Mosby's Adm'r v. Mosby's Adm'r

• Decision Date: 07 February 1853
• Court: Virginia Supreme Court
• Parties: MOSBY'S adm'r & als. v. MOSBY'S adm'r. MILLER v. JONES & als.

50 Va. 584

MOSBY'S adm'r & als. v. MOSBY'S adm'r.

MILLER v. JONES & als.

Supreme Court of Appeals of Virginia.

February 7, 1853

1. Testator by his will says, Whenever my executors think best they shall sell my land in B, together with all the personal estate thereto belonging, except the slaves, and reserving one hundred and fifty acres of said land, which, with one-fourth of the said slaves, they shall hold in trust for the benefit of my daughter N B, & c. The money arising from the sale of land and other property above mentioned together with all other moneys remaining in the hands of my executors after payment of debts and legacies, also the remaining three-fourths of my slaves belonging to my said plantation, I desire shall be equally divided between my son B and my daughters M and J. HELD: The will does not confer on the executors a naked power; but it vests in them an interest and a trust; and it is their duty to take possession of the land and to account for the rents and profits until it is sold.

2. One of the executors having died and the other having been removed, and the administration with the will annexed having been committed to the sheriff, he was under the act of 1819 1 Rev. Code, ch. 104, § 52, p. 388, authorized as such administrator to execute the power and trust, and is therefore bound to account for the rents and profits. The case, though not within the letter of the statute, being within its spirit and meaning.

3. The rents and profits of the land having been received by the deputies of the high sheriff, he is responsible for them.

4. If the high sheriff was not authorized by the will to take possession of the land and receive the rents and profits, yet the estate having been committed to the high sheriff, and his deputies having taken possession of the land and received the rents and profits, on the principle that the high sheriff is liable civiliter though not criminaliter for all the acts of his deputies colore officii, he is bound to account for them.

5. Upon a bill filed by the devisees against the high sheriff charging that these rents had been received by the deputies and that he was liable for them, his answer admitted the facts, and there was an account charging him with the rents, to which there was no exception, and a decree thereon. Upon a bill of review seeking to reverse the decree for errors apparent on its face, the error being that the high sheriff was charged with these rents. HELD: That whether the high sheriff was responsible for the rents received by his deputies, either virtute officii or colore officii, yet if they received them by his authority express or implied, he is bound to account for them. And as that authority might have been shown by evidence before the commissioner, and no exception was taken to the report, the charging him for the rents is not an error apparent on the face of the record, which may be corrected by a bill of review.

6. The deputy who farmed the sheriffalty from the high sheriff executed to him a bond with sureties, with conditions similar to those in the high sheriff's official bond, and with the further condition, that he would save harmless and indemnify the high sheriff, his heirs, executors and administrators from and against all losses and damages which he or they may sustain or be liable for in consequence of any failure or misconduct on the part of said deputy, or any failure or misconduct on the part of any other person or persons who may be employed by the said deputy at any time to assist him in the execution of his duties as deputy sheriff. HELD: That if it was the official duty of the high sheriff to receive the rents and profits; or if the deputies received the rents colore officii, though without lawful authority, and the high sheriff was on that ground liable therefor to the devisees, the sureties of the deputy in his bond are bound thereby to the high sheriff for the rents for which he is so liable to the devisees.

