creditor had a right then and there to demand payment, and if refused, to enforce ¡payment by action. So it is the ordinary case of a creditor who accepts Confederate notes in satisfaction of the debt. Put as respects the other two notes, the matter involves different considerations not being due for one and two years, the debtor had no light then and there to pay them, and the creditor had no right then and there to demand payment and could not have enforced payment by action, so the payment was a voluntary one, and however it might be, as against Thompson who accepted the Confederate notes at par; as against the wards, who were the real creditors, the debtor cannot in conscience insist upon its being a payment, except to the amount of the value of the Confederate notes at the time he handed them over to the guardian, and has no right to re quire that he should be credited except for the value of the notes which he parted with. It is certain he has not paid for the land. Suppose he had not handed the Confederate notes to the .guardian he would have been bound for the full amount of his two bonds, and we think he is getting off on fair terms if he is now permitted to pay the price of the land and keep it, taking credit for the value of the Confederate notes, and rendering no account for the rents and profits received by him, •before the land was paid for in full. [517] 4. The fact that the plaintiffs, by a compromise among other tilings took from their guardian the Confederate'bonds, into which he had converted the Confederate treasury notes, which he had received of Godwin after these Confederate bonds had become wholly worthless and not worth the paper on which printed, does not affect the equity of the plaintiffs. It is admitted that by the compromise the plaintiffs took no benefit by reason of the two bonds now under consideration, and by way of greater caution it is expressed that the compromise shall in no wise discharge their claim on Godwin for the part of his three notes remaining unsatisfied. There will be a reference to the Clerk of this Court to fix the value of the Confederate treasury notes paid on the two last notes of Godwin, and the plaintiffs may then move for judgment. In stating the account the Clerk will charge God-win with simple interest only ; as against their guardian, the wards are entitled to compound interest, and if the notes had been held by the guardian, Godwin would have been liable for compound interest. Bat. Rev. ch. 68, see. 29. The guardian did not hold the notes but accepted Confederate treasury notes in payment and surrendered the notes to Godwin. After that, Godwin was not a debtor of the infants or their guardian, by bond or note. But the infants had an equity to follow the land in his hands for the unpaid balance of the price. We see no ground under the statute to allow this equity to draw compound interest. The infants must be content with simple interest as against Godwin and look to their guardian for compensation in that respect. Error. Per Cdriam. Judgment accordingly.