Taylor v. Frink & Co.

Isbell, J. (1) — This canse comes very irregularly before the court. The release in writing, evidencing the settlement of the cause, which it appears the court took upon itself the power to annul, on motion, does not appear to have been plead as an accord and satisfaction since the last continuance; nor does it appear to have been offered in evidence on the trial of the cause and rejected; but from the record, it is manifest, that the court proceeded to pronounce on its validity, on motion, as preliminary to the further progress of the cause. The regular way for the defendants to have availed themselves of such accord, was, to answer over the accord and satisfaction puis darrien continuance. Watkinson v. Inglesby & Stokes, 5 Johns. 392; 1 Chitty Plead. 569. Although in assumpsit and case, at common law, accord and satisfaction may be given in evidence under the general issue (Panamore v. Johnson, 1 Ld. Raym. 566; Fitch v. Sutton, 5 East. 230; Bird v. Randall, 8 Burr. 1353); yet, with us these forms of action are abolished, and we have no general issue, properly so called; hence, we conclude, that the more regular and safe practice is as above indicated. But counsel for appellee insists, that the question of the validity of the settlement, was one that the court only could decide, and if it determined the question correctly, this court should not reverse the decision, although it proceeded irregularly. We cannot accede to this view. The motion assumes two grounds. First, that the settlement was made without the approbation of the county court. Secondly, that it was fraudulently procured. Either of these grounds involves the truth of extrinsic facts, which should be properly put in issue, before being passed upon. The contracts of persons, solemnly entered into, are of too sacred a nature, to be set at naught, on mere motion. While we would seek to disregard merely technical objections ; yet, we think, it would be going too far, to lend countenance to such irregularity. To set at naught contracts in this manner, is to de [87] prive tlie citizen of property, without that due process of law guarantied to him. We hold, therefore, that in setting aside the settlement, on motion, the court erred. Perhaps we should go no further. But in view of the fact, that'it may tend to suppress litigation, to intimate a.further view which we entertain in the case, and as the same has been brought to the attention of the court in argument, we deem it proper to add, that if the settlement evidenced by tbe writing in tbis canse, was procured without fraud or ■collusion on tbe part of defendant, it, being properly plead, may be made a defence to tbe suit. As to the power of the ■administrator to make such settlement, see Story, on Contracts, § 252, and authorities cited in nota We have been referred by appellee to sections 1386, 1859, 1361, and 1362 of the Code, as prohibiting snob settlement, without tbe approbation of the county court. We understand these provisions to apply as between legatees, distributees, or creditors, and the executor or administrator; and that, an executor or administrator, iu order to shield ■himself from liability to either o'f these, may avail bimself of tbe approbation of the court, and be thereby protected ; but we do not understand that these provisions, in any manner .affect the validity of contracts, bona fide made, in relation to the personal property, or choses in action, of the deceased, with such executor or administrator. Judgment reversed and cause remanded. Footnotes [(1)] Wrigiit, 0. X, having been of counsel in this cause, took no part in th& adjudication thereof.