text:
    Robert Kline v. Storrs H. Moulton, Administrator, &c.
    The interest which an administrator has under the statute in the possession oí the real estate of his intestate is not a personal chattel, and can not be sold by him. It is given to enable him to receive the rents, issues and profits of the land, while the estate is being settled; and for no other purpose.
    On the death or removal of the administrator his possessory right, and the rents and profits connected with it, pass to his successor, who may maintain ejectment to recover possession from one claiming under the first administrator.
    An administrator, who was also one of several heirs, made a contract in his own name to sell and convey certain real estate of his intestate, and put the pur- , chaser in possession. On his decease without having fully administered, an administrator de bonis non was appointed, who brought ejectment against the purchaser. It was held that under the statute — Convp. L. § 2904 — he was entitled to recover.

      Heard May 8th and 9th.

      Decided May 30th.

      Error to Washtenaw Circuit.
    Ejectment by Storrs H. Moulton, administrator de bonis non of the estate of Freeman Moulton, deceased. The cause was tried by the Circuit Judge without a jury, and the following is his finding:
    “This was an action of ejectment, brought by the plaintiff to recover possession of the south half of the south-west quarter of sec. 28, T. 4 south, range 5 east, excepting ten acres on the west side sold to Michael McEnneay. The lands were purchased of the United States by Freeman Moulton, of which he died seized and intestate, Sept. 3, 1854, leaving Sybil Moulton, his widow, and his sons Albert G. Moulton, Storrs II. Moulton, Ariel Moulton, and Orlando Moulton (who died unmarried and intestate in 1858), and two grand daughters, Elizabeth Ilulbert and Mary Crittenden, his heirs at law. Albert G. Moulton was appointed administrator of the estate of Freeman Moulton, deceased, March 26, 1855, and died in December, 1860. Appraisers were appointed, and an inventory and appraisal of the property of the deceased was filed on the 23d day of April, 1855, as follows:
    The lands above described, appraised at $1,575 00
    One promissory note against Robert Liddel, of $43 67, dated Nov. 15, 1854, appraised at 43 67
    One note against Albert G. Moulton, of $250 00, bearing date Oct. 1854, appraised at 250 00
    Money, eighty dollars, appraised at 80 00
    Rent due on real estate, $75 00, appraised at 75 00
    and no further or other proceedings appear in the probate office to have been had in the case during the lifetime of the said Albert G. Moulton. The plaintiff Storrs II. Moulton, was duly appointed and qualified administrator de bonis non on Freeman Moulton’s estate, Feb. 27, 1861, by the Probate Court of said county. Appraisers were appointed, and inventory made and returned August 16, 1861, showing tlie estate of said deceased, Freeman Moulton, to consist of said lands and no personal property. By an order of tlie Probate Court, one year from the 2'7th day of February, 1861, was allowed for disposing of the estate and paying the debts, and six months for the presentation and allowance of claims against the deceased. Commissioners to receive and allow claims on the estate were duly appointed, and in pursuance of proper notices they held meetings as required by law during said six months, for that purpose, but no claims against the estate were presented, and they made no report because their fees were not paid; and no further proceedings appear at the probate office to have been had in the case.
    “The lands in question previous to the decease of Freeman Moulton were rented to one Howell, and the rents for the same were subsequently received by Albert G. Moulton, as administrator. Albert G. Moulton, without any license from the Probate Court, and without the consent of the other persons interested in the estate of said Freeman Moulton, so far as the proof shows, sold the lands to the defendant, Robert Kline, and gave his [bond in the penal sum of two thoirsand dollars to said Kline, dated Dec. 2'7, 1858, with the following- condition:
    “The condition of this obligation is such that if the above bounden Albert G. Moulton, his heirs, executors and administrators, execute and acknowledge and deliver to the said Robert Kline, or to his heirs, executors, administrators or assigns, a good and sufficient warranty deed conveying those certain pieces or parcels of land described as follows: (description as above), the obligor reserving all crops now on the ground, on or before the first day of November, 1859: Provided the said Robert Kline, his heirs or assigns, pay to the said Albert G. Moulton for the said land as follows: The sum of two hundred dollars on the first day of April next; one hundred dollars, with interest from April 1st, 1859, on the first day of July next; two hundred dollars, with interest from the first day of April next, on the first day of November, 1859; and the sum of twelve hundred dollars, with interest thereon annually from the first day of April next, in five equal annual instalments; said Kline to secure the said sum of twelve hundred dollars by a promissory note, and a mortgage collateral thereto on the premises above described, at the time of the delivery of said deed: then these presents to be null and void; otherwise of full force and effect.”
    “It was verbally agreed by said Albert G. Moulton at the time of making the contract or bond above mentioned, that said Kline should have possession of the premises on the first day of April then next, and he went into possession of said premises on the third day of April, 1859, when the other tenant left, and has continued in the sole and exclusive possession of said premises ever since. At the time of the sale Albert G. Moulton represented to the defendant that he was administrator of Freeman Moulton, and as such had a right to sell the property. Upon the bond or agreement Kline made payments to the amount of $590 to Albert G. Moulton, for which he took his receipts.
    “Albert G. Moulton died in December, 1860, and the present suit was commenced June 7, 1861. No notice to quit, or demand of possession, was proved in the case.
    “The counsel for the defendant, on the argument, made and insisted upon the following points, to wit:
    “First: That the defendant is possessed of all the interest of the administrator under the statute (Comp. L- § 2904) ■ by purchase from him.
    “Second: That Albert G. Moulton, in his lifetime, could not, as administrator, have maintained this suit against the defendant after his sale to him, and that his successor? the administrator de bonis non, has no more power than the original administrator had.
    “Third: That neither administrator could eject the defendant without notice to quit.

