#### *Fisher v. Bassett and Others.

December, 1837,

Richmond.

[33 Am. Dec. 227.]

(Absent Bbooke and Bbockenbrotjgh,* J.)

Administration Granted — Wrong Exercise of Jurisdiction — Effect†—Case at Bar. — A county or corporation court grants administration of the estate of a foreigner, who died abroad, and who had no residence in the county or corporation at the time of his death, and had no estate of any kind there, so that in truth the state of facts is not such as to give the court jurisdiction to grant administration in the particular case, according to the provisions of the statute, 1 Rev. Code, ch. 101, § 12, 32, yet held, *53that such a grant of administration is not a void but only a voidable act; and, therefore, rightful acts of, and fair dealings with, the administrator, consummated before his administration is revoked or superseded, cannot be impeached.

Same — Same—Same.—Quere, whether, if a county or corporation court grant administration, of a decedent’s estate, in a case where the true state of facts is not such as to give such court jurisdiction to grant administration, and yet such grant is only voidable, not void, the general court can make a valid grant of administration, until the former irregular grant by the county or corporation court shall have been duly revoked or superseded ?

Administrators — Sale of Bond at Sacrifice — Assignee Must Show Fairness of Transaction.‡: — An administrator takes a bond to himself individually fora debt due to his intestate’s estate, payable at a distant day, and then sells this bond at a discount of 25 per cent, to an assignee, who knows that the consideration of the bond was a debt due to the intestate’s estate, but is informed, and so informed as to justify him in believing, that the administrator has acquired the full property in the bond in his own right: Held, this is such a dealing with the assets of the intestate’s estate, such a concurrence of the assignee with the administrator in his appropriation of the assets to his own use, as to throw the burden of .proof of the fairness of the administrator’s conduct on the assignee; and if the administrator had not purchased the claim from the next of kin, or had not made such advances as to justify him in appropriating it to himself, the assignee cannot, in equity, avail himself of the transfer.

Philip Grimes deceased, of Middlesex, was, in his lifetime, the executor of John Robinson deceased. That ^testator, by his will, bequeathed a legacy to Robert Robinson, who survived the testator and died ; and though sufficient assets to pay the legacy came to Grymes’s hands, he died without having paid it; so that his estate was, acknowledgedly, liable to the representatives of the legatee for the amount of the legacy.

Grymes’s estate was an ample one. Administration of it was committed by the county court of Middlesex to George Healy of that county ; and John Bassett deceased, the father of George Bassett, the appellee in this cause, who was his executor, was one of the sureties of Healy in his administration bond. Healy wasted Grymes’s estate to a very considerable amount; and his letters of administration were revoked by the county court of *54Middlesex, and administration de bonis non was granted to Carter Braxton, the husband of the granddaughter and sole heir and distributee of Grymes. Braxton as the administrator de bonis non, and Braxton and his wife as distributees, of Grymes, brought a suit in chancery against Healy the former administrator, and the sureties bound in his administration bond who were yet living, and the representatives of such of them as were dead, and among the rest George Bassett executor of John Bassett, for the purpose of having an account of Healy’s administration, and of charging him, and if necessary his sureties, for his devastavit of Grymes’s estate. And in that suit it was’made apparent, that the estate of the surety Bassett would be responsible to Grymes’s administrator de bonis non and distributees, in consequence of Healy’s waste of Grymes’s estate and of his insolvency, to a much greater amount than the sum due by Grymes’s estate to the representatives of Robert Robinson, on account of the legacy bequeathed to him by Grymes’s testator John Robinson.

Robert Robinson was, in his lifetime, a resident of Nova Scotia: he died there ; and he had no other estate in Virginia, except his claim upon the representatives *of Grymes for the legacy above mentioned; and Grymes himself, his first administrator Healy, .and his administrator de bonis non Braxton, who had been successively responsible for the legacy, had all resided in the county of Middlesex. Yet Robert G. Scott, with the sole view, as it appeared, of recovering this debt due from residents of Middlesex to the estate of Robert Robinson, made application to the hustings court of the city of Richmond, within the jurisdiction of which that decedent had no estate whatever, for administration of his estate, which the hustings court, unwarily without doubt, granted. Scott being thus appointed the administrator of Robert Robinson, applied to Braxton, the administrator of Grymes, for the legacy which Grymes as the executor of John Robinson had become bound to pay to Scott’s intestate. Braxton, finding that that legacy was still.certainly due from Grymes’s estate, and being .disposed to provide for the payment of the legacy out of the assets of that estate in the most convenient manner he could, was therefore willing to apply to the satisfaction of the legacy, so much as would suffice for the purpose, of the balance which was understood, and indeed ascertained at the time, to be chargeable on the estate of John Bassett, as one of the sureties of Healy the first administrator of Grymes, on account of Healy’s devastavit: Scott was desirous to get payment of the debt due his intestate’s estate, out of that part of the funds of Grymes’s estate: and the executor of Bassett, knowing that his testator’s estate was indebted to that of Grymes, had no objection to the application of the money,for which he was responsible, in any manner that Braxton should'wish and direct. Neither Braxton nor Bassett’s executor, certainly, nor, probably, Scott himself, had as yet the least doubt of the regularity and va-1 lidity of the letters of'administration of Robert Robinson’s estate, granted to Scott by the hustings court of Richmond.

