Forniquet v. Forstall

34 Miss. 87

• Court: Mississippi Supreme Court
• Decided: October 15, 1857
• Status: Published

Opinion

PIandt, J.,

delivered the opinion of the court.

The appellant filed this bill in the Chancery Court of Harrison county, as administrator de bonis non of Michel Nicaud, against Forstall, the former administrator of that estate, and others of the appellees, for the purpose of setting aside and annulling a sale of certain real estate of the intestate sold by Forstall, as administrator, under a decree of the proper Court of Probates, and afterwards purchased by certain of the appellees.

The statements and charges of the bill are, in substance, that Nicaud died in the year 1840, seised and possessed of certain real estate and town lots in the town of Pass Christian, in this State, but leaving no personal property in this State, and owing divers debts. That Forstall, of the State of Louisiana, obtained letters of administration upon his estate in this State, and at the same time represented to the Probate Court that there were debts to a considerable amount against the estate, and no personal estate whatever to pay the same, and prayed for and obtained an order to sell the town lots belonging to the estate for that purpose, upon giving due notice to all persons interested. That Forstall, on the day of the sale, had the lots bid off in the name of his brother-in-law, Herman, nominally, but in truth for himself; and the bill charges that the sale was null and void, and fraudulent. That it was void, because the notice prescribed by law was not given to the heirs of Nicaud and all other persons interested ; and because Forstall did not comply with the order of sale, which directed him to sell the three town lots singly, but that he sold them in block; and that it was fraudulent,-because he acted in the double capacity of administrator and attorney in fact, for certain creditors of the estate, and because, although the bidders at the sale desired and requested that the lots should be sold separately, as they would bring more if sold in that way than if sold in block, and there were persons present desirous of bidding for the lots if sold separately, yet that he persisted in selling the lots in block against the protest of both bidders and creditors of the estate. And that he gave notice to persons present, who intended to bid for the property, that it would be useless for them to bid, for that he intended to buy all the lots, and. that if any one wished to purchase separate lots, they could do so afterwards by applying to him. That Forstall well knew that the sale was fraudulent and to the injury of the creditors, and that, in furtherance of bis fraud, he connived with Herman to dispose of his claim by selling the three lots to three several parties, who are made defendants, who, it is charged, well knew of the nullity of the sale and of the fraud perpetrated by Forstall before and at the time of the sale; and in support of this allegation, the bill charges that these parties, at the time they purchased, not only required a deed from Forstall as administrator, but bonds, with personal security, to indemnify them against the claims of creditors or others interested in the estate. That these purchasers conspired with Forstall and Herman to defraud the creditors of the estate, and have held the property since the date of their purchases in bad faith.

The bill further states that Forstall has been duly removed from his office as administrator by the Probate Court, and that the appellant was duly appointed and qualified as administrator de bonis non, and has reported the estate insolvent; that there is no other property of the estate except the lots of land above mentioned, and that the appellant is trustee by law of the estate for the benefit of creditors, and, under the orders of the Probate Court, that he has repeatedly attempted to make sale of the property for the payment of the debts, but has been unable to make the sale, owing to the possession and fraudulent claim of the defendants, the present occupants, who hold in bad faith ; and that so long as they remain in possession and claim title, no sale can be made but for a nominal sum, not one-tenth of the actual value. The heirs of Nicaud are also made defendants to the bill.

The prayer is, that the sale made by Forstall be declared illegal, fraudulent, and void, and that the possession of the lots be decreed to the appellant, and ■ that the parties who have had possession be decreed to account to the appellant for the rents and profits, and that the property may be sold for the payment of the debts of the deceased, according to the rules to be prescribed by the Court of Chancery, and for general relief.

The parties in possession of the lots answered so much of the bill as charged fraud, denying the allegations, and demurred to the residue, assigning numerous grounds of demurrer, which set up the following objections to the bill:—

1st. That it is multifarious.

2d. That it is an attempt, by an administrator de bonis non, to set aside a sale made by the original administrator.

8d. That a court of equity has not jurisdiction of the subject-matter of the suit.

This demurrer was sustained, and the bill dismissed, from which decree this appeal was taken.

Our attention, in considering the case, will be confined to such grounds of demurrer as are relied on by the counsel for the appel-lees to sustain the decree.

