Remick v. Butterfield

31 N.H. 70

• Court: Superior Court of New Hampshire
• Decided: July 15, 1855
• Status: Published

Opinion

Bell, J.

The positions of the plaintiff, that the letter of administration to G. W. Pinkerton is not sufficient evidence of his appointment as administrator, and that the decree of the judge of probate making the appointment, is the only proper evidence of that fact, has been argued with much ingenuity and plausibility. But the question is not new, and it has been settled by many decisions of the courts in England and in this country, which we do not feel ourselves called upon to disturb.

The result of these decisions is well stated in the 339th section of 1 Greenleaf’s Evidence, cited by the defendant. “ The proof of the plaintiff’s representative character is made by producing the probate of the will, or the letters of administration, which, prima facie, are sufficient evidence for the plaintiff, both of the death of the testator, or intestate, and of his own right to sue. The probate itself * * * is conclusive evidence both of his appointment and of the contents of the will. The same principle governs in the case of an administratorand it is said in 2 Greenleaf’s Evidence 519, “ Letters of administration are granted under the seal of the court, having jurisdiction of the probate of wills, and the general course in this country, as in the ease of wills, is to pass a formal decree to that effect, which is entered in the book of records of the court. The letter of administration is rather in the nature of an exemplification of this record, and as such it is received without further proof; but where no formal record is drawn up, the book of acts, or the original minutes, or memorial of the appointment, or a copy of them, duly authenticated, is competent evidence.”

The same rule is laid down in many of the elementary books, as well settled law. 2 Phill. Ev. 173, and 2 Cow. & Hill’s note 60, 61, 347; 3 Phill. Ev. 361; 2 Steph. N. P. 1904; Bull. N. P. 246; 1 Saund. Pl. and Ev. 514, 579; 2 Leigh’s N. P. 1002; 2 Stark. Ev. 547, 516, 550; Peak. Ev. 69, 343; Cov. Con. Ev. 209; and see Kempton v. Cross, Rep. t. Hard. 100. In Farnsworth v. Briggs, 6 N. H. Rep. 561, and Jeffers v. Radcliff, 10 N. H. Rep. 242, this doctrine is distinctly recognized by this court.

Letters testamentary and letters of administration may, perhaps, be regarded as in the nature of the commissions issued to civil and military officers, which seem to be always regarded as competent evidence that the appointments have been duly made according to the provisions of the constitution, or of the laws. State v. Leonard, 6 N. H. Rep. 438; State v. Wilson, 7 N. H. Rep. 543.

Such commissions constitute an exception to the ordinary rule, that the best evidence must be produced, since they presuppose and depend on an appointment as much as an execution does upon a judgment.

The record of the probate court shows that Pinkerton, the administrator, took the oath required by law before acting upon his license to sell. The records of the courts of probate, upon all matters within their jurisdiction and required to be recorded, are evidence of the matters to which they relate, as is the case in other courts of record. The order of that court, permitting an amendment of the record of the oath, is conclusive upon parties and privies, and will not be inquired into collaterally, if they had jurisdiction to make it. Where a court duly authorized has exercised a discretion given by the law, the propriety of its exercise will not be inquired into by a superior court. Claggett v. Simes, 5 Foster’s Rep. 402,

We take it to be a sound principle, that every court exercising a continuing jurisdiction, having an office for the preservation of its records, and the charge of those records by a proper officer, has by law an implied authority to amend its records, to make them conform to the facts and truth of the case. Dudley v. Butler, 10 N. H. Rep. 284; Willard v. Harvey, 4 Foster’s Rep. 344.

Assuming, then, the general power of the courts, upon a proper application and due proof, to correct their records, the question arises, who are bound by such amendments ? Ordinarily, they affect the parties only to the proceedings; but in some cases, in the first instance, and in others subsequently, such amendments affect the rights and interests of many third persons. Are such persons bound by amendments of which they have no notice ? We are of opinion that they are not bound, nor in any wise affected by amendments made behind their backs, but as to them the records are to be regarded as remaining in their original state. In the case of judgments rendered by courts, in cases where they have jurisdiction, the judgment is conclusive only against the parties to the proceeding, and those who are deemed in law their privies, and, with few exceptions, they are not conclusive nor binding upon strangers. Thrasher v. Haines, 2 N. H. Rep. 244; Dame v. Wingate, 12 N. H. Rep. 291; King v. Chase, 15 N. H. Rep. 9; Chamberlain v. Carlisle, 6 Foster’s Rep. 540; Demeritt v. Lyford, 7 Foster’s Rep. 541.

