William C. S. Ventress et al., executors of Lovic Ventress, deceased, plaintiffs in error, v. Neal Smith, administrator of John Clark, deceased, 10 Pet. 161

Mr. Justice Thompson delivered the opinion of the Court. This case comes up from the district,court of the district of Mississippi, upon a writ of error. It is an action of detinue, to recover five negro slaves, of which John Clark, deceased, was the- owner. The plaintiff, in the court below, prosecuted, as administrator ad colligendum, under letters of administration granted by the judge of probate of Wilkinson county, in the state of Mississippi.

The action appears, by the record, to have been, commenced in the year 1822 against Lovic Ventress.; and after the cause was at issue, and before trial, Lovic Ventress died, and a scire facias, tested the first Monday in April 1823, was issued against Elizabeth Ventress, administratrix, &c., who after-wards appeared in court, and the cause, as is stated upon-'the record, was legally continued".

At a subsequent term of the court, the cause being-legally continued, as is alleged, the death of the defendant, Elizabeth Ventress, the administratrix, was suggested and admitted to be true ; and thereupon a scire facias was issued to the present defendants in the court below, as executors of Lovic Ventress^tested the first- Monday in October 4826, and due service thereof upon the. defendants Vías returned The , record then states that afterwards; in January term 1834, to which term the cause was regularly continued by consent, the parties appeared by their attorneys, and the cause was tried, and a verdict found for the plaintiff.

Upon the trial •two bills of exceptions were taken. One in relation to the admissibility of evidence, and the other upon instructions given .by the court to the jury upon the merits of the case ; which will be noticed hereafter. It will be necessary, in the first place, to dispose of two objec-' tions, arising upon the record, which have been raised against the plaintiff’s right to maintain the present action : 1.

That the letters of administration ad collegendum, granted by the court of probates in Mississippi, did not vest in the plaintiff any right or title to the possession of the property in question, or authorize him to maintain an action to recover it, even if a good title was shown .in the legal representatives of John Ciarle in Alabama. 2. That the record shows a discontinuance of the cause, and a mis-trial.

It may be proper to observe, with respect to the first of these exceptions, that as it rests upon the disability of the plaintiff to sue, it ought to have been pleaded in abatement] but as we think the objection untenable, in whatever form it is raised, we shall proceed to notice it in the manner in which it is now presented.

These letters of administration recite, that John Clark, of Clark county, in the state of Alabama, as it is said, had, at his decease, personal property within this state, the administration whereof cannot be immediately granted, but which, if speedy care be not taken, may be lost, destroyed, or diminished ; to the end, therefore, that the same may be preserved for 'those who shall appear to have a legal right or interest therein, we do hereby request and authorize Neal Smith to secure and collect the said property, wheresoever the same may be in this state, or in Wilkinson county, whether it be goods, chattels, debts, or credits, and to make a true and perfect inventory thereof, &c.

These letters of administration were granted under the aiithority of

an act of the legislature of Mississippi,- (Laws of Mississippi, 281,) which empowers the chief justice of the orphans’ court, in the county in which such justice resides, whenever he may deem it necessary, to appoint an administrator to.collect togethei the goods of the deceased, for the purpose of depositing them in the hands of the chief j ustice 5 out of which he shall pay the debts of the deceased, and be liable, in law, as other administrators. The argument at the bar is, that the power given to the administrator, does not authorize him to bring a suit.

That no such power is expressly given, nor is it implied in the power to collect. The words of the statute are, general, to. collect together the goods of the deceased, The power vested in the magistrate to appoint such administrator, is discretionary whenever he may deem it necessary. And if the words of the act, upon any reasonable

interpretation, .will admit of a construction which will uphold the authority given by the letters of administration, they' ought not to be so construed as to impute to the magistrate an unauthorized exercise of power. And if we look to the letters of administration, the power to sue is necessarily implied in the language there used: “ We do hereby authorizé the said Neal Smith to secure and collect the said property, whether it be goods, chattels, debts, or credits,” &c. These words are amply sufficient to authorize the bringing of suits, if necessary for the purpose of executing the power, and is certainly no forced

interpretation of the word collect, as used in the statute, to consider it as implying the authority to bring suits. In the case of Irwin and Wright v. Peak, Walker Rep. 386, decided in the supreme court of Mississippi, in the year 1831, it was held that an administrator ad colligendum, may bring suits. This power, however, in the view of the court, rested upon a statute referred to in the opinion, but which has not been produced on the argument of this case.

