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State of Ohio, use of Rosett and others, v. Boring and others.

1846.

IN BANK When this bond left the hands of these securities, it was ime. Term, perfect and created no liability. The Court, in their absence,

and without their sanction, ordered the sum of $ 15,000 to be added to it, and then approved it as a sheriff's bond. The bond so approved was not the bond of these defendants, and the Court had no authority to make a bond for them. The function of the Court was to approve an existing obligation, not to create a new one.

BIRCHARD, J. The agreed statement presents the naked question whether, after the execution of a sealed instrument, a material blank can be filled by a third person, in the absence of the obligor, and without his express authority, under hand and seal. An immaterial blank, as of the date, or the name of the obligor, may be inserted. Such interlineations do not affect the obligation. It is valid without them. But, without the sum is inserted, the bond is of no validity. In the case at bar, the obvious intention of all the defendants was, that this bond should be filled up by some one, and that it should be used for the purposes to which it was applied. This state of facts presents strong reasons why the instrument should be sustained. It makes a case of great hardship if it cannot be sustained. Looking very much like adhering to form, at the expense of justice. What originated the distinction between sealed and unsealed instruments in this respect, is a question that is not useful now to inquire into. There are many rules of established law for which, at this day, it would be difficult to assign a good reason, were the question presented for the first time whether they should be adopted or not, and yet, because they have been rules for centuries, have become known, and have been acted upon in all the varied transactions of business, no prudent jurist would be willing to see their authority shaken for light causes. Where the law is uncertain, no man knoweth when he is safe. And it is, therefore, generally better to adhere to well settled, long established and well understood rules of law, though some small inconvenience arise from them, until

Benjamin v. Le Baron's Administrator.

1846.

the supreme power of the State sees proper to change them. In Bank.

Dec. Term, A legislative enactment may make any change in the common law that even convenience requires, and it is to be presumed that the change will be made whenever the Legislature become satisfied that a rule of the common law works public inconvenience. Courts of justice can scarcely ever anticipate the full effect of a change made by them. In the case before them, they may possibly be able to say, the departure from the law subserves the ends of justice. They may prove that it will operate well in future transactions, but how it may affect past transactions, what may be the extent of the mischief of its retrospective operation, is often more than would be even imagined. For these reasons, we look to the law for a solution of this question and we find the course of decision uniform, in this Court, in the Courts of our sister States, of the United States, and Great Britain. They all concur in holding that such a blank could not be filled as this was filled. There is not a case to be found that supports this bond. The researches of counsel have superseded the necessity of any quotation on our part for authority to condemn the practice.

Judgment for Defendant.

Levi BENJAMIN vs. William LE BARON'S ADMINISTRA

TOR.

An administrator cannot maintain an action of trover to recover goods, &c., trans

ferred by his intestate to defraud his creditors. The remedy, if there be any, is in Chancery.

This is a Writ of Error directed to the Court of Common Pleas of Belmont County.

The original action was trover, in which the now defendant obtained a verdict and had judgment for $13,379. The facts

Benjamin v. Le Baron’s Administrator.

1846.

Ix Bank. of the case, as gathered from the bill of exceptions, are, in Dec. Term,

substance, these :

On the 7th of September, 1837, Le Baron was possessed of a large real and personal estate, and, also, a contract with one Zane to build a bridge over the Ohio river at Wheeling. He was largely in debt and unable to meet his liabilities, and for the purpose of saving his property from sacrifice, he executed two deeds -- one bearing date the 7th of September, 1837, the other the 25th of September, 1837 — conveying all his property, of every description, to Benjamin, the interest in the bridge contract included. Le Baron died, and Benjamin claimed all the property, under the deeds aforesaid. Lathrop was appointed administrator, and commenced this action for all of the personal property above stated, and for the bridge contract, and, as was contended by defendant, for fixtures ; also, to deprive Benjamin of the property thus held and appropriate it to the payment of Le Baron's debts.

Various errors are assigned, among which are these: That the Court erred in charging the jury that an administrator can maintain trover for goods fraudulently transferred by his intestate, and in charging that trover would lie for the bridge contract.