      “ Fourth: That if Kline dicl not take the possessoryright which the law gives to the administrator, he did take Albert Gr. Moulton’s .right to the possession as an heir, and that, possessing- such right, he is entitled to three months notice to quit.
    “ Fifth: That the administrator held only a lien on the real estate to enable him to make payment of the debts, and there being no debts the administrator can not maintain this suit.
    “Sixth: That the right to the possession of th.e premises was fully administered by Albert G-. Moulton, as administrator, and the plaintiff, as administrator de bonis non, has consequently no right to interfere with the same, or to recover the possession thereof.
    “Seventh: That if the sale was made and j>ossession given by Albert G-. Moulton not as administrator, but as heir merely, still, by his knowledge of Kline’s rights, of his paying part of the purchase money and going into possession, both he and the administrator de bonis non are estopped from denying Kline’s right to the possession of the premises.
    “Eighth: That the proof shows that no reason exists, connected with the administration of the estate of the deceased, why the plaintiff should have possession of said premises, and so the suit can not be maintained.
    “All of which points raised by defendant’s counsel were overruled by the' Court, and the following conclusions of law were deduced from the foregoing facts:
    “First: The sale or agreement entered into by Albert Gr. Moulton, in his individual capacity, without any license to sell from the Judge of Probate, was not such a sale or administration of the estate as would be binding on the administrator de bonis non.

    “ Second : Under our statute (C. L. § 2904) the administrator has a right to the possession of all the real as well as personal estate of the deceased, and may receive the rents and profits of the real estate until the estate shall have been settled, or until delivered over by order of the Probate Court to the heirs or devisees. The conditions of the statute not having been complied’with — for if there are no debts against the estate it has not been delivered to the heirs or devisees by the Probate Court— the administrator is entitled to the possession.
    “Third: The defendant, holding under a contract of purchase, is not entitled to notice to quit, either as purchaser or assignee of the heir.
    “Fourth: The administrator de bonis non, the plaintiff, is therefore entitled to the possession of the premises in question, and to a judgment against the defendant for the same, with his costs of suit.”

      A. Felch, for plaintiff in error:
    1. Kline by his purchase of the premises of Albert G. Moulton, obtained all the right which the administrator had under the statute to the possession. This was the right of occupancy until administration closed, and this possessory right he holds by his purchase.
    The right of the administrator to the possession and rents of the real estate is a mere chattel interest, and can be disposed of by him like ' other personal estate. Such an interest, if belonging to deceased in his life time, would be only a chattel interest, and would go to the administrator, and would be governable and descendable in the same manner as personal property: — 2 Kent, 400, 401; Case of Gay, 5 Mass. 419; Brewster v. Hill, 1 N. M. 350.
    License to sel the property of the deceased is required under our statutes only where an absolute sale of real estate is contemplated. The right to the possession given by Comp. L. §2904, does not transfer any title. Under it the administrator may occupy himself, or rent for any definite time, upon such terms as he sees fit, accounting for the proceeds as for other moneys coming to his hands from the decedent’s estate. It is expressly committed to him for that purpose, and he has more unlimited power over it than in ordinary cases of personal property. The statute puts no limit on his control of the possessory right until the contingency terminating it happens. It requires no license from the Court to exercise absolute power over it. He has the same jus disponendi of this that he has of the personal estate of the deceased. tThe sale to Kline was a sale of this possessory right.
    It is no objection that the contract embraced a larger estate than the leasehold interest: — Bergin v. McFarland, 6 Fost. 533.
    If Albert G. Moulton could not, if living, eject Kline, neither can the administrator de bonis non. The latter is bound by the acts of his predecessor in the administration, and is estopped from denying their validity: — Cheek v. Wheatly, 3 Sneed, 484.
    2. If Kline did not acquire the possessory right given to the administrator, he did take the interest of Albert G. Moulton, as an heir at law of Freeman Moulton, deceased, and holds under such heir, and is entitled to three months notice to quit.
    The administrator is under no obligation to take possession of the real estate — he is not liable to account if he does not. It is at his option to do so or not. This right in the administrator does not prevent the heir taking and holding possession. The latter may maintain ejectment and thus obtain possession by legal process: — Streeter v. Paton, 7 Mich. 341.
    Can the heir thus put in possession be so far at the mercy of the administrator that he may the next moment be sued in ejectment without warning and without notice? If so the law intended to protect his rights would operate to his destruction. His legal possession would only expose him to the loss of his labor, his crops, his improvements, at the arbitrary will of the administrator. I submit that when the heir goes into possession — especially if it be by process of law or with the consent or acquiescence of the administrator — he holds by a right at least as sacred as that of tenant at will, and is entitled to notice.
    3. The property — that is, the possessory right given to the administrator — was fully administered by Albert G-. Moulton, as administrator, and the administrator de bonis non has consequently no right to interfere with or possess himself of the same.
    4. If the sale was made and possession given to Kline by Albert Gr. Moulton, not as administrator but as heir merely, still by his knowledge of Kline’s rights, of his payment of the purchase money and going into possession, both he and the administrator de bonis non are estopped from denying Kline’s right to the possession of the premises.
    It is the case of an absolute sale by an heir with the knowledge and concurrence of the administrator. The general doctrine of estoppel would prohibit the denial of the right of the purchaser: — Sayles v. Smith, 12 Wend. 57; Rangely v. Spring, 28 Me. 127; Brown v. Wheeler, 17 Conn. 345; 2 Smith Lead. Cas. 361, 362.
    But this case is still stronger than the authorities above cited. The title of the heir being fully recognized by law, and the administrator having a mere option to take possession, any circumstances which show a simple waiver of that right, would be sufficient to prevent his recovery of the possession. Having waived it in favor of a purchaser from the heir, he can not be permitted to dispossess the purchaser.
    An heir acquiescing in the sale of the decedent’s property can not afterwards deny the validity of the sale:— Lee v. Gardiner, 26 Miss. 521. The same rule would apply to the administrator when the heir sells with his knowledge and consent.
    5. The purposes for which the right to possess the decedent’s real estate was given by law to the administrator, have been accomplished, and his right to eject the occupant has ceased. The purpose for which the possession is given is stated to be, under our statute, to prevent injustice to creditors of the deceased, and “ to have the rents, as well as the proceeds of the sale of the land, applied to the payment of debts:” — Streeter v. Paton, 7 Mich. 341.
    It is really a simple lien on the income of the real estate, -for the payment of the debts of deceased.
    It is given at the option of the administrator, and the •option continues “ until the estate shall have been settled, or until delivered over,” (that is the land), “by order of the Probate Court, to the heirs or devisees.”
    The delivering over, here mentioned, evidently had reference to the subsequent provision of the statute, § 2092, which provides that when the debts, &c., are paid, or a sufficient sum received for that puiqpose, the court may assign the residue to the persons entitled by law to the same. When the real estate is so assigned, the administrator’s possession must cease. But this contemplates a termination of the administrator’s right before the other contingency — ;to-wit, the settlement of the estate — has happened. There can be no such thing, I respectfully submit, as the right of the administrator to continue his possession after the estate is settled, for any subsequent distribution, or any other purpose, as is stated in the legal proposition stated in the record. . The estate once settled, the administrator’s right to possess the land is gone — it may cease before by a prior assignment of the land to the heirs or devisees.
    But when shall the estate be said “ to have been set - tied,” so as to terminate the administrator’s use of the real estate and its income?
    I answer, whenever the legitimate purposes for which the, law gives it, have been accomplished. These purposes are the payment of the debts and legacies and necessary costs of administration.

