
    Nathaniel Foster, Ex’r. John Foster v. Thomas Brown.
    Columbia,
    May, 1829.
    A party to a fraud cannot avoid a title acquired by means of the fraud; nor will it affect the operation of the rule, that he sues in a representative character, if it appear that those whose interests he represents, cannot be prejudiced by it. oh. diet.
    
    All acts done by an administrator in a due and legal course of administration are valid, and binding on those interested in the estate, although a will be subsequently proved, and the administration revoked: and it makes no difference, that the administration had been obtained by a fraudulent suppression of the will.
    Where an administration has been revoked, and a will proved, the executor cannot maintain trover against the administrator, nor against one claiming under him, for goods of the testator, in which the administrator had regularly acquired an individual title during the continuance of the administration. Whether the administrator has properly applied the value of the goods in a due course of administration, is a question which cannot be tried in an action of trover.
    
    Tried before Mr. Justice Richardson, at Union, Spring Term, 1829.
    Trover for a slave,
    originally the property of plaintiff’s testator, and of which the defendant came into possession under the following circumstances. Shortly after the death of the testator, George Foster, Pleasant Foster, and the plaintiff, all of whom were sons of the testator, appeared before the ordinary, and informed him that their father had left a will, but th it they had shewn it to a gentleman of the bar, who said it was of “ no account,” and they had therefore destroyed it. On this information the ordinary, after citation regularly published, granted the administration to George and Pleasant Foster; and the plaintiff became one of the sureties to their administration bond. An inventory and appraisement was duly made and returned, and an order of sale, for the purpose of making- a division of the estate, was granted by the ordinary. The sale took place in December, 1823, and all the persons interested in the estate became purchasers; George Foster, one of the administrators, being the purchaser of the slave, now in dispute, for a full and fair price. A few months afterwards the slave was in possession of the defendant, who was a son-in-law of George Foster; but in what manner, or on what terms, the possession was acquired, did not appear. In September, 1825, the testator’s will was admitted to probate, and the administration of George and Pleasant Foster revoked; and sometime afterwards this action was brought.
    The plaintiff was one of the purchasers at the sale in December, 1823 ; and it was clearly proved, that at the time when he appeared before the ordinary with George and Pleasant Foster, and concurred with them in .the statement that the will was destroyed, he had the will in his pocket. The defendant produced a bill of sale from George Foster, dated in December, 1825 ; but there was no evidence that the consideration expressed in the deed had been actually paid. Nor was there any evidence that George Foster had administered or accounted for the value of the slave.
    The presiding Judge charged, that as defendant’s bill of sale was dated subsequently to the revocation of the administration, it could not avail to place him in a better situation than George Foster, if the suit were against him: and that as his title was acquired by fraud, it was altogether void. The jury found for the plaintiff; and the defendant now moved to set aside their verdict, and for a new trial on the ground of misdirection.
    Williams and Dawkins, for the motion.
    Although administration be revoked, yet all lawful acts, done by the administrator before the revocation, are binding on the estate. Benson v. Rice & Byers, 2 N. & M. 577. And it cannot affect the rule, that the administration was fraudulently obtained. That would be a ground for revoking the administration ; but the re-, vocation, as well as the grant, belongs exclusively to the jurisdiction of the ordinary; and as long as an administration or a probate remains unrepealed, it cannot be impeached in any other Court. Allen v. Dundas, 3 T. R. 123. So far has the princi-pie been carried, that the Court of King’s Bench have refused to try an indictment for the forgery of a will, until the probate had been called in by the ordinary. Rex v. Vincent, 1 Str. 481. • Rex v. Rhodes, lb. 703.
    The sale then in 1823, was valid, and vested an individual title in George Foster; and that title could not be divested by the revocation of the administration. Whether Foster has duly administered the value of the slave, or any other assets which came to his hands, is obviously a matter of account before the ordinary, with which the present defendant can have no concern ; and over which this Court possesses no jurisdiction in the present form of action. It was not, therefore, incumbent on him to produce evidence on the subject; and it would have been irrelevant if it had been offered.
    The present defendant was innocent of the fraud ; and this case is an illustration of the wisdom of the rule, that the acts of the administrator are valid, although the administration may be afterwards revoked : inasmuch as but for that rule, he, although innocent, would have been. made the victim of the fraud, in which the plaintiff was a principal actor.
    A. W. Thompson, contra.
    
