#### HORACE B. SATTERWHITE *vs. J.*W. CARSON.

June 1843

The goods of a deceased person in the hands of an administrator *pendente lite,*cannot be taken under an execution against the administrator for personal arid individual debt.

An administrator *pendente lite*has no power to sell the effects of the deceased, except perishable property.

"Where goods of a deceased person, while in the hands of an administrator *pendente lite,*were seized and sold by the sheriff under an execution against such administrator for his personal debt *;-.Helet*that an administrator with the will annexed, subsequently appointed, could support an action of trespass or trover against the sheriff for such seizure and sale.

In such case the sheriff could not reduce the damages by shewing that he Had paid to the administrator *pendente lite*the surplus of money arising from the sales, that remained after satisfying tho execution.

The sheriff is liable for a trespass committed by his deputy in seizing the property of A. under an execution against B.

It is only in actions brought *upon contract,*that the court can render judgment for interest on the amount found by the jury. In other cases such a judgment is erroneous.

Tho ugh there be but one judgment in the court below, yet, where it consists of several distinct and independent parts, it may- be reversed as to that part, wherein it is erroneous, and affirmed for the remainder.

If a judgment against a defendant is reversed in this court as to part and affirmed as to tho remainder, the defendant is entitled to his costs in this court.

The case of *Coltraine*v *Cain,*3 Dev. 308 cited and approved.

Appeal from the Superior Court of Law of Burke County, at Fall Term, 1843, his Honor Judge Peakson presiding.

This was an action of Trover ior the conversion of a slave named James. The plaintiff proved that in October, 18-40, he was regularly appointed administrator, *with the will annexed,*oí one Daniel Jones — that in the year 1838, after the death ot Jones, one Morgau, .a deputy of the de.~ *550fendanf, wbo was sheriff of the county of Rutherford, levied llPon an<i so'ci the boy James to one Jay, for $401. who took the slave out of the State. The defendant proved, that, after the death of Jones, a Caveat being entered as to the probate of his will, Ann Jones, the widow, was regularly appointed administrator *pendente lite*and soon after married one McElrath — and this boy and the other property of Jones were taken into possession by them — that executions issued tb him as sheriff of Rutherford county against the said Mc-Elrath and wife for their individual debts, commanding him to make the debts out of the goods and chattels of the said McElrath and wife — that Morgan, his deputy, under these executions levied upon and sold the boy James, and that after the sale McElrath received from Morgan the sum of $200, as the excess of the price of James remaining after the executions levied on him had been satisfied, and McEl-rath said at the same time, that it was well enough for the negro to have been sold, as he brought a fair price.

The defendant’s counsel insisted, that McElrath, in .right of his wife as administrator *pendente lile,*had a right to sell the negro, and the sheriff had also the right to sell him. for McElrath’s debts, and that McElrath bad ratified and confirmed the sale; 2ndly. That as Satterwhite was not appointed administrator until alter the negro was sold, he could not sustain this action, for a conversion while McElrath was acting as administrator *pendente life,*but must look to the administration bond to recover for the misconduct of McEl-rath in suffering the property to be taken away; 3dly. That, supposing the negro not to be subject to the executions, which the defendant had placed in the hands of his depuljr, the levy and sale by the deputy was a *tort,*for which the defendant, as sheriff, was not liable ; 4thly. That, as McEl-rath had received $200 of the price from the deputy, the defendant had a right to mitigate the damages by that amount, as McElrath had the right to receive it. These questions were raised, with the understanding, that if the court was with the defendant upon either of the three first, the verdict should be set aside and a nonsuit entered : if *551the court should be with the defendant'upon the 4'th point, the verdict should be reduced by that amount. The jury returned a verdict for the plaintiff for $401, and interest from the time of the conversion.

