Logan vs. Gigley.

No. 24.-GEORGE W. LOGAN, plaintiff in error, vs. Aaron S. GIGLEY, defendant in error..

[1.] A bond by an administrator, to convey real estate of his intestate, in contemplation of a sale under the Ordinary's order, is void, and is incapable of being enforced, either at Law or in Equity, as contrary to the policy of the Statute authorizing administrators to sell the real estate of their intes

tate.

Covenant on bond for titles to land, in Bibb Superior Court. Tried before Judge STARK, January Term, 1850.

George G. Myers, as principal, and George M. Logan, as security, on the third day of January, 1848, executed to Aaron S. Gigley their bond, in the penalty of eight hundred and fifty dollars, conditioned to be void, when the said Myers, as administrator of the estate of Charles T. England, deceased, should make or cause to be made, as such administrator, good and sufficient warrantee titles to lot No. 6, in square 36, according to the plan of the city of Macon, in the County of Bibb, unto the said Gigley, his heirs and assigns, as soon as the same could be done according to law.

Upon this bond, the defendant, in error, Aaron S. Gigley, brought his action in Bibb Superior Court against George M. Logan and George G, Myers.

On the trial the plaintiff proved, by Col. Robert V. Hardeman, that he, as the agent of the plaintiff, a short time before the commencement of the suit, demanded from Logan titles to said property, in conformity to the terms of the bond. Logan refused to make titles, and said that Myers was gone to some of the northern States, and resided out of Georgia.

Counsel for defendant then moved the Court for a non-suit, upon the following grounds:

Because Myers, the principal in the bond, and a joint and several undertaker with Logan, had not been served, but was shown to be beyond the jurisdiction of the Court.

Because the testimony showed, that the undertaking in the

Logan vs. Gigley.

bond was illegal and void, and that the obligors and obligee were cognizant of it, and all participes criminis, in this, that it was an obligation on the part of Myers, as administrator of Charles T. England, to sell the real estate of deceased, contrary to the Statutes regulating the sale of intestate's real estate.

Because, to sell real estate of intestate by an administrator, privately, and without an order of the Court of Ordinary, as regulated by Statute, is an illegal and void contract, and no action can arise in favor of an obligee in a bond, which shows, on its face, that it was given to enforce and carry out such a sale.

Because it is contrary to the policy of the law to allow a recovery on bonds of this kind, because it enables the administrator and purchaser to perpetrate a fraud on the estates of intestate, and the policy of the law requires that the whole undertaking, bond and all, should be declared null and void.

Because the contract, as shown from the evidence, is null and void.

The Court overruled the motion for a non-suit, and counsel for defendant excepted.

POWERS and WHITTLE for plaintiff in error.

HARDEMAN, for defendant in error.

By the Court.-LUMPKIN, J. delivering the opinion.

[1.] We fully subscribe to the doctrine, as ruled by the Supreme Court of New York, in The Overseers of Bridgewater vs, The Overseers of Brookfield, (3 Cow. 299,) and in Herreck vs. Grow & Brown, (5 Wend. 579,) namely: that a bond by an administrator, to convey real estate of his intestate, in contemplation of a sale under the Ordinary's order, is utterly void and incapable of being enforced, either at Law or in Equity, and that it is against the policy of the law to permit the authority, conferred by the Ordinary, to be influenced or controlled by any previous contract.

In the latter case, it was well remarked by Ch. J. Savage, that

Logan vs. Gigley.

by Statute, administrators must sell at auction, and they can sell in no other manner. The highest bidder must have the property, and to him the administrators must convey. If the bidder at public auction, therefore, offer more than the administrators have agreed to sell for, they must forfeit and pay the difference out o their own pockets, according to their contract. They have every inducement, therefore, to discourage bidding, whereas, thei duty requires them to sell at the highest price. Such a contract, consequently, is highly improper, and a violation of the duty of the trustee.

But, non constat, that Myers' and Logan's bond was given to Aaron S. Gigley, to sell and convey the real estate of Charles T. England, deceased, the intestate of Myers. It does not so purport on the face of it. It is an obligation of Myers, as administrator of England, to make, or cause to be made, good and sufficient warrantee titles to lot No. 6, in square 36, according to the plan of the city of Macon, as soon as the same could be done according to law. Still, I repeat, this lot is not alleged, in the bond, to be the property of England's estate. It may not be so, and, in that event, the bond would be a mere personal undertaking on the part of Myers, and the addition of administrator to his name, be considered mere surplusage.

There being no other evidence then before the Court, but the instrument itself, and the testimony of Col. Hardeman, demanding titles, instead of moving for a non-suit, the defendant's counsel should have gone on to the Jury, and supported his plea by evidence, and then asked the instructions of the Court to the Jury, that the bond was contrary to the policy of the law, and consequently void. Upon the plea, the case is with the defendant in the Court below-upon the proof, with the plaintiff. The judgment must, therefore, be affirmed.

Wiley, Parish & Co. vs. Kelseys, Halsted and others.

No. 25.-L. M. WILEY, PARISH & Co. plaintiffs in error, vs. C. & G. H. KELSEY and HALSTED and others, defendants.

[1.] The judgment of a Court of competent jurisdiction, over the subject matter, is conclusive as to the facts which it decides, until reversed or set aside, and such judgment cannot be collaterally impeached or contradicted by evidence which such judgment declares to have been cancelled and annulled.

Rule against Sheriff, and motion to set aside fi. fa. in Houston Superior Court. Decided by Judge STARK, April Term, 1850.

At the April Term, 1839, of Houston Superior Court, L. M. Wiley, Parish & Co. obtained judgment against T. & S. Williams, for the sum of $1753 96 cents, principal. Execution issued therefor on the 18th day of May, 1839.

The correct amount was inserted in the face of the execution, but on the back it was for $753 96-the same entry was made on the execution docket. The only entry which appeared upon the execution, was a receipt, in the hand-writing of the late Judge Tracy, for $186 46 cents-but not signed by him—dated January 25th, 1840.

At the October Term, 1846, and on the 28th day of the month, an order was obtained, which recited that it appeared to the Court, by the statement of plaintiff's counsel and an inspection of the record, that the original fi. fa. had been issued by the Clerk, through mistake, for $753 96 cents, instead of $1753 96 cents, and ordering that the said ft. fa. so erroneously issued, be cancelled and annulled, and a new one for the correct amount be issued; and, also, directing the late Sheriff, George M. Duncan, to enter upon the new fi. fa. any levy or payment which may have been made upon the old one; and accordingly, upon said fi. fa. George M. Duncan made several entries, the last of which was made sometime about the 1st of January, 1840.

At the October Term, 1846, of said Court, a controversy arose as to the distribution of certain money arising from the sale of T. & S. Williams? property, between the plaintiffs in this fi. fa. and

Wiley, Parish & Co. vs. Kelseys, Halsted and others.

other judgment creditors of T. & S. Williams, when an issue of payment was made, and tendered upon the fi. fa. of Wiley, Parish & Co. at the instance of C. & G. H. Kelsey and Halsted, which was, at the April Term, 1847, withdrawn, and at said term, on motion of counsel, the fi. fa. of Wiley, Parish & Co. was set aside, on the ground that it was dormant, and the money then in the hands of the Sheriff ordered to be paid to the fi. fa. of C. & G. H. Kelsey and Halsted. To which decision exception was taken, and the same was reversed by the Supreme Court; and, subsequently, money was paid upon said fi. fa. by order of the Superior Court, had at October Term, 1848.

At the April Term, 1850, of Houston Superior Court, a rule was moved against the Sheriff to pay over money arising from the sale of T. & S. Williams' property, to the fi. fa. in favor of Wiley, Parish & Co. when counsel for defendants in error moved the Court to set aside said fi. fa. upon the following grounds:

1st. Because said fi. fu. bears date the 28th day of October, 1846-more than 'seven years after the signing of the judgment from which it issued; that it is attested by Angus M. D. King, as Judge, who was not, at that time, Judge, and signed by Lewis J. Jordan, as Clerk, who was not, at that time, Clerk of this Court.

2d. Because said ft. fa. is not an alias fi. fa. and contains entries prior to its date-the original fi. fa. having been, by order of Court, set aside, cancelled and annulled by order of this Court..

3d. Because the judgment from which said fi. fa. purports to have issued was dormant-said fi. fa. not having issued within seven years from the time of signing said judgment.

4th. Because the judgment from which said fi. fa. was issued is and was dormant before the said fi. fa. was issued-the original fi. fa. issued therefrom not having any entry made thereon by the proper officer for more than seven years from the time it was issued and farther,

Because the said original fi. fa. was not erroneously issued, but was correctly issued, and that the said original was dormant, and the said established fi. fa. was erroneously established, and