      Ia Vermont, the statute gives the possession of the real estate to the executor or administrator, and prohibits the heir from maintaining a suit for it until the administration is closed. Nevertheless in suits brought by the heirs to recover possession of the land, the court hold that after a lapse of time, they would presume the lien of the administrator discharged, and put the heirs in possession: — Hubbard v. Ricart, 3 Vt. 207; Abbott v. Pratt, 16 Vt. 626; Cox v. Ingleston, 30 Vt. 258; Buck v. Squires, 22 Vt. 484.
    The same doctrine was applied in suits by administrators against the heirs: — Roberts’ adm. v. Morgan, 30 Vt. 319 Cushman, adm. v. Jordan, 13 Vt. 597.
    In this case it is not necessary to rely' on any presumptions. The case itself establishes the fact that the property Was not needed for any purposes of administration.

      H. J. Beakes, for defendant in error:
    1. The bond to convey was made by Albert G. Moulton in his own name, and could not bind the estate.
    But if it had been made by him as administrator, it Would have been void, not only as an act without legal authority, but as against public policy ; — Hunt v. Frost, 4 Cush. 54; 3 Cow. 299; 9 Geo. 114; 1 Bailey, 45.
    If Albert G. Moulton had professed in the contract to act as administrator, and had received the entire value of the property, he could not be charged with the proceeds of the sale in the settlement of his administration account: — 13 Ala. 781.
    The claim that the administrator de bonis non.is bound by the illegal as well as the legal acts of his predecessor, is not well founded. A void act binds no one. It would seem that the question whether a contract utterly void could divest an estate of its rights, should be too clear for dispute, bud it is decided in Holt v. Clark, 14 S. & M. 187. The question here is not whether we can review the maladministration of Albert G. Moulton, while acting within the scope

      of his power, but whether an act in excess of his power binds the estate.
    2. Streeter v. Paton, 7 Mich. 341, recognizes the fact that the administrator has a right of possession, paramount to that of the heirs. See also Wales v. Newbould, 9 Mich. 83, 84.
    The statute does not confine the right of possession to so much of the real estate as may be required for the payment of debts, but in express terms gives him the right of possession of all the real estate. It does not limit the right to the time when the debts are paid, but continues it in force “until the estate shall have been settled, or until delivered over by order of the Probate Court, to the heirs or devisees.”
    ' The claim that “the administrator has only a lien on the real estate to enable him to make payment of the debts,” is not well founded. Where as in this case there are several heirs, the administrator under our statute holds the real and personal estate, not only for the purpose of paying debts and expenses of administration, but also for the purpose of securing a just distribution of the estate among the several parties entitled to it, until administration shall be closed and the estate divided by the court.
    The cases cited from Vermont to show that the administrator has a mere lien for the payment of debts, are under a statute differing considerably from ours,
    3. Kline was not entitled to notice to quit. A notice to-quit is not necessary where the relation of landlord and tenant does not exist: — 4 Wend. 436; 7 Halst. 99; 17 Johns. 157, 159; 7 Cow. 747; 1 Wash. Real Prop. 381.
    If a party in possession under a contract of purchase is a tenant at will of the vendor, as is held in Dwight v. Cutler, 3 Mich. 572, the ordinary relations of landlord and tenant do not exist: — 16 Pet. 54; 7 Cow. 747; 14 Mo. 350; 1 Cow. 122; 8 M. & W. 118; 7 Barb. 74; 20 Barb. 509.]

      Where the tenancy is strictly at will no notice to quit is necessary: — 1 Washburn Real Rrop. 381, 376; 7 Cow. 747; 3 Humph. 404; 2 Caines, 129; 1 Smith Lead. Cas. 668; 2 Smith Lead. Cas. 188; Crane v. O’Reilly, 8 Mich. 315. Tenancies which at the common law were at will only, are now divided into two classes. In the one class, which is strictly a tenancy at will, no notice to quit is required. In the other class originally by a sort of judicial legislation, and afterwards with the sanction of statutory provisions, notice was required: — 1 Washb. 375.
    In this case the plaintiff in ex-ror contracted with Albert G. Moulton individually. There is no privity between the parties, and therefore no notice to quit is necessary.' — 2 Johns. 84, 87; 3 Johns. 422; 4 Johns. 215; 17 Johns. 159; 13 Johns. 106; 2 Dow. & Ry. 706.
    Kline holds adversely to the administrator. A disclaimer of a landlord’s title dispenses with the necessity of any notice to quit: — 6 Johns. 272.
    If Kline was tenant at will under Albert G. Moulton the tenancy ceased at the death of the latter: — 2 Washb. Real Prop. 372.
   Manning J.:

The alleged errors may be reduced to two:

First, That the facts found by the Court show, that Albert G. Moulton administered on the possessory right he had in the land, as administrator, by a sale thereof to the plaintiff in error.

Second, That the defendant in ex'rox’, who is administrator de bonis non, did not show on the trial that the rents, issues and profits of the land, were needed to pay the debts of the estate and expenses of administration.

Kline claims to be the owner of the administrator’s light of possession under a contract between him and Albert G. Moulton, the first administrator, for the purchase of the land. This contract is signed and sealed by both parties, and is a bond in the penal sum of two thousand dollars, conditioned that Moulton should by a good and sufficient warranty deed convey the premises to Kline, by a certain day, on Kline’s making certain payments on and before that day, and giving his promissory note for a certain sum secured by a mortgage on the premises. Kline is in possession under this contract, but it is not executed by Moulton as administrator. It is insisted, however, that it is not necessary it should be to convey the administrator’s interest in the land, which interest is likened to a personal chattel belonging to the estate, which the administrator may sell as well in his own name, as he can as administrator.

