Ponder v. Moseley

2 Fla. 207

• Court: Supreme Court of Florida
• Decided: January 15, 1848
• Status: Published

Opinion

LANCASTER, J.,

delivered the following opinion :

This case comes before this Court by appeal from Leon Circuit Court. It is an action of detinue brought by the administrators de bonis non on the estate of Samuel Parkhill, deceased, to recover from the defendant, William G. Ponder, certain negro slaves alleged to belong to the plaintiffs as such administrators, and to be detained by the defendant, Ponder. The declaration contains two counts. The first declares upon a delivery of the slaves to the defendant by the plaintiff,', to be re-delivered to thorn, when he, the defendant, should be thereto requested. The second count declares, upon a casual loss of the slaves by the plaintiffs, and that said slaves after-wards came to the possession of the defendant, Ponder, by finding; and that he, well knowing t.he said slaves to be the property of the plaintiffs as administrators, &c., aforesaid, although often requested so to do, hath not delivered them to said plaintiffs, as administrators, &c., as aforesaid, and still detains the same.

To this declaration, the defendant pleaded — 1st. Non deiinet. 2d. That said slaves sued for, or any of them, were not the property of the plaintiffs, as in their declaration alleged. 3d. That the plaintiffs were not lawfully possessed of the negro slaves mentioned in the second count in their declaration. Upon all of which pleas, issues were joined. Upon the trial of this cause, the plaintiffs among other tilings offered in evidence the revocation of letters of administration to Martha Ann Manly, late Martha Ann Parkhill, on the estate of Samuel Parkhill, deceased ; to the introduction whereof the defendant by his counsel objected — which objection was overruled by the Court, the testimony admitted, and thereupon the defendant by his counsel excepted. The plaintiffs also offered in evidence sundry mortgages executed by Samuel Parkhill in his life time to the Union Bank of Florida, (nine in number,) to secure his shares of stock in said bank, with a view of proving that the slaves in suit were embraced in said mortgages, &c., &c. To the introduction of which evidence the defendant by his counsel objected, but the Court overruled the objection, and allowed the testimony to be given in evidence before the jury — to which ruling the defendant by his counsel excepted; also, a bill in Chancery of W. D. Moseley, one of the plaintiffs in this suit, praying an injunction, &c., to restrain the sale of the negroes belonging to the estate of S. Park-hill, deceased — which injunction was denied by the Judge of the Superior Court, to whom it was presented to be allowed. To the admission of which in evidence the defendant by his counsel objected, but the Court overruled the objection, and allowed said bill to be read in evidence to the jury — to which decision of the Court, the defendant by his counsel excepted. The proof on both sides having been given in evidence, and the cause fully argued by counsel on behalf of each of the parties, the Court gave to the jury eight several instructions. And the counsel for defendant moved the Court to give sundry instructions, numbered from one to fourteen, inclusive — all of which were refused by the Court to be given, but instead of the tenth instruction asked by the defendant, gave an additional instiuetion — ail of which said instructions given or refused by the Court are specifically set forth in the record. To all which said several rulings, decisions, and judgments of the Court, on the trial of this cause, and to the instructions given and the instructions refused to be given to the jury, the defendant excepted, and prayed his exceptions might be signed, sealed, and enrolled, and made part of the record of this case, which was done.

The plaintiffs proved that their intestate, S. Parkhill, deceased, died seized and possessed of the slaves for which this suit was brought, which continued to be the property of his estate, up to the time of the seizure by the Marshal of the Middle District of Florida, of which mention will be hereafter made. It further appeared in evidence, introduced by the plaintiffs, that, on the 20th of March, 1845, the said Marshal levied on the slaves in this suit depending, as well as other slaves belonging to the estate of S. Parkhill, deceased, by virtue of an execution, or writ of fieri, facias, issued from the Clerk’s Office of the. Leon Superior Court, wherein the Union Bank of Florida was plaintiff, and Martha Ann Manly, late Parkhill, and Hiram Manly, in right of his wife said Martha Ann, administrators of 'Samuel Parkhill, deceased, were defendants; which said execution was issued by virtue of a judgment rendered in the Superior Court for Leon county aforesaid, wherein the said Union Bank of Florida was plaintiff, and the said administrators were defendants, and which judgment was In favor of the plaintiff. It further appeared, that by virtue of said levy by the Marshal under the execution aforesaid, and after having duly advertised the same, the said Marshal, on the 1st Monday in May, 1845, proceeded to sell the said slaves in this suit depending at public sale, to the highest bidder for ready money — at which said sale the said defendant, William G. Ponder, became the highest bidder, and bought and paid for the said negroes. Upon which title, supported by an alleged estoppel in pais, the defendant placed his defence.