Upon the 1st point, the court was of opinion that an administrator *‘pendente lite*was appointed merely to collect and - keep the estate together — that he had no power to sell ne-groes or any property except such as would injure by being kept — that the sheriff, having an execution against tne property of McElrath and wife, had no power to levy upon and sell the property of Daniel Jones, deceased, and that McEl-rath, after the sale, had no right to confirm the sale so as to pass the title. Upon the *second*question, the court was of opinion, that the plaintiff, after he was appointed administrator, &c. had a right to sue' for a conversion, while .the property was in the keeping of McElrath and wife, as administrators- *pendente lite,*for, after his appointment, his right to sue related back to the death of Jones, and the intermediate possession of the administrators *pendente lite*was a bailment for the plaintiff, and, when- property is converted while in possession of a bailee, the bailor may maintain trover for the conversion,-for he has the right of possession in contemplation of law. Upon the *third*question, the court was of opinion- that- the defendant was liable for the acts of his deputy,-because he was doing the business of his principal-,- and acted by virtue of the execution. Upon the *fourth*question, the court was of opinion, that, as McElrath had no right to convert the negro into money, the defendant could-not avail himself of the fact, that McElrath had received $200 of the price, in- mitigation, unless the plaintiff had af-terwards received the money,-which was not proved- nor alleged.

Judgment was then rendered for the plaintiff for the a-mouut of the verdict, and also that that amount should bear interest from the time of the judgment until paid. From-this judgment the defendant appealed.

*552*Caldwell*and *Alexander*for the plaintiff.

No counsel in this court for the defendant.

Gaston, J.

It has1 been questioned’ whether the goods of a testator in the hands of his executor might not be seized, in execution of a judgment against the executor in his own right. *Farr*v Newman, 4 Term 621. We presume that this question- is settled in England, (see Lord Eldon’s remarks 17 Ves. 168-9;) and’ we certainly understand that it is settled in this State, in conformity to the opinion of the majority of the court in the case referred to. But whatever doubts have been entertained on this question, it could never have been supposed that such goods might lawfully be seized in execution for the debt of an administrator *pendente lite.*Generally speaking, an executor or administrator has the property of the-goods of his testator or intestate, although he has such property in *autre droit,*as the minister and dispenser of these goods. By virtue of that property he can sell the goods, and-, except under special circumstances, the goods, after such a sale, cannot be followed by the creditors of the testator or intestate. It was net extraordinary, therefore, that very able Judges should have regarded such a property, with such a power of disposition, as equivalent to absolute *ownership in law,*and therefore rendering the goods liable to seizure under an execution against the proper goods and chattels of the executor or administrator. But an administrator *jiendente Hie*has no power to sell - the goods of the deceased. Indeed it was not until after much controversy and some conflicting decisions, that it was settled that such an' administration *could*be granted pending a controversy about a mill. *Walker*v *Wollaston, 2d*P. Will. 576. *Willis*v *Rich, 2*Atk. *285.*

