1851. WRIGHT V. But, conceding this to be the case, for the sake of the ar- Nov. Term, gument, is a defense to the notes made out? The time when, by the contract, a title was to be conveyed to said Wright, had not arrived at the commencement or trial of BLACHLEY. this suit. The case, then, is that of a sale, or rather of a contract for the sale, of land, where an instalment of the purchase-money falls due some time before the deed is to be made, and is, also, sued for before that time. In such a case, the payment of the instalment is an obligation not dependent on the making of a deed, and no deed need be tendered before suit brought. The conveyance of the land is not the consideration of the promise to pay the instalment, but the obligation, or promise, to convey it at a future day. Leonard v. Bates, 1 Blackf. 172.-Cunningham v. Gwinn, 4 id. 341.-Gorham v. Reeves, at this term of the Court (1). A defense, therefore, in the suit before us, was not established, even supposing said plaintiffs to have had no title at the time they contracted a sale, if said contract was itself a valid one. A man cannot sell and convey that to which he has no title; but that a contract for the conveyance to another at a future day, of property to which the seller, at the time of such contract, has no title, is valid, is decided in Hibblewhite v. McMorine, 5 M. and W. 462, and in Wilks v. Smith, 10 id. 355. The title-bond of the plaintiffs below, in this case, amounted, in substance, as we have said, but to such a contract. It contained no stipulation for possession; and, under such a bond, the obligee is not entitled to possession prior to receiving his deed. Holmes v. Schofield, 4 Blackf. 171.-Doe v. Brown, 7 id. 142. But, again, said plaintiffs had a claim upon the land mentioned above, at all events, in the lien of their judgment. That lien they could enforce by a re-sale of the property, if the sale had was invalid. The deed which they had contracted to make would estop them from asserting that lien, and bind them to protect the grantee from it. The defendant below had purchased the land of the judgment-debtor subject to said judgment, and the removal of that encumbrance may be a good consideration for the notes given. Per Curiam.-The judgment is affirmed, with 1 per cent. damages and costs. C. C. Nave, for the plaintiffs. (1) See ante, p. 83. DOE on the Demise of HARKRIDER and Others v. HARVEY. 3 104 134 426 Friday, An administrator's sale of real estate for the payment of debts, made by an order of the Probate Court, is not void from the circumstance that the record does not disclose that notice of the application to sell was given to the heirs. Notice in that case will be presumed. A sale of land by an administrator for the payment of debts, will not be set aside, at law, because the administrator himself became the pur chaser. ERROR to the Henry Circuit Court. PERKINS, J.-Ejectment by the heirs of Philip Harkrider against Benjamin Harvey, for a tract of land in Henry county. Judgment below for the defendant. Harvey derived title through mesne conveyances from an administrator's sale made by order of the Probate Court of said Henry county, at its May term, 1833. The plaintiff insists that the Court, on the trial of this cause, should have declared that sale void: 1. Because it did not affirmatively appear that notice of the application for the sale was given to the heirs; 2. Because it did appear that the administrator upon said Harkrider's estate, was the purchaser at said administrator's sale. These are the only defects claimed to exist. As to the first point, it is shown that a report was made to the Probate Court, stating the insufficiency of personal assets to pay the debts; that a petition by the administra tor for the sale of the land was filed, and an order made thereon for the issuing of process, and for the publication in the proper newspaper of notice to the heirs, and that the cause was thereupon continued to the next term of the Court. At a subsequent term, it appears, an order of sale was made. It was proved that notice of the sale was given, and that the sale was regularly made. The report of the sale to the Court, the confirmation thereof, the order for a deed, the deed and the approval of it by the Court, and the accounting for the proceeds of the sale, all regularly appear of record. Such being the facts, the point under consideration is settled by previous decisions of this Court. In Horner v. Doe, May term, 1848 (1), it was decided that where the record of a domestic Court of general jurisdiction was silent on the subject, and disclosed nothing inconsistent with the fact of notice having been given, notice, in the absence of proof to the contrary, would be presumed; and in Doe v. Smith, November term, 1849 (2), it was determined that the Probate Courts of this state were domestic Courts of general jurisdiction. Upon the second point. An administrator is regarded as a trustee; and it has often been decided by this Court, that a purchase by a trustee, at his own sale, of the property of his cestui que trust, is so far void, in equity, that the latter may, in general, have it set aside without other cause shown than the single fact that the purchase was made by his trustee; the purchaser being allowed, on the vacation of his purchase, his payments, interest, and improvements. Brackenridge v. Holland, 2 Blackf. 