The plaintiffs contend that the aforesaid judgment of the Superi- or Court, rendered in favor of the Union Bank of Florida against the said Martha Ann Manly late Parkhill, and Hiram Manly in right of his wife said Martha Ann, administrators of Samuel Parkhill deceased, as well also as the execution or writ of fieri facias issued thereon, and upon which execution or writ of fieri facias, the levy and sale of the negroes was had, which said negroes are the subjects of controversy in this suit, were and are null and void. And further that there are or were no acts or things done by the said plaintiffs which can or ought to amount to an estoppel in pais, so as to conclude them from having and maintaining this suit.

Upon these positions of tho parties, the first instruction given by the Court, is in the following words, to wit:

1. The judgment and execution under which the slaves were sold are wholly void, and gave no authority, and no right of properly passed by tho sale.

This instruction was excepted to by the defendant and it now devolves on this Court to decide upon its propriety.

Whether a judgment be absolutely or wholly void depends upon tho jurisdiction of the Court in which it is rendered ; this again is divided into jurisdiction of the subject matter of the suit; and of the person of the defendant.

The suit in which the judgment referred to was obtained, was instituted in the Superior Court of the Middle District of the Territory of Florida, held in and for the county of Leon in said Territory, upon a bond executed by Samuel Parkhill in his life time, to or in flavor of the Union Bank of Florida. The Superior Court was organized and jurisdiction conferred upon it by virtue of sundry acts of Congress. The act approved May 15, 1826, entitled “An Act to amend the several acts for the establishment of Territorial Government in Florida,” contains in the first section thereof the following provisions: “That the Superior Courts of the Territory of Florida within their respective districts shall have and exercise original jurisdiction in all civil cases in law or in equity, whether arising under the laws of the said Territory, or otherwise, where the sum in controversy shall amount to one hundred dollars, and shall have original and exclusivo cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, whether such seizures be made on land or water, and all suits for penalties or forfeitures incurred under the laws of the United States, and original but not exclusive jurisdiction of all suits in which the United States shall be a party, whatever may be the amount in controversy in such causes and suits, and shall have and exercise appellate jurisdiction in all civil causes originating in the Inferior Courts of said Territory, whatever may be the amount in controversy ; and shall have and exercise original and exclusive jurisdiction of all crimes and offences committed against the laws of said Territory, where the punishment shall be death ,• and original and appellate jurisdiction of all other crimes and offences committed against the laws of the said Territory; and original and exclusive jurisdiction of all crimes and offences which shall be cognizable under the authority of the United States, committed within the respective districts of the said Superior Courts, or upon the high seas.”

The second section of the same act gave power to the Superior Courts in term, and the judges thereof in vacation, to issue writs of habeas corpus, of error, of certiorari, of mandamus, of prohibition of scire facias, and of quo warranto, according to the principles and rules of law. See Thompson’s Dig., 597.

It may, perhaps, be safely assumed, that no Court in the United States, or in any State of the Union, either now or in time past, is or was invested by law with a more general original jurisdiction than was by the act of Congress in the sections before recited and referred to, given to that Court. It was emphatically a Court of general jurisdiction, and by the first clause of the first section recited above, had jurisdiction of the subject-matter of the suit between the Union Bank of Florida, and the administrators of Samuel Parlt-hill, deceased.

