Lessee of Goforth v. Longworth.

curity has been demanded by the courts; when they were not, an additional bond has been taken before the order of sale granted; the administrator is held liable on his bond to the same extent, for money arising from the sale of real estate as for the proceeds of personal property. The proceeds of the former are, to all intents and purposes, assets as well as the latter. They are both appropriated in the same manner, and when land is turned into money, it is instantaneously assets, according to the legal acceptation of the term. The case of Truman v. Anderson and others, 11 Mass. 190, has been cited as an authority in point for the defendant. The question submitted in that case was whether the bond of an administratrix was forfeited for her neglect to apply for a license to sell the real estate of her intestate, for the payment of his debts. This is not the case here. The question to be decided by the court is, whether the administrator and his security are liable for the proceeds of real estate, actually sold, and which came into the hands of the administrator. It will be sufficient to decide the point determined by the Supreme Court of Massachusetts when presented. It clearly does not arise in this case. In deciding the point under consideration, we rely upon our own practice, which has given construction to our statutes, and, it is believed a correct one, according to the principles of sound policy and just reasoning. It is the opinion of the court the condition of an administrator's bond covers all assets, to the extent of the penalty, at least, whether personal, or arising from the sale of real estate. Motion overruled.

Judgment on the verdict.

*LESSEE OF GOFORTH v. N. LONGWORTH.

[129

In a case of sale of lands of decedent by executors or administrators, the record must show an order of sale by the court, or the sale is void.

THIS was an ejectment adjourned here for decision from Hamilton county. The plaintiff claimed as heir at law of Aaron Goforth, who died legally seized of the lot in controversy, being No. 161, in Cincinnati. The seizin of the ancestor and the heirship were admitted. The defendant claimed under an alleged sale and

Lessee of Goforth v. Longworth.

conveyance, made by the administrators of A. Goforth, of the lot in question, for the payment of debts. In support of this claim he gave in evidence, a deed from the administrators, dated Janu ary 26, 1814, which recited that the sale was made by the administrators, under an order of court. To sustain this deed, the defendant further gave in evidence an order of court, dated of August term, 1813, in these words: "Petition and motion made by the administrators of A. Goforth, deceased, for the sale of real estate. Account or statement exhibted to court, who appoint Joseph Carpenter, Ethan Stone, and Richard Fosdick, appraisers," etc.

An appraisement made by the persons named, of real estate, and returned to court, including the lot in dispute, was also given in evidence, which was dated December 11, 1813. An account of sales, as made by the administrators, dated December 15, 1813, was in proof, in which the lot 161 was set down as sold December 14, 1813. This account was marked filed as of April 14, 1814. No other order of court, in the premises, was given in evidence, except the one before quoted. The question submitted for decision was, whether upon the proofs exhibited, the sale, by the administrators, was valid.

CASWELL and STARR, for the plaintiff.

N. WRIGHT, for defendant.

By the COURT:

It is now well settled that courts give a liberal construction to statutes authorizing sales of real estate by executors or adminis130] trators. Public policy requires that all reasonable *presumptions should be made in support of such sales, especially respecting matters in pais. The number of titles thus derived, and ⚫ the too frequent inaccuracy of clerks and others concerned in effecting these sales, render this necessary. But where the statute is explicit and unambiguous, in its terms, the court is not authorized to dispense with the formalities and modes of proceeding prescribed, or to supply them by presumptions and constructions.

The sale, relied upon by the defendant, was made under the statute of February 10, 1810. Section 32 provides "that when it shall be made appear to the satisfaction of the court that it is necessary to sell real property for the discharge of debts, as specified

Lessee of Goforth v. Longworth.

in the preceding section, they shall appoint three disinterested men to view the lands, tenements, or hereditaments, so to be sold, and return to court under oath, a statement of the value thereof, after which the court shall direct the executor or executors, administrator or administrators, to proceed to sell, either the whole or a part, as they may think proper, of such real estate, after giving notice," etc.

The provisions here cited require that certain acts shall be done by the court of common pleas, and these constitute the foundation upon which the sale of a deceased person's real estate by his personal representative must rest. That these acts were done by the court must be evidenced by the record of their proceedings. The law requires that the court shall appoint valuers, who shall value the estate, and make a return of the valuation, "after which the court shall direct" the whole or a part to be sold, as they may think proper." This act, to be performed by the court, is essentially of a judicial character. A judgment is to be made up and pronounced; and this judgment is the foundation of the administrator's or executor's power to sell. Were such a judgment, order, or direction produced, it would be correct to infer that it was rendered or made upon a proper state of facts. The appointment and return of the valuers, with other preliminary proceedings, might be inferred or presumed. But the judgment or direction stands upon a different principle. It can only exist as matter of record, and can in no other mode be proven.

No transcript of any such record is produced; nor anything more than the order appointing the valuers, which in the [131 nature of things, preceded the direction, or order to sell; because between that appointment, and the final direction to sell, the valuers were to perform the duties required of them by law. The counsel, aware of the necessity of adducing record evidence of this order, or judgment, attempt to deduce it from the "et cetera" at the end of the order appointing valuers. But such an interpretation of the "et cetera," in the case before us, is wholly inadmissible. Lord Coke himself, whose commentary upon the "et cetera" of Littleton is a standing jest with the profession, never could have thought that matter subsequent, and that the final decision of the court in the case could be included in an "et cetera" attached to the incipient order in the proceedings.

The statutory provisions in respect to cases of sales of real es

3

Lessee of Goforth v. Longworth.

tate, by the personal representative, are intended to protect the
interests of heirs and creditors, as well as that of purchasers.
The power of the personal representative over the real estate of
the deceased is derivative and limited. It is derived from the act
of the court, in conformity to the law. The discretion of the
court must be exercised and declared upon the subject, and, with-
out this, the act of the administrator or executor is void, because
based upon no legal foundation. It is a case of acting under a
power where no power is conferred. The act must therefore be
void. In this case there is the proper proof that valuers were ap-
pointed and made a return. These steps prepared the subject for
the court to act upon finally. But there is no evidence that they
did finally act upon it. On the contrary, there are facts stated
that warrant a contrary conclusion. The appraisement is dated
December 11, 1813, and the administrators report the sale as made
the 14th of the same month. In this period of time it was impos-
sible for the court to act, and then for the administrator to give
the legal notice of sale. It seems, therefore, to be an almost
necessary conclusion, that the administrators did not consider an
order or direction to sell, founded upon the return of the valuers,
as necessary to invest them with the power to effect a sale. We
can not otherwise account for their appointing and advertising a
sale, even before the valuation was made, and, of consequence,
before any power to sell could be vested in them. They mis-
took their duty and their powers. We might as well attempt to
132] *sustain a sheriff's deed for land sold on execution where the
pleadings were found, but no judgment, as to sustain the sale by
the administrators, in this case. To divest the heirs of their es-
tate, by the sale of the personal representative, that sale must be
made in substantial compliance with the statute.
This must ap-
pear on the record, or arise on a just implication from it.
we have neither. The judgment must be for the plaintiff.

Here

120

Cowdin v. Hurford.

ROBERT COWDIN v. JOSEPH HURFORD.

Foreign attachment can not be sustained against one of several joint and sev eral contractors.

THIS was a writ of error, adjourned here for decision from the county of Jefferson. The original suit was an attachment sued out of the court of common pleas of Jefferson county, upon the affidavit of the defendant in error, filed in January, 1823. Upon the return of the writ of attachment, Joseph Hurford filed a declaration charging the assumpsit upon Robert Cowdin. George Starr, claiming to be creditor, filed his declaration in the same manner. Other declarations were in like manner filed. Thomas Stevenson counts, "that Robert Cowdin, jointly with one Robert Gilmore, they being then and there joint partners, made his certain receipt, etc., jointly with the said Robert Gilmore, by which said receipt said Cowdin acknowledged," etc. The promise was laid, as made by the defendant in attachment, to the plaintiff. To all these declarations the defendant in attachment pleaded in abatement, because the undertaking, if any, was by said Cowdin and one Robert Gilmore, who is still living. Demurrers and joinders to the pleas. The court below adjudged the several pleas in abatement insufficient, and gave several judgments, to reverse which this writ of error is brought.

TAPPAN, for plaintiff in error, cited 2 Saund. 210, n.; 2 Bos. & Pul. 42; Com. Dig., Abatement, F.

*J. & D. COLLIER, for defendant in error, cited 1 Saund. [138 291, b, n. 4; 5 Term, 651; 1 East, 20; 4 Term, 725; 3 Camp. 50; 1 B. & A. 224; 2 Taunt. 254; 5 Burr. 2614; 2 East, 313; 2 D. & R. 439.

By the COURT:

The writ of attachment appears to have been issued under the statute of 1810; but the subsequent proceedings have been had under the law which took effect on June 1, 1824. The pleadings disclose the fact, that one of two partners lived in the county of Jefferson and the other was not a resident of the state. The affi davit was made and the writ issued against the absent partner.