    Contended, that the plaintiff was a mere representative of the interests of others, whose conduct was not impeached; and therefore, even if he were a guilty participator in the fraud, it could not affect the right to maintain this action. That after all, the defendant had not shown his case to possess any merits. There was no evidence that he had paid one cent for the slave, and the whole title was a sham from beginning to end. Foster’s title was unavailing, unless it could be shown that he had paid, or in some" manner applied, the amount of the price bid by him at the sale. This had not been done; but it was conceded, that he }iad never accounted for his administration. The charge of the presiding Judge was then strictly in conformity with the law; and the Court would not disturb the verdict.
   Johnson, J.

delivered the opinion of the Court.

The facts in evidence establish very clearly, that the administration of the testator’s estate, granted to George Foster and Pleasant Foster, was obtained by a fraudulent suppression of his will, and that the plaintiff himself was a party to the fraud; and if the rights of the parties were to be determined in reference tQ state of facts alone, I am unable to perceive why the maxim, that when the parties are in pari delicto melior est con-diiio defendentis, should not apply. The argument opposed to it is, that in his participation in the fraud, he acted in his own right, and'that in the character, in which he now sues, he represents the interests of others, who ought not to be prejudiced by it. If the application of the maxim could, by any possibility,' work a prejudice to, third persons, the argument would be conclusive ; but I think it demonstrable here, that so far from it, the security of the persons interested in the estate is increased by it. If the plaintiff recovers in this action, that fund passes into his hands, and the legatees under the will, have no other security than the personal responsibility of the plaintiff himself. Butin the condition in which the parties now stand, there is no question, that if the legatees are intitled to recover the negro from the defendant, they have, in addition to his own responsibility, whatever security the administration bond of George Foster and Pleasant Foster will afford. The plaintiff himself, as par-parliceps criminis in suppressing- the will and procuring the administration, would be also responsible ; for all who participate in a fraud are equally liable to the party injured by it: and a bill in Equity, at the suit of the legatees against all the parties to the transaction, is clearly indicated by the circumstances as the most suitable, if not the only mode, in which relief can be obtained.

There is, however, another, and perhaps a more solid, objection to the plaintiff’s right to recover in this action. Granting all that may be necessary to charge the defendant, he cannot be placed in a worse situation than George Foster himself would have been, if he had remained in possession of the slave, and this suit had been brought against him; and yet this action cannot be maintained, it is true, that on the revocation of an administration, for whatever cause, he to whom the subsequent administration is granted, may maintain trover against the first administrator for goods of the deceased, which he has converted to his own use. But it is equally clear, that all acts done in the due and legal course of administration are valid, and binding on all interested, although it be afterwards revoked. Benson v. Rice & Byers, 2 N. & M. 577. Nor can the manner of obtaining the administration, whether fairly or fraudulently, vary the question. Suppose it fraudulently obtained, yet if the administrator pays the debts of the estate, or does any other act, which a rightful administrator would be bound in law to do, thus far at least, it would be fair, and for the most obvious reasons would be binding. It is obvious then, that in this suit, even regarding George Foster as the defendant, a leading inquiry would be, whether he had not legally administered this part of the estate; and the case presents the novelty of an action of trover, brought to call an administrator to account, it is said that the onus of showing he had legally administered this part of the estate, devolved on him. But supposing that to be true, a Court of Law is incompetent to settle the account; and it is upon this principle that the Courts of Law refuse to entertain a suit, even on an administration bond, until the accounts have been settled, and the amount ascertained, by a competent jurisdiction.

This reasoning applies with still greater force in regard to the defendant to this suit. George Foster has not, it seems, accounted for his administration : but the defendant, having no interest in the estate, could not, by any possibility, compel him to account; and to require of him to furnish proof of the administration is to demand an impossibility. Not so with the plaintiff. Having succeeded George Foster in the administration, he might have compelled him to account; and if the proof were necessary it must of necessity have come from him, for no one else could supply it.

Motion granted.  