Augusta Insurance v. Packwood

Slidell, O. J. (VoonniES, J., and Campbell, J., concurring.) I have doubts whether, under the circumstances of the case, the notes having been received by Paahwood in New York, where he and his wife were then domiciled, and being there in his possession after her death, a half interest in them vested in her heirs. Assuming, however, that such an interest, vested in her heirs on her death, grave difficulties remain. I concede that this matter is not res judicata against Mrs. Morton. But this very subject of rescission of the sale to Stewart, has been solemnly decided by the Supreme Court, after elaborate argument, in the case of Paahwood's succes [84] sion, 12 Rob., 369; and to overrule their decision, upon the faith of which parties have acted and rights have been acquired, is a very grave thing and ought not to be done unless that decision be manifestly erroneous. This I am not prepared to say. To effect a rescission of the sale, so as to replace parties in the same position as if a sale had never been made, the parties to the sale and the rescission should be the same. But on the death of his wife, Paclmood ceased to represent the community, and he did not even profess to represent it or the heirs of his wife, but took the title in his own name and for his individual account. Even if he had taken the title in the name of himself and his wife’s heirs, it would have been an unauthorized act, and not binding on them. But, I repeat, he did not do even that. He took the title to himself, and the recourse of his wife’s heirs against him, if any they have, is to make him account for their funds converted to his own use. I understand the opinion of Mr. Justice Ogden, as conceding the title was not in the heirs, unless they chose to adopt and ratify the unauthorized action of Pachwood. But if they could so adopt and ratify, ought their election under the circumsiances to retroact so as to defeat the title previously acquired by White and Trufant ? It seems to me it should not. I am therefore of opinion that the judgment should be affirmed. Footnotes [*] This sale and reconveyance is made for and in consideration of the sum of one dollar, and of the return and delivery to him, the said Da/oid Stewart, of six promissory notes amounting to one hundred thousand dollars, recited and mentioned in the aforesaid act of sale from the said Sa^mel Pack-wood to the said David Stewart; the receipt of which said sum and the delivery to him of the aforesaid notes, the vendor hereby acknowledges. Extract from conveyance of Stewart to Pachwood, of the 9th October, 1843.