If the administrator’s right to the possession of the land could be regarded as a personal chattel, the argument would be conclusive if the contract in other' respects is one that would bind the estate, about which it is not our intention to express an opinion.

The possessory interest of the administrator is not a personal chattel. It is not treated as such by the statute. It is not inventoried and appraised, or required to be accounted for at its appraised value, or whatever it may be sold for, and there is nothing in the statute authorizing it to be sold. It is, we think, clear from the whole statute that it is not given to the administrator to be sold by Mm, but to enable him to receive the rents, issues and profits of the land — for which he is required to account-while the estate is being settled, and for no other purpose. He may let the real estate, or if it was let by the decedent, he may receive the rents; but he can make no disposition of it, by letting or otherwise, to interfere with the settlement of the estate, or the sale of the land for that purpose Under an order of the Probate Court. And on the death or removal of the administrator, his possessory right, and the rents and profits connected with it, pass to his successor, or the administrator de bonis non.

On the other point the statute is too clear and explicit to admit of a doubt. We can not make it more clear by anything we can say. It says: The executor or administra tor shall hate a right to the possession of all the real as well as personal estate of the deceased, and may receive the rents, issues and profits of the real estate, until the estate shall have been settled, or until delivered over by order of the Probate Court to the heirs or devisees, and shall keep in good tenantable repair all houses, buildings and fences thereon which are under his control:— Comp. L. § 2904.

The judgment of the Circuit Court must be affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Martin Ch. J.:

license: Public Domain

text:
    Isaac H. Smith v. Edward V. Cicotte.
    A sheriff before levying a writ of attachment upon property of the title to which there is reasonable doubt, has a right to require a bond of indemnity, and to refuse to execute the writ by seizure of such property until the bond is given.
    A sheriff was directed to levy an attachment upon a stock of goods which were claimed under a mortgage given by the attachment debtor. The creditor promised to indemnify him for so doing. The sheriff took possession and inventoried a part of the goods, but the creditor failed to indemnify, and the goods were taken away by the mortgagee. The sheriff made return to the writ of these facts. The creditor having recovered judgment in the attachment suit, and had execution returned nulla bona, brought suit against the sheriff for not retaining the property to respond to the judgment. It was held that he was not entitled to recover.

      Heard June 3d, 1862.

      Decided May 30th.

    Error to Wayne Circuit.
    In July, 1858, tbe plaintiff in error sued out of the Circuit Court for the county of Wayne an attachment against the property of Charles Taylor, on an indebtedness of some six hundred dollars, and delivered the same to a deputy of the defendant, who was then Sheriff of said county, for service.

      The deputy made return to this writ as follows:
    “State oe Michigan, County oe Wayne, ss.
    “I do hereby certify and return, that on the 14th day of July, A. D. 1858, a writ.of attachment was placed in my hands, as Deputy Sheriff, issued out of the Circuit Court for the county of Wayne, at the suit of Isaac H. Smith v. Charles Taylor; that on the said day I proceeded to attach the goods and chattels of said Taylor, as directed by said writ; and upon investigation found that said goods and chattels consisted of a stock of groceries with which said Taylor was doing the ordinary business of a grocery and provision store; that the said plaintiff directed me only to attach such goods in said store as was not covered by a chattel mortgage given by said Taylor, about the 1st of April last, to secure certain indebtedness therein described, and in no manner to interfere or attach any goods claimed by the mortgagee in said mortgage: not being able to designate any particular goods not contained in said mortgage, as said mortgage covered the entire stock, and I was forbid by the mortgagee from taking any of said goods, I declined to serve said attachment, without first being furnished with a good and sufficient bond of indemnity against loss for any official action that I might take in the premises: being assured by the plaintiff that a good'bond would be furnished me before I removed any of said property, I proceeded to attach certain goods and chattels, as named in the inventory hereto attached, having to select them from the best of my judgment, from the stock on hand, as the goods most liable to be seized by said attachment, I made the inventory hereto attached,- and had the same appraised by Wilkey Moore and William C. Jones, two disinterested freeholders of the county of Wayne, and who appraised said goods at the several sums set opposite each article, as being its cash value (said appraisers first being by me duly sworn). From time to time and day to day I solicited the plaintiff to make me the requisite bond of indemnity, from the said 14th day of July till the present day, which he has entirely failed and neglected to do, and for the reason of several counter claims being set up to the ownership of said goods, and being threatened with a suit of trespass and replevin, and much good ground from all the circumstances, in my opinion, for a long, tedious and harassing law suit, would grow out of my official action, I did not feel justified in removing said goodEs from the store occupied by said defendant, without being furnished with a good and sufficient bond of indemnity by said plaintiff, and further, that during the making of said inventory and ajrpraisal of the goods, named in the appended certificate, the said stock of goods were taken possession of by E. N. Willcox, agent and attorney of the mortgagee, and the possession of said goods forcibly arrested from me, and the whole of said stock of goods, together with these articles enumerated in the inventory hereto attached, are now in the possession of the agent of the mortgagee named in the aforesaid chattel mortgage: and also, I made a true copy of the writ of attachment, affL davit and inventory, and served the same upon the defendant, personally, by reading the same to him, and giving him said attested copy.
    E. Y. Cicotte, Sheriff.

    By Wm. Champ, Deputy Sheriff.”

    After this return, plaintiff filed his declaration in the attachment suit, and proceedéd to judgment and execution therein. The execution having been returned nulla bona, this suit was then brought against the sheriff, and declaration filed against him in case, for suffering said Willcox to take from his possession said stock of groceries, instead of retaining the same to satisfy the judgment in the attachment suit.
    On the trial in the Circuit Court the defendant had judgment, which was removed to this Court for review on exceptions. The evidence on the trial, and the charge of the Court, are sufficiently shown by the opinion.

      J. E. Bigelow, for plaintiff:
    A sheriff at the common law was bound to execute the duty of his office at his peril; and the same is true now, except where the Legislature has intervened in his favor,, and changed the rule; which has not been done in regard to writs of attachment in this state:— Watson's Sheriff, Ch. 10 §6; 2 Tidd Pr. 1008; 4 T. R. 633, 648.