C. C. Carroll, for Plaintiff in Error.

Can the administrator of a fraudulent grantor, in an action of trover against the fraudulent grantee, recover for the conversion of the goods thus fraudulently transferred ?

No lawyer of any considerable reputation, I apprehend, would hesitate for a moment as to the proper answer to be given to this question. These are familiar and well settled principles: A man is estopped by his own deed, his own act of transfer; he cannot take advantage of his own wrong, nor avoid his deed because of his own fraud; that deeds executed to defraud creditors are valid, as between the parties thereto. But despite these, as we vainly thought, impregnable axioms and

Benjamin o. Le Baron's Administrator.

Dec. Term,

1846.

re

well established principles, a Court has decided that this action In BANK. can be maintained; not, perhaps, by the grantor himself, but by his administrator. We must revise our law upon this subject, and see if there be, verily, just ground for that decision.,

Le Baron himself, the fraudulent grantor, could not maintain this suit.

"A deed made to defraud creditors is void only as against creditors.” * * * * “Such fraudulent conveyances are valid, as between the parties ;" Burgett v. Burgett, 1 Ohio Rep. 469; Douglas v. Dunlap, 10 Ohio Rep. 162. He who parts with property to defraud creditors, cannot bring trover to recover it. Stewart v. Kearney, 6 Watts' Rep. 453.

Le Baron could hardly succeed with the indorsement upon the writ, that he was suing for goods which he had fraudulent. ly transferred.

If Le Baron could not succeed in maintaining this action, can his administrator succeed ?

What is an administrator ?

By the statute 31 Edward 111, “It is accorded and assented, that in a case where a man dieth intestate, the ordinaries shall • depute the next and most lawful friends of the dead person

intestate, to administer his goods, which deputies shall have • an action to demand and recover, as executors," &c. Roberts on Personal Succession, 28.

In the Ohio Reports, the administrator is spoken of as the personal representative of the deceased, in whom the personal estate is vested, as a trustee for those who are ultimately to receive the benefit of the personal estate, (8 Ohio Rep. 370; 5 Ibid. 503,) as agent of the intestate's estate, and of all the creditors also. 9 Ohio Rep. 18.

Deputy, representative, trustee, agent! Rightly considered, the administrator is, perhaps, none of these. In some respects, he is a trustee for the creditors, or heirs, or both, as administering a fund, not his own, for their benefit, but he does not represent them. As agent or trustee, he derives no authority from them. His admissions are prima facie evidence of the in

Benjamin v. Le Baron's Administrator.

In Bank. debtedness of the intestate, (8 Ohio Rep. 249,) but they are of Dec. Term, 1846.

"no efficiency, as against the creditors. The law deputes the administrator, adjusts his position, and then the legal life of the intestate flows into him; and, so far as assets go, he succeeds to all his legal rights, and is amenable to all his legal obligations; and, in all things concerning the estate, is estopped where his intestate was or would be estopped, bound where his intestate would be bound.

I think it is easy to see, that the administrator is something more than agent, trustee, or even representative. A man dead is dead in law, and the legal existence of the administrator is substituted for his. The administrator is invested with the personal estate. He succeeds to the legal rights and the legal individuality of the intestate, and is regarded as enforcing his rights, impelled by his own instincts of selfishness, and as resisting the demands of others from the same impulse.

From whence, then, does the administrator derive his authority to avoid the fraudulent deed of the intestate? Not from the creditors; he is not their constituted agent or appointed trustee. To them, he is antagonistical. Not from the intestate, for the intestate did not himself possess that power. Not from the common law, for the common law confers no power or right upon the administrator which was not possessed by his intestate. Not, certainly, from the statutes of Ohio.

Thus, if I have rightly apprehended and correctly drawn the character and attributes of an administrator, it is easily seen that as Le Baron could not, his administrator cannot maintain this suit.

But what is the law, as ascertained by judicial decision ? “ Persons making voluntary, or fraudulent, or covenous conveyances, and all those claiming under them, are as much bound by such conveyances as if these statutes (13 and 27 · Eliz.) had not been made;" 4 Cruise Dig. 470. “Nor will

courts of equity assist the party making a voluntary convey«ance, or his representative, claiming as such, by setting them

aside;" Spencer, Ch. J. in Jackson v. Garnsey, 16 Johns.

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