Crandall against Gallup and another, 12 Conn. 365

Williams, Ch. J. A variety of objections have been made to the plea of the defendants. It is said, such a plea to this action, is hardly to be found in our books. The action of ejectment, in England, and some of our sister states, is a peculiar action ; of comparatively recent origin; and is shaped and moulded, by the court, in such a manner as to relieve it from many of the technical difficulties, which encumbered the ancient real actions. And if, as is said, in Wood v.

Jackson, 8 Wend. 35. 40. the law of the action does not allow a special plea, it does not follow, that the rule applies to our action of ejectment, or rather our action of disseisin. This is not that fictitious remedy, which exists in England and Neiv-York ; but it is the only real action known to our law, and comprehends, says Judge Swift, all the actions in England, by writ of right, writ of entry and ejectment, with all the multifarious divisions into which they are branched.

The sole object is, to enable the owner of lands to recover the possession from the disseisor, and his damages for the detention ; and is wisely adapted to this single object. 2 Siv. Syst. 67. This being the case, we must look to our own rules and practice ; and when we advert to the case of Smith v. Sherwood, 4 Conn.

Rep. 276. and find the most able counsel engaged, and the court equally divided upon the questions that were made by counsel, and no objection from either that the plea in itself was inadmissible, there can be no doubt what had been our practice, and what was understood to be the rule in this state upon that subject. That the two Judges who were for sustaining the plea, in that case, supposed it was a proper plea in an action of ejectment, is apparent.

It is good evidence that the two Judges who held the plea was not good, in that case, were of the same opinion, as they do not intimate any objection upon that ground. And very soon after, Ch. J. Hosmer, one of the two who held that plea insufficient upon the circuit, held, that a plea of es-toppel founded upon facts ascertained between the same parties in an action of trespass, was a good bar to an action of ejectment. Hale v. Wells, Superior Court, Hartford county, September term, 1S23.

And when we consider, that the object of this suit is to settle titles to real estate, in the most simple and speedy manner, we should require strong reasons to induce us to depart from their opinions. Another objection to this plea, was, that it amounted to the general issue. Without inquiring whether the fact is so, it is sufficient to say, that it has been decided, by this court, that this objection could not prevail upon demurrer to the plea. Whittelsey v. Wolcott, 2 Day, 431. See also Ward v. Blunt, 1 Leon. 178. Warner v. Wainsford, Hob. 127.

Objections were also made as to the right of Pomeroy to bring the question regarding the real estate before a court, and the effect of any decree of that court founded upon the testimony of one of the parties ; and particularly, as to the effect of the decree upon this bill — a decree establishing the title. These objections this court do not think it necessary to examine, as there are others which must prevail. The first, though of minor importance, is, that the plea no where avers, that Pomeroy was in fact administrator on the estate of Charles E. Phelps.

It avers, indeed, that he claimed to be such; that as such, he brought his bill; and throughout describes him as such; but there is wanting that direct and precise averment of that fact, which is necessary in a plea of this kind. Another objection seems to us to be fatal to this plea.

The bill brought to the circuit court for relief against the deed made by Phelps, the intestate, alleges, that the plaintiff, Pomeroy, is informed and believes, that Phelps made and executed the deed in question to Manice, a short time before his death ; and then goes on to allege, that he was then weak and debilitated in mind and body, at a distance from his friends, and under undue influence; and also, that it was given without a valuable consideration, and to defraud creditors.

It is then averred, that the court found, that Phelps was competent to make a • i i deed, and was not under undue influence or restraint, and deed was given for a valuable consideration. The facts then in issue were not as to the existence of the deed, but as to certain facts tending to invalidate it. Those facts, the court indeed find in favour of the defendants ; and so far as those facts are found, they would be conclusive between the parties.

But the existence of the deed was not put in issue, and of course, was not found by the court, except as it seems fairly to be infer-able from the fact that they passed upon the attending circumstances. But in a plea of this kind, nothing is to be taken by inference: every thing is to be clearly and precisely alleged and found, or it cannot estop the parties to it. Fairman v. Bacon, 8 Conn. Rep. 418. If it be said, that the administrator admits the execution of the deed, by his bill to set it aside, perhaps the same answer may be given. He only avers, that he is so informed and believes.

This will hardly amount to such an admission as would estop a party. Be that however as it may, it has been often decided, that the admissions of an administrator could not bind or affect the estate. Peck v. Botsford, 7 Conn. Rep. 172. Pease v. Phelps, 10 Conn. Rep. 68. The plaintiff, in the case before us, may perhaps intend to show, that in point of fact no deed was ever executed by Phelps.

He may deny the hand-writing of Phelps, or the delivery, unless he is precluded by the proceedings in the circuit court; and as those facts were not in issue there, and can only be drawn by inference from the finding of the court or from the admissions of the administrator, we cannot say, that this plaintiff is estopped, by that finding or those admissions, from proving, if he can, that the deed was not executed at all.

Were there no other objections, we should say, that so far as the circuit court háve found facts in issue between the parties necessary to support their decree, so far the parties will be bound, and no farther. But another objection has been made to this decree, that this plaintiff is not privy to it. That suit was between Benjamin Pomeroy, administrator on the estate of Charles E. Phelps, and De Forest Manice: this between Crandall, a purchaser of the same estate under one States, who was appointed, by the court of probate, to sell the estate to pay the debts of Charles E.

Phelps, whose estate had been duly found jje insolvent and the defendant, who entered under Manice. The plaintiff claims, that he did not pujchase of Pomeroy, the administrator, but of Stales, who was appointed, by the court of probate, to sell to pay the debts of the estate of Charles E. Phelps.

The plaintiff is claiming title under a deed from the person legally authorized to sell the estate for the payment of debts ; and as the court of probate may appoint the administrator, or a third person, to perform this duty, the court are of opinion, that the same effect would result to the purchaser, whether the sale was made by him, directly or indirectly. It is made in consequence of the situation of the estate, as shown by the administration account; the avails are to go into his hands to pay the debts of the intestate ; and the third person is appointed at his request.

And if the purchaser would be es-topped, by the acts of the administrator, had he sold the property, we see no reason to say, that he ought not to be estopped, because the sale is now effected by another person appointed at his request. The familiar maxim, that what is done by another, is done by himself, ought, in this case and for this purpose, to be applied. But we are of opinion, that the purchaser cannot be said, in any sense, to be privy to these proceedings by the administrator.

It is true, that the creditors, or the administrator as their representative, have a lien upon the real estate of their debtor for the payment of debts. Griswold v. Bigelow, 6 Conn. Rep. 265. Graff v. Smith’s admr’s. 4 Dal. 481. Ricard v. Williams, 7 Wheat. 121. This, however, does not give to the administrator, any legal interest in the estate, so as to enable him to bring ejectment. Goodrich v. Thompson, 4 Day, 215. Drinkwater v. Drinkwater’s adm’r. 4 Mass. Rep. 354. 359.

Nor do we inquire whether the circuit court would have sustained the bill as to the real estate by this administrator, had that question been distinctly presented. This court has sustained a bill for an injunction, by an attaching creditor, who has no legal interest in the estate attached. Camp v. Bates, 11 Conn. Rep. 51. We return to the question, is there any privity between the administrator and the purchaser under this judicial sale ? It cannot be claimed, that there is any privity of blood. Nor is there any privity of estate, as the administrator has no interest whatever in the real estate.

It is a fund for the payment of debts, when necessary; but until wanted for that purpose, the freehold is vested in the heir. The administrator or his substitute has a mere power to sell, not coupled with an interest in the property. There is, then, no privity of estate. Is there a privity in law ? The cases put, by Lord Coke, to illustrate what he calls privity in law, are, lords by escheat, tenant by the curtesy, tenant in dower, the incumbent of the benefice, and others that come under by act in law or in the post. Co. Litt. 352. a.

In the cases of escheat, curtesy and dower, the several parties come in as much by the mere operation of law as the heir; and although, strictly speaking, they do not take by descent, the law casts the property upon them in much the same manner. In the case of escheats, the lord is said to be ultimus haeres; (2 Bla. Com. 245.) and the title vests in him, without waiting for his own deed or agreement, and as much by the mere act of law as that of an heir in the case of a descent. Co. Litt. 18 a. No. 106. by Hargrave.

So upon the death of the wife, the freehold is in the husband as tenant by the curtesy, immediately, without even an entry. 1 Cruise’s Dig. 172. sec. 29. And although a tenant in dower, by the common law, cannot make entry, until dower is assigned, yet after such assignment, she is considered in of the estate of the husband, and not of the heir. Co. Litt. 241. And by our law no assignment of dower is necessary. Stedman & al. v. Fortune, 5 Conn. Rep. 462. Privity in law, then, exists where the person taking the estate is in by mere operation of law.

Here, there was not, upon the death of the intestate, any legal subsisting connexion between the administrator and the purchaser of this estate. Indeed, it was entirely uncertain, whether there ever would be occasion for such a connexion. It depended upon a great variety of facts, after-wards to be ascertained; and then the operation of law does not transfer the estate. The party, by his own act, becomes a purchaser ; and the law then so far operates as to give efficacy to the sale of the administrator or his substitute.

But it does not follow, that he is in under the administrator, any more than the dowress is under the heir, because as the freehold is in him, he must assign dower to her. The administrator has not in him’the freehold, as the heir has. He is the mere hand of the law to pass over this property to him who will advance the most money to pay the debts of the deceased.

He is in a situation similar to that of an executor, appointed by will to ge|j pr0perly to pay (Jebtg. i< in this case, though the devisor dies, gejgec| 0f tenements, and the tenements descend unto the heir, yet the executors, after the death of the testator, may sell the tenements so devised to them, and put out the heir. Lilt. sec. 169. “And where they sell, the vendee is in, by the will of the devisor, paramount the descent.” Jenk. Cent. 184. case 75. The administrator here has, certainly, no greater interest, than the executors have in that.

In both cases, the vendor is acting under a power ; and if, in the one case, the purchaser is in under the will of the devisor, he must, in the other case, be in under the intestate. And when in Ricard v.

Williams, 7 Wheat. 114. it is said, by Story, J., that the estate passes to the purchaser, upon his entry into the land, by operation of law, so that he is in under the intestate, we understand him to mean, that the purchaser is in by operation of law under the intestate, instead of being in under the administrator ; and the consequence is, that the purchaser under a sale by order of the court of probate, cannot be said, in any sense, to be privy in law or in estate with the administrator who makes such sale. And the consequence is, that the superior court must be advised that the plea in bar is insufficient.

In this opinion the other Judges concurred, except Huntington, J., who declined giving an opinion, having been of counsel in a cause connected with this. Plea insufficient.