Opinion · Nclaw North Carolina

TURNER v. CHILD, 12 N.C. 25 (1826)

JOSIAH TURNER v. SAMUEL CHILD., 12 N.C. 25 (N.C. 1826)

Type: Opinion
Court: Nclaw North Carolina
Jurisdiction: Nclaw
Date: 1826-01-01
Topic: general

TURNER v. CHILD, 12 N.C. 25 (1826) JOSIAH TURNER v. SAMUEL CHILD.Supreme Court of North Carolina December Term, 1826. From Orange. 1. An intermeddling for which there is a colorable right will not make a wrongful executorship. 2.

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UpLaw has not yet analyzed TURNER v. CHILD, 12 N.C. 25 (1826). The absence of a flag is not a finding that it is good law.

TURNERv. CHILD,12 N.C. 25(1826)

JOSIAH TURNER v. SAMUEL CHILD.

Supreme Court of North Carolina

December Term, 1826.

From Orange.

1. An intermeddling for which there is acolorableright will not make a wrongful executorship.

2. Where A sold the property of B, as his agent, andafter the death ofBcollected the proceeds: this does not make him anexecutor de sontort.

3. Where there is an administrator, acts for which the agent is responsibleto the administratorwill not make him anexecutor de sontort.

ASSUMPSIT for goods sold, charging the defendant as executor in his own wrong of Francis Child. On trial, it appeared that Francis Child removed from this State, leaving the defendant his agent, who on 3 January, 1823, sold the property to Francis, upon a credit of six months. Francis Child died on 16 January, 1823, and after the expiration of the credit the notes taken at the sale were collected by the defendant; it also appeared that there was an administrator of Francis Child duly appointed.

His Honor,Judge Daniel, charged the jury that by the death of Francis the agency of the defendant was revoked, and the collection by him of money belonging to the estate of Francis was an intermeddling which made him liable to creditors.

The jury returned a verdict for the plaintiff. A rule for a new trial being discharged, and judgment rendered for the plaintiff, the defendant appealed.

This cause was submitted.

Badger for the plaintiff.Nash for the defendant.

HENDERSON, J.

I am of opinion that the collection ( 26 ) by the defendant, after the death of the principal, of debts due on sales made by him as agent, in his principal's time, does not make him an executor of his own wrong. The collection of the money has a reference to the agency, and must be considered as the completion of an act, proper and lawful in its commencement, and it does not depend on the strict question of right, whether the agent had an authority to make the collection; a colorable one will do, by which a character is given to the transaction showing that it was not done as an executor, or as one performing the will of the deceased. 1 Esp., 335. But I am rather disposed to thinkPage 20that the receipt of this money is not a colorable right, but actually so, and that a payment made by the purchaser, without directions to the contrary, is a discharge from the debt, and if so, it is not an officious intermeddling; for it would be strange if an act for which an authority exists will make a person executor of his own wrong. A sense of duty, very probably, induced the collection of the money. The sale was made by the defendant, and he might hold himself bound to omit no reasonable exertion that the proceeds should be forthcoming to the rightful owner when he should be called on for an account of agency. It is entirely unlikePadgetv. Priest, 2 D. and E., 97, where the sale was made after the principal's death, at which time the authority ceased. If the debt arising from the sale had depended on the contract of sale only, it is not to be questioned but that the rightful administrator could have recovered on the contract; but if the agent had taken a bond or note payable to himself, I cannot see how the administrator, or any other person but the defendant, could have enforced payment; but if so, there cannot be the least pretense of charging him as an executor of his own wrong.

It appears, also, that there is an administrator. Of course no act for which the defendant is responsible to the administrator can make him an executor of his own wrong. (27) For where administration has been taken, those acts only which subject the agent, not to the action of the rightful administrator, but which interfere with the estatequoadcreditors, render him liable, as an executor of his own wrong; as, if he takes possession, or even has possession, of goods under a fraudulent gift from the deceased, this makes him executorde son tort;for it does not subject him to the action of the rightful administrator. The gift being good as to the intestate, is good as to the administrator also, but it is void as to creditors.

