Neal v. Patten

• Decision Date: 31 December 1869
• Citation: 40 Ga. 363
• Parties: JOHN NEAL et al., plaintiffs in error. v. GEORGE PATTEN, defendant in error.*
• Court: Georgia Supreme Court

40 Ga. 363

JOHN NEAL et al., plaintiffs in error. v. GEORGE PATTEN, defendant in error.^*

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

[COPYRIGHT MATERIAL OMITTED.]

Executor\'s Sales. Agency. Lien of Judgment. Before Judge Clark. Mitchell Superior Court. November Term, 1869.

Neal, on behalf of himself and such creditors as might join him, filed a bill against Jubal Cochran, as executor of Allen Cochran, their common debtor, and certain others, creditors, etc., to adjust the equities between the creditors, and for other purposes. Our concern, at present, is with those other purposes. He averred as follows: He owned a judgment against Allen Cochran, principal, and one Burney, as security, for $4,875 00, principal, $336 48, interest, up to the 24th of December, 1861, and another against him as principal, and one Dumos, as security, for $7,609 00, principal, $1,057 00, interest, up to said date, with interest on each since said date, and costs. In November, 1863, Allen Cochran died testate, leaving Jubal Cochran his executor, who qualified and, as such executor, took charge of his estate. Part of the estate was a plantation in Mitchell county, Georgia, stock, produce, etc., the emancipation of the slaves, and the neglect and waste of said executor, have made said estate insolvent. One F. T. Polhill, either with or without Jubal Cochran's consent, took charge of said plantation, stock, crops, etc., and either *permitted them to be ruined and wasted, or used them for himself, and now claims part, if not all of the crops, as his own. Polhill and Jubal Cochran are insolvent.

George Patten combined with Polhill to remove ninety bales of cotton from said plantation, Patten claiming to have bought them from Polhill, as executor of said deceased. This cotton is worth say $18,000 00. Patten has removed thirty-seven of said bales out of said county, and appropriated them to his own use, and was removing the others, when they were levied on by the fi. fa., founded on said judgment, last named, and by another fi. fa., in favor of Crutchfield. Polhill is not executor of said deceased, if he were, he could not by a sale of the assets of deceased, divest the lien of judgment creditors thereon, except by a sale in the regular course of administration, and by paying said judgments with the proceeds. He prayed that the fifty-three bales of cotton should be sold to pay said judgments, and that Patten should account for the thirty-seven bales taken away.

Patten answered that Polhill sold him ninety-one bales of cotton, under and by virtue of a power of attorney from Jubal Cochran, as executor, as aforesaid. He attached a copy of said power to his answer, as part of it. (It is in the usual form, made the 7th of December, 1863, authorizing Polhill to do all things which he, Jubal Cochran, could do, inmanaging said estate.) This purchase was made on the 19th of November, 1864, by H. J. Cook, as his agent; Polhill then styled himself executor of said deceased, and Patten supposed he was, till he learned about his said agency. Polhill gave Cook a written obligation for said cotton, which Cook afterwards transferred to Patten. The price paid for it was eighty-five cents per pound, was bona fide, and without any knowledge of any judgments against said deceased.

He claimed that the personal property of deceased was first chargeable with the payment of his debts, that it was the duty of the executor, or his agent, to sell it and pay the debts that such sale, bona fide made, vests absolute title in the purchaser, and he is not bound to see to the application of the proceeds, and the liens attach to the proceeds of such sale, but do not *follow the property. He took thirty-five bales of said cotton in October, 1865, and sold them for $5,625 00, in May, 1866. He charged that the money paid by his agent to Polhill, was by Polhill used at par to discharge the debts of said deceased, and thus was said estate benefited by his purchase.

The Court ordered the issues as to this cotton to be tried separately, from the other matters in the bill. Counsel for complainant read in evidence the will of Allen Cochran. It made Jubal Cochran his executor, gave to him, as trustee for testator's two daughters, the whole estate, for their separate use, etc., and authorized him to pay his debts, in these words: "I wish all my just debts paid by my executor, as soon as practicable." The will contained nothing else. It was probated on the 7th of December, 1863. They then introduced Neal's said fi. fa. against Allen Cochran and Dumas, and a fi. fa. in favor of one Webb against said deceased, for $11,729 86, principal, $1,390 53, interest, and costs, founded on a judgment, obtained in August, 1860. On each of these fi. fas. was a levy upon said fifty-three bales of cotton, stated to be on said plantation, and the property of said deceased. Neal's levy was made on the 13th of November, 1865, and Webb's on the 13th of February, 1866. Neal's fi. fa. had been levied on them in October, 1865, but that levy was dismissed, seemingly because of non-compliance with what was then known as the stay-law. They showed that the cotton was on said plantation at the dates of said levies, and it appeared that Polhill then was in possession of the plantation.