But to perfect the jurisdiction of a Court of general jurisdiction, it is necessary to have jurisdiction of the person of the defendant in the action. That is to say, he must have actual or constructive notice of the institution of the suit by which an opportunity is or may be afforded him of making defence, if he should desire so to do. In the case of the Union Bank of Florida against Parkhill’s administrators, the suit was commenced by summons ad respondendum, against said administrators, the mode directed by the laws of Florida for instituting suits in the Courts of the Territory. • See Duval’s Compilation, p. 90, Sec. 4. The process was regularly returned by the Marshal duly executed, and the defendants, the said administrators of the said Samuel Parkhill, deceased, appeared in Court, and pleaded to the action, the pleas of non est factum and plene adminisiravit. These pleas were pleas in bar. It is laid down in Bacon’s Abridgement, Title Pleas and Pleading, letter (A,) “ that the order of pleading is, 1. To the jurisdiction of the Court. 2. To the person of the plaintiff, and next of the defendant. 3. To the count or declaration. 4. To the writ. 5., To the action of the writ. G. To the action itself in bar thereof.” The author then adds “ this has been settled as the most natural order of pleading, because by this order each subsequent plea admits the former; as where the d( fen-clant pleads to the person of the plaintiff lie admits the jurisdiction of the Court, for it would be nugatory to plead anything in that Court that, has no jurisdiction in the case.” When therefore he pleads in bar of the action he admits the action of the writ — the writ — the count — the parties — and the jurisdiction of the Court.— Tho picas in that action wore pleas in bar of the action, and therefore according to the order of pleading before mentioned (which order is substantially recognis'd by all the legal writers who have treated on the subject of pleading at common law) all the antecedent steps were admitted by the defendants to have been legally or aptly taken. But the defendants having appeared in Court and pleaded to the action thereby admitted legal notice of the institution of the suit as well also as the jurisdiction of the Court, not only of the parties to the action, but also of the subject matter of the suit. On the two pleas in bar before mentioned issues wore joined by the plaintiff. At that time the jurisdiction of the Court in that cause, not only existed in contemplation of law, but by the steps taken, had acquired a practical application to the parties to the action. Subsequently the defendants pleaded puis darrien continuance, a revocation of their letters of administration on the estate of Samuel Parkhill, deceased, to which plea the plaintiff demurred. Demurrer was sustained. Defendants then amended their plea puis darrien continuance, and plaintiff filed a replication. The defendants rejoined, and plaintiff demurred, which demurrer was sustained and judgment as aforesaid given for the plaintiff. Upon which judgment execution as aforesaid issued, went into the hands of the Marshal, was levied and negroes sold in the manner herein before stated. After the said a writ of error was sued out, by the defendants against the plaintiff returnable to the Supreme Court of the State of Florida, upon the hearing whereof it was decided by the said Court that “errors were well assigned” and “the judgment was reversed.” See Parkhill’s Administrators vs. Union Bank of Florida. 1 Flo. R., 110 to 133.

The defendant in this case (the appellant in this Court.) claims title to the negroes in controversy, under and by virtue of a purchase made by him at a public sale of the Marshal of the Middle District of Florida, who levied, advertised regularly, and so sold, under and by virtue of an execution issued from the Clerk’s office of the Superior Court in and for Leon County, upon a judgment rendered by said Superior Court, at a timo when said judgment was unreversed and in full force. But which judgment was afterwards reversed by the Suprimo Court of the State of Florida, not because the Superior Court had not jurisdiction in the case, both of the subject-matter and of the parties, but because of errors apparent in the proceedings in the Court below. Many instances \yere cited in argument, which showed the Courts had considered and declared judgments void for wantof jurisdiction of the person of the defendant. As where the defendant had never been summoned actually or constructively. Campbell, et al., vs. Brown, 6 How. Miss. R., 111. Noservice of process personally or by publication. Denning vs. Corwin, 11 Wend. Rep., 651. An attempt at service by publication against “ unknown heirs,” — not evidence of the existence of heirs, and decree and deed in pursuance thereof, could not pass title without such evidence. Hollingsworth vs. Barbour, 4 Peter’s Rep., 472.

So also in cases where Courts of special or limited jurisdiction, have exceeded their powers, by attempting to assume whore they have not jurisdiction over the person. Thus a Court Martial assumes jurisdiction where the party was not liable to Martial law, held void. Smith vs. Shaw, 12 John. R., 257.

In a case of assessment of taxes, if the person taxed or the subject-matter of taxation, be not within the authority of the officers who make the assessment, all subsequent proceedings by mere ministerial officers, under a warrant to enforce the tax are deemed utterly void, the original assessment being coram nonjudice. Thurston vs. Martin, 5 Mason R., 501. See also cases there cited.