TAYLOR, C. J., dissenting. This case having been submitted without argument, and presenting one question of some difficulty, and of no ordinary occurrence, I have examined the authorities with the view of ascertaining the principle which ought to govern the decision.

The principal question is, whether the defendant, having collected debts due to Francis Child after the death of the latter, though incurred for property sold during his lifetime, by the defendant duly authorized for that purpose, will amount to such an intermeddling as will make the defendant executor of his own wrong.Page 21

I take it for granted that the sale, being made in the lifetime of Francis, was properly made under an authority from him; but the cases have satisfied my mind that upon the death of Francis all further power conferred by the agency was at an end, for a power to represent another can only continue as long as there is some one to be represented. Therefore, a letter of attorney to deliver seizin after thedeath of the feofforis void, because upon his death the lands descend to his heirs, C. Litt., 52, b., and for a similar reason, a power to collect debts after the death of the principal, supposing it to have been expressly granted, which it was not in this case, must be void; because the right to collect the debts devolves upon the executor or administrator. In like manner the payment of a sailor's wages to a person having a power of attorney to receive them has been held void where the principal was dead at the ( 28 ) time of payment. 5 Esp., 118. And what appears to me to be a strong case, going far beyond the one under consideration: it has been held that a power of attorney given to a creditor, authorizing him to receive a debt, without any actual appropriation or assignment of it, is void after the death of the debtor, although the latter declared at the time that it was given with a view to enable the creditor to apply the money received towards the liquidation of his own debt. 2 Ves. and Beam., 51.

It appears to me that if any case can decisively show the inflexible quality of the rule of law that all authority ceases at the death of the principal, this case does show it; for if it cannot be relaxed in favor of a creditor whom the debtor was desirous to secure, and to secure whom he did everything short of an actual assignment of his demand, ought it to be relaxed in favor of one who is not a creditor? of one who, when he collected the money, did not apply it to the payment of Francis Child's debts, or, as it appears from the case, had an intention to do so? So if the power be coupled with an interest, it is instantly revoked by the death of the grantor, and an act done under it afterwards, thoughbona fide, and before notice of the death of the grantor, is a nullity. 4 Campb., 272. And the case in 2 Term, 97, incontestably shows that if a man receive the money of the intestate after his decease, though it was received accordingly to an order in his lifetime, it will make him an executorde son tort. If it be an express power to sell and collect money, it is revoked by the death of the grantor;a fortiorimust it be, where the power to collect is only incidental, and implied from the power of selling. From thePage 22view of the authorities, it results that the defendant has collected the debts of the deceased without legal authority and, I think, without the color of it, and in so doing has announced to the creditors that he has taken upon himself the burthen of administration; he has made this announcement by (29) such acts as are the usual and ordinary indications to creditors, against whom they are to bring their actions. The law says that slight circumstances of intermeddling are sufficient for the purpose of charging a man as executor of his own wrong. The cases put by way of illustrating this rule are the slightest imaginable, and such as can lessen the value of the estate, or affect the interest of the creditors, but in the most inconsiderable degree. But collecting the debts due to the deceased, without paying the creditors, is not only sweeping away the fund which the law has appropriated to them, but is, also, the least equivocal act a man can do who desires to be considered as administering; an act, too, of which there can seldom be any difficulty of proof.

I lay no stress upon the circumstance that the extent of the power to the defendant was not shown, or whether he was authorized to sell upon credit; because upon the assumption that the power of attorney was as broad as a skillful conveyancer could make it, yet nothing that I can perceive in the case will avert the consequence that the debts due for the things sold, whether by specialty or single contract, becameipso facto, on the death of Francis Child, the property of the rightful administrator.

In my opinion there was no error in the charge of the court, and I am in favor of affirming the judgment.

Judgment reversed, and a new trial granted. See p. 133,post.Approved: McMorine v. Storey,20 N.C. 330;Bailey v. Miller,27 N.C. 444;Outlaw v. Farmer,71 N.C. 31.

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