Defendant's counsel showed that Polhill had possession of said plantation and controlled it in 1865 and 1866, and employed the overseer. One witness said he knew that Jubal Cochran, dissatisfied with Polhill's management, and wishing to get rid of him, had a Receiver appointed who took charge of the property on the plantation, sold it and holds the proceeds as Receiver. He further said that he saw a paper purporting to be a power of attorney from Jubal Cochran to Polhill, authorizing Polhill to manage said plantation and property for him; he did not see the paper executed, nor *know that it ever was; from seeing such paper and knowing Polhill had control, he concluded he was agent for the executor. Complainants\' counsel moved to reject said parol evidence, as to Polhill\'s agency, it appearing that his authority was in writing. This objection was overruled. Defendant\'s counsel then introduced the account of sales of the ninety-one bales of cotton, giving number and weight of each bale, making an average of forty-seven thousand eight hundred and sixty-four pounds at eighty-five cents—$40,684 40, accompanied by the following receipt, or bill of sale: "There is stored under a shed, and that the gin house, in the county of Mitchell, in this State, ninety-one bales cotton, which I have sold to H. J. Cook, which he has paid me for. Said ninety-one bales cotton I will keep for said H. J. Cook, or his order, for twelve months, should he wish it to stay where it is, at his risk. I will take all the prudent care I can of the same. It is about one hundred yards from any chimney.

F. T. Polhill, Executor.

A. Cochran, Executor.

Albany, Georgia, November 19, 1864.

(Endorsed) H. J. Cook."

The evidence being closed, complainant's counsel requested the Court to charge the jury: 1st. To make an executor's sale valid, he must be expressly authorized to sell by the will, or by an order of the Ordinary; the sale must be made by the executor in person, and not by his agent, and especially not by an agent not expressly authorized to sell; the sale must be made in the manner prescribed by the will, and if not therein prescribed, in the manner of administrator's sales, and if not so made, the purchaser will get no title. 2d. No sale by an executor, though it be otherwise good, will be good as against a judgment creditor, who has a lien upon the property sold. 3rd. The answer of Patten, setting up that Polhill was the agent of Jubal Cochran, the executor, is a fact not responsive to the charges in the bill and is not to be considered by the jury as evidence of such agency, and, 4th. If Patten purchased the cotton from Polhill, as theexecutor of the will, when he was not such executor, * Patten got no title by such purpose, and the property remained the property of the estate.

The Court refused to give the 1st, 2d, and 3rd of said requests in charge, charged the 4th, with his qualification: "But if Polhill sold as executor, and was not executor, but was an agent authorized to sell, the sale was valid, " and further charged as follows: The answer of defendant so far as it is responsive to the allegations in the bill, are to be taken as true, unless contradicted by the oath of two witnesses, or one witness and corroborating circumstances The complainants charge fraud and fraudulent combination on the part of defendant, in getting control of said cotton. If he obtained the cotton through fraud, he takes nothing by his purchase, and the property is still the property of Allen Cochran\'s estate and subject to the lien of complainant\'s fi. fas. Defendant denies all fraud and says he bought the cotton for a valuable consideration, without notice, and claims that he is protected. This part of defendant\'s answer must be taken as true, unless contradicted by the oaths of two witnesses, or one witness and corroborating circumstances. The answer of the defendant that he obtained the cotton by purchase from Polhill, the agent of Jubal Cochran, deceased, is also responsive to the allegations and interrogatories in complainant\'s bill, and is to be taken as true, unless contradicted according to law. If Polhill was the agent of the executor for the sale of the cotton, could he sell it? It is the opinion of the Court that he could sell it, as agent, so as to transfer the title to a bona fide purchaser. If such a sale was made to a bona fide purchaser, it operated to vest a perfect title in him and to defeat the lien of the judgments, and if these are the facts proven, you will find for the defendant, otherwise for the complainants."

The jury found for the defendant. Complainant's counsel moved for a new trial, upon the following grounds: The...