377.Gage v. Pike, Smith's R. 145 (3).—Shaw v. Swift, id. 398 (4). Such is the law. Hill on Trustees, 535. In Brackenridge v. Holland, supra, it is said: "A trustee, no matter how or from whom he derives his authority, cannot purchase the trust estate so as to make a profit to himself. There is no general rule that he shall not be a purchaser, but if he is, his purchase is for the benefit of the cestui que trust." An administrator, then, on his purchase, at his own sale, of the real estate of his intestate, holds it as a trustee of the heirs. A trustee has the legal title, and that is suffiVOL. III.-14 Nov. Term, 1851. DOE V. HARVEY. 1851. DOE V. HARVEY. Nov. Term, cient for the maintenance of possession. Of that pos session, he cannot be ousted by an action of ejectment, unless his purchase can be set aside in that suit. We have found no case where such a purchase has been held void at law, and there seem to be weighty reasons why it should be set aside only in equity. All the cases on the subject hold that the cestui que trust, after a re-exposure of the property to sale, and a failure to obtain a better or an equal bid, has a right to hold the trustee to his purchase. All of them, also, hold that if the purchase is finally vacated, the trustee is entitled to be reimbursed his money paid, interest, and improvements. In Michaud v. Girod, 4 How. U. S., it was so decided. That was a case in chancery. For these he should hold a lien. These are matters for equitable adjustment, and the lien can only be enforced in chancery. They should, therefore, to save litigation, as well as for other causes, be settled in the proceeding in which the purchase is to be set aside, or affirmed, as the case may be. If the cestui que trust were permitted to avoid the purchase, at law, it would deprive him of the option of re-affirming it on his failure to make a better bargain elsewhere, and might jeopard the secu rity of the trustee. In Jackson v. Van Dalfsen, 5 John. R. 43, it was held that such a purchase could not be declared void at law, where the objection was raised by a third person; and in Davoue v. Fanning, 2 John. Ch. R. 252, chancellor Kent seems to regard the law as being the same in all cases. He says: "The Supreme Court, in Jackson v. Van Dalfsen, supra, admit it to be a well settled rule in equity, that a trustee or agent to sell, shall not, himself, become the purchaser, and they very properly refer the remedy of the cestui que trust, in such cases, to the cognizance of chancery." Per Curiam.-The judgment is affirmed with costs. J. S. Newman, for the defendant. (1) 1 Carter's Ind. R. 130.—(2) Id. 451.—(3) Sturdevant v. Pike, id. 277. -(4) Id. 565. JONES, Administrator of SHULTZ, v. VAN PATTEN. Nov. Term, 1851. JONES V. After the transcript of a record has been filed in the Supreme Court, the VAN PATTEN. Court below may correct a clerical error in the record, and upon the correction being properly certified to the Supreme Court, it will become part of the record of the latter Court. The measure of damages for the violation of a simple contract, where vindictive damages are not authorized, is the amount necessary to have put the party injured in as good a condition when the contract was broken as if he had not made the contract. Exceptions to the admissibility of evidence will not be regarded by the Supreme Court, in a civil action, unless they appear, by the record, to have been taken before the jury retired to deliberate upon their verdict. Exceptions to the instructions of the Court to the jury, will not be noticed in the Supreme Court, unless they appear, by the record, to have been taken before the jury delivered their verdict. ERROR to the Tippecanoe Court of Common Pleas. PERKINS, J.-Frederick Van Patten sued William Shultz in an action of assumpsit, on the following instrument: "This article of agreement, made this 28th day of January, 1848, between Frederick Van Patten, of the first part, and William Shultz, of the second part, witnesseth, that said Frederick Van Patten binds himself to furnish a good sound flat-boat, with a pilot and six able bow-hands, for the purpose of boating corn down the Wabash, Ohio, and Mississippi rivers, to said William Shultz; and said Shultz shall pay to said Van Patten, for each and every bushel delivered at any point on said rivers, designated by said Shultz, a freight of 18 cents per bushel; said flatboat not to be loaded to draw over 44 inches of water. Said Shultz shall have, also, the privilege of choosing the pilot for said boat; the boat to be furnished with a second floor and to be sided up, on the inside, to keep the corn from the outside plank. The boat to be ready for loading as soon as the river is high enough to run her with safety, and to receive her load two miles below Granville. After having discharged her cargo, the boat and skiff shall be sold to the best advantage, and, should the proceeds amount to more than 50 dollars, said Shultz shall have the surplus. As soon as the boat has received her load Friday, November 28. |