Upon a commission of bankruptcy sued out against a person not a trader, (a class of persons over whom, under certain circumstances commissions may issue) it was held the commission of bankruptcy was void, the jurisdiction being confined to particular persons and cases. And the Court said, “ Where Courts of justice assume a jurisdiction which they have not, an action of trespass lies against the officer who executes process, because the whole proceeding was coram von judice.” 2 Wilson R., 384. An application was made for letters of administration during the absence of the executor who had ‘duly proved the will of the testator, and qualified as executor thereto, which was granted by the Court of Ordinary in the State of South Carolina. This case going by writ of error to the So-premi Ciurt of the U. S., the Court say, (Chief Justice Marshal delivering Ihs opinion) “ In its very nature, the appointment of an administrator, during the absence of an executor under no disability is essentially nothing more than the appointment of an agent for that executor. This the ordinary has no power to do. The executor alone can appoint his agents. If the ordinary had no jurisdiction in the case, then the grant of administration was void ah initio, and all the acts of the grantee are void.” Griffith vs. Frazier, 3 Peter’s Con. R. S. C., 11-12.

These cases and many others not deemed necessary to be referred to, shew that to authorize the assertion, that a judgment is void, it must have emanated from a Court of limited jurisdiction, not acting within its legitimate prerogative, or in a Court of general jurisdiction where the parties are not actually, or by legal construction before the Court and subject to its jurisdiction.

The case referred to in the instruction under consideration was before a Court of general jurisdiction. The parties were before the Court. Pleas in bar of the action and puis darrien continuance were filed. Upon the whole case judgment was given by the Court for the plaintiff which was subsequently reversed for error. Was this judgment void or voidable 1

It is laid down in Elliot, et al., vs. Piersol, et al., 1 Peter’s R., 340, and re-asserted in 2 Peters 130, “ where a Court has juris fiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment until reversed is regarded as binding in every other Court.”

So in the case of Voorhees vs. the Bank of the United States, 10 Peters 474-5, the Court say: “ the line which separates error in judgment from the usurpation of power, is very definite, and is precisely that which denotes the cases where a judgment or decree is reversable only by an Appellate Court or may be declared a nullity collaterally, when it is offered in evidence in an action concerning the matter adjudicated or purporting to have been so. In the one case it is a record importing absolute verity; in the other mere waste paper.”

The foregoing authorities as well as many others not supposed necessary to be referred to, clearly show that judgments of Courts of general or competent jurisdiction, are not considered under any circumstances as mere nullities, but as records importing absolute verity and of binding efficacy, until reversed by a competent appellate tribunal. They are voidable: not void. The Supreme Court of Florida decided in the case of Parkhill’s Administrators vs. the Union Bank of Florida, the judgment of the Court below was erroneous. It did not decide it was void.

While then the judgment of the Superior Court which has already been shewn to have been a Court of general and complete jurisdiction remained of record, and unreversed, importing per ss absolute verity, and possessing by virtue of the authority of the Court in which it was rendered, a binding efficacy, an execution issued thereon, and was placed in the hands of the proper officer of the Court, who levied the same on the negroes in controversy in this suit, being the property of the estate of Samuel Parkhill, deceased, against whose representatives that judgment was rendered and after having duly advertised the sale thereof proceeded on the designated day to offer said negroes for sale at public outcry to the highest bidder. At which sale the defendant in this action below, Wm. 6. Ponder, being the highest bidder became the purchaser and paid for and obtained the delivery to him of the said negroes. This then being a case of a purchase under an execution issued in conformity to the statute in such case provided, under a judgment rendered by a Court of competent jurisdiction, and when execution issued of binding efficacy, it is sufficient to give the purchaser a good title. Armstrong vs. Jackson, 1 Blackford, 210.

The judgment of the Court, the execution and the bill of sale of the Marshal, were all in evidence in this case, and this was all the defendant was required to shew. Lessee of Cooper vs. Galbraith, 3 Wash. C. C. R., 550, and cases there cited. Also Simms and Wise vs. Slacum, 3 Cranch, 300. In which last case C. J. Marshal says, “ the judgments of a Court of competent jurisdiction (although obtained by fraud) have never been considered as absolutely void, and therefore all acts performed under them are valid so far as respects third persons.”

