Kennerly v. Shepley

Scott, J., delivered the opinion of the court. The objection, that the creditors were not made parties to (he suit, cannot be maintained. In the prosecution and defense of claims, the executor or administrator is deemed a full representative of the creditors of the estates respectively committed to their care. The object of the suit, being, to restrain the administrator from selling propel ty to pay debts of a deceased person, and to set up a lost deed, it was sufficient to bring' before the court the administratrix and (he heirs, who fully represented the property, and are liable for all demands upon it:' Story’s Equity Pleading's sec. 150; Mitford 166. The allowance of a claim against a deceased person’s estatp, is a judgment and will be resppeted as such. But there is some difficulty in maintaining that those allowances are heirs upon the (-state. Formerly, when an execution could issue on a judgment in the circuit court against an administrator, it was held, that such judgment was no lien upon the estate of the decedent, in his hands. If there was wo lien, when the lands could be sold under execution, it would be hard to maintain that a lien is created by the allowance of a demand in the county court. No argument will be made here on the subject, but a reference to the case of Prewitt vs. Jewell, 9 Mo. Rep. 732, well show what has been said on that subj"Ct. The administrator has no interest [649] in the real estate to which a lien could attach itself by reason oí a judgment against him, In the theory of our law, lands, upon the death of the ancestor, descended to his heirs, and there is a contingent power in the administrator, to sell the lands to pay the debts, with a right to lease and preserve them until distribution is made. The administrator and heirs succeed only to the interest of the deceased. They can obtain no greater right than he had. The administrator and heirs, coming in as volunteers, the unrecorded deed was binding on them. The land was gone at the death of Kennerly. The power of affecting it, in anyway to the prejudice of the unrecorded deed, was extinguished. It should not have been inventoried, or regarded as a part &f the estate of the deceased. The creditors having no interest in the lot, at the aeath of the intestate, and on his death the unrecorded deed being binding on the representatives, it was impossible that any right to the lot could accrue to them, which would subject it to the claim of creditors. If the lands should be sold by the administrator, he could only convey the right Kennerly had at the time of his death, and as to Kennerly, there was no right. Considering the length of time from the execution and delivery of the Marshal’s ' deed, the evidence of its contents is sufficient. The formal parts of the deed were printed, and we are informed by the testimony, that the Marshal’s deed was used in drawing a subsequent deed for the same lot, and moreover, that the court took the acknowledgment of the same. It is objected, that the sale of the lot, made by the Marshal, was not in pursuance to the laws of Missouri, in force at that time. The act of Congress, of the 16th of March, 1822, established a District Court for the District of Missouri. That act conferred on said court the jurisdiction and powers which by law were given to the judge of the Kentucky District, under the act of September 24th, 1789, and the act of 2d March, 1793, and the acts supplementary thereto. The 7th section of the act of 2d March, 1793, gives power to the courts of the United States to make rules and orders for their respective courts, directing the returns of writs of process, and to regulate the practice of the courts respectively. It is conceded, that neither the act regulating process in the courts of the United States, of the 29th September, 1789, nor the act of 8th of May, 1792, empowering tiie courts to make such alterations and additions to the forms of writs, executions and’ other processes they may deem expedient, were not in force in this State; those acts being confined in their operation to the States of the Union, in existence at the time of their passage. The sale, in this case [650] having been made prior to the act of Congress of the 19th May, 1828, adopting the practice of the State courts, for those States admitted into the Union subsequently to the 29th September, 1789, we must look to the act of 1798 for the powers to be exercised by the District Court of Missouri in relation to the execution of process, emanating from that court. It is no objection to the sale, that it was not made in conformity to the law of this State, regulating sales under process of execution. The State laws, as such, are not binding on the officers of the federal government. They can only become so by being adopted by the laws of the United States or by the rules of their courts. When the sale was made, there was no written rule of the court. It had not exercised the power conferred by the 7th section of the act of 1793, of making rules regulating its practice and the returns of process. Under these circumstances, the Marshal made his sale, conforming as nearly as practicable to the laws of this State. In the case of Wayman vs. Southard, 10 Wheat. 22, it was held, that the 14th section of the judiciary act of 1789 authorizes courts to issue writs of execution. In the same volume, in the ease of United States vs. Hoisted 51, it was maintained that the courts can so alter their process as to sell lands on execution when not subject to sale by the State laws. These cases arose in Kentucky, not one of the States in existence in September, 1789. The case of Fullerton vs. Bank of the United States, 1 Peters 604, originated in the State of Ohio, at a time when the powers of the federal courts, in that State, were similar to those entrusted to the District Court of Missouri, at the time of this sale. This case maintains that a practice or mode of procedure could be adapted by usage, without written rules. The taking the acknowledgment of the deed, was evidence of the sanction of the usage by the court. ' Such a circumstance must have brought the matter to the attention of the court, and had the manner of conducting the sale been disapproved, the acknowledgment would not have been taken, and a written rule would have been made for the conduct of future sales. We do not see the force of the objection that the usage had not been long practiced. It was conformed to in many cases, sufficient to make it known, and when the usage was established, its effect must be to sustain and support instances under it occurring, as well before as after it had been much practiced. It would sustain the very first instance under it. The deed, executed by O’Fallon and wife to Mrs. Kennerly, having never been delivered, and being cancelled in the presence of her hus* [651] band, with his assent and that of the grantor, could convey no title to her. Judge Ryland concurring, the decree below will be affirmed. Judge Gamble did not sit in this cause.