*Such being the state of things and the disposition of all the parties, Braxton sent an open letter by Scott, to George Bassett the executor of John, dated the 1st February 1828, in these words: “Any arrangement you can make with mr. Scott relative to the claim of Robert Robinson’s administrator against the estate of Philip Grymes, will meet with my approbation ; and will be allowed by me in part discharge of the amount you may be compelled to pay me, as the administrator of your father who was the surety of George Healy for his administration of Philip Grymes’s .estate. I think t,he amount of the claim against mr. Grymes’s estate will be between 3000 and 4000 dollars. (Signed) Carter Braxton.”

This letter was enclosed by'Scott in a- letter of the same date. to Bassett, in which Scott very earnestly importuned Bassett to come into the arrangement, which it appeared by that letter he had previously proposed to him, of giving his bonds to Scott, payable in three equal annual instalments, for the amount of the legacy due from Grymes’s estate to the estate of Robert Robinson, and thereby getting a credit for the same amount, for his testator’s estate against Grymes’s representatives. Bassett came into the arrangement accordingly; and, in February 1828, executed three bonds to Scott (individually, not describing him as administrator of Robinson) for 1316 dollars 90 cents each, payable on the 1st days of March 1829, 1830 and 1831 — the aggregate, 3950 dollars 70 cents, being the amount that was due from Grymes’s estate to that of Robert Robinson ; and Bassett also executed a deed of trust conveying land to Herbert Claiborne, trustee, to secure punctual payment of the bonds a$ they should come due.

Scott, having thus procured these bonds to himself, in satisfaction of the claim of his intestate’s estate upon Grymes’s estate, and being desirous to raise money upon them, very shortly afterwards offered them to Bassett, *upon the following, terms' — that Bassett should give him his note, with certain persons as indorsers, for 3600 dollars payable on the 15th June 1828, and Scott should, for such more prompt payment, discount 350 dollars from the aggregate of the bonds, and surrender them to Bassett. To this proposal Bassett did not accede, not because he doubted Scott’s right to dispose of the bonds, but, as he said, because a compliance would not be convenient to him. Scott then, on the 6th March 1828, wrote a letter to Bassett, inclosing a certificate which he requested Bassett to sign, in order to enable him to sell the bonds in the market to better advantage : the proposed certificate was in these words— “Robert G. Scott holds three bonds executed, by me, each bearing date the 11th February 1828, one payable March 1st 1829, one March, 1st 1830, one March 1st 1831, and amounting: in the aggregate to 3950 dollars 72 cents :— these bonds ar.e executed for a valuable consideration ; there is no legal or equitable objection to their payment, and when due will *55be discharged. This I have said, with a view that mr. Scott may make any arrangement in relation to them he may desire. Given under my hand this day of March 1828.” Bassett prudently refused to sign the proposed certificate — “declining (as he said) in any manner to express his faith, further than was, and he thought sufficiently, shewn by his signing the bonds.”

Scott now offered the bonds for sale to the appellant Fisher, who, without being at all apprized of the recent correspondence between him and Bassett just mentioned, hesitated to purchase them, until he could have some assurance that there was to be no objection to the payment of them. He was referred, and he applied, for information on the subject, to Herbert Claiborne, a lawyer, who had been the adviser of Bassett; and Claiborne stated in writing, that the bonds had been executed by Bassett to Scott, for a claim of the latter as administrator *of Robert Robinson deceased ; that he Claiborne “was conversant with the whole transaction, and thought there could be no doubt but that the debt was a bona fide one, due now to Scott alone;” that Bassett had entered into the arrangement in consequence of which he had executed the bonds, advisedly, and “upon the most mature deliberation,” and Claiborne himself, after both he and Bassett had paid much attention to the nature of the claim, had prepared the bonds, and the deed of trust (in which he was the trustee) to secure the payment of them ; and that, since the bonds and the deed were executed, Bassett had informed him, that he was endeavoring to make arrangements to raise a suffici ent sum of money to pay off the bonds to Scott.

Fisher still hesitated to purchase the bonds, till it should be ascertained from Bassett himself, that there would be no objection to the payment of them, when they should fall due. On the 14th March 1828, Scott wrote a letter to Bassett, informing him, that he had on that day assigned the bonds to Fisher (though, in fact, no such assignment had yet been made); and this letter was sent by a special messenger to Bassett. On receiving notice of this actual assignment (as he had reason to suppose it was) Bassett, while he declined to give any written assurance of payment to the assignee, told the messenger, verbally, “that the bonds were really and bona fide due, and that he would pay them to the assignee of the same.” The messenger stated this verbal declaration of Bassett in an affidavit, which was handed to Fisher ; but. Bassett’s care to avoid giving a written assurance, was not communicated to him. Fisher then completed the purchase, and took an assignment of the bonds. He paid Scott 3000 dollars in cash, for the three bonds, which amounted in the aggregate to 3950 dollars 72 cents.

Of the fairness and sincerity of the representations made by Bassett in respect to these bonds, as well as of *those made by his friend and adviser Claiborne, there was not the least reason to doubt. Neither of them, at the time, any more than Fisher, suspected that there was, or could be, any such equitable objection to the payment of the bonds, as shortly afterwards appeared,

James Lyons, one of the sureties of Scott in his bond for the due administration of Robert Robinson’s estate, gave notice to Bassett, in July 1828, that he regarded the letters of administration which Scott had obtained of that decedent’s estate as illegal, and that he should take steps to relieve himself from any responsibility as Scott’s surety. Of this Bassett immediately informed Fisher ; and added, that the consideration of the bonds he had given to Scott and Scott had assigned to Fisher, was the claim which Scott as the administrator of Robinson’s estate had on Philip Grymes’s estate, and that, therefore, the bonds would not be paid to any one but upon the special order of the court of chancery.

