whole compensation for the labor, expense, and responsibility of the ad- ministration.
18. An administrator cannot, therefore, be allowed any thing for his expenses incurred in the administration of the estate, nor for lawyers' fees incurred by him in the course of his administration, to enable him to administer the estate properly; but if he have to bring suits for the estate, or defend those brought against it, he is entitled to employ counsel for that end, and pay for the services out of the estate. Ib.
19. It seems, however, that if an administrator have charged the estate with travelling expenses and counsel fees, and, in allowing his account, the probate court do not allow the entire sum charged by the administrator to have been paid out by him, and the administrator appeal therefrom, the high court of errors and appeals will not set aside the allowance in his favor, as the distributees made no objection to it. lb.
20. If, after twelve months from the grant of administration, the administrator permit money to lie on hand without any good reason, or if he use the money himself, he will be liable for interest; he himself must show the necessity or reason for keeping it. Ib.
21. The probate court is not bound by the rules which regulate proceedings in chancery; it may refer an administrator's account to the clerk to report thereon, and, without waiting for the report, may examine and decree upon the account directly; and, if the decree be otherwise correct, it will not be disturbed because rendered before the clerk made his report. Ib.
22. It is in the discretion of the probate court to fix the amount of the commis- sions allowed administrators and executors within the limits fixed by law; it is so much a matter of discretion with the probate court, that the high court of errors and appeals would not interfere with an allowance by that court, unless where there had been a manifest abuse; and in this case it did not so consider an allowance of three per cent. Ib.
23. An administrator or executor of an insolvent estate is under no obligation to lay before the commissioners of insolvency a claim upon which a suit was pending against him prior to the declaration of insolvency, and not reduced to judgment when the commissioners were appointed; nor if such claim be laid before the commissioners and rejected, is the administrator or executor under any obligation to file exceptions to the report of the commissioners to the probate court, exhibiting such rejection. Trezevant v. McQueen, 311. 24. Where, therefore, a creditor of a deceased person sued the administrator, and pending the suit the estate was declared insolvent, and commissioners were appointed, who in due time reported, excluding the claim sued for, and the report was confirmed without exceptions from the administrator, whereby the estate of the deceased person was discharged from the debt, and the creditor sued out a scire facias to charge the administrator with the debt as for a devastavit: it was held, on demurrer to the scire facias, that it pre- sented no cause of action against the administrator. Ib.
25. The case of Trezevant v. McQueen, 12 S. & M. 575, cited, and its reasoning and expressions, as to the liability of administrators for not presenting to the commissioners of insolvency claims against the estate on which they are sued, limited and overruled. Ib.
26. The mere fact that a former administrator had in his possession a note of a third party, due to his intestate, is not an administration of such note; nor will his ceasing to be administrator, and delivering the note over to the guardian of the children of his intestate, make the note any the less assets, which may be administered by an administrator de bonis non.
Morse v. Clayton, 373. 27. Where a note secured by mortgage is payable to a deceased person, no one but his administrator can enforce the collection of the note by the foreclosure of the mortgage; nor will it be any obstacle to the administrator's right to foreclose, that by some means a judgment has been had at law on the note against the maker in favor of the guardian of the heirs of the payee. Ib. 28. The 12th section of the act of limitations of 24th of February, A. D. 1844, which provides that no action at law or in equity shall be brought against an executor or administrator, after the expiration of four years from the qualification of such executor or administrator, is prospective, and applies only to administrators appointed after the passage of the act.
West Feliciana Railroad v. Stockett, 395. 29. Were it otherwise, and the act to be construed to embrace administrators ap- pointed prior to its passage, and the limitation to commence running as to them from the passage of the act, it would not apply to a case where letters of administration had been granted less than nine months before the act took effect, until those nine months had fully elapsed; because, until their lapse, no right of action existed in the creditor, and the limitation had nothing until then to take effect upon. Ib.