1. The objection, on the ground of multifariousness, has frequently been the subject of consideration in this court in cases very, analogous to this; and the rule which has been sanctioned is, that where the complainant claims under one title, and brings suit against various defendants, who claim the same estate under distinct and separate sales of different parcels thereof, to them separately, when the gravamen of fraud or wrong in the sales is the same, and equally applies to all, the objection will not apply. Butler et al. v. Spann, 27 Miss. 238; Nevitt v. Gillespie, 1 How. Miss. R. 110. The facts of this case, as stated in the bill, show that the parties in possession of the property claim under one common right, and occupy the same position with regard to the claim of the appellant. It is, therefore, a fit and proper case for uniting all the parties in one suit, thereby preventing multiplicity of suits, and comes fully within the rule above stated. This objection was, therefore, untenable.

2. The second ground of demurrer is, that the sale of the property by the first administrator placed it beyond the power of the administrator de bonis non; that it must be considered as an administration of the property; and, as the administrator de bonis non had no control over property administered by his predecessor, that he had no interest in the property, nor right to call in question the disposition of it, made by the original administrator.

This position is based on the assumption that the disposition by the original administrator was legal and valid, and in a proper course of administration. In such a case, the administrator de bonis non would clearly have no right to interfere with the property. But, it is equally clear, that if the disposition was not a valid act of administration, and especially if it was made fraudulently, and for the individual benefit of tbe administrator, and in violation of tbe requisites of law to a valid disposition, tbe property remains subject to the control of tbe administrator de bonis non, for the purposes of administration, as though it had never been sold by the administrator. Prosser v. Leatherman, 4 How. Miss. 240; Miller v. Helm, 2 S. & M. 695; Scott v. Searles, 7 Ib. 505; Searles v. Scott, 14 Ib. 95. And, according to the allegations of the bill, which must be taken as true, as the ease is now presented, the sale was made in violation of the directions of the decree, authorizing it for his own private benefit, in opposition to the rights and interest of the creditors, and fraudulently, to their injury, by preventing a fair sale for full value; and that the defendants, in possession as purchasers, had notice of, and participated in, the fraud. Under these circumstances, it cannot, with any propriety, be said that the sale was valid, and that the property was so disposed of, that it could not be subjected to the payment of the debts of the deceased in the due course of administration, by the administrator de bonis non.

But it is said that the appellant does not show himself to be entitled to have the sale annulled, because he is neither an heir nor a creditor; and that the right to set aside an irregular and fraudulent sale of land made by an administrator belongs only to creditors and heirs. This position • is manifestly unsound under our laws.

An administrator de bonis non, as well as the original administrator, is a trustee, for the benefit of creditors, of all the assets of the estate which are subject in law to the payment of the debts-of the deceased, and it is his duty to secure all the assets, and to-appropriate them to the use of the creditors. From the nature of his office, as soon as he takes upon him the trust, and becomes'qualified to act, he is clothed with the power to bring suits, or to-take such other legal steps, as may be necessary to give to the parties interested in the estate, the full benefit of the property committed to his administration.

This rule is readily admitted with regard to the personalty, and there can be no doubt but that an administrator de bonis non,. would have the right to sue for, and secure for the purpose of administration, any personalty which the original administrator had illegally and fraudulently sold for his own benefit, at least to a party implicated in the fraud, or chargeable with notice of it. Under our laws, the realty of a deceased person, upon a declaration of insolvency of the personalty, becomes subject to the payment of debts, and as assets in the hands of the administrator, to be administered as a part of the regular duty of administration, as completely as was the personalty (Lee v. Gardner, 26 Miss. 522); and hence he is entitled and authorized to take such legal steps as may be necessary to secure the real estate, under such circumstances, for the benefit of creditors, upon the same principle that he would have power to take such steps in relation to the personal estate. As a trustee for creditors alike in both cases, it is his duty to secure and appropriate the assets, whether consisting of real or personal estate, to their use, so as to give them the full and fair benefit thereof; and as well in the one case as in the other, whenever the circumstances of the case and the interest of the estate demand it, it would be the plain duty of the administrator de bonis non, to take the proper legal course to avoid the effect of fraudulent sales of the assets made by the administrator to the injury of those interested in the estate.

Again, it was contended, in argument, that though the sale by the administrator be fraudulent, yet that it cannot be impeached by the administrator de bonis non, for the same reason which prevents an administrator from alleging that the conveyance of his intestate was fraudulent. But the distinction is obvious. An administrator represents his intestate, and stands in the same position which he occupied. But the administrator de bonis non does not represent the administrator, and is only bound by his acts so far as they are legal and valid.