The general court, at November term 1828, made the following order: “On the motion of James Lyons, to commit the estate of Robert Robinson deceased to the sheriff of the county of Middlesex : This day came the said James Lyons by his attorney, and the court having maturely considered the evidence adduced in support of the said motion, it seems to the court from the said evidence, that the said Robert Robinson died out of this commonwealth, and had not at the time of his death any place of residence therein, and had not any lands or any other estate in the city of Richmond; and that, therefore, the letters of administration on the estate of the said Robert Robinson, which were granted to Robert G. Scott by the hustings court for the said city of Richmond, are void; and it appearing to the court, that the said Robert Robinson had, at the time of his death, some estate in the county of Middlesex, and he having died intestate more than three months ago, and no person applying for administration of his goods and chattels the *court doth, in pursuance oi the motion of the said James Ijyons, order the sheriff of the said county of Middlesex to take the estate of the said Robert Robinson into his possession, and administer the same according to law.”*

Braxton and wife, the distributees of Philip Grymes deceased, upon being apprized of the above proceeding of the general court, served a notice on Bassett, in January 1829, to the following effect: “That no payment which Bassett should make to Robert G. Scott, who had been lately considered the administrator of Robert Robinson deceased of Nova Scotia, would be allowed or admitted as a set-off or credit against the balance due from Healy the former administrator of Grymes to. Grymes’s estate.”

The first bond executed by Bassett to Scott and by Scott assigned to Fisher, having fallen *56due, and Bassett having refused to make payment thereof, Claiborne, the trustee in the deed of trust which Bassett had executed 'to secure punctual payment of the debt, at the instance of Fisher the assignee, advertised the trust subject for sale, in pursuance of the deed, to satisfy the debt.

Whereupon, Bassett exhibited his bill in the superiour court of chancery of Richmond, against Scott, Fisher the assignee' of the bonds, Braxton and wife the distributees of Grymes, the sheriff of Middlesex to whom the general court had committed administration of Robert Robinson’s estate, and Claiborne, the trustee in Bassett’s deed of trust to secure the debt in question, — setting forth the transactions, as above narrated : charging particularly, that Fisher was apprized of the consideration of the *bonds executed by Bassett to Scott, and assigned by Scott to him, at the time he took the assignment thereof; namely, that the consideration was a debt claimed by Scott as the administrator of Robinson’s estate: representing that Bassett could have no interest to withhold payment of the bonds to the assignee who held them, provided such payment would, according to the true design of the transaction, entitle him-to a credit pro tanto against the claim which Grymes’s representatives had against the estate of his father and testator, as one of the sureties of Healy the former administrator of Grymes’s estate, on account of the waste thereof that Healy had committed: and praying, that the defendants should litigate among themselves, and that the court should decide, whether, under the circumstances of the case, Bassett should pay the money to Scott’s assignee Fisher, or not; that, in the mean time, Claiborne, the trustee, should be injoined. from proceeding to sell the trust subject mortgaged by Bassett, to satisfy the bond which had become due ; and general relief.

Fisher, in his answer, said, that the bonds were offered to him by an agent of Scott, and he declined purchasing them till he should be exactly informed of the rights of the parties in the transaction; upon which the agent told him, that the representatives of Philip Grymes had a claim against Bassett, as the executor of his father, who was a surety of Healy the former administrator of Grymes’s estate ; and Scott had a claim on Grymes’s estate for a legacy due to Robert Robinson; that Scott was the owner of this claim, having purchased it, and had a further right to it as administrator of Robinson; that Braxton, who was now the person principally interested in Grymes’s estate, had, after consulting counsel, admitted Scott’s right to the claim, authorized Bassett to settle it with Scott, and agreed to allow Bassett a credit against Grymes’s esta te for so much as he should pay Scott; and that thereupon Bassett had executed these bonds to Scott, *and given him a deed of trust to secure the payment. That this representation was confirmed to Fisher, by the written statement of Claiborne (who had been Bassett’s adviser and agent in the business) that “ he was conversant with the whole transaction, and thought there could be no doubt that the debt was a bona fide one, due now to Scott alone;” and by the fact that the bonds were executed by Bassett, in his individual character, to Scott, in his individual character. That Fisher, though he did not doubt the truth of this information, still refused to purchase the bonds, until he should ascertain from Bassett himself, whether or no he had any objection to the payment of them when they should fall due ; upon which a messenger was sent to Bassett to inform him of Fisher’s design to purchase the bonds ; and the messenger made an affidavit, which was handed to Fisher, that Bassett said the bonds were really and bona fide due, and he would pay them to the assignee of the same. That upon this assurance, Fisher purchased the bonds from Scott, and paid him the money for them. That both Braxton and Bassett knew, that Scott intended to raise money on this claim, and concurred in the arrangement to enable him to do so ; Braxton, with this knowledge, gave Scott the open letter to Bassett, authorizing Bassett to settle the claim with Scott, and promising him a credit pro tanto ; Bassett, with the same knowledge, executed his bonds to Scott in his individual character ; they both thus recognized, and held out to the world, Scott’s right to make what disposition he pleased of the claim of Robinson’s estate on that of Grymes. And that, under all the . circumstances of the case, neither Bassett nor Braxton had any ground of equity, on which the former could withhold, or the latter interfere to prevent, the payment of the money to him.