30. However the rule may be with reference to the right to sue the sureties on an administrator's bond, before the liability of the administrator be fixed, (and whether the rule as to them be universal or not, which it seems is questiona- ble,) such rule has no application to suits on guardians' bonds.
Burrus v. Thomas, 459. 31. The statute of this state, which provides that an executor or administrator shall not be chargeable beyond the assets of the testator or intestate, by reason of any omission or mistake in pleading, applies as well to executors de son tort as to rightful executors. Hill v. Henderson, 688.
32. In an action, therefore, against an executor de son tort, who has omitted to plead plene administravit, it is error to take a judgment against him to be levied of the goods and chattels of the testator and unadministered, and if none, then of his own proper goods and chattels; the judgment should be as in the ordinary form against rightful executors. Ib.
EXECUTOR AND ADMINISTRATOR DE SON TORT.
When consideration, see Husband and Wife.
FORCIBLE ENTRY AND DETAINER.
1. In an action for unlawful detainer, where a tenancy on the part of the defend- ant from the plaintiff is shown, it is not competent for the defendant to object to the want of right of possession or of property in the plaintiff; the tenancy being proved and its expiration, the right of the plaintiff to recover is clearly established. Newman v. Mackin, 383.
2. A party in possession of real estate, who is sued for an unlawful detainer, cannot defeat the plaintiff's right by abandoning the possession to another; such third party will occupy the same relation to the plaintiff that the de- fendant did. lb.
3. Where the relation of landlord and tenant is shown to exist between the plaintiff and defendant in an action of unlawful detainer, it is not competent for the defendant or one coming in under him, to prove by documentary evi- dence of title the want of title in the plaintiff. lb.
4. Where, on the trial of an unlawful detainer, the proof was that the defendant, soon after the institution of the suit, abandoned the possession, and other persons intruded into the premises, claiming not for her, but for themselves : Held, that she could not be responsible for the rent which accrued after her abandonment. Ib.
5. Where the jury, in an action for unlawful detainer, have assessed more rent than is lawfully due, the plaintiff may, by remitting the excess, obtain a judgment in the high court of errors and appeals, for what the proof shows him to have been lawfully entitled to. lb.
FORTHCOMING BOND.
See Execution.
FRAUD, AND FRAUDULENT CONVEYANCE.
1. None but a creditor having a judgment in this state can attack a deed of trust as fraudulent, with the view of having the property conveyed by it, subjected to the creditor's demand; not even though the parties to the deed of trust are non-residents, and the bill be a creditor's foreign attachment bill; nor will it aid the creditor that he has a judgment on his demand in the state where the parties to the deed of trust reside.
Berryman v. Sullivan, 65. 2. Where, after a public sale under a deed of trust of personal property, the property sold is left in the possession of the grantor in the deed of trust, no presumption of fraud will arise therefrom; and if the sale be otherwise free from fraud, a purchaser under a judgment against the grantor in the
deed of trust, in whose possession the property is left, junior to the sale under the deed of trust, will acquire no title to the property.
Ewing v. Cargill, 79. 3. Where, in the trial of the right of property, the claimant claims by purchase under a deed of trust, executed by the defendant in execution of date older than the judgment, and the jury find for him, such verdict will relieve him from the imputation of fraud in fact in the purchase. lb.
4. The conveyance of property by deed of trust, which is consumable in the use, is not in itself fraudulent, unless it be stipulated in the deed that the grantor may use it; and whatever may have been the intention of the parties, if it be not so expressly stipulated in the deed, a bona fide purchaser of property at a sale under the deed of trust, for valuable consideration without notice, will be protected in his purchase. lb.
5. A purchaser of land and slaves, under a deed of trust, allowed the grantor in the deed of trust, out of kindness, to remain upon the property, and exercise a sort of agency over it for the purchaser, the latter employing an overseer, and his right as well as the nature of the possession of the grantor in the deed of trust, under which the purchaser bought, being notorious: Held, that three years of such possession did not render the property subject to the debts of the grantor in the deed of trust; it was in fact the possession of the purchaser, the grantor having no loan of the property or other inter- est or use in it. lb.