And it does not seem to us consistent with sound principles to give to the discretionary orders of the courts any more extensive effect than the law gives to their judgments. See Claggett v. Simes, 5 Foster’s Rep. 411.

As a general rule, we think that every application for an amendment should show who are the parties having rights which may be affected by it, and due notice of the proceeding should be given them. Probably such notice as is required by law in the settlement of estates in the probate court, would be sufficient, the proceedings being, like them, in the nature of proceedings in rem. But if notice is entirely omitted, or is given to a part only of those whose rights may be affected, the amendment will be made at the nlk of being held ineffectual, and as if not made, as to those interested who had no notice.

In the present case, the amendment was without notice to the heirs, whose interests might be vitally affected by it, and who should have had an opportunity to show that the original record was true, and that it would be made false by the amendment proposed. As to them the amendment is inoperative, and the record still stands in its original form, and the proof of the oath was therefore open to objection.

It is further objected, that the sale by the administrator was made at private sale, and not at auction, as the statute requires, and his deed is therefore ineffectual to convey the estate. By the case it is stated that the administrator being duly licensed to sell this real estate, gave proper notice for a sale at public auction, on the 26th of May, 1847, and at that time exposed the premises for sale; but the same were bid off by the administrator, (he being the highest bidder.) Afterwards, on the same day, the administrator sold the premises at private sale to the tenant, and made him a deed in due form, as administrator.

Upon these facts, it is contended for the plaintiff that there was no sale at the auction, the property being bid in by the administrator; while it is insisted for the tenant, that the bidding of the administrator was merely for the benefit of the estate, that his bid was assumed by the tenant, and the deed made to him, as the highest bidder.

It is not asserted that there was any actual fraud in this ease, but it may be fairly inferred that the administrator overbid the purchaser in the hope of getting a higher bid, and then persuaded him to take it off his hands. All which might happen without any fraudulent purpose toward the estate. But we regard the whole transaction as dangerous and improper and as illegal, giving no right to the administrator to hold the property, or to claim any conveyance under his bid.

To say nothing of the difficulty of an administrator’s making an effectual conveyance to himself, the transaction maybe regarded either as if the bid had been made by the agent of the administrator, the deed made to the agent and by him to the tenant, or as if made by the administrator on his own account, and a sale by him of the property to the tenant at private sale, or as if made by the administrator as the agent of the purchaser, and a conveyance made by the administrator to the principal for whom he has acted. The evidence furnishes little support for either the first or third of these views, but either is more favorable for the tenant than the second, and if neither of them can be sustained, it would be hopeless to contend for the other.

Upon the first view, it is urged by the tenant that this action is brought at common law; and that it is settled in this State that at common law purchases of estates of their in-testates, by administrators, when sold by themselves under license, are not void or voidable, unless tainted with actual fraud ; and for this position the case of Lovell v. Briggs, 2 N. H. Rep. 221, is cited, and it must be admitted that the language of the judge who delivered the opinion of the court in that case fully sustains that position.

But it is contended by the learned counsel for the plaintiff that the language there used is a mere obiter dictum, that the law is clearly otherwise, and has been so held in more recently considered cases. The first of these positions is shown to be correct by an examination of the case. The case related to the validity of the sale by a widow of her share of an intestate estate to the administrator. It had no relation to the sale of the real estate of an intestate, under a license by an administrator to himself, directly or indirectly, as the highest bidder. The statements of the law.on the subject before us are without authority, and upon a careful examination of the authorities, we think them unsupported. The books cited by the counsel seem to us to sustain the position taken by him, that the administrator could not be the seller and purchaser at his own auction. The authorities which sustain this position are numerous. In equity they are uniform, as, indeed, seems admitted in Lovell v. Briggs. To the cases there cited may be added many others. See 1 U. S. Eq. Dig. 623; Trusts IV, 6, 274; 1 Ch. Eq. Dig. Fraud VII.

The rule, as we apprehend, is well laid down in this way. “A party cannot legally purchase on his own account that which his duty or trust requires him to sell on account of another, nor purchase on account of another that which he sells on his own. He cannot unite the opposite characters of buyer and seller.” See 4 U. S. Dig. Tit. Ex. and Ad. V, 206, 259, 304, 306, 317, 361.