The plaintiff in this action in the. Court below proved that there were nine other executions issued from the same Clerk’s office, on judgments rendered by the same Superior Court, at the same term, and on the same state of pleadings as in the case of the Union Bank of Florida against Manly and wife Administrators of S. Parkhill, in favor of other plaintiffs which judgments have never been appealed from, or in any wise reversed, and which are now irreversible because by limitation no appeal or writ of error can be now obtained, — and under which other executions a levy and sale of the negroes in this controversy, wore also had and made at the same time and place. In the case of Voorhees vs. the Bank of the United States, 10 Peter’s R., 475, the Court state the doctrine and say “ there can be no middle character assigned to judicial proceedings, which arc irreversible for error. Such is their effect between the parties to the suit, and such are the immunities which the law affords to a plaintiff who has obtained an erroneous judgment or execution. It would be a well merited reproach to our jurisprudence if an innocent purchaser no party to the suit, who had paid his money on the faith of an order of Court, should not have the same protection under an erroneous proceeding as the party who derived the benefit accruing from it. A purchaser under judicial process, pays the plaintiff his demand on the property sold; to the extent of the purchase money he discharges the defendant from his adjudged obligation. Time has given an inviolable sancity to every act of the Court preceding the sale, which precludes the defendant from controverting the absolute right of the plaintiff to the full benefit of his judgment, and it shall not be permitted, that the purchaser shall be answerable for defects in the record, from the consequence of which tho plaintiff is absolved. Such flagrant injustice is imputable neither to the common or statute law of tho land. If a judgment is reversed for error, it is a settled principle of the common.law coeval with its existence, that the defendant shall have restitution only of the money. The purchaser shall hold the property sold, and there arc few, if any states in the Union who have not consecrated this principle by statute.”

It was urged in argument in this case, that tho writs of execution were illegally levied. The judgments being against |!Manly and wife, administrators, and not against them and Moseley, administrators de bonis non of S. Parkhill, deceased.

The executions were commanded to be levied of the goods, &c., of Samuel Parkhill, deceased, in the hands of Manly and wife, administrators, &c. That the goods were the goods of S. Parkhill, deceased, and in their hands, is averred in both counts of the declaration : it is true they allege them to have been the goods, &c., of S. Parkhill, deceased, and to have been possessed by them, together with William D. Moseley, the other plaintiff in this suit, as administrators de bonis non. Now the judgment was against them as administrators, and the execution went against them as such, to bo levied of the goods, &o., of their intestate, by reason of his indebtedness ; the execution was levied on his property, and went to pay his debí, and pro tanto to relieve his legal representatives. If one is sued as executor, when he is administrator, it must be pleaded in abatement — he cannot set it up in bar, because it is the same right, and but by another name. Granwell vs. Sibley, 2 Lev., 190. Harding vs. Salkin, Comb., 220. Powers vs. Cook, 1 Lord Raymond, 634.

If debt is brought against two as executors, they plead judgment against one of them as administrator. This is good in bar, because there was a true debt due, and a recovery upon the right of the debt. Parker vs. Amys, 1 Lev., 261. So the administrators de bonis non in this case might plead a former recovery against some of them as administrators, and a payment by one as administrator would be good in bar to prevent a recovery against the whole as administrators de bonis non.

The Court are aware there isa conflict of authorities on this point. In the recent case of Taylor and others, vs. Savage, 1 How. S. C. R., 282, the Court say, (Chief Justice Taney delivering the opinion,) “ The decree in the Circuit Court is against George M. Savage, executor of the last will and testament of Samuel Savage, deceased. There was no other party respondent in the District Court, and the decree was passed against him in his representative character. Before the appeal was prayed on either side he had ceased to be the representative of the estate of Samuel Savage, and had no control over it, nor any right to interfere with it, by prosecuting or appearing to an appeal, or in any other manner. By his removal from the office of executor, he was as completely separated from the business of the estate as if he had been dead, and had no right to appeal in or be a party in this or any other Court, to a suit which the law confided to the representative of the deceased. No further proceedings, therefore, could be had in the District Court until Benham, the administrator de bonis non, was made a party.” It further appeared in this case by affidavit, that after appeal granted, and the record was made out and sent up, (for no notice was taken of it on the record,) execution “had issued in favor of the appellant. The Court say, “ In this view of the subject, it follows that the execution issued on the decree was unauthorized and void, and no right of property will pass by a sale under it, if one should be made by the Marshal.”

In the case of Jewitt vs. Jewitt, 5 Mass. R., 275, Chief Justice Parsons says, “that it is a good pica in bar against an administrator, that since the commencement of the action against him, he has been removed from office by the Judge of Probates.” “ If the matter of the ploa be good, it shows that the plaintiff has no cause of action against the defendant, either on this or any other writ. It is, therefore, properly pleadable in bar.”