Braxton and wife, in their answer, stated, that Braxton’s letter to Bassett of the 1st February 1828, in which he promised to allow Bassett a credit against Grymes’s *estate, for so much as he should make an arrangement to pay to Scott, as the administrator of Robinson, on account of the claim of Robinson’s estate against the estate of Grymes, — was written under the impression, that Scott was the rightful administrator of Robinson, and had authority to receive the debt due that intestate : that the object was, simply, to apply a portion of the funds of Grymes’s estate, to the payment of a debt justly due from it, to the person who had a right to receive payment of it and give an acquittance: but that, if the judgment of the general court was right, if Scott’s letters of administration of Robinson’s estate were merely void, if he had no authority to receive the assets of that decedent, and if a payment to him would leave Grymes’s estate still responsible to the legal representative of Robinson ; then, they insisted, Bassett ought to be injoined from making the payment to Scott’s assignee Fisher, as (under the circumstances) he would have been inhibited from making the payment to Scott himself, if he still held Bassett’s bonds.

The sheriff’ of Middlesex, to whom the general court had committed the administration of Robinson’s estate, in his answer, said he had heard, that his intestate had a large claim against the estate of Grymes, which still remained unsatisfied ; but he disclaimed all knowledge of the transactions stated in *57the bill ; and concluded with asking “ to be dismissed with his costs. ”

As to the defendant Scott the bill was taken pro confesso.

The defendant Claiborne, having no interest in the controversy, was examined as a witness in the cause. It appeared from his deposition, that, though it was certainly Braxton’s object to apply the money due from the estate of Bassett to that of Grymes, to the payment of the debt due from Grymes’s estate to that of Robinson ; and though Bassett’s object was to get a credit against Grymes’s administrator for so much as he should pay *to Robinson’s administrator ; and though they both believed, that Scott was the administrator of Robinson duly appointed and qualified ; yet, in making the arrangement with Scott, they both wished and intended to accommodate him personally ; and both probably thought, as Claiborne thought at the time, and as he informed Fisher, that Scott was the real owner of the claim of his intestate Robinson on Grymes’s estate. It appeared also, that the only advantage which Bassett promised himself, was the credit he obtained from Scott for the payment of the money in three annual instalments.

There was no proof whatever, that Scott had purchased from the next of kin of Robinson, their interest in the claim upon Grymes’s estate, or that he had any right in the claim but as the administrator. At the same time, it was certain, that Fisher understood and believed that Scott was the absolute owner of the claim.

The cause was transferred to the circuit superiour court of Henrico. And that court, upon the hearing, decreed, that the injunction awarded to restrain the trustee Claiborne, from proceeding to sell the subject mortgaged by Bassett’s deed of trust, should be perpetuated ; that Fisher and Claiborne the trustee should release to Bassett all right and claim under'the deed of trust; that Fisher should bring Bassett’s three bonds into court to be cancelled ; that Scott should pay Fisher the 3000 dollars he h ad received from him, with interest ; and that Fisher should pay the plaintiff’s costs, which Scott should reimburse to Fisher, and should also pay him his costs.

Fisher applied to this court for an appeal from the decree ; which was allowed.

The cause was argued here, by counsel for all the different parties interested; by the attorney general and J. M’C. Wickham for the appellant; by Robertson and Robinson for the appellees Braxton and wife ; by Stanard *for the appellee Bassett; and by Johnson, who represented the interest of the sureties of Scott, but (they not being parties to the suit) appeared nominally as the counsel of Bassett.*

*

He decided the cause in the circuit superiour court of Henrico.

†

Administration Granted — Wrong Exercise of Jurisdiction — Effect.—Where a court has general jurisdiction to grant letters of administration, an order granting administration, in a case in which the state of facts is not such as to give it jurisdiction in that particular case, is not a void but only a voidable act, and cannot be questioned in any collateral proceeding. For this proposition, the principal case was cited with approval in Cox v. Thomas, 9 Gratt. 328; Schultz v. Schultz, 10 Gratt. 378, 382; Hutcheson v. Priddy, 12 Gratt. 90 (in this case, Monoube, P., in his dissenting opinion, p. 92, distinguishes the principal case from the case at bar); Andrews v. Avory, 14 Gratt. 229, 236, 238, and *foot-note*(see somewhat extended discussion of the subject in this foot-note); Gibson v. Beckham, 16 Gratt. 326; Smith v. Henning, 10 W. Va. 615; Leach v. Buckner, 19 W. Va. 12; Holmes v. O. *& C.*R. Co., 5 Fed. Rep. 530, 532; *foot-note*to Burnley v. Duke, 2 Rob. 102. See also, mono-graphic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