It is also said, that the administrator de bonis non, at all events, is not entitled to have the sale set aside, and to subject the property to administration, without tendering to the purchasers the money paid by them. But there is no reason to sustain such a position under the circumstances stated in the bill. The allegations of the bill are, in effect, that these parties became purchasers in bad faith, and with notice of the invalidity of their title, and that they were aiding in the commission of a fraud upon the estate. They, therefore, purchased in their own wrong, and are entitled to no protection, when the administrator de bonis non, who is charged with the administration of tbe property, shall attempt to subject it to his just claim against their fraudulent interference. According to the allegations of the bill, they have fraudulently obtained possession of the property which belonged to the estate; and, upon no principle of justice, can they, under such circumstances, require, that before the party entitled to it shall recover his just rights, he shall be compelled to pay them what they have knowingly seen fit to pay in order to deprive him of his property.

We, therefore, think that these grounds of demurrer are not well taken.

3. The next objection to the bill taken by the demurrer is, that a court of equity had no jurisdiction of the subject-matter of the suit, it being a matter of administration of which the Court of Probates had exclusive jurisdiction.

The primary object of the bill is to have the sale made by Forstall, and the subsequent sales to the other parties, set aside, in order to remove an incumbrance upon the property which prevented a sale of it by the appellant for its fair value, and that he might be put into possession, in order that he might expose it to a fair sale apd to the best advantage for those interested in the estate. We have above seen that the legal title to the property was in the administrator de bonis non, for the purposes of the trust, if the sales were fraudulent. And the question is, whether he has a right to go into equity to have conveyances set aside which depreciate the market value of the property. According to the allegations of the bill, there is a clear necessity for such steps, and it is plain that the Court of Probates has no power to grant the relief. It is also plainly the duty of the administrator de bonis non, under the circumstances, to have the impediments to a fair sale removed, so that the sale might be made to the best advantage for the creditors; and there being no other court competent to grant the relief, it was proper for him to resort to a court of equity. Such a proceeding is no encroachment upon the jurisdiction of the Court of Probates, but is merely in aid of that jurisdiction, and in order that the decree of that court may have its full effect for the benefit of parties whose rights would be otherwise lost or impaired. It is strictly analogous in principle to a bill filed in equity for the purpose of removing obstructions, created by fraudulent conveyances to tbe execution of a judgment at law, and the conveyances being annulled in equity, the judgment at law can be fully executed by a fair sale of the property. And the jurisdiction of equity, in similar cases, has been frequently recognized by this court with reference to the proceedings in the Probate Court. Williams v. Stratton, 10 S. & M. 418; Searles v. Scott, 14 Ib. 94; Doe v. Fonte, 27 Miss. 619.

This jurisdiction, in aid of the action of other courts, appears, indeed, to be one of the best established, as well as peculiar, powers of a court of equity, and there can be no doubt of the propriety of its exercise in a case like that made by this bill.

Upon the same principle, it is competent for the court of equity to decree the possession of the property to the appellant, and an account for the rents and profits, because these things were necessary to a complete administration of the property, and in aid of the jurisdiction of the Court of Probates. The relief was such as that court was not competent to grant, and it was proper for the Court of Chancery, having taken jurisdiction, to grant all the relief which the justice of the case required in aid of the jurisdiction of the Court of Probates, and which that court was incompetent to grant.

But the court of equity had no jurisdiction to decree a sale of the land, and to take charge of the fund and have it applied to the payment of the debts of the estate. That was a matter pertaining to the jurisdiction of the Court of Probates, not requiring the aid of a court of equity; and the exercise of such a power by a court of equity would have, therefore, been unnecessary, and an encroachment upon the appropriate jurisdiction of the Court of Probates.

It is no ground of demurrer that the complainant is not entitled to all the relief specifically prayed for in his bill. If he shows himself entitled to any part of the relief thus prayed, the bill will be maintained to that extent.

We are asked, in behalf of the appellant, upon a decree here overruling the demurrer, to make a final decree in favor of the appellant; but a contrary practice is well established here, to reverse the decree, and remand the cause for answer; and accordingly, the decree, sustaining the demurrer, will be reversed, upon the principles above stated, and the cause remanded, and the defendants required to answer the bill within sixty days.