And the ground, upon which validity was allowed to such an appointment, was because of the necessity that there should be a-proper curator of the goods during the dispute,. *553The authority of the appointee was limited by this ty. He might, because of this necessity, sell *bona peritura,*but he could sell no others, and he might bring actions to collect debts due, or to-get possession of the effects of the deceased. Thus far he might be deemed to have a property in the goods of the deceased, but in the main he Was a mere bailiff, appointed by the ordinary to hold them for *him,*to whom, on the termination' of the controversy, should be confided the execution of the will or the administration of the estate of the testator or intestate. We entertain, therefore, no doubt but that the seizure and sale of the negro in question by the sheriff’s deputy, under the execution against McElrath and wife, was a tortious act, that McElrath and wife could not themselves have sold the negro, and, therefore, that they could not, by their sanction, either express or implied, legalize or ratify the seizure and sale so unlawfully made by the sheriff’s deputy. For this unlawful disposition of the negro there must be some remedy; and we see no well founded objection to the remedy, which'has been resorted' to by the administrator with the will annexed. It is said in the books, that the interest of an executor in the estate of the deceased, being derived exclusively from the will of the deceased, vests in the executor from the moment of the testator’s death, whereas the title of the administrator being derived altogether from the grant' of the ordinary, the goods of the deceased vest in him only from the time of said grant.— Whether, in respect of relation, there be any difference in the property, which an ordinary administrator, and that which an administrator with the will annexed, (whose office is in most respects identical with that of an executor,) takes' in the goods of the deceased, we need not stop to enquire, because the proposition, that the interest of an administrator does not relate back beyond the grant, must be taken with Some important modifications. Thus it is certain, that, if there has been an unlawful intermeddling with the goods of the deceased after the death of the intestate and before a; *554grant of administration, the administrator may maintain trespass or trover therefor, and for this purpose his interest, derived under the letters of administration, shall relate back to the death. And this is allowed by the law, upon the same principle, upon which it permits the ordinary to grant a temporary administration pending a controversy respecting a will — the principle of necessity — to afford protection to the estate oí the deceased. See 1 Wills, on Ex’rs. 396, *etseqa.*There could be no difficulty, therefore, in this case, we suppose, if the conversion complained of had occurred either before the temporary administration was granted, or after it had terminated. Does the circumstance, that it was committed pending that temporary arrangement for the saie-keep-ing of the property, interpose a fatal objection to this action? We think not. That circumstance in no manner changes the nature of the injury done to the property of the testator, and we see not why it should change the nature of the remedy appropriate to the redress of that injury. The plaintiff is not an administrator upon goods not previously administered. He claims the property of the negro, and sues for the conversion of this property, under an original grant of letters of administration with the will annexed of his testator. In these there is no notice taken of the former limited and temporary appointment, and under these he takes “ full power and authority to administer and faithfully dispose of all the goods, chattels and credits of the deceased, according to the tenor and effect of his will.” For every purpose of protecting and securing these goods and chattels from injury, this power relates to the death of the testator. It is not asked to give to this relation an effect which will work harm to any person — to over-rule or set aside any rightful transaction of or with the temporary keepers of these goods— The act complained of was a wrong done to the property of the testator, which has not been redressed, and cannot now be redressed, except at the instance of and in the mode pursued by the plaintiff.

We are also oí, opinion, that, in ascertaining the amount *555of damages, which the plaintiff was entitled to recover be* cause of the conversion complained of, it was proper to make no deduction because of the return to McElrath of the surplus remaining of the price of the negro after satisfaction of the judgment. This was returned to McElrath as *his money,*and received by him as such. This money was no part of the assets of the testator’s estate, and could not be made such,-but-as the price of a part of those assets rightfully sold. And we have seen that the sale was altogether wrongful. If McElrath and his wife, or either of them concurred in the sale, he, she or they became *tort feasors*with the ' sheriff and his deputy, and the person wronged may hold any one of the wrong-doers responsible for the injury received, without regard to the distribution made of the gains of the unlawful act among the parties concerned in it. »

It admits of no dispute but that the sheriff was properly held responsible for this wrongful act of his duty. See *Saunderson*v *Baker, 2*Bl. Reps. 832. 3d Wils. 309.— *Woodgate*v *Knatchbull, 2*Term, 148. *Coltraim v McCain.,*3 Dev. 306. We concur entirely, therefore, in the opinion of his Honor upon the case, and would direct the judgment to be affirmed altogether, but that there is an error in that judgment, which has not been noticed by the parties.

The judgment is not only that the plaintiff recover his damages as found by the jury, but also interest upon a part of those damages, as principal money, until it shall be paid.

We have a statute, which authorizes a judgment of this sort to be rendered in actions brought upon *contracts,*but it extends to no others.. Rev. St. ch. 31, sect. 95. The judgment, so far as it gives interest on the damages, is therefore erroneous and must be reversed, -.and a judgment rendered here for the plaintiff, that he recover his damages only and the costs assessed below. For although there be but one judgment below, yet as it consists of several distinct and in*556dependent partSj it may be reversed as to that part wherein it is erroneous, and affirmed for the remainder. See *Bellew*v *Aylmer,*1 Stra. 188. *Henriques*v *Dutch West India Company, 2*Stra. 807. *Frederick v Lookup,*4 Bur. 2018.

The defendant is entitled to his costs in this court.

Per Curiam. Judgment accordingly.