Hagthorp et ux. vs. Neale, Administrator de bonis non of Hook, 7 G. & J. 13

Ancher Judge, delivered the opinion of the court. From the most deliberate examination which we have been enabled to give the proceedings in this cause, we have brought our minds to the conclusion, that the deed of August 1797, is neither a mortgage, nor an instrument of writing which from its nature or character combined with all the circumstances attending it, can be considered as throwing upon the grantee any of the duties of a trustee. Jt is in our view, a deed upon condition, that the grantee would pay certain specified debts.

In this point of view the estate was cast upon John Hook, and could only be defeated, by proof that the debts of Anthony Hook, were either unpaid, or that he had refused to pay them. The record we apprehend furnishes no evidence whatever of any refusal to pay these debts. On the contrary it is in proof, that in carrying into effect the agreement, between the administratrix of Anthony Hook, and John Hook, the latter was permitted to retain out of the contemplated sales, the full amount of the specified debts.

This would scarcely have been done, had the debts been unpaid, or had they been paid by any one else, than John Hookj or his administratrix. The allowance claimed by John Hook, as administrator of .Anthony Hook, for a sum paid the assignee of Melbourne, furnishes evidence we think of too slight a character to enable us to say, that this was one of the specified debts in the deed of August 1797. There should have been some proof offered that it constituted the same debt.

In estimating this' evidence it must not escape our recollection, that the consequence of this testimony, would be to defeat an estate, and that therefore the deductions should be reasonably certain, and should not rest on probability or conjecture. Throwing this out of the question, as per se too feeble to work a forfeiture of the condition, and there is no evidence whatever to show, that a dollar tof these debts were ever left unpaid by John Hook. They could not have been paid by the estate of Anthony Hook, for the accounts show, that he had not enough of assets left to have paid them.

Indeed the great lapse of time from the deed of 1797, to the filing of this bill, a period of 23 years would lead to the presumption that they had been all paid.

If these views are correct, it would follow necessarily, that the respondents, could in no manner be accountable to the complainants, according to the objects and purposes of his bill. ■ But supposing the deed to have been one of the character, which the solicitors of the complainants have contended that it is; it was certainly competent for Mary Hook administratrix of Anthony Hook, to have made the agreement, which it is in proof she did make, with the administratrix of John Hook, and to sell the whole property conveyed, or authorise the person in whom was the legal title to dispose of it upon such terms, as she might designate; and if any loss or injury has been sustained by such agreement, the remedy of all interested would be- against the administratrix of Anthony Hook.

The administrator de bonis non of Anthony Hook, could surely never again claim the property, which -had been thus sold by the agreement, and consent of his predecessor in the administration. Nor do we apprehend in this aspect of the case, could any purchasers ever be disturbed in the enjoyment of such purchase, at the sale of her acknowledged agent. It would indeed appear that the administratrix of John Hook, did purchase at the sale of these lots, a greater portion thereof, than by the terms of the agreement it was allowable for her to have done; and to that extent the sales were objectionable.

But after the lapse of seventeen years, when considerable portions of the property have actually passed into the hands of purchasers, some of whom may have been wholly ignorant of the terms upon which she was permitted by the agreement to purchase, and the more especially after the administratrix of Anthony Hook, had by her course of conduct sanctioned what had been done, it appears to us, it would be entirely too late now, to demand that the property must he given up, and the rents and profits accounted for.

And even to the extent of over purchases, by the administratrix of John Hook, and where she and her assigns conuzant of this agreement, may he still in possession, we are led to the conclusion from the acts, and conduct of the parties, that this was sanctioned by the administratrix of Anthony Hook. We are at a loss otherwise to account for the releases which have been executed, and for several of the conveyances.

In any aspect therefore which we have been enabled to take of this case, we are of opinion that the complainant is not entitled to a decree, and do therefore reverse the decree of the Chancery court, and dismiss the bill with costs in both courts, as respects the appellants, Hagthorp and wife. PECBEE BEVEBSED.