But the decision is so recent, and referring expressly to the statute, we think we may safely rely upon it as an authority to sustain the right to sue, under the power given by the letters of administration in this case. And we the more readily adopt this conclusion, because we think the right to sue is necessarily implied in the authority collect the goods, chattels, rights, and credits. ' The grant of the power carries with it all the usual, ordinary, and necessary means to effectuate the beneficial exercise of the power. 2.

The proceedings, as stated upon the record to continue the cause, appear to have been in conformity to “a statute of that state, (Mississippi Statutes 238,) which provides that, when any suit shall be depéntling in any court, and either of .the parties shall die before judgment, the executors or administrators of the deceased, in case the cause of action by law survives, shall have full power to prosecute or defend such action; and the court is authorized and required to render judgment for or against the executor or administrator, as the case may require ; and a scire facias is authorized tq be issued to call in the executor or administrator to make himself a party; and such was the course adopted in- the present ease, as appears from the record.

Upon •the death of Lovic Ventress, a scire facias issued to Elizabeth Ventress, the administratrix, who appeared and became a party to the' suit, and the cause was continued ; and upon, the death of the-administratrix ant)ther scire facias issued, to call in the defendants, the executors of Lovic Ventress, who appeared and became parties to the suit, which, according to the record, was .regularly .continued, by consent, to the term of the court when tlie Cause was tried.

For what reason or under, what circumstances • Elizabeth Ventress was appointed administratrix of Lovic Ventress, when the defendants were his executors, does not appear. But the court will not intend that it was without authority. Circumstances may readily be supposed to have existed, that would require the appointment of an administration for some special purpose. Whether she was a general administratrix, or only one with limited powers for some special purpose, does not appear.

But when the re'cord states that the cause was regularly continued, by consent of the present parties, who were fully competent to give such consent, there can be no ground upon which this court can now consider the cause discontinued. 3.

The, next objection arises upon a bill of exceptions taken at the trial, relative to-the admission of. evidence._ The plaintiff offered in evidence the-deposition of Neál McNair, and'the objection arises"upon the answer to the tenth cross-interrogatory,' which is as follows : “ Were they not sent away, or intrusted to some person to-be removed and-sold by the administrator or administratrix, or other personal representative of John Clark, in the State.of Alabama?’?- - Answer: “Deponent saith he lias reason to believe, and doth beíievé, that the said'negroes were .removed and sold, not by the authority or request of the administratrix or any other person representing said estate.” This answer was objected to on the part of the defendant, but admitted by the court, to be read to the jury, The whole ’deposition is not set out in the bill of exceptions; and this question and she answer standing.alone, unconnected with the antecedent and subsequent interrogatories and answers, are in a great meaáuré unintelligible. -.The very form of the interrogatory, shows the question to have had relation to soriie antecedent inquiiy, and is vague and indefinite. “ Were they not sent away, or intrusted to some person .(naming no one) to be removed and sold b}'. the administrator or administratrix, or other personsal representative of John Clark?” It- seemed to he a fishing inquiry, that would hardly admit of a direct and positive'answer.

Had ét been a direct question- to some' specific fact, the belief of the' witness would be no legal answer; -The belief of a witness is a conclusion from facts. The witness should state-facts, and the conclusion to be drawn from them, rests with the jury. Although this anstver,. standing alone, may not be strictly admissible; yet,when connected with other facts of the deposition, it might not ¡not be objectionable. Subsequent inquiries might have drawn fro in the witness the'facts upon which ids belief was founded; and all being submitted to the jury, the belief of the witness might be at least rendered harmless.

It does not appear how ■or under what authority this deposition was taken, or whether the parties were present or not. If they were, and no objection was made to the answer, it ought to be considered.a Waiver; and the exception not allowed at the trial, it is incumbent on the plaintiff to make out the érror clearly and satisfactorily; every reasonable intendment should be in favor, of the judgment; and we think the exception too vague to. justify a reversal of the judgment, ■ • 4.