For, where a court has general jurisdiction over a given subject-matter, *i. e.,*over a certain class of cases, its judgment in a case which falls within this class is conclusive until set aside by some proceedings in the same or an appellate court; it cannot be questioned in any collateral proceedings; and this is true although the facts of the particular case are not such as to give the court jurisdiction in that case. For this more general proposition — of which the rule laid down in the first paragraph is a subdivision — the principal case was cited with approval in Ballow v. Hudson, 13 Gratt. 681; *foot-note*to Ballard v. Thomas, 19 Gratt. 14; Devaughn v. De*53vaughn, 19 Gratt. 566; Cline v. Catron, *22*Gratt. 394; Durrett v. Davis, 24 Gratt. 316; Shelton v. Jones, 26 Gratt. 898; Quesenberry v. Barbour, 31 Gratt. 500; Woodhouse v. Fillbates, 77 Va. 321; Lemmon v. Herbert, 92 Va. 657, 24 S. E. Rep. 249; Hall v. Hall, 12 W. Va. 13, 15; Patton v. Merchants’ Bank, 12 W. Va. 587; *In re*Sawyer, 124 U. S. 200, 8 Sup. Ct. Rep. 493; *Ex parte*Lennon, 166 U. S. 548, 17 Sup. Ct. Rep. 660; Noble v. Union, etc., R. Co., 147 U. S. 165, 13 Sup. Ct. Rep. 274; Holmes v. O. & C. R. Co., 9 Fed. Rep. 242; *In re*Eaton, 51 Fed. Rep. 805; Cardoza v. Epps, 2 Va. Dec. 137. See also, *foot-note*to Gibson v. Beckham, 16 Gratt. 321.

‡

Fiduciaries — Breach of Trust — Participators—Liability. — It has been long settled that whenever a fiduciary does any act in violation of his duty or commits a breach of trust, that he and all who willingly and knowingly aid him in the execution of these purposes are, in the eyes of the law, participators in the offence, and all stand upon the same footing. Boisseau v. Boisseau, 79 Va. 77, citing principal case, Jackson v. Updegraffe, 1 Rob. 107, Pinckard v. Woods, 8 Gratt. 140, Jones v. Clark, 25 Gratt. 658, and Asberry v. Asberry, 33 Gratt. 463. To the same effect, the principal case was cited in Hunter v. Lawrence, 11 Gratt. 134; Edmunds v. Venable, 1 Pat. & H. 140; *foot-note*to Barksdale v. Finney, 14 Gratt. 338; *foot-note*to Jones v. Clark, 25 Gratt. 647.

Thus, in Utterback v. Cooper, 28 Gratt. 286, it is said: “If there is any proposition which ought to be regarded as settled law in Virginia, it is that a party concerting with an executor or administrator in a breach of trust, cannot claim credit for the money actually advanced by him. It is not for him to say the fiduciary ought to have applied the money to the purposes of the estate. When he aids him in any manner contrary to the duty of the executor, he takes upon himself all the hazards of a misapplication of the fund. All the cases, including Graff v. Castleman, 5 Rand. 195; Pinckard v. Woods, 8 Gratt. 140; *Fisher v. Bassett,*9 *Leigh*119; Cocke v. Minor, 25 Gratt. 246, and Jones v. Clark, 25 Gratt. 642, established that proposition. In *Fisher v. Bassett,*the purchaser was informed that the bond belonged to the administrator, and was so informed as to justify him in believing it; and yet he was decreed to surrender the security. In the case of Jones v. Clark, 25 Gratt., all the authorities are reviewed at great length by the president of the court, and the result of all of tnem, as there announced, is: If a person buying a bond from an executor has good reason to believe that the executor intends to apply the proceeds of sale to his own use, and thus commit a devastavit, it is incumbent upon him to stay his band until be can ascertain by regular inquiries that tbe sale is to be made for tbe purposes of tbe estate. In all sucb cases tbe party dealing witb tbe executor does not gain credit even for tbe money advanced, but is decreed to surrender tbe securities and account for tbe full value of tbe property received by him.”

It is also a well-established proposition that tbe conversion into money by a trustee of well-secured bonds belonging to a trust fund, by a sale thereof at a large sacrifice to a purchaser, with full notice of tbe trust, constitutes sucb an improper dealing witb, and devastavit of, tbe trust subject as will render both trustee and purchaser *prima facie*responsible therefor. Cocke v. Minor, 25 Gratt. 254; Jones v. Clark, 25 Gratt. 661, 662, 671, both cases citing tbe principal case; *foot-note*to Pinckard v. Woods, 8 Gratt. 141, setting forth reason for this rule. And while tbe belief by tbe purchaser, honestly entertained on sufficient ground, that tbe administrator has a right to transfer tbe bonds, will acquit him of intentional wrong in acquiring tbe bonds, it constitutes no defence to tbe claims of those entitled to receive or charge tbe fund. At bis own peril, tbe purchaser is bound to *know*that tbe fact existed which be believed to exist, and further tbe onus is on him to *prove*tbe existence of this fact. Cocke v. Minor, 25 Gratt. 256, citing tbe principal case. In other words, where tbe purchaser buys tbe bonds at a heavy discount, tbe burden rests upon him to show that tbe administrator was tbe real owner of tbe bonds or that tbe necessities of the estate justified tbe sacrifice. Brockenbrough v. Turner, 78 Va. 447, 448, 450; Jones v. Clark, 25 Gratt. 658, both citing tbe principal case.

*

The reasons for the opinion expressed in this order, that the grant of administration of Robinson's estate to Scott, by the hustings court of Richmond, was void, and for the consequent grant of the administration by the general court to the sheriff of Middlesex, are to be found in the provisions of the statute on the subject. 1 Rev. Code, ch. 104. § 12. 32, 67, p. 377, 382, 390, and in the judgment oi the general court In Ex parte Barker, 2 Leigh 719. — Note in-Original Edition.

