
    
      HUNTER vs. POSTLETHWAITE.
    
    East'n District.
    
      Dec. 1821.
    Appeal from the court of the first district.
    An executor, in an action for money had and received to his use as such, needs not sue as executor, and if he does as such, the defendant cannot contest his capacity.
    
      Livermore, for the plaintiff.
    The only question raised in the case, is whether the defendant having, as agent of the plaintiff, and under his authority, received the rents of a plantation for several years, and having accounted with the plaintiff, can now contest the right of his principal to the money which has been so received. Is not the defendant precluded from disputing the fact, that the plaintiff is executor, and executor in Mississippi ? Suppose the plaintiff was not described to be executor, could the defendant object that he was not the owner of the land ? A tenant cannot dispute the title of his lessor. 1 Caines, 444. 2 Caines, 215. 3 Caines, 188. 7 Johns. Rep. 186. 10 Johns. Rep. 358. 12 Johns. Rep. 182. The reason is, that having received his possession from the lessor, he is bound to restore it to him, and to account for the value of his possession. The same principle applies to this case. The plaintiff’s authority was sufficient for the defendant to receive the money from the tenants of the land; and the defects now urged, that the plaintiff has not taken out letters of administration in Mississippi, and that an executor has no right to dispose of real estate, are not discovered until the defendant is called on to pay over the money. Is he then to keep this money for his own use ? Or to whom must he pay it ? The heirs do not deny the plaintiff’s authority to act for them. They are content that he should receive the money, and they have the power of making him account to them. In Peacock vs. Harris, 10 East, 104, it was held, that a collector of tolls, though illegally appointed, without the forms prescribed by act of parliament, may recover, upon an account stated, the amount of tolls for which he had credited the defendant. In that case it was objected that the account was stated, with respect to the intestate, in a character, in which, by law, it could not exist, because he was not legally appointed. But lord Ellenborough said :—" If the defendant accounted with him in that character, having received credit from him as such, thereby admitting him to be a person to be accounted with for the tolls, he shall not now be permitted to dispute his title, to recover the balance of that account. In like manner, as a tenant is taken to admit the title of the landlord, under whom he holds, and which he is not permitted afterwards to dispute.” So, when an action for penalties under the post-horse act, was brought by the plaintiff, as farmer-general, proof of his appointment was dispensed with, because the defendant had previously accounted with him as farmer-general. 3 T. R. 632.
    The defendant has received this money in no other character than that of agent for the plaintiff, and in that character he is to account. Ex mandato apud eum qui mandutum suscepit nihil remanere oportet. D. 17, 1, 20. The action mandati directa may be maintained by the principal against the agent, although the business do not concern the property of the principal, but of another person. Pothier, de mand. n. 62. Si quis mandaverit alicui gerenda negotia ejus qui ipse sibi mandaverat, habebit mandati actionem quia et ipse tenetur. D. 17, 1, 8, 3. Upon this law Pothier observes: " Quoique cette loi dise, ejus qui ipse sibi mandaverat, il faut décider de mème, quand mème je vous aurais chargé de l'affaire d un tiers qui ne m'en auroit pas chargé ; car par cela seul que je vous en chargé, je deviens chargé et 
      
      comptable envers lui actione negotiorum gestorum. De mand. n. 62. The same doctrine is maintained by Vinnius. Comm. in Inst. 3, 27, 3.—Whether the plaintiff, in employing the defendant, has acted as executor or as agent, he is responsible to the heirs. He is therefore entitled to recover from the defendant.
    
      Hawkins, for the defendant.
    The only point before the court is, whether the petitioner is entitled to bring this action. He sues as executor of A. Hare, but makes no profert of his letters testamentary, nor does he allege where the will of the said A. Hare was made, or where it was proved. He states, however, that he was executor so long ago as 1810, when the defendant began to receive certain monies he now sues for.
    The defendant admits, that prior to the year 1810. he leased certain lands under the authority of the petitioner, styling himself executor of the said A. Hare; but avers that the petitioner is not executor in Mississippi, where the said lands are situated.
    Now the petitioner must have been appointed the executor of A. Hare, by a will made either in the state of Louisiana or out of it.—If 
      by a will made in this state, it was as long ago as the year 1810; but in that case the petitioner is certainly not authorised to bring this suit, for his authority as executor expired one year after his appointment. 4 Martin, 338, Lamothe's ex. vs. Dufour. Civil Code, 245, art. 166, Idem. 247 art. 173. It is also to be observed, that the remedy which the petitioner seeks must be in conformity with the lex fori, wherever the will was made or proved. 7 Martin, 67, Lynch vs. Postlethwaite. He can have therefore, no greater remedy than what is accorded by the laws of this state, to executors acting under them. If the petitioner however is the executor of A. Hare, by a will made in another state, or a foreign country, then no action can be sustained by virtue of the letters testamentary there granted.—3 Cranch, 259, Dixon’s ex. vs. Ramsay's ex. And in order to enable the petitioner to sustain his action, the execution of the will must be ordered by a judge of the court of probates of this state. 5 Martin, 568. Deshon vs. Jennings.
    
   Porter, J.

The plaintiff, in this action, claims $2711 39 cents, which he avers the defendant, a citizen of the state of Mississippi, owes him, for money had and received to his use, as executor of the estate of one Andrew Hare, deceased; and which monies, he states in an account annexed to the petition, to arise from the rent of a certain tract of land in the state aforesaid.

The defendant being a non-resident, his appearance to this suit has been compelled by an attachment levied on certain credits of his, in the hands of garnishees, residents of this city.

