About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

William C. S. Ventress et al., Executors of Lovic Ventress, Deceased, Plaintiffs in Error, v. Neal Smith, Administrator of John Clark, Deceased U.S. 161 (1836)

handle is hein.slavery/ussccases0100 and id is 1 raw text is: JANUARY TERM 1836. 16,1 WILLIAMt C. S. VENTRESS ET AL., EXECUTORS OF. Lovic VEN- TRESS, DECEASED, PLAINTIFFS fN ERROR, v. NEAL SMITH, AD- IINISTRATOR OF JOHN CLARK, DECEASED. The power to sue for debts d e to the estate of an intpstate is implied in the authority given to administrators ad collegendum, issued under the authority of the statute law of Missikioippi. 47,on. t'uction or the statute of Mississippi pioviding for the substitution of executors or administrators, when tither party to a suit dies before judgment. It i incumbtut on .t plaintiff in erro: to make out an alleged error, clearly, and satis- fdcterily. F' cry i asonable intendment should be in favor of a judgment of a court. The admiuistrator, in Alabama, had sold slaves belonging to the estate of the intestate, with.ut an ofnler of court, authorizing the sale; and by private sale. By the-Court: The .tatute ot Alabama, (Laws Ala. p. 334,) declares that it shall not be lawful iu any executor or administrator to dispose of the estate of any testator or intestate at private sale, except where the same is directed by the will of the testator; but that, in all cases where it may be necessary to sell the whole, or any part of the personal estate, application must be made to the orphans' court for an order of sale, which sale is required to be at public auction, after giving notice thereof as pointed out by the statute. The sale of these negroes, ,although bona fide and for a valu- atle consideration, was not made according to the provisiong of this law. It was a private sale, and made without any order from the court. The order of sale cx- pre.sly excepts the negroes. The salc was then not only without authority, but in express violation of the provisions of the statute. Such a sale cannot ibe'sup- ported upon any principles of law. Executors and administrators, in making sales of'property, must comply strictly with the requisites of all statutory provisions, on the subject; and unless every scential direction oLthe law is complied with, all Wihose interests arc affected by the ,uthority to sell are not concluded by the bale, unless, from a long acquiescence, a foundation is laid for a fair and reasonable presumption, that the requisites of the law had been complied with. No such presumption can.arise in this case. It is a ge-neral rule of law, that a sale by a person who has no right to sell, is not valid against the rightful owner. Autlhu.ity gien to executors and sdiunistratorb to sell, is a personal trust, and must be ttrietly pulsued; and if they transcend their authority, in any essential particular, their aet is void. It has sometimes been contended, that a bona fide purchase for a valuable, consid(i a- tion, a d without notice, was equivalent to a purchase in market overt, under the English law, and bound the property gainst the party whb had right. But we are not awate thdt this Saxon institution of markets ovurt, which controls and inter- teres with the application of the conmnon law, has ever been recognised in any of the Lnit-ed States, or received any judicial sanction. At all events, no local usage or custom has been shown, applicable to the present case, to take it out of the gen- eral principle of the law of sales. VOL. X.-V

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most