I have not been able to perceive the precise analogy of the last case cited to the present one, although by the revocation of letters of administration to Mrs. Manly and her husband on the estate of S. Parkhill deceased, if letters of administration de l/onis non, on the estate of the decedent had been granted to any other person, the plea would be good in bar because no action could be maintained against them as administrators on that, or any other writ, yet when the same identical persons are appointed administrators de bonis non, to succeed themselves as administrators on the same identical estate, and on which the same plaintiff claims to have a cause of action, it seems to me that although the writ on which the suit was progressing might not be properly allowable, yet another writ might be given against the defendants on which suit could be maintained, to wit: a writ against Martha Ann Manly, late Parkhill, and Hiram Manly in right of his wife, and William D. Moseley, administrators de bow's non of Samuel Parkhill, deceased, the two former being the same idéntica] persons, and not different, defending by representation the same identical estate. Whereas, if as administrators they pleaded a good plea in bar, when they came to be sued as administrators de. bonis non, jointly with Moseley, for as much as the plaintiff’s action would be barred as to them, it would be barred against the administrator de bonis non, because being joint, they are as one person in law for the purpose of representing the estate, and this would be, to make the revocation of letters of administration to Mrs. Manly and her husband, a good plea in bar to the plaintiff’s action. I cannot think the plaintiff should lose his right of action, or his demand (if one be due him) for such a cause.

In the case of Taylor, et al., vs. Savage, Chief Justice Taney in delivering the determinations of the Supreme Court announced the execution in that case void and very properly as a consequence said no right of property will pass by a sale under it. The recognized doctrine everywhere is, that a sale under a void execution will not pass property to the purchaser. The reason oil which the Chief Justice founded his determination is that in that case there was no defendant in Court, the executor having ceased to be' the representative of the estate of Samuel Savage, and administration having been committed to a different person. That the executor had no right to interfere with the estate by prosecuting, or appearing to an appeal, or in any other manner. If the administration de bonis non, had been committed to the same person the case would have been distinctly different, and the execution would not have been void, but at most but voidable. In this case we have seen the defendants Manly and wife not only in Court pleading after the revocation of their letters, and subsequent re-appointment to the same trust as administrators de bonis non, but they pray a writ of error — it is allowed them. They appear in the Superior Court, are recognized as competent parties, maintain their writ of error, and the judgment below is reversed upon their motion.

They must therefore have been competent parties whom an execution might issue, upon a judgment unreversed and unappealed from, and which itself was not void but erroneous. The execution in this case was therefore only voidable,' and under such an one a purchaser acquires a right of property, and is distinguishable from the case of Taylor, et al., vs. Savage. But in the case under consideration before the Supreme Court, the question of the character of the execution did not properly arise, no question was made by the record, or was necessary to the determination in the case. The character of the execution was not discussed, no authorities on the point were referred to by Counsel, or the Court; with very great respect for Chief Justice Taney, I incline to think his decision of that point may be regarded as rather rather an obiter dictum.

But the defendant in this case relies on an estoppel in pais, as also protecting him in the purchase of the negroes in controversy. I shall not stop to consider the doctrine, but content myself with a reference to the cases of Cotten vs. Williams, Flor. Rep., 54, and Camp vs. Parkhill’s administrators, decided at this term, ior the doctrines of estoppel in pais, which I need hardly add have the sanction of my approval.

I will look at the facts of this case. Before the day of sale, one of the slaves purchased by Ponder applied to Moseley, one of the plaintiff’s to purchase her. Pie declined (because he said he was unable,) but recommended her to apply to Ponder who owned her husband. She went to Ponder accordingly, and thereafter be attended the sale; at the sale Moseley was present — advised Ponder to purchase, and upon suggestion about title, said there would be no difficulty — said that he had hired the negro, and that she would suit Ponder. Moseley took an active part in separating and parceling the negroes so as to make them bring the best price. Mr. Archer, attorney for Mrs. Manly, forbade the sale, because he said the negroes Were subject to her dower. Moseley expressed disapprobation 5 said the sale had better go on, that the negroes could not be sold at a better time. Said audibly to the crowd, bid up, bid up gentlemen, the property is not bringing half its price. The title will be good. And thereupon the property sold betteri Moseley bid at the sale as high as $800 for one negro woman, and at least bid for two slaves at that sale.