      W. P. Yerkes and Knight & Jennison, for defendant:
    The sheriff is not bound to levy an attachment and hold the goods at his peril, where there is a reasonable doubt in relation to the title of the property, and when n demnity is required or promised, and not given. A statute is not required to excuse the sheriff in such cases: 2 Greenl. Ev. § 585; Bond v. Ward, 7 Mass. 124.
    The attachment being merely nominal, the return does not make the officer liable to the sheriff for not having the property to respond to the judgment: — Abbott v. Edgerton, 30 Vt. 208; Ordway v. Bacon, 14 Vt. 378.
   Martin Ch. J.:

The principal question in this case is that of the right of- a sheriff to require a bond of indemnity before levying a writ of attachment upon property of the title to which there is reasonable doubt; and to refuse to execute the writ by seizure of such property until such bond shall be given. The bill of exceptions shows that evidence was offered tending to show that the only property of the defendant in attachment was that which the defendant was directed to seize; that the title to it, or to portions of it, was in question, and adverse claims were made to it that an agreement had been made by the plaintiff to give a bond of indemnity; that a bond was offered which was sufficient, but before it was actually received and accepted the principal surety found that he had been deceived in respect to his liability, and erased his name, and that such bond was never actually accepted. Shall the Sheriff be liable under such circumstances for refusing to serve the writ? Where a writ of attachment, or an execution, is placed in the hands of a Sheriff, he is ordinarily bound to execute it at his peril. If, however, in his search for property he has notice of adverse claims to such as may be found or pointed out, or reasonable doubt of the debtor’s title, he has the right to demand indemnity before proceeding to the execution of the writ. He is not bound to seize property because directed to do so, if he knows it to belong to another than the debtor, or if he reason, ably and in good faith apprehends that a paramount title exists in another. This is the rule in cases of seizure upon execution (See Comp. L. § 4490); and the same principle must extend to attachments. The one is taking upon final process, the other upon mesne; but both to subserve the same end, namely, the collection of the debt proven or claimed' to be due. * The reasons which authorize him to require indemnity in the-one case exist in the other; and it is moreover a natural and reasonable right. The sheriff should not be bound or required to levy process upon property at the command of a creditor, at his peril, which he knows does not belong to the debtor, or of the title to which he has honest and reasonable doubt: for instance, if he finds it in the possession of another under claim of title, or learns that an adverse or colorable title — as that of mortgagee, or the like — is asserted by another. In such case, he may require indemnity before proceeding to execute the writ. And especially where indemnity is offered and promised, he is most clearly entitled to delay such execution until it be furnished, and refuse to act if it be withheld; for then he acts not entirely by authority of law, but also by agreement with the creditor. It does not lie in the mouth of the latter, under such circumstances, to insist upon the execution of process which he has agreed shall not he executed before he has done some act upon his own part which he neglects; or upon any strict rule of law which he has by such agreement waived. The Judge, therefore, properly charged the jury that, “if the jury found that an agreement was made to give a bond of indemnity, and that the same was not given, then the defendant Avas not liable for not attaching the property, and that it was for them to find the facts from the evidence; that whilst it might be true that the statute as to bonds of indemnity did not apply to writs of attachment, still, if the sheriff could make it appear that the title was not in the defendant, he ought not to be holden, and might make such defense; that as to the second point, if the jury believed from the testimony that a bond of indemnity was agreed to be given, and that it was not done, the Sheriff was not liable for not levying; that it was a question for them to decide whether tie bond executed by Knowles was ever delivered or accepted, and whether Mr. Knowles was so deceived that he was justified in easing his name if the same had not been delivered; that in view of the testimony, it may, perhaps, be unnecessary to decide the other point made by the defendant, that this bond never was the bond of KnoAvles at all; that whilst it may be necessary for the Sheriff to show in a case like this, that the title was in fact not in the defendant in the writ, yet if he showed a chattel mortgage valid on its face, it was for the other party to invalidate it by showing that it was fraudulent, and not for the Sheriff affirmatively to prove that it was not fraudulent; that in this case, the evidence was before the jury to find as to the good faith of the mortgage in evidence.” The Court was also correct in charging “that the question in this case seemed to be whether a good bond was agreed to be furnished, and if so, whether it was in fact furnished, and that these were questions for them to find.”

The whole subject was fairly left to the jury, and the judgment must be affirmed, with costs.

The other Justices concurred.


text:
    Augustus C. Baldwin v. Don C. Buckland and others.
    A fraudulent intent in making an assignment for the benefit of creditors must be proved by such, evidenoe as is required to establish, any other fact. This may be by the acts and declarations of the assignor, his circumstances and situation, the terms or provisions of the instrument, or by any and all means of evidence which convince the mind of the existence of the thing sought.
    If the assignor belioves himself solvent, and being pressed by creditors avows his intention to assign for the purpose of getting time, these are strong evidences of fraud, but subject to explanation.
    That the assignee is a relative of the assignor, and resides in another town, and that he employs the assignor as hia agent in managing the business under the assignment, are not conclusive evidence of fraud in making the assignment.
    The subsequent acts and declarations of the parties to a transaction may be resorted to for the purpose of showing its fraudulent character; but the subsequent fraudulent acts of the assignor, unknown to the assignee, can not change the character of the assignee’s title, or make that fraudulent which was originally honest.

      Heard May 5th and 6th.

      Decided May 30th.

    Appeal in Chancery from Oakland Circuit.
    The original' bill was filed by Baldwin, to quiet his title to certain real estate which he had purchased of Albert F. Draper, who claimed the same under a general assignment made to him in October, 1857, by James A. Weeks, for the benefit of his creditors. The defendants, being execution creditors of Weeks, and claiming this assignment to be fraudulent in fact, had caused the same lands to be sold on execution, and now claimed them adversely to Baldwin. Cross bills were filed by the defendants to have Baldwin’s title declared invalid, and their own established.
    The case turned mainly upon questions of fact. Draper was a brother-in-law of Weeks, and resided in Detroit, while ’ the latter resided in Pontiac, and was left in possession as the agent of Draper under the assignment. It was claimed on behalf of defendants that- the evidence showed that Weeks believed himself to bo solvent at the time of making the assignment, and only made it to gain time to convert his assets: that it was made to a relative residing away from his place of business, who could not attend to it, in order to create the necessity for the appointment of the debtor to keep the property in his own hands and subject to his disposal: that in fact there was no change of possession, and Weeks continued to manage the property as his own, and to use the money and assets at his own discretion, without the control or supervision of the assignee.
    The Circuit Court in Chancery made decree as prayed by the original bill, and dismissed the cross bills; and the defendants to the original bill appealed.