This second bill of exceptions embraces the merits of the case, and turns upon the validity of the purchase of the slaves, by Lovic Ventress in his lifetime. The facts upon which the court was called upon to instruct the uiry on this question, are briefly these: The slaves in controversy, were the property of John Clark, of Alabama, and in his possession at the time, of his death, in the year 1818.

This widow, Abigail Clark, was appointed administratrix of his estate, arid in May 1819, intermarried with John Farrington, and in June 1819, filed an inventory of John Clark’s estate, including therein the slaves in question. On the first of November of the same year, the letters of administration to her were revoked, and administration granted to Neal Smith, the present plaintiff, in the court below.

In August, 1819, the county court of Clark county, in the state of Alabama, authorized Abi.gail Farrington, the administratrix of John Clark, to sell all the personal property of John Clark except the negroes ; and it does not appear that any order of sale of the slaves of John Clark had been obtained; The defendants offered no other evidence of title to the slaves, than a bill of sale from James McDonald to the defendants’ testator, in Wilkinson county, in the state of Mississippi, dated November 2, 1819, for the consideration of nineteen hundred dollars, which was paid at the time of sale, and which was deemed a full and fair value of the slaves.

Upon this evidence the plaintiffs’ counsel requested the court to charge the jury— 1. That it must appear in evidence to the jury, that Abigail Clark was authorized by an order of the court of Alabama, to sell the-slaves, or she could convey no legal title to them. 2. That it must also appear by evidence to the jury, that James McDonald was authorized, either by a legal purchase or by a power from the administratrix ; to sell the slaves, or his conveyance could not divest the estate of Clark of the legal title in his representatives. 3.

That, unless both of the above facts appeared, to wit, the authority of the administratrix to sell, and the authority of McDonald, either by a legal purchase or powmr of attorney from the administratrix, that the title to the slaves still remained in the legal representatives of John Clark. These instructions the court gave. A fourth was requested, which the court refused to give, and which it is unnecessary here to notice. The defendants’ counsel also requested the court to instruct the juryuopn certain points, substantially as follows : 1.

That if they belive, from the evidence, that Abigail Clark became the administratrix-of John Claik, deceased, and, as such, held possession of the slaves in question, and that after her intermarriage with John Farrington, she and her husband were in possession of them,-and that the possession of the slaves by the defendants or their testator, was acquired directly or indirectly from or through Farrington and his wife, then.the plaintiff, as administrator to collect the estate of John Clark, has no right to recover in this action against the' defendants. 2.

If they believe, from the evidence, that Farrington and his wife, so possessing the slaves by virtue of the administration aforesaid, had wasted, embezzled, sold, or otherwise converted the slaves, in violation of their duty as administrators, by which devastavit the slaves passed to the possession of one James McDonald, who brought them to the state of Mississippi and sold them to Lovic Ventress, the defendants’ testator, for a full and valuable consideration, and that he purchased them bona fide without notice of such devastavit, then Lovic Ventress acquired a good title as against the plaintiff, and the verdict should be for the defendants. 3.

That.if they believed that the slaves belonged to the estate of John Clark, and passed into the possession of his administrators, who embezzled'and disposed of them in disregard of their duty as administrators, but the defendants’ testator, Lovic Vetress, became an innocent purchaser of the slaves for a valuable consideration, without notice of the mal-administration of said Clark’s estate in Alabama, then they should find a verdict for the defendant. These instructions the court refused to give. It is unnessary to notice separately the several instructions prayed by the parties, respectively.

The general question arising under them, and one which lies at the foundation of the action, relates to the sale of the negroes by Abigail Clark, the administratrix of John Clark.

The several instructions prayed on the part of the plaintiff and given by the court, assume that, in order to divest the plaintiff of the right to recover as the present administrator of John Clark, it must be shown that his first administratrix had authority to^sell the slaves by an order of the court in Alabama ; and that James McDonald was authorized either by purchase from the administratrix or by authority from her, to sell the slaves, in order to divest the representatives of Clark of the title, and take trom the plaintiff the right to recover.

The principle assumed in the instructions asked on the part of the defendants, is, that the administratrix of Clark being ill possession of the slaves, and that possession having passed directly or indirectly to the defendants, the plaintiff, as administrator ad colligendum of John Clark, cannotrecover in this action.

