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Benjamin'v. Le Baron's Administrator.

Dec. Term

In Bank. fully proves that he did not convert this property until after the

fm, death of Le Baron. I do not yield the point, that if it had 1846.

been converted in the lifetime of Le Baron, his administrator could not sustain this action, for I see it quite clear that he could ; but ever since the time of Queen Elizabeth, it has been held, that if the fraudulent donor die in possession of the goods, the fraudulent donee cannot take them from the administrator.

I conclude, then, that the plaintiff in the suit below, could sustain his suit for such a cause of action.

· READ, J. The record in this case is exceedingly voluminous. To follow through all the motions, exceptions, demurrers and alledged mistakes, interposed by the ingenuity of counsel, would lead to unnecessary prolixity, and throw no light upon the case. Some eighteen errors are assigned, but they dwindle down to two. .' · First: Can an administrator maintain trover to recover property assigned and transferred by his intestate, to hinder, delay and defraud creditors ? and,

Second: If so, would trover lie for the bridge contract, as above stated ?

The first proposition the Court intend to decide, and that only.

We hold that the administrator can only maintain such action as the intestate might, if living. He represents the intestate; he steps into no other right. As between the fraudulent vendor and vendee, the transfer is good. Such conveyances are void only as to creditors. This is the well settled doctrine in Ohio. Hence, as between the vendor and vendee in this case, the vendor had no rights, and of course his administrator could have none. But it is said that, unless we sustain a suit of this sort, on the part of the administrator, creditors will have no remedy. This does not follow. When a bill shall be filed for that purpose, it will be time to consider of it.

As to the second proposition, whether trover would lie for the bridge contract, it is unnecessary to decide, as it is disposed

Benjamín v. Le Baron's Administrator.

of by the determination of the first proposition. Yet in my. In Bank. own opinion, although not authorized to say so by the Court, I w

Dec. Term, should not deem trover the suitable remedy to hunt down the results of a contract of that sort, as has been argued. It has been claimed that an executor de son tort may exist in Ohio, and that we ought to review our decisions upon that point. We are content to let that matter rest as it is. We are not disposed to introduce or sanction a principle which would draw a fund wholly to one creditor, instead of a fair distribution, as would result in case of an execution de son tort.

1. Judgment Reversed.

BIRCHARD, J., dissenting. It has been held that there is no such thing in Ohio as an executor de son tort. In the case at bar, had Le Baron lived, Lathrop, as creditor, might have sued out his writ, prosecuted his action to judgment and execution, and finally made his money out of the property fraudulently conveyed to this plaintiff. It was, as to creditors, a void transfer. When the estate of one is thus made insolvent, the heirs can have no interest in seeing to its settlement. They will not administer, but will leave the burden of administration to those who have some interest in the matter, that is, to the creditors. Now, what I consider erroneous in the opinion of the Court, is this: It misconceives the office and duties of an administrator under the laws of this State, and defeats the policy of our statute. It applies principles which had their origin in another country, and under laws, in this respect, dissimilar to our own. The act of March 23, 1840, entitled “an act to provide for the settlement of the estates of deceased persons,” (Swan's Stat. 339,) provides that all the personal estate shall first be applied to the payment of the debts due by the estate, and, if found insufficient, that the lands shall next be appropriated, by a sale, on petition to the Court of Common Pleas of the county where it lies. The 121st section declares that the land, which shall then be sold, shall include all that the deceased may have conveyed, with intent to defraud his creditors. The 122d section

Benjamin v. Le Baron's Administrator.

1846.

In Bank. gives the administrator a right to maintain the action of ejectDec. Term, "ment, or a bill in chancery to avoid such sale.

Under this statute, the administrator represents the creditors of the deceased person, making a fraudulent conveyance, and is bound to pursue the property, for the benefit of creditors, which they might have reached if the intestate had lived. He is bound to deal fairly with all the creditors; is authorized expressly to pursue his legal action, to obtain possession of lands fraudulently conveyed, and a fortiori he may sue for and recover the personal property so conveyed. By other provisions of the statute, personalty must be first resorted to for the payment of debts. The creditor cannot look to lands, in any case, for the satisfaction of his debts, until all the personal estate within his reach has been exhausted.