      Baldwin & Draper and C. I. Walker, for complainant.

      M. L. Drake, for defendants:
    It is a fraud upon creditors for a debtor who believes himself to be solvent, to make an assignment in order to get time to convert his assets. Van Ness v. Yoe, 1 Sandf. Ch. 4; Kellogg v. Slawson, 15 Barb. 56.
    It was fraudulent to make an assignment to a relative residing at a distance, and who could, not attend to the business, in order to create the necessity for the appointment of the debtor to keep the property in his own hands, and at his own disposal: — Cram v. Mitchell, 1 Sandf. Ch. 251; Reed v. Emery, 8 Paige, 417; Currie v. Hart, 2 Sand. Ch. 353.
    The want of change of possession, and leaving the property in the hands of the assignor to control and dispose of as his own, rendered the assignment fraudulent and void. 1 Sandf. Ch. 348; Ibid. 83; 4 Edw. Ch. 221; 1 Hoff. 511; 7 Paige, 163; 1 Barb. 210; 4 Mich. 73-Presumptive evidence of the intent with which the assignment was made, may be drawn from the management of the property after the assignment. Currie v. Hart, 2 Sandf. Ch. 353. The surrender of the property must be direct and unconditional. Grover v. Wakeman, 11 Wend. 187; Goodrich v. Downs, 6 Hill, 438; Litchfield v. White, 3 Seld. 438.
   Martin Ch. J.:

The rights of the respective parties in this case depend upon the fact, of the fraud or good faith of Weeks, through Whom all claim, in making the assignment to Draper. If the assignment was made in good faith the bill of the complainant Baldwin must be sustained: if otherwise, it must be' dismissed, and the title of the defendants sustained and established. Fraud is a question of fact, to be made out like any other fact. The fraudulent intent of the assignor must "be proved by such evidence as is required to establish any other fact. This may be by the acts and declarations of the party, his circumstances and situation, the terms or provisions of the instrument, or by any and all means of evidence which convince the mind of the existence of the thing sought.

We have examined this case with much care, and are satisfied that the assignment of Weeks was made in good faith and with an honest intent. The evidences relied upon to establish its fraudulent character, are: First, that Weeks, when he made the assignment, thought himself to be solvent, and only wanted time to convert his assets into money that he might pay his creditors. That he was not solvent is very evident, and it is difficult to believe that he could have thought he was. It is true that he said his property, if sold at the estimated value he placed upon it, would pay his debts; but this was a remark very, natural to be made in those times of panic and ruin, by any one; and is proof of his opinion of what his condition should be, rather than of what it was. If Weeks actually believed himself to be solvent, and being pressed by creditors, had avowed his intention to assign for the purpose of getting time, these would be strong evidences of fraud, and, in most cases, perhaps, require the fact of fraud to be found by the Court or jury; but either or all of these facts may be explained, and the explanation may repel the inference which should otherwise be drawn. We think that in the present case we cannot draw any inference of fraud from this evidence.

/Second, That Draper, the assignee, was a relative, and resident of Detroit, so as to make it necessary to appoint Weeks himself an agent to keep and dispose of the property, and manage the business. No shadow is cast upon the integrity or capacity of Mr. Draper, while the character of the assignor’s business, and his relations to the community, were such as to make it eminently proper that he should be employed in the winding up of his own affairs. Mr. Draper resided some twenty-five miles from Pontiac, and was accessible by railroad and telegraph; and I should be extremely reluctant to establish the rule that such a fact is conclusive evidence of fraud. We think this circumstance proves nothing in this case.

The management of the estate by Draper, so far as he controlled it, and of Weeks under him, which is urged as a tim'd reason for holding the assignment fraudulent, appears, so far as we can see, to have been honest and judicious, and furnishes no ground for finding, or even suspecting, that the assignment was made to protect the property from creditors, for the use and enjoyment of Weeks.

It is claimed that Weeks appropriated money and property to his own use instead of applying them to the purposes of the assignment; and it is insisted that this is evidence of the fraudulent character of the assignment. If it were made clearly to appear that Weeks had disposed of money and property in the manner charged, with the knowledge and consent of Draper, it would be very strong if not conclusive proof of fraud in making the assignment. But if the acts of Weeks were committed as charged, and were unknown to Draper, they cannot change the character of his title, nor make that fraudulent which was originally honest. The subsequent acts and declarations-of the parties may he resorted to for the purpose of showing the nature of a particular transaction; but they must, have been done or made under such circumstances as would hind both parties, and not be ex parte.]

In short, while we cannot enter npon a minute examination of the evidence, nor consider all the reasons suggested against the good faith of the assignment, we find that there is no sufficient evidence of fraudulent, intent on the part of the actors to justify us in holding the assignment void. In truth, we see no dishonesty at all in the transaction; hut consider Weeks — as most if not all. his creditors did — as honest in the transaction.

The decree is affirmed.

Manning and Campbell J J. concurred.

Christiancy, J. concurred in the result.


author: Campbell J.:

text:
    The People on the relation of Daniel J. Campau v. The Circuit Court for the County of Wayne in Chancery.
    The writ of prohibition can not be issued to restrain any action of inferior courts which can bo reviewed, by any of the ordinary methods.
    Under onr probate system, a very large portion of the old equity jurisdiction is Tested in the courts of probate; and it seems that the Court of Chancery has jurisdiction in those cases only in which an adequate remedy does not exist in the Probate Court.
    A bill in equity was filed against the special guardian of a non compos, by one who,'on appeal from the Probate Court, had been appointed general guardian. The bill alleged that error had been brought on the order appointing complainant such guardian; that defendant also prolonged by appeal proceedings taken for his removal, and threatened further litigation, and was grossly misbehaving as special guardian. And it prayed for an injunction, the appointment of a receiver, and for an accounting. It was held that the bill showed a case of equity jurisdiction to grant the preliminary relief prayed, and a writ of prohibition to restrain the action of the Court of Chancery upon it was refused;

      Heard May 12th and 13th.