And that admitting the administratrix had, by her conduct with respect to the slaves, committed a devastavit; yet' if the defendants’ testator purchased them bona fide and for a valuable consideration, without notice of such devastavit, he acquired a good title to the slaves, and the plaintiff had no right to recover. It may be observed here that the case is entirely silent in the statement of the evidence with respect to notice by the defendants’ testator, of the situation of these slaves.

The instruction prayed, however, was subject to the decision of the jury upon that point; and we assume, in the consideration of the case, that Lovic Ventress was a bona fide purchaser without notice, and rest the question entirely upon the ■want of authority in the administratrix of Clark to sell the slavfes, It may be observed, in the first place, that the letters of administration to her were revoked before the sale to the defendants’ testator. The revocation was on the first of November, 1819, and the bill of sale bears date on the day aftér.

There may be some mistake, however, in this, and we place no reliance upon it; as the want of authority in the administratrix is clearly established on other grounds.

The statute of Alabama, (Laws Ala. p. 334,) declares, that it shall not be lawful for 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 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 valuable consideration, was not made according to the provisions of this law. It was a private sale, and made without any order from the court. The order of sale expressly excepts the negroes. The sale was then not only without gu? thority, but in express violation of the provisions of the statute. Such a sale cannot be supported upon any principles of law. In the case of the executors of Emos v.

James (4 Mum. 194,) it was held by the court of appeals of Virginia, that the salé .of a slave belonging to the estate of- the testator by a person named in the will as one of the executors, but who, at the time of the sale, had not qualified or given the bond required by a statute pf that state was void against the executor who had qualified : although the sale was bona fide and for a valuable consideration.

It was admitted, that if the question was to be decided upon the principles of the common law, without regard to the act of assembly, the sale would liave been valid, the power of the executor being derived from the will. But he not having qualified and complied with the statute, by giving the bond required, the foundation of his authority was done away; and all his acts were .invalid, and the sale illegal and void. The present is a much stronger case.

The want of authority in the executor to sell in that case rested upon the construction of the statute ; influenced, in some measure, by the policy which governed its enactment. But in the present case, the sale was against the express exception in the.prder of-sale, and in violation of the positive prohibition in the statute to sell at private sale.

The law in this class ef cases is well settled: that executors and administrators, in making sales of property, must comply strictly with the requisites of all statutary provisions-on the subject; and that, unless every essential direction of the law is complied with, all whose interests aré" affected by the authority to sell are not concluded by the sale; (7 Mass. Rep. 488,) unless, from a long acquiescence, a foundation isflaid for a fair and reasonable presumption, that the requisites of the law had been complied with.

No such presumption can arise in this caseL It is a general rule of law, that a sale by .a person who has no right to sell, is not valid against theTrightful owner. Authority given to executors and administrators to sell, is a personal trust and must be strictly pursued ; and if they transcend their authority in any. essential particular, their act is Void. (4 John. Ch. 368, 6 Con. Rep. 387.) It was a maxim of the civil law that, nemo plus juris in alium transferre potest, quamipse. hahet; and this is a plain dictate of common sense.

It was also a principle of the English common law that, a salé out of market overt, did not change the property from the rightful owner; and the custom of the city of London, which forms an exception to the general rule, has always been regarded and restricted by the courts with great, care and vigilance, that all such sales should be brought strictly within the custom. (Com. Dig. Tit.

Market E.) It has Sometimes been contended, that a bona fide purchase for a valuable consideration and without notice, was equivalent to a purchase in market overt under the English law, and bound the property against the party who had right. (1 John.

Rep. 478.) But we are not aware that this Saxon institution of markets overt, which controls and interferes with the application of the common law, has ever been recognized in any of the United 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 general principles of the law of sales.

And. although the defendants’ testator was a bona fide purchaser, for a valuable consideration and without notice ; the sale being without authority and against law; he acquired no title that will bind the property against the party who has right. The judgment of the court below must accordingly be affirmed with costs.

This cause came Gn to be heard on the transcript of the record from the district court of the United States for the district of Mississippi, and was argued by counsel, on consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said district court in this cause be, and the same is hereby, affirmed, with costs and damages, at the rafe of six per centum per ahnum upon the sum adjudged by the said district court, to the plaintiff in this court, in case the said plaintiff cannot have the said 'negro slaves delivered to him.