Manly also was there and kept an account of the sales; asked William Bloxham, a witness, to bid against Col. Gamble who was buying slaves for Meintzhagen without competition. Witness did so and caused the slaves bought by Gamble to bring at least $1500 more than they would have done. During all this time we hear nothing of a void judgment — a void execution — or a bad title to property — or an improper levy on property. The only claim interposed is for Mrs. Manly’s right of do wen The parties even seem to waive that, and a fortiori any other claim — and it is most certain, it is not now the pretext for this attempted recovery.

The administrators de bonis non were present assisting at and encouraging and aiding this sale. The property sold according to testimony at its fair value. Can now any reasonable person arrive at any other conclusion, than that the condition of the purchaser or purchasers was or were changed by this conduct. Suppose these administrators by themselves or their attornéy with their assent, had said: This property has been wrongly levied; it is the property of the administrators de bonis non of Parkhill deceased; it has been levied on as the property of the administrators whose letters have been revoked. The judgment is void. The execution is void. The whole matter is illegal, and purchasers will buy at their peril. Would the property under such circumstances have brought fair value. Would Ponder who is represented as a prudent, cautious man, have become a purchaser. Was not in fine, a belief induced by the conduct of these administrators which caused, the purchaser Ponder to change his previous position. If so, (and. so we think) then by the law of estoppel they are concluded from, averring against Ponder a different state of things existing at tho same time.

The foregoing remarks and authorities referred to, rightly con» sidered, we think, shew that the Superior Courts of the Territory of Florida, were Courts of geiieral jurisdiction. That the Superior Court of Leon County had and rightly took jurisdiction of the subject-matter in the case of-the Union Bank of Florida vs. Parkhill’s administrators. That the defendants in that action were legally summoned to answer to that suit, and appeared and pleaded pleas in bar. That that Court having competent jurisdiction, both of the subject-mátter, and the parties, gave judgment in favor of the plaintiff.— That while that judgment was in full force, and when no appeal or Writ of error had been sued out on it, an execution issued on said judgment (as well as on sundry other like judgments) from the Clerk’s office of said Superior Court, pursuing the judgments 'on which they had been respectively issued, and according to law — ■ Which executions were all placed in the hands of the Marshal who was the officer of said Superior Court. That by virtue of said execution the Marshal levied upon the negroes in controversy, and upon others being the property and effects of the estate of S. Parkhill, deceased, according to the very right of the case. That under and by virtue of those executions and levy, after having duly advertised, he sold at public outcry, to the highest bidder, the said slaves for ready money. That William G. Ponder, the (defendant below in this suit, and) appellant in this Court, became the purchaser, paid for and took possession of the negroes now in controversy. That said judgments being judgments of a Court of Record of general and competent jurisdiction were not and could not be void; but valid, unless appealed from, or reversed for error, and therefore voidable only.

That a purchaser at a public sale, under and by virtue of an execution issued upon a voidable judgment, if sale be made before the judgment is reversed, acquires a good title. That nine of the judgments upon which executions issued are valid even if erroneous, the limitation of time for appeal or writ of error having expired. And that there was no irregularity in the levy material to the very right of the parties the true defendant being Samuel Parkhill in his life time and his representatives in right of his estate after his death, and the property levied on and sold, his property to pay his debts, and that the plaintiffs are estopped to deny his title.

The Court will forbear to express their sense of the inconvenience which would result in society from the establishment of a rule, which would create uncertainty among buyers, at Sheriff’s sales under executions issued from their highest Courts of record and original jurisdiction. It might perhaps be justly apprehended that such a rule would disarm the Courts of the power to redress private wrongs or to enforce private rights.

We are therefore of opinion, that the Circuit Court erred in the instruction under consideration. That the judgments and executions under which the slaves were sold were not void. That they gave a sufficient authority for the sale, and that the right oí property in these slaves passed by the sale to the defendant or appellant, William Gr. Ponder.

The foregoing opinion being conclusive of this whole case, the Court have not deemed it necessary to look further into the assignment of errors set down in the record.

Per Curiam.

The judgment of the Court below is reversed and' the Clerk of this Court will tax costs in favor of the appellant.

Hawkins, J.,

said, that he agreed to the conclusions, but not altogether to the reasoning of the Court as expressed in the opinion of Judge Lancaster. He was in favor of a reversal exclusively on the ground that the plaintiffs in the Court below were estopped by their words and conduct to deny the title of Ponder to the slaves in ques-. tion.