*

The questions involved in the cause were very interesting and important, and the reporter regrets, that he cannot give a report of the argument. He was not present at the argument, and no such note of it was preserved, as would enable him to give any clear account of it. — Note in Original Edition.

TUCKER, P.

Upon the first question which arises in this case, and which involves the validity of the arrangement of the debt due from Grymes’s estate to Robinson’s estate, made with the defendant Scott, I am of opinion, that Scott being de facto administrator of Robinson, under the appointment of a court of record having jurisdiction of the probate of wills and the granting of administration, any payment made to him by any debtor of that estate, before his authority was superseded, would have been a good payment, and, of course, every irrevocable arrangement made with him by such debtor, would be good and valid against any subsequent administrator. I do not consider a county or hustings court, in relation to the grant of administration, as standing on the same footing with the ordinary in England. The county court is a court of record, and its judgments or sentences cannot be questioned, collaterally, in other actions, provided it has jurisdiction of the cause. 6 Bac. Abr. Sheriff. M.'2, p. 166, 3 Wils. 345. And this is to be understood as having reference to jurisdiction over the subject matter: for though it may be that the facts do not give jurisdiction over the particular case, yet if the jurisdiction extends over that class of cases, the judgment cannot be questioned ; for then, the question of jurisdiction enters into and becomes an essential part of the judgment of the court. Thus, if a county court were to give judgment of death against a white man, the *sheriff would have no lawful authority to execute him : or, if a court of chancery were to grant probate of a will, it would be ipso facto void, since that court has no jurisdiction in any case of probates. It is held void ipso facto, because no inquiry is necessary to ascertain its invalidity. But where the court has jurisdiction of cases ejusdem generis, its judgment, in any case, is not merely void; because its invalidity cannot appear without an inquiry into the facts; an inquiry, which the court itself must be presumed to have made, and which will not therefore be permitted to be revived collaterally. Thus, in Prigg v. Adams, 2 Salk. 674, in an action for false imprisonment, the officer justified under a ca. sa. on a judgment in the court of common pleas, upon a verdict for 5 shillings, for a cause of action arising in Bristol: the plaintiff replied an act of parliament erecting a court in Bristol, and declaring that if any person brought any such action in any court at Westminster, and it appeared upon trial to be under 40 shillings, no judgment should be entered upon it, and if entered it should be void : yet the court held it only voidable, and sustained the plea. So, if an action of debt were brought against a resident of Hanover in the county of Henrico, and judgment should be rendered against him, a sheriff could not refuse to levy a ca. sa. issued upon the judgment, nor would he be liable for false imprisonment; for the plaintiff in the action of false imprisonment would not be received, collaterally, to allege that the court had no jurisdiction. Were it otherwise, the whole system of jurisprudence would be subverted : the sheriff would be converted into an appellate tribunal; and instead of the defendant’s being compelled to plead to the *58jurisdiction at an early stage of the cause, he would be permitted to put it in issue in another case, after the termination of the first. As, therefore, the defendant might have been a resident of Henrico instead of Hanover, and even if not, as he might ^nevertheless have been suable in Henrico if the cause of action arose there, the judgment of the courtis conclusive upon the point of jurisdiction ; and although, in point of fact, the defendant might have been a nonresident, and the cause of action might not have arisen in Henrico, yet the judgment is valid ; for the court had general jurisdiction over matters of that description, and the question whether that general jurisdiction embraced the particular case, having been decided by its judgment,, can never be again raised, except by a proceeding in error, upon a case properly appearing upon the face of the record.

Such would clearly be the law, in the case of a lis contestata, where both parties appeared, and the defendant either submitted to the jurisdiction, or upon plea it was decided against him. How then is it, where there is a proceeding ex parte, and of course where the party interested, who denies the jurisdiction, was not before the court which assumed it? And here I conceive, as before, that as to all the world except the party interested, whose rights are invaded or are to be affected by the sentence, that sentence is^conclusive. Thus,- if administration be granted by the county court of Henrico, when the jurisdiction in fact belonged to Hanover, within which .county was the mansion house of the intestate, yet no debtor of the estate could be received to plead ne unques administrator, in bar of an action for the recovery of a debt due to the estate. The greatest confusion and mischief would ensue, if such were the law ; for then, wherever delay was desired, every.debtor would deny the jurisdiction, and arrest the recovery of a just debt, by embarrassing inquiries as to the decendent’s domicil or the place of his death, or whether the greater part of his lands or estate lay in this or that county. I take it, therefore, to be perfectly clear, that Bassett or Braxton could not have controverted Scott’s powers, and that payment to him, or an irrevocable engagement with him, must, consequently, be sustained as good and valid.

Before I pass to other points, let us see how far other persons claiming administration are bound by the irregular grant of a court not having jurisdiction in the very case. Thus, how far was the sheriff o,f Middlesex concluded by the grant of administration of the hustings court of Richmond, supposing it not to have had jurisdiction in this particular case ? And here observe, that the proceeding in the hustings court having been ex parte instead of inter partes, it could conclude the rights of no person claiming against it. The general court, moreover, having jurisdiction in all cases of administration, any person authorized to take it, whether next of kin, creditor or sheriff, might in that court move for and obtain administration as of right, unless it was excluded by some other court of concurrent jurisdiction. When, therefore, such motion is made, is it competent to arrest the proceeding by shewing that the hustings court had, without jurisdiction, granted administration to another ? I think not. It is admitted, that the order might be repealed by citation or rule upon the party in the hustings court. Of course, no one is concluded by it, and the only question is, by what proceeding it can be rendered inoperative. Now,' I think, the principles of law, and the reason and convenience of the thing, all conspire to prove that the court of general jurisdiction, upon application for administration , is not concluded by a grant of admin 7 istration by a court having no jurisdiction. For it is a universal rule, that no man’s right of action (and such is an application for administration) can be barred or impeded by a proceeding to which he was, not a party. And if the general court could not grant administration to the person really entitled to it, because the hustings court, without jurisdiction, had granted it to another, the, party entitled would be barred and precluded of his rights by a sentence which he had no opportunity of contesting.