The facts disclosed by the bill of exceptions, show that the administrator of Le Baron does not, in point of fact, represent the interests of his heirs to the amount of a cent. The estate is deeply involved. The judgment of $13,000, recovered against the fraudulent assignee, should be suffered to stand for the benefit of the creditors of the estate, among whom the law distributes it upon equitable principles. I maintain that the action was well brought; that the creditors are the parties in interest, and duly represented 'under the provisions of the statute; that the fraudulent transfer of goods or lands by the intestate, destroyed no claim which creditors have upon them, or their proceeds, and that, if the estate is insolvent, such lands, goods, and their proceeds, are assets for the payment of the debts due and owing by the estate. Who can administer assets of a decedent, in Ohio, but the administrator? The answer is, to me, plain; no one. Then, does not the above decision make a case of wrong without a remedy? It is said that the remedy is in chancery. Admitting that it is; but, for this decision, it would not follow that it is there, because there was not a plain and adequate remedy at law. For, it is palpable that trover is a form of action less complex than a bill in equity; it requires but two parties, and affords the very best tribunal

Bierce and others v. Pierce and others.

1846.

for exposing a fraud, to wit, a jury trial. While, upon a pri
ceeding in chancery, every one of the creditors must come il
and be made a party, or he cannot get his distributive share ;
and the administrators and heirs must also be brought in, if for
no other purpose than to deny that there are other assets.
· But I have said enough. I leave the subject, with a request
that those who may think me in error, will take the trouble to
examine the question in connection with the past decisions of
the Court, the legislation of the State, and the authorities cited
by counsel.

Winslow BIERCE and others vs. Enoch Pierce and

others.

For the purpose of supporting a continued possession of over forty years, under a

defectively executed conveyance by a cestui que trust, who, during the whole period, had made no claim thereto, and was under no disability, the Court will presume a good title to the equitable estate in the occupant, and will enjoin the trustee holding the outstanding naked legal title from disturbing such possession.

This is a Bill in Chancery from the County of DELAWARE.

The leading and material facts in the case are: That about 1800, Enoch Pierce, senior, the father of the defendants, thenresiding in Berkshire, in Massachusetts, received a number of United States military land warrants in trust for the holders, for the purpose of locating the same, to the amount of 4,000 acres. When the land was located and patented, the elder Pierce was to convey to each warrant-holder his proportion;' and for these services he was to receive one dollar and fifty cents for each hundred acres. He located these warrants on the 2d section of the 4th township, in the 17th range of the United States military lands in Delaware county, containing

Bierce and others v. Pierce and others.

Dec. Term.

1846.

IN Bank. four thousand acres. This location was accordingly patented

", to Enoch Pierce, the father, in his lifetime, who died in 1803 or 1804. ' .

Moses Byxbe, from whom the complainants derive their title, commenced purchasing the rights of the warrant-holders before Pierce's death, and, in 1805, purchased from the widow and the administrator of Pierce, the elder, deceased, and his ten children, all their right, title and interest in the section. These conveyances were executed in Massachusetts, where the Pierce family then resided. The consideration paid by Byxbe to the widow, administrator and heirs, i was one thousand dollars. Three of the children were then minors, who are now, in consequence thereof, claiming three-tenths of the land so entered and patented. These three children are the defendants."

It is claimed in the bill, and the depositions of Root and others show this to be the fact, that the elder Pierce had no interest in the land except his locating fee - $1.50 per 100 acres; that he merely held the land and patent in trust for the warrant-holders; and that Byxbe, soon after the location of the land, was engaged in purchasing up the rights of the warrantholders. It appears, from the papers on file, he purchased up all the warrants, at or about that time, except 600 acres out of 4,000, and it does not appear but that he might have purchased up the 600 also. Who has actually the right to the warrants covering these 600 acres, does not appear. · The complainants, as purchasers from Byxbe, have been in possession ever since 1804–5, claiming title, and in the undisturbed possession upwards of thirty years. The youngest of the defendants arrived at majority in the year 1812, and never set up any claim to the land until 1837 — twenty-five years after the youngest heir arrived of age, and thirty-three years after the complainants have been in the peaceable possession. The defendants have recently brought an action of ejectment to recover the land. The bill seeks to enjoin them from proceeding at law, and to quiet the title,

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