In 1837 Benjamin Mosby, Martha Nicholas and Judith M. Smith exhibited their bill in the Circuit court of Powhatan, against Thomas Miller, late sheriff of that county, and as such administrator de bonis non with the will annexed of Littleberry Mosby; charging that said Littleberry, father of the complainants, died in 1809, leaving a will which was recorded in Powhatan, of which a copy was exhibited with the bill, and whereby, among other things, he devised and bequeathed that his executors, whenever they should think best, should sell his land in Buckingham, (except 150 acres thereof,) together with all the personal estate thereto belonging, except the slaves; and that the money arising from said sale, together with all other moneys remaining in the hands of his executors, (after payment of all just demands against his estate, and the necessary provision made for the legacies mentioned in his will,) and three-fourths of his slaves belonging to the said plantation, as well as any estate or property whatever which might not have been mentioned by him, shall be equally divided between the said complainants: And further charging that the complainant Benjamin, and Josiah Smith (husband of the complainant Judith M.) qualified as executors of the will; that the said Benjamin continued to act as such until the 21st of August 1824, when his authority as executor being revoked, and the said Josiah being then dead, the estate of said Littleberry was committed to the hands of said Miller, sheriff as aforesaid, for administration de bonis non with the will annexed. That the estate which came into the hands of said sheriff, or of Thomas Watkins and Richard Watkins, his deputies, to administer, consisted of the said tract of land in Buckingham, (except as aforesaid,) together with the three-fourths of the slaves belonging thereto, and sundry other personal estate on the said plantation. That the said sheriff, or his said deputies, or one of them, took possession of said land, slaves and other personal estate; sold the whole of the personal estate, except the slaves, in December 1824; hired out the slaves and rented out the land annually from the end of the year 1824 to the end of the year 1830, when the authority of said Miller having been revoked, and administration granted to the complainant Benjamin, he came into possession of the land and slaves: And that they had failed and refused to account for and pay what was due to the complainants on account of the administration of said estate by the said sheriff. And praying for a decree for a settlement of the administration account, the payment of the balance due, and for general relief. On the same day on which the bill was exhibited the defendant filed his answer, admitting that while he was sheriff of Powhatan the said estate was committed to his hands for administration as aforesaid, and stating that during the time of his sheriffalty Thomas and Richard Watkins were his deputies, performed the duties of the office, and had the management of said estate, and received the whole profits and proceeds arising from the rents, hires and sales thereof; he never having himself received any part of said rents, hires or proceeds. That he believed that said Thomas and Richard rented out the land and hired out the slaves for the years 1825, 1826, 1827, 1828, 1829 and 1830, and one of them sold the other personal estate; but he did not know the amount of sales, rents or hires. That he had no objection to a settlement of his administration account before a commissioner of the court; but desired that the commissioner might be directed so to state the account as to show the amount of sales, rents and hires received by each of his deputies Thomas and Richard Watkins, and the amount remaining in their hands respectively. On the same day, by consent of parties, a decree was made for the settlement of the account, to be stated in the manner desired by the defendant as aforesaid.

On the 11th of September 1837 the commissioner made his report, showing that there was due by the defendant to the estate of his testator a balance of 1467 dollars 4 cents, of which there was due on account of the transactions of Richard Watkins the sum of 905 dollars 74 cents, and of Thomas Watkins the sum of 561 dollars 30 cents. To this report there was no exception: And on the 2d of November 1837 a final decree was made confirming the report, and directing a third of the said balance to be paid to each of the complainants, on the execution of refunding bonds according to law.

After the rendition of this decree, to wit, in January 1838, Thomas Miller brought an action at law against the surviving obligors in the official bond of his deputies, Thomas and Richard Watkins, for the purpose of recovering the amount of the said decree, to which he alleged he had been subjected by reason of their default. An issue was made upon the plea of conditions performed, which was tried in November 1839, when a verdict and judgment were rendered for the plaintiff for the amount of the decree, after deducting therefrom the amount of the rents included therein; the court having instructed the jury that the plaintiff, as administrator as aforesaid, was bound to rent out the Buckingham land, (except 150 acres aforesaid,) but that he was not liable to the legatees for the said rents; and that he had no right to recover the same from the defendants in this action. To which opinion and instruction the plaintiff excepted. Seven exceptions were taken by the defendants to opinions of the court given on the trial, which, however, need not now be noticed.

On the same day on which the judgment was rendered in the action at law, leave was obtained by Thomas Miller to file a bill of review for the purpose of reviewing the said decree of November 2d,...