To this demand the defendant, in person, has filed an answer, in which he acknowleges that it is true, he did many years ago, lease a certain tract of land near Fort Adams, in the state of which he is a resident, from the plaintiff, who styled himself executor of Andrew Hare. But that, in fact, the petitioner is not executor of that person; that he has never taken out letters testamentary on the estate of the said deceased; that executors have no control over landed property in that country, and that he is advised by his counsel, he is responsible to the heirs of said Hare for the rents and profits.

The answer goes on to allege, that certain persons, namely Thomas Bryant and Philip Hickey, claim the land, and pray that they be made parties. In pursuance of this prayer, Bryant has appeared and filed what is, in substance, a petition of intervention.

An objection was taken to the right of the petitioner to maintain this action as executor. The judge sustained it, and ordered the cause to be dismissed. From this judgment an appeal has been taken, and the correctness of that opinion is the only point now submitted for decision.

The defendant insists, that the plaintiff, if executor in this state, cannot maintain this action; because an authority of that kind, which commenced in the year 1810, must have expired before this time, and if acquired in the state of Mississippi, cannot authorise a suit here.

The view which I have taken of the subject renders it unnecessary to examine these questions separately.

If this was a case in which an executor was applying, to carry into effect the will of his testator, by doing any of those acts which the law requires him to perform in the discharge of his duty; I should certainly hold that he was obliged to produce his authority; and that, if the will was made in another section of the union, that, its execution must be ordered here before it could take effect. But this case presents very different features. The petitioner does not ask the aid of the court to give effect to any powers conferred on him as executor; nor to enable him to preserve the property, defend the rights, or enforce the claims of the testator. He applies to it to compel the performance of a contract made with him in that name, it is true, but entered into after the death of the person he is alleged to represent; a contract by which the testator’s estate was not bound, which did not, bind the heirs, and rendered him, in his private capacity, indebted to the owners of the soil for the rents and profits.

It is clear to me, that the sum of money now demanded, formed no portion of the estate of the testator. At his decease the lands descended to his heirs, and became their property. The profits arising out of them, follow of course, the right to the soil, and the petitioner is responsible to the owners. Being thus responsible in a character distinct from that of executor, I am of opinion he should be allowed to collect the money in the same right in which he became charged with it.

The question then recurs, shall he be barred from maintaining his action, because he styles himself executor? I think not; it is a mere word of description. In a case not in any way dissimilar in principle to the present one, Urquhart vs. Taylor, 5 Martin, 202, where the defendant made his note to the plaintiff’s executors, and suit was brought on it many years after, in the same character; the court held, that as the contract was express, and the promise to them, they might have maintained the action in their own names, and that the defence set up of their authority having expired, could not be sustained.

I deem it unnecessary to say any thing on the rights of the other parties to the case, for as it appears this objection was taken at the threshold of the proceedings, and the merits of the cause not gone into; the court below, when it proceeds to trial, can order that to be done which the law and the justice of the case may demand.

I am therefore of opinion that the judgment of the district court should be reversed, and that the cause be remanded, with directions to the judge to proceed and try this cause, without requiring the plaintiff to produce letters testamentary.

Martin, J.

It seems to me the capacity of an executor was not necessary to the plaintiff, either to acquire the right of demanding from the defendant, monies which he had collected under his authority, nor to the support of that right by an action.

Without being executor, the plaintiff, if he interfered with the land, so far as to rent out the land, and have the rents and profits collected by the interposition of the defendant, became as a negotiorum gestor, accountable to the owner of it for such rents and profits, and must have the consequent right of calling from the defendant’s hands, monies which he is accountable for. So that the right of demanding the money from the defendant is perfectly the same, whether the plaintiff be or be not executor.

When the plaintiff comes into court, whether he be or be not executor, letters testamentary cannot be demanded from him. His calling himself executor is a mere matter of description, for he sues on a contract made by himself, not for a right which once existed in his testator.

The averment, that in the state of Misissippi, executors have no authority or control over the lands of the testator, cannot avail. It is unsupported by proof. Admitting it to be correct, the plaintiff' is liable as a negotiorum gestor, and may call his agent to account.

I wish not to be understood to say, that if the defendant has been warned not to pay the plaintiff, by a person who has a right to the monies in his hands, he has not an equitable right to be protected from the consequence of a payment which he thinks he cannot safely make. Nor that the claimant, if he mistrusted the intention or solvency of the plaintiff, might not voluntarily interfere. And that this interference which, in other states, is made through a court of equity, may not here be resorted to, at once, in the court its which the plaintiff sues.

In the present case, this has been done, and the district court having the whole matter before it, was enabled to do complete justice to all parties.

For the attainment of this, no letters testamentary were needed. If the claimant supported his claim, the money might have been directed to be paid to him, and by complying with the decree, the defendant would be completely exonerated from the demand of the claimant and that of the plaintiff.

If the claimant failed, and the plaintiff proved the defendant’s agency, and the actual receipt of the money, it does not appear to me that the production of the letters testamentary could aid the court in forming a judgment, especially if those letters vested the party with no authority over the land.

I agree in the conclusion drawn by judge Porter.

Mathews, J.

I consider it useless in the present case, to enter into any examination of the power and authority of executors over the estates of their testators, as established either by the laws of the state of Mississippi or of this state. The defendant acknowleges himself to have been the agent of the plaintiff and that as such he has received money for the latter. He ought not now he admitted to dispute the legality of the authority under which he acted, unless by shewing, that he is in eminent danger of suffering injury in consequence of his agency, for one who had no right to give power to act, having none himself.

A simple notice from a person claiming the funds in the hands of the plaintiff without having commenced suit against him, ought not to stop proceedings in this action; but as one of the claimants has intervened, I think the case should be remanded for trial on its merits, in relation to the rights of all the parties.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, and that the case be remanded, with directions to the judge to proceed to trial on the merits, without requiring the production of letters testamentary.  