In Perkins v. Thompson, 3 N. H. Rep. 144, the principle involved in this case came in question in the case of a deputy sheriff selling goods on execution ; and the court held that the characters of seller and buyer of the same article at the same time are inconsistent, and cannot be united in the same person. He who acts as agent to sell cannot be himself the buyer, and a deputy sheriff who purchased, by the aid of a friend, goods taken on execution and sold by him, was held liable for them in trover. In this case, Chief Justice Richardson cites the case of Currier v. Green, 2 N. H. Rep. 225, as an authority that he who acts as an agent to sell real estate, cannot be interested in the purchase of the estate he sells. And in the case of Brackett v. Tillotson, 4 N. H. Rep. 208, it was held that purchases made by an administrator at his own sale, in the name of others and in his own, were illegal; and Currier v. Green, and Perkins v. Thompson, were cited for the reasons of the decision.

The law is correctly and clearly laid down, as we think, in Litchfield v. Cudworth, 15 Pick. 23, a real action, by Judge Morton. “ It is,” he says, “ a salutary and sound principle, that agents to sell cannot be purchasers. That the characters of seller and buyer are so entirely incompatible that they can never be united in the same person. And generally, that trustees of every description who have power to sell, can never, by direct or indirect means, become purchasers of the trust property. Copeland v. Mercantile Ins. Co., 6 Pick. 204; Church v. Marine Ins. Co., 1 Mason 341; Barker v. Same, 2 Mason 369; Paley on Ag. 32; Ex parte James, 8 Ves. 337; Ex parte Kennett, 10 Ves. 381; Society v. Clapp, 18 Barb. 47.

But these principles do not render the sale absolutely void. Strangers to the property cannot call it in question. It is voidable. It is an abuse of authority which may be taken advantage of by any one whose interest is affected. Hence cestui que trusts, and all for whom the trustee or agent acted, have an option to avoid the sale and retain the property sold, or to confirm the sale and receive the consideration, as may be for their interest. Jennison v. Hapgood, 7 Pick. 1; S. C. 10 Pick. 77. The heirs or their assignees have an, election to avoid or confirm the sale, and in doing this they-are not bound to act jointly. Each one has an individual election.

In Blood v. Hayman, 13 Met. 231, these principles are recognized as the well known rule in the case of an administrator.

The sale, then, to the administrator or his agent, was invalid and voidable, in the instance of the heirs, if it had been carried into effect by a conveyance. It would be equally invalid if it had been made to the administrator, as the agent of the purchaser; since we regard it as settled that a person who is incapacited from purchasing on his own account, cannot, under any circumstances, buy as the agent of a third person. Hawley v. Cramer, 4 Cow. 717, per Walworth, Cir. Judge. Ex parte Bennett, 10 Ves. jr. 381. So that, viewed in any light, the sale to Pinkerton was defeasible by the heirs, at their election. It may, however, be noticed that there is here no evidence that Pinkerton was the agent of the tenant at the sale. The sale was merely abortive, ending in nothing; but the property, being bid in by the administrator, remained a part of the estate, as if nothing had been done, the conveyance being made under circumstances in which the administrator had no power effectually to convey the estate, was unavailing to transfer the interest of the heirs, if they object; under some circumstances it might convey a limited interest given by law to the administrator. See Bergen v. McFarland, 6 Foster’s Rep. 533. But there are no facts here showing the existence of any such qualified estate in this case.

There can be no valid claim for betterments in consequence of the want of six years possession between the deed to the tenant and the commencement of this action. This interval was less than five years, and, consequently,’ insufficient, unless the tenant can connect his defeasible estate under his deed, with , the estate of the administrator under fhe law, continuing until the settlement of the estate.

But there is no pretence that an administrator, holding the estate as a trustee for the creditors, has such a supposed legal title as would authorize him to claim for betterments. He has a legal title of a qualified character, that is, to take the profits for the use of the estate; but if the estate continued unsettled for ever so many years, the administrator could claim nothing for expenditures upon the property, excepting for necessary repairs, which he would be entitled to be allowed on settlement of his administration account in the probate court, and not elsewhere. The tenant, then, can derive no aid from the estate of the administrator, and, consequently, has failed in supporting a claim for betterments.

Judgment on the verdict.