Neal v. Patten

• Decision Date: 31 July 1872
• Citation: 47 Ga. 73
• Parties: JOHN NEAL, et al., plaintiffs in error. v. GEORGE PATTEN et al., defendants in error.
• Court: Georgia Supreme Court

47 Ga. 73

JOHN NEAL, et al., plaintiffs in error. v. GEORGE PATTEN et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Power of attorney by executor. Sate under power by executor. Ratification. Attorney and client. Confidential communications. Annual crops. Sale by sample. Bill to marshal assets. Re-port of auditor. Tax affidavit. Res gestæ. *Charge of Court.

Before Richard Sims, Esq., Judge pro hac vice. Mitchell Superior Court. May Term, 1872.

For the facts of this case, see the opinion.

Lyon, DeGraffenreid & Irvin; A. D. Hammond; Vason & Davis; John Rutherford, for plaintiffs in error. R. F. Lyon, Esq., submitted the following brief: 1st. The evidence of Smith was a confidential communication, and should have been excluded. 2d. The evidence was merely hearsay. 3d. The sale of the cotton was illegal, because: First, the sale was by an agent of an executor, with no authority under the law to make such a sale: 22 Ga., 600. Second, it was not a public sale: Code, section 2514; 40 Ga. R., 363. 4th, Annual crops include only those of the current vear. 5th. An-propriation of the proceeds of an illegal sale by an executor or his agent, cannot legalize the sale so as to defeat the rights of third persons.

H. Morgan; James L. Seward; Willis A. Hawkins, for defendants in error.

MONTGOMERY, Judge.

Allen Cochran died November 30th, 1863, leaving a considerable estate, consisting of land and negroes, which he be queathed to his two daughters, after payment of his debts. He owed a large amount to various creditors, some of whose claims were in judgment at the time of his death. He left his brother, Jubal Cochran, his sole executor and trustee for his daughters, one of whom was then married. The will conveyed no unusual power to the executor, as to the disposition of the property or management of the estate. The executor proved the will December, 7th, 1863, and immediately executed a power of attorney to one Polhill, the testator's son-in-law, so broad in its terms as to amount, in effect, to a transfer of the entire administration into the hands of the agent thus appointed. Polhill took possession of the plantation, *negroes and other property in Mitchell county. The year the testator died about forty-five bags of cotton were made on the place, and the next year about as many more. In November, 1864, Polhill took samples of the cotton to Albany, and after offering it for sale to various persons, finally sold the crops of the two years to his factor, H. j. Cook, for George Patten, the defendant, who had deposited Confederate money with Cook to be invested in cotton. The cotton was left on the plantation, by agreement, during the war, subject to Patten's disposal.

From the emancipation of the negroes, and other causes, Allen Cochran's estate became insolvent. In 1865, Patten removed thirty-seven bales of the cotton, and sold them for over $5,000, when the judgment creditors levied on the remaining bales on the plantation. Patten filed his bill against the levying creditors, jubal Cochran and Polhill, to enjoin the sale, and that the property might be decreed to be his. Jubal Cochran answered the bill, and placed his answer in the hands of his solicitor, W. G. Smith, to file, or not, as he deemed best. Before Smith could file it Cochran died. In this answer Cochran admitted executing the power of attorney to Polhill, and expressly ratified the sale of the cotton to Patten. The answer also stated, as information derived from Polhill, that about $20,000 of the money received from Patten had been applied to the payment of debts due by the estate of Allen Cochran, and a list of said debts was appended to said answer.

Pending this bill the creditors filed a bill to marshal the assets of Allen Cochran's estate, to which M D. Potts, the administrator de bonis non cum testamento annexo of Allen Cochran, was made a party on the death of Crutchfield, the first administrator de bonis non.

The administrator appears on the record as defendant, but by cross-bill is really one of the complainants, being represented by the same counsel with some of the creditors, and joining in their prayer, so far as the issues now before the Court are concerned. This bill involves many issues between Conflicting claimants, but by agreement of parties the only ones presented to the Court below for trial, and now brought here for review, are those growing out of the purchase by Patten of the cotton of the estate of Allen Cochran, consisting of about ninety bales, from Polhill.

The creditors and administrators insist that the power of attorney from Jubal Cochran, as executor of Allen Cochran, to Polhill, was void as against them, and the sale of the cotton illegal. Patten, of course, insists the sale is regular. Patten and Polhill are both parties defendant to the creditor's bill. Polhill, in his answer, says he used about $30,000 of the money received from Patten for the cotton in paying the debts of the estate of Allen Cochran, not specifying the character of the debts, their several amounts, to whom paid, nor when.

On the trial, Patten offered W. E. Smith to prove the contents of the answer of Jubal Cochran (which had been lost by him,) to Patten's bill. Counsel for the administrator and creditors objected, but the Court admitted the testimony. Smith was unable to recollect anything more definite as to the debts paid by Polhill than the latter states in his answer to the creditor's bill. The complainants also insisted that the sale of the cotton to Patten was invalid, because it was not brought to market and sold, and that the sale of the crop made by the executor was invalid, because not sold at public sale, the law authorizing an administrator to sell annual crops in market at private sale, only applied to such crops as were made by the administrator himself. Patten insisted that if the sale was invalid, then he was entitled to have his money refunded, as it was proved to have gone in payment of the debts of the estate to the extent of $30,000 00, and that, although he had paid Confederate money, yet the money had paid gold debts of the estate to that amount, and he was, therefore, entitled to have that amount refunded. During the progress of the trial, the complainants offered in evidence the report of an auditor, by whom their claims had been audited...