      Decided May 30th.

    Motion on behalf of Daniel J. Campau and Francis Palms, two of the defendants to a suit pending in the Circuit Court for the county of Wayne in Chancery, for a writ of prohibition, to be directed to said Court. The petition therefor had attached to it a copy of the bill in that cause, from which the following facts appear:
    The complainants are children and presumptive heirs at law of Joseph Campau, who is upwards of 94 years old.
    In I860, the relators, Daniel J. Campau, who is also one of the children of said Joseph, and Francis Palms, who is a son in law, together with the wife of said Francis, and several other of his children, applied to the Probate Court for the county of Wayne, under §3311 Compiled Laws, for the appointment of a guardian of said Joseph, as mentally incompetent, by reason of old age, to have the care and management of his property.
    Such proceedings were thereupon had, that the Judge of Probate, on the tenth day of December, 1860, made an order or decree, finding such incompetency, and appointing Henry C. Knight guardian.
    From this order, an appeal was taken in the name of said Joseph, by one of the complainants, Alexander T. Campau, purporting to act on behalf and as agent for said Joseph, and also for himself, Alexander T., individually.
    Subsequently, by an act passed in 1862, said §3311 was so amended as to empower the Judge of Probate, in case of an appeal from his action in appointing a guardian under said section, in his discretion to appoint a special guardian of the supposed non compos, to act pending the appeal and litigation relative to the appointment of general guardian, said special guardian to have like power and perform like duties as a general guardian, and no appeal to be taken from such appointment.
    Under this act tbe relator, Daniel J., was, in January, 1862, appointed special guardian of said Joseph.
    He thereupon assumed to appear .for and represent said Joseph in said appeal, and persuaded said Alexander T, to dismiss his individual appeal.
    Complainants, Theodore J. and Dennis J., and defendant James J. Campau, then petitioned the Circuit Court, under §3636 Compiled Laws, for leave to appeal from said order. Leave was granted, and the appeal taken and perfected.
    The bill alleges that the relators resisted all efforts to bring such appeal to trial. A trial however was reached at the last February term of said Court, and that part of the said order of the Probate Court which appointed said Knight guardian, was set aside, on the ground that, under the circumstances, said Knight was not a proper person to act as guardian of said Joseph, and said Dennis was appointed guardian, and the matter remitted to the Probate Court to fix and approve the bonds of said Dennis, and for further proceedings.
    Thereupon said relator, Daniel J., sued out a writ of error to this Court, and when application was made to the Probate Court to proceed and fix and approve the bond of said Dennis, objected because of the pendency ■of said writ of error; and the Judge of Probate declined to proceed.
    The bill further alleges, that said Daniel J. has interposed all obstacles in his power to the appointment of a general guardian, in order to retain his position as special .guardian.
    That he is an unfit person for the position of guardian ■of said Joseph, and that he is grossly mismanaging the property of the estate.
    The bill also shows that a petition had been filed by complainants or some of them in the Probate Court, for the removal of Daniel J. from the guardianship for cause alleged: that Daniel J. excepted to this petition, the Judge of Probate overruled his exceptions, and ordered him to answer, from which order he appealed to the Circuit Court, whereupon the , petitioners discontinued the appeal.
    The bill prays for injunction, prohibiting said Daniel J. from interfering with the estate of said Joseph, and that a receiver may be appointed of said estate pending the litigation; that said Daniel J. be removed from the position of special guardian, and that a general guardian of the person and estate of said Joseph may be appointed.
    Upon filing this bill, complainants moved for an injunction - and receiver as prayed.
    Daniel J. answered, denying jurisdiction. Palms demurred, and the Circuit Judge assuming to entertain jurisdiction upon the motion for injunction and receiver, said Daniel J. and Palms apply to this Court for writ of prohibition.

      L. Bishop and A. Pond, for the motion:
    I. The Circuit Court in Chancery has no jurisdiction over the subject matter of said bill of complaint, and hence no jurisdiction to grant an injunction and appoint a receiver as prayed.
    The object of the bill is, as its prayer indicates, the removal of Daniel J. as special guardian and the appointment of a general guardian, and the injunction and receiver are asked pending the litigation in that behalf under this hill.

    The Constitution gives to the Circuit Courts original jurisdiction in all matters civil and criminal not excepted in the Constitution and not prohibited by law, and appellate jurisdiction from all inferior courts and tribunals, and supervisory control over the same.
    The statute, Comp. L. § provides that “ the powers and jurisdiction of the Circuit Courts in Chancery shall be co-extensive with the powers and jurisdiction of the Court of Chancery in England, with the exceptions, additions and limitations created and imposed by the Constitution and laws of the State.”
    This is very broad and general language, and must, we think, be taken with a qualification. It never was intended to confer upon our Courts, and they have never assumed to exercise, all the powers and jurisdiction exercised in England by or through “ the Court of Chancery:” — Goldsmith's Eq. 6 et seq.; 3 Bl. Com. 47; 1 Story Eq, Juris. §38.
    1. Our construction of the statute is, that by the Court . of Chancery in England we are to understand the Court of Chancery as a Court of Equity.

    2. But as matter of fact, the Court of Chancery in England as such never had or exercised jurisdiction over idiots and lunatics and their committees.
    This jurisdiction was vested in the Chancellor or person holding the great seal: — Shelf. on Lunatics, 11, 12, 15 et seq., also 25, 166, 784; Stock. on Non Compos Mentis 79, 125; Story Eq. Juris. §§1334, 1335 and 1336 et seq.; Philips ex parte, 19 Ves. 122; Oxenden v. Lord Compton, 4 Brown Ch. 231; Oakley Ex. v. Long, 10 Humph. 254.
    It will, we presume, be admitted that the power to appoint the committee was in the Chancellor or Keeper of the Great Seal, by warrant under the sign manual. But it will be contended, from some loose expressions to be found in the books, and especially in 2 Sch. & Lef. 436, that the control and direction of the committe after appointment is in the court. This is not so.
    1. Appeal from all orders in lunacy, is to the King in council, and not to Lords in Parliament: — Shelf. p. 12; 3 P. Wms. 108; 2 Ves. 72; 4 Bro. Ch. 231; Story Eq. Juris. § 1364 note 2; 10 Humph. 257.
    2. Acts of Parliament relative to the subject of lunatics and idiots and their committees, distinguish between the ■“Chancellor” and the “Court of Chancery’’ — Shelf. 318, 323, 332; Stock. on Lunatics, 212, 241, 249; Hill on Trustees, 95.
    3. Whilst it is true that the language frequently used in the books would seem to warrant the conclusion that the control of the committees is in the Court, as in Shelford on Lmiatics, 17, yet when essential the distinction is made: — Shel. 166; 6 Ves. 782; 1 B. & B. 241.
    The Court of Chancery in England having never exercised jurisdiction over lunatics and idiots or their committees, our Legislature acted with intelligence and forethought in providing for the vesting of this jurisdiction in some tribunal, as they have in the Probate Court.
    The whole subject of guardian and ward is covered by the statute. Compiled Laws § 3225 makes provision for guardians.
    The jurisdiction of the Probate Court is exclusive. That such was the understanding of the Legislature is shown by Compiled Laws, § 3310. See also Blanton v. King, 2 How. Miss. 857; Steen v. Steen, 25 Miss. 513.
    The bill is not, as may be claimed, a bill to protect property pending litigation in another Court.
    There is no litigation pending in the Probate Court for removal of Daniel J. from the position of special guardian.
    What is alleged relative to the commencement and discontinuance of proceedings for his removal is wholly immaterial.
    The absurdity of entertaining a bill of this character Other than as collateral to proceedings in the Probate Court for the removal of Daniel J., is apparent in this; that Daniel J. can not institute proceedings in the Probate Court to test the question as to whether or not he ought to be removed: and if complainants succeed in getting a receiver appointed under this bill, it will not be for their interest to do so; and thus if the Court of Chancery can exercise jurisdiction and appoint a receiver under this bill, Daniel J. may be deprived of his rights as guardian, without any possibility of testing such rights.
    We submit there is no jurisdiction in the Circuit Court to entertain this bill. And hence;
    II. We are entitled to the writ of prohibition. The Constitution gives the Supreme Court general supervisory control of all inferior courts. Sec. 3382 Comp. L. authorizes the Supreme Court to issue writs of prohibition.
    Without the statute, it would have the power under the above provisions of the Constitution. Sec. 5326 Compiled Laws fixes practice as to the writ.-
    As to general nature of the writ and when it issues:— 5 Bac. Abr. 647, 663; 6 Com. Dig. 104. That it runs to the Court of Chancery: — 5 Bac. Abr. 666; Lord Raym. 531; 6 Com. Dig. 106, 604; 3 Bl. Com. 112, 113; 23 Ala. 44; 25 Ala. 100.
    That the Court of Chancery is an inferior court within the meaning of our Constitution and statutes : — Quimbo Appo v. The People, 20 N. Y. 531; 23 Ala. 94.
    That there may be a remedy by appeal (or writ of error) is immaterial. The remedy must be adequate; and when there is not a direct appeal the remedy is not adequate: — 23 Ala. 94; 25 Ala. 100; 4 Rob. 50.

      T. Romeyn and G. V. N. Lothrop, for respondent:
    I. This is a motion for a writ of prohibition to be directed to the Court of Chancery in a matter where full ultimate relief can be secured by appeal to this Court, There is no ground for interference on the basis of irretrievable injury.
    It is submitted that the case is not, in any view of it, one calling for the interference of this Court by this writ.
    1. The allowance of this writ is disci’etionai-y.
    2. No irreparable injury will arise, for a receiver will be responsible to the Court of Chancery, and will be under its control.

      3. Full relief can be secured by appeal, and it is submitted that there is no more reason for this extraordinary interference in this case than j,in any other where there is an honest doubt as to the bill making a proper case for Chancery.
    4. It is respectfully submitted, that it is inexpedient to grant this writ in such a case as this, of doubtful merits at best on the relators’ side, and before the Circuit Judge has decided on his own jurisdiction.
    II. This application must be decided according to the' facts set forth in the bill of complaint in Chancery, and the statements of the answer can not be allowed to contradict them.
    III. If it be assumed that Chancery has jurisdiction over a guardian like the relator, then a plain case is made against him by the bill, in its charges of incompetency, neglect and mismanagement.
    IV. Chancery has general jurisdiction over guardians, to supervise, direct and remove them, viewing them as trustees. See Jeremy Eq. 222 and cases there cited; Story Eq. Juris. §§827, 828, 836; 1 Madd. Ch. 578; 1 Beasley N. J. 297; 2 Johns. Ch. 439; 1 Johns. Ch. 100; 1 P. Wms. 704; Willard Eq. 624.
    V. There is no reason in the nature of the guardianship over non compotes in this country for distinguishing between such guardians and other guardians, as to the control of Chancery over them.
    1. It is claimed by the relators that the jurisdiction over idiots and lunatics in England is special, and is confided to .the Chancellor as such, and that, as a consequence, the Court of Chancery here has no jurisdiction over the committees or guardians. To this we answer:
    First. Conceding for the argument’s sake, that the first proceedings in the case of idiots and lunatics required special warrant or commission from the King, this was not so in regard to a person who had become enfeebled" by old age, and become so weak in mind as to be unable to manage Ms affairs.
    Here there was and is an original inherent jurisdiction and duty in Chancery. See Barker's case, 2 Johns. Ch. 232, and the authorities cited in it.
    Second. But conceding further, that this is to be assimilated to the case of lunatics, we then insist that the Court of Chancery in England, after the appointment of the committees, had full control over them, as over any other persons charged with fiduciary duties: — Story Eq. Juris. §§1336 and notes, 1362 to 1365; Jeremy Eq. 211; 2 Madd. Ch. 724 — 5; Adams' Eq. 90 to 92, 654-5, (top paging); Shelf, on Lunatics, 16, 17, 167; 1 Ves. 463; 3 Ves. 2; 19 Ves. 280.
    Third. The control in England over such committees was, in any view of the authorities, an equitable one administered by Chancery. Even if subject then to some modifications, such was its general character. And as we have in this country none of such special provisions and enactments, such control must either be exercised by the Court of Chancery, through its general powers, or there must be a failure of justice