*It is objected, however, that thus there might be two administrations. Admitted. Such a state of things may well occur under our law; and this not only where one of the courts granting administration has no jurisdiction, but even where both have jurisdiction. Thus the county court, the circuit superiour court, and the general court, have concurrent jurisdiction. They may all sit on the same day, and each may grant administration to a different creditor, upon application after the lapse of time in such case required by law. Suppose two such concurrent jurisdictions should grant two administrations. It may not be easy to decide how the difficulty of these conflicting rights would be avoided. But where one of the courts has jurisdiction, and the other has not, there can be no reason to doubt, that that which is granted by the court having jurisdiction is valid, and that which emanates from the court having no. jurisdiction is, as to the former, a nullity. So, although the latter is first granted, yet upon application to the proper jurisdiction, that jurisdiction must treat as a nullity the intrusion of a tribunal having no jurisdiction. How can it do otherwise ? Shall it acquiesce in the invasion of its own authority and the rights of the applicant, by dismissing him from its forum, and turning him around to the. tribunal which has done the wrong, for redress by way of citation ? and-this too, when the proceeding had been ex parte ? Shall it consider itself functus officio, and barred of the right of acting on the subject, by the pi'evious action óf a body having no right to act ? I think not. It must, in the nature of things, determine its own jurisdiction. Every court must do so, though if it errs, its judgment will be corrected. And in determining its jurisdiction, if it be alleged that the subject has been concluded, and the powers of the courts of probate exhausted by a previous grant, it must of necessity inquire, whether the court making *59the grant had jurisdiction to make it; for, the "^proceeding having been ex parte, the sentence is conclusive upon no one. I am therefore of opinion that the grant of administration by the general court was valid ; that that court had a right, and was of necessity obliged, to inquire whether the hustings court of Richmond had jurisdiction ; and on ascertaining the negative, it was right in treating the grant of the hustings court as a nullity. From that time, but from that time only, it became null and void, and after payments to Scott would have been invalid.

It is said, however, that debtors might be ignorant of the new grant of administration. It is not necessary now to decide, whether payments made to Scott without actual notice of the revocation of his powers, would have been good. Admitting they would not, and that the grant of the genera] court was notice to all the world, yet it is not more unreasonable to affect debtors with such notice, than to hold that every person entitled to administration is bound to take notice of an irregular administration. Thus, if A. dies at his mansion house in the county of Wood, and has a debtor in Elizabeth City, the jurisdiction is in Wood county court. Yet if administration be improperly granted in Elizabeth City, it is contended, that the subsequent grant by the proper court is void; that the party applying ought to have known the proceeding in Elizabeth City, and that he is bound by it. I cannot think so. It would be most strange, if a court entitled to act upon a subject should be ousted of its powers, by the unauthorized action of any one of a hundred other courts having no jurisdiction of the subject.

I had anxiously desired to avoid any remarks on this part of the subject, as there is a difference of opinion in the court respecting it. But it is impossible to avoid it, since the action of the court depends essentially on the question. I am happy in being sustained in my views by the decision of the learned judges of the general *court, cited in the argument; Ex parte Barker, 2 Leigh 719.

On the merits of the case, I am clearly of opinion, that unless Fisher could shew that Scott had fairly become the purchaser of the debt due to Robinson’s estate, or was in advance to that estate to the amount of the debt, the transaction was such a dealing with the assets as to render the transfer void. The sale of the bonds at so large a discount was itself prima facie a devastavit, and the burden of proof is upon Scott or Fisher, that the necessities of the estate, and not those of the administrator, required the sacrifice. Fisher must have known Scott’s embarrassments. As assignee, he naturally looked to the circumstances of the assignor; and doing so, he must have known his difficulties. Here, then, is a dealer with an administrator —conusant that the claim originally belonged to the intestate’s estate — conusant of its conversion into the form of a private debt to the administrator, and without evidence of its transfer to him by those interested — conusant of the administrator’s great embarrassments — who unites with him in a devastavit of the estate, by discounting paper belonging to it, at the ruinous rate of twenty-five per cent., without evidence, as far as yet appears, of the necessities of the estate requiring such a sacrifice. I forbear to comment on the other circumstances which ought to have satisfied Fisher that there was something amiss in the transaction, since it is not necessary. The conversion of the estate debt into a private debt, of which he was aware, was itself a devastavit in law, and the sale of it at a sacrifice was yet more obviously a devastavit in fact. He has enabled the administrator to commit it; and, upon well received doctrines, he must be the loser. Still, as it is possible that Scott may be in advance, and as Fisher will be entitled, in that event, to standin his shoes, as far as the reimbursement of such advance, I am content to let the cause go back, to give *an opportunity for that inquiry. The decree must, indeed, be in any event reversed, since the injunction should only have been perpetuated as to Fisher, and the bonds and deed of trust should have been delivered over to the sheriff administrator of Robinson, for the benefit of the estate.

PARKER, J.

I agree with the president of the court in the opinion he has just delivered, that the grant of administration to Scott by the hustings court of the city of Richmond, was not a void, but only a voidable act. The distinction between the acts of a court having jurisdiction over the subject matter under some circumstances, and those of one which, in no possible state of things, can take jurisdiction over the subject, is a sound and sufficiently intelligible one to guide our judgments in the present case. If, under any circumstances, the hustings court could grant administration to Scott, it had jurisdiction of the subject, and must judge of those ciri cumstances. If it erred in determining that the facts, upon which its power to grant administration in the particular case depended, were sufficiently proved, it was an error to be corrected by some competent authority ; but until so corrected, it conferred upon Scott all the powers of a rightful administrator. The analogy attempted to be drawn between the grant of an administration by the ordinary in England, and such g-rant by our courts of record, is too imperfect to justify us in encountering all the inconveniences and mischiefs which would result from considering the grant here merely void; and it would be violating well established principles settled in other cases by the english courts themselves,- -as the counsel for the appellees have clearly shewn.

I also agree in the opinion, that there was such a dealing with the assets of Robinson’s estate between Scott and Fisher, as to render the transfer of the bonds by *the former to the latter, prima facie void. Fisher admits he knew that the claim of Scott on Grymes’s estate originated in his character of administrator of Robinson. He therefore knew, that there were equities existing- in third persons, which ought to have been respected. If Scott was not in advance to the estate, or had not *60bought the claim from the distributees of Robinson, he could not deal with it, in the manner he did, as his own debt. Or, if the necessities of the estate did not require a sale of the bonds at so large a discount, it was a devastavit in Scott to sell to Risher. When Risher bought the bonds for so much less than their value, under the circumstances existing in this case, he took on himself the risk of shewing either that Scott was the real owner of them, or that the necessities of the estate justified the sacrifice. This he has not yet shewn ; but I think he ought to have an opportunity of doing so, and that the court ought not to have perpetuatéd the injunction without ordering an account of Scott’s administration of Robinson’s estate. If any thing is due from that estate to Scott, Risher is entitled to stand in his shoes ; and if Scott has fairly made himself the individual proprietor of the bonds, all controversy is at an end.

I also think the court of chancery erred in directing the bonds of Bassett to be cancelled, and the deed of trust to be released. They should stand as securities for the benefit of Risher, or of those entitled to Robinson’s estate.

The only point in which, as at present advised, I am inclined to dissent from the president’s opinion, is as to the effect he gives to the grant of administration by the general court to the sheriff of Middlesex. It seems to me, that this grant was itself a nullity ; and that such is the necessary consequence of considering the first grant valid. By the grant to Scott, he was constituted the complete legal owner of the estate of Robinson. He was, for the purposes of administering it, as much the *proprietor of the assets, as the intestate himself in his lifetime. No court, of equal powers over the subject matter, could transfer his rights to another, without repealing and annulling the original grant; and that grant could not be annulled but by citation in the same court, or by the action of an appellate tribunal, or in the several modes prescribed by our laws. When the general court undertook to determine, that the circumstances to give the hustings court jurisdiction did not exist, it exercised an appellate power over the acts of that court. It decided, that it had erred in its judgment as to a matter within its general jurisdiction over grants of administration ; and yet it did not and could not undertake to repeal or annul that grant. When the grant of administration was made to Scott, the jurisdiction of the court over the intestate’s estate ceased. The statute only gives power to the court to grant letters testamentary or of administration, where there is no representative of the estate capable of exercising authority over it. The very object of the law is to constitute a legal owner of chattels left without such owner ; and where there is already that legal proprietor, the foundation of the court’s jurisdiction is as much taken away, as if the intestate himself was alive. The supreme court of ■ the U. States has decided, in pursuance of these principles, that' where probate of a will has been granted to an executor, no other court having general powers to grant administration, can, whilst the executor is capable of acting, transfer his powers to an administrator, but that the latter grant would be merely void, and every act done under it a nullity. Griffith v. Frazier, 8 Cranch 1. The reasoning which led the court to such conclusion, seems to me to apply strongly to this case. Here, the estate was as fully represented as if there had been an executor; and I do not perceive how a court, without repealing and annulling the former grant, could undertake to transfer the estate to the sheriff of Middlesex. *Yet, as this case will go back, I do not know that it is necessary for us now to decide, to whom, if Risher fails in establishing his rights, the money due from Bassett ought to be decreed. The court below will no doubt admit or direct such parties to be made, as are interested in that question. The sureties of Scott, and the distributees of Robinson, have a deep interest in it; and it does not follow that the court will, under all circumstances that may hereafter appear, decree the payment to the sheriff of Middlesex, even if he has the legal right to receive it, much less to Scott, who has already shown a disposition to deal improperly with the assets.

I should, therefore, be content to reverse the decree, for the reasons indicated by the president; with directions to admit all proper parties interested in the controversy, and to have an account taken of Scott’s administration on Robert Robinson’s estate, in order to a final decree.

CABELL,, J., expressed no opinion on the point on which the other two judges differed, probably thinking there was no necessity to decide it: but he concurred in the decree proposed by Parker, J., whereby

The decree of the circuit superiour court was reversed with costs, and the cause remanded, with directions to make new parties, and to order an account to be "taken of Scott’s administration of Robinson’s estate, in order to a final decree.