6. A bonâ fide purchaser for valuable consideration without notice, under a deed of trust, not void upon its face, cannot be affected by any intended fraud of the grantor in the deed of trust. lb.
7. When fraud is charged in the bill, it need not be answered, if the bill, admit. ting the fraud, presents no ground for relief; a bill therefore to enforce a parol sale of land, charging the defendant with fraudulently refusing to re- duce the agreement to writing, though it was part of the contract it should be so reduced, may be demurred to, without an answer to the charge of fraud. Box v. Stanford, 93. 8. A deed made voluntarily, and without any pecuniary consideration, cannot stand as against a creditor whose debt was valid and subsisting at the date of the deed. Swayze v. McCrossin, 317.
9. The law requires a man to devote the whole of his property, with some trivial exceptions, fairly to the payment of his debts; it will not tolerate any subterfuge or device which is intended to divert it from that purpose. The form of the contract or transaction gives it no validity when good faith, which is necessary to the obligation of all contracts, is absent. A sale under execution confers no exemption from this principle in behalf of those who participate in such device. Trimble v. Turner, 348.
10. Where a sale under execution is so conducted by collusion between the plain- tiff and the purchaser of the property levied on, as to cover the title to a much larger amount of property sold under the execution than is necessary
to satisfy it, for the benefit of the family of the defendant in the execution, it will be fraudulent; and no feeling of sympathy or benevolence of motive on the part of those engaged in the transaction can redeem it from the condemnation of the law.
11. It was agreed between a judgment creditor and a third party, that the latter might purchase, under a sale upon his execution against his judgment debtor, certain slaves of the debtor, which had been levied on, and, instead of paying cash for them, as were the terms of the sale, might have a credit which was agreed on; the purchaser bought for the benefit of the judgment debtor, through whose active exertions on the day of sale, in preventing bidders, the property levied on brought less than its value, and who expect- ed, out of his crop then in the ground, and a sale of part of the property, to meet the price the purchaser was to pay at its maturity; the sale took place nominally for cash, but really on this credit, at a season when money is always most scarce; and the property, after the sale, remained with the judgment debtor, who paid the price bid when due: Held, that this sale was fraudulent as to creditors, and the property purchased subject to the other debts of the judgment debtor. Ib.
12. Where a deed or other instrument or transaction is set aside because of fraud as to subsisting creditors, it becomes wholly void, and cannot stand in the way of subsequent judgment creditors. Ib.
13. After proof of a combination between parties to a fraud is made, the acts or declarations of one are evidence against the others. lb.
14. The principle which protects sales at execution from the presumption of fraud where the original owner is left in possession, does not apply to a case where, previous to the sale under the execution, an agreement is made between the plaintiff and the purchaser that the latter shall buy at the sale upon a credit agreed on; in such case, the sale is but a private one. lb. 15. In this case, one of the questions presented, was, as to the validity of a sale by one to his brother, and a conveyance by the latter to the wife of the former; the court review the facts, and reach the conclusion, that the sales were fraudulent, and made to enable the first vendor to evade the payment of his debts, and retain his property in his wife's name.
Henry v. Fullerton, 631. 16. Voluntary conveyances are not necessarily void as to subsequent creditors; the presumption of fraud arising from indebtedness, or fraud in law, may be repelled by circumstances tending to show the absence of actual fraud; but if a subsequent creditor can show fraud in fact, by showing that the convey- ance was made to avoid future debts about to be contracted, or to defraud existing creditors, the conveyance is void, not only as to present, but as to subsequent creditors also; and will be declared so at the instance of such subsequent creditor. Ib.
17. In this case the deed of trust provided that the trustees might sell upon joint request of B, the cestui que trust, and W., the grantor, or in case B.
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