Aven v. Beckom

• Decision Date: 31 January 1852
• Docket Number: No. 1.,1.
• Citation: 11 Ga. 1
• Parties: Furney C. Aven, plaintiff in error. vs. Allen B. Beckom, defendant.
• Court: Georgia Supreme Court

11 Ga. 1

Furney C. Aven, plaintiff in error. vs. Allen B. Beckom, defendant.

No. 1.

Supreme Court of the State of Georgia

JANUARY TERM, 1852.

Covenant, in Twiggs Superior Court. Tried before Judge Hansell, October Term, 1851.

This was an action by A. B. Beckom, against F. C. Aven, for a breach of warranty of soundness in a negro. The negro wassold by Aven as administrator on the estate of James A. Young, and in the bill of sale made by him, was the following warranty: " And the said Furney C. Aven, administrator, warrants said negro constitutionally sound; and he also warrants and defends the title to said negro, to said Allen Beckom, his heirs, executors and administrators, against the claim of himself, his heirs and all other persons whatsoever, so far as the office of administrator authorizes him, forever."

This suit was against Aven individually, and the first and main question made in the Court below was, whether Aven was individually liable upon this warranty. The Court held him liable, and this is the first error assigned.

Defendant below pleaded a subsequent release from the warranty, and in support thereof, introduced two witnesses, who swore " that some misunderstanding having arisen about the warranty, Beckom told them that he was satisfied about the negro, as he knew him better than Aven, for he had a wife near his house." The Court charged the Jury that there was " no evidence before them to support the plea of release." This is also assigned as error.

Poe & Nisbet, for plaintiff in error.

C. B. Cole, for defendant.

By the Court.—Nisbet, J. delivering the opinion.

The great question in this case is, whether the plaintiff in error is personally liable upon this warranty of soundness. After the discussion, we are not enabled to consider it open. We must consider it as settled upon authority, against the plaintiff in error. Were it an open question, I must say, I would hesitate to charge an administrator, personally, upon a warranty of soundness of property, sold under an order of Court, made as administrator, and without evidence that he intended to charge himself.

An executor or administrator is not, by any obligation of his trust, required to warrant the title or the soundness of pro-perty, which, in the execution of that trust, he is required to sell. Caveat emptor is the warning which the purchaser must take at his peril. He is bound only by an express undertaking so to be. He may bind himself—there is nothing to forbid this; and farther, it is well settled that upon any contract originating with himself, he cannot charge the estate which he represents. Worthy et. al. vs. Johnson et. al. 8 Ga. R. 236.

When, therefore, an administrator, in his representative character, warrants the soundness of property which he sells as the property of the estate which he represents, the estate cannot be made liable thereon. By the terms of such a warranty, we are constrained to believe that he does not intend to bind himself personally; and farther, that the purchaser does not believe that he intends to become personally responsible. It is therefore argued that the warranty is a mere nullity; and it really seems quite a hardship to charge one with liability on a contract in which he has no interest, and by the terms of which he has not bound himself. Still to this extent have the Courts gone. They have held that if neither party understood the undertaking to be personal, and it is in terms representative, yet the administrator is liable, de bonis propriis. The case of Sumner, administrator, vs. Williams et. al. decided by the Supreme Court of Massachusetts, is the leading American authority upon this subject. This case was twice argued, and received the most careful consider-tion of that able Bench. The Court was divided, Sedgewick, J. dissenting, but the decision has stood the test of the severest scrutiny. By that decision an administrator was held personally liable upon a warranty of title made in his representative character. I refer to it now, to sustain the proposition, that upon such a warranty, he is personally liable, even although both parties do not intend him to be bound. Parker, Ch. J. in concluding his opinion, says: " This course of reasoning and the au thorities referred to, have satisfied me that the defendants are personally bound by the deed which they have executed, as administrators, notwithstanding their manifest intention not so to be bound." 8 Mass. R. 162.

When this warranty was given, it must have been believedby the purchaser, to be intended to afford him some security for the soundness of the property. It is not reasonable to suppose that he asked, and that the administrator gave a warranty without a purpose. This would be to attribute puerile folly to both parties. It may be true that the administrator did not intend to bind himself, and knew that he could not bind his estate; yet, it must be inferred from the fact that a warranty was given by the administrator, that the purchaser understood this warranty to be an undertaking on his part to bind the estate. It being under seal, precludes all inquiry as to consideration. The rule, as applicable to the case, and the principle upon which the decisions against the administrator rest, is this: " whenever a man, by an instrument under seal, undertakes to stipulate for another, if he acts without authority or beyond his authority, he is answerable, personally, for the non-performance of the contract." This is a doctrine of the law of agency, too well established to admit of denial. A familiar illustration of the rule is found in the case of Palmer vs. Stephens, 1 Denio, 471; and there also, the reason upon which it is based is clearly expressed by Beardsley, J. In that case the defendant had executed a note in the name of another, without authority. Beardsley, J. said, " The name, G. Stephens, was written by the defendant, and he undoubtedly intended to bind some person or persons by that signature. If no one else was bound, as the plaintiff insists was the fact, the defendant was clearly liable, for if one assuming to be agent of another person, executes a note in his name, having in truth no authority for that purpose, the assumed agent is himself bound by the signature." So an attorney, stipulating for his principal, not having authority. 5 East. R. 148.

A guardian is personally liable, upon this principle, upon a note made by him as guardian. Thatcher vs. Dinsmore, 5 Mass. 299. So also, an administrator, assigning a negotiable note, payable to the order of his intestate, in his capacity as administrator, although the transfer by virtue of his office is good, is personally liable upon an implied guaranty of payment, arising under the custom of merchants. 1 D. & E. 487. And in Barry vs. Rush, it was decided that an administrator was liable uponan express undertaking, as administrator, to perform an award touching the affairs of his intestate. 1 D. & E. 691. In these cases and many more of like character, it is clear that the parties held bound, never intended to bind themselves; yet it was ruled, that inasmuch as they could not bind those for whom they stipulated, they were themselves bound. In reference to the equity of the rule, Ch. J. Parker remarks: " Neither is it unjust, that men pretending to give security to others, by assuming a relation that does not belong to them, should supply out of their own means, the security which they failed to impose upon their principals; and this, though they were chargeable with no fraud, for negligence of the rights of others is a ground of liability, without any advantage to the person who is to become responsible. If the administrator has in good faith paid the purchase money into the estate, and there is a recovery against him on the warranty, I see no reason why a Court of Chancery should not reimburse him out of the estate. There is no equity in the estate\'s retaining against him the price of unsound property, under such circumstances." 8 Mass. 209. The liability does not depend upon fraud—it is in these cases perfect without fraud in fact. If it could be made to appear that the agent knows at the time that he cannot bind his principal, by the stipulation into which he enters, then I apprehend that he is chargeable with fraud; and if this cannot be made to appear, he is liable still, upon the ground that he has, to the injury of another, assumed to do what, in law, he cannot do; and it is not a sufficient reply that the purchaser is presumed to know the general law, as well as the agent. The purchaser at an administrator\'s sale, buys at his peril, as to title and soundness. He has no right to ask or expect a warranty, either from the estate or the admiuistrator, personally, for the reason that the law does not permit the former, and does not require the latter;...