Steger v. Bush

1 S. & M. 172

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

Chancellor.

The complainant, as the administrator de bonis non, upon the estate of Harry Long, deceased, seeks to foreclose the statutory mortgage, given in the case of administrator’s sales, for a balance of the purchase-money, due for some negro slaves, belonging to his intestate, which were sold by the original administrator, and which are now in the hands of the'defendant, Matilda Perry, whose husband seems to have been the real, although not the nominal, purchaser thereof. The case is defended on the ground, that, as to the unpaid portion of the purchase-money, the original administrator received the note of a third person, with indorsers, the proceeds of which were to have been applied in payment of this debt; and that the administrator delayed the prosecution of that claim, until the parties thereto became insolvent. It is hence insisted, that the administrator became liable for the amount of the note so received ; and that, as a consequence there-©f, the' lien or statutory mortgage on the slaves is released and discharged.

Assuming for the present, that the facts, as thus stated, are true, it may be doubted, whether the legal consequences, which are supposed to folknv them, are correctly laid down. By the statutes of this State, the power of an administrator, in selling the property of his intestate, is restricted to the mode there pointed out. It is declared, that he shall make such sales upon a credit of at least six months, taking from the purchaser “ bond, with approved security.” How. & Hutch. 411,. sec. 86. It is evident, that the bond of the purchaser himself, and not the transfer of the note of any third person, is what is contemplated by the laws. I think that there are the most solid reasons for questioning the power of an administrator, in such case, to substitute any other form of contract, or any other kind of security, than those prescribed by the law. The law contemplates an original and absolute liability on the part of the purchaser ; and I incline to think that the administrator has no discretion to change its character into a mere secondary and contingent liability, by taking his indorsement of the note of a third person.

Such discretion would prove extremely hazardous to the safety of the estates of deceased persons. The stable security, which the law has wisely provided in such cases, would be often defeated by the accidents attendant upon the steps, necessary to fix the collateral liability of the purchaser, growing out of his indorsement. It would seem, upon principle, that where the law has prescribed one mode of doing a thing, it must be regarded as a limitation of power, and as an implied exclusion of every other mode of doing the same thing. An administrator is, in one sense, the agent of the law, which prescribes his duty and limits, and defines his power. His powers, in general, are no way analogous to those of an executor, who is the representative of his testator, and may do any act which the testator might have done, connected with the estate, unless inhibited by the will, or restricted by rules of law. If then it be true, that the original administrator, in this case, had no authority in law for rpceiving the note of a third person, in lieu of the direct liabilities of the purchaser at the sale, it is quite clear that no future neglect of his to enforce the collection of that note, could have the effect of discharging the mortgage which the law gives upon the property sold. I think that the administrator, in receiving the note, and undertaking its collection, must be regarded quoad hoc, as the mere agent of the purchaser, acting for his accommodation, and not as the representative of the estate. This, indeed, would seem to have been • the true character of the understanding between the parties, as evidenced by the receipt taken on the occasion, which shows nothing more than a mere promise to apply the proceeds of the transferred note, when collected, in discharge of the money due for the purchase of the negroes. But, supposing the administrator to have been in the due exercise of his fiduciary duty and authority in taking the note, I am not prepared to admit, from the facts of the case, that such consequences follow the alleged delay, as those insisted on for the defendants. It appears, that the note was duly put in suit and prosecuted to a judgment against the maker and original indorser; but in taking that judgment, the administrator appears to have consented that it should be rendered with a stay of execution for six months ; and this is the delay of which the defendants complain. Now I admit that a party, who receives from his debtor the paper of a third person, as collateral security for his own debt, is bound to use due diligence in collecting it, and that if it is lost by any delay of his, he becomes responsible for the amount, and will be considered as having made the debt his own.

But something more than mere delay is necessary in such cases ; because mere delay, if no loss followed as a consequence thereof, could not be made the foundation of any complaint on the one hand, or of responsibility on the other. The counsel for the defendants seem to have been-fully aware of the correctness of this position, and have introduced some verbal testimony, to show that the judgment might have been made available, but for the stay of execution which was given : this testimony goes no farther than to show that after the rendition of the judgment, one of the defendants thereto was in possession of a considerable amount of property. But the witness seems to have known nothing of its condition, whether it was or was not covered by numerous older liens and incumbrances. I am fully satisfied, from the whole proof in the case, that no amount of vigilance, in the prosecution of the judgment, could have made it available ; and that the failure to realize the amount thereof, must be ascribed to the existence of prior liens and incumbrances, which absorbed the whole property of the defendant in the judgment, and not to the delay which was given by the stay of execution. I arrive at this conclusion, as well from the testimony of Battle, who seems to have been familiar with the condition of Andrews, and who swears that he was totally insolvent in 1838, one year before the judgment was rendered, as from the record-evidence in the case, showing that there were numerous judgments for large amounts in- the same court against him, of older date than the one on the note referred to, and which are still unsatisfied, after having been rigorously prosecuted.

Upon the whole, I shall direct a reference, to ascertain the amount due the estate of Long, and upon the coming in of the report, a decree may be had, enforcing the statutory lien upon the slaves mentioned in the bill ; costs to be paid from the proceeds thereof.