Mason v. Ham

36 Me. 573

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1853
• Status: Published

Opinion

Rice, J. —

The defendant is sued as the representative of the estate of Alexander Townsend, on a bond executed by William Abbot, a former administrator on the same estate. Abbot, in 1835, obtained license from the Supreme Judicial Court to sell real estate of his intestate, for the payment of debts. The bond in suit was executed within' the year after the license was obtained.

Section 12, c. 52, stat. of 1821, provides “ that no license as aforesaid, for the sale of real estate, granted by either of the Courts aforesaid, shall be in force for a longer term than one year from the time when such license shall have been granted.”

The deed to the purchaser must be executed and delivered within the year, otherwise it is void. Marr v. Boothby, 19 Maine, 150.

No property will pass until the deed is given, and until then, in no legal sense, is there a sale. Macy v. Raymond, 9 Pick. 284.

In giving the bond in suit, if Abbot assumed to act in his capacity as administrator, he exceeded his authority, and did not thereby bind the estate ; if he acted in his private capacity, the estate is not bound. A nonsuit must be entered.

Shepley, C. J., and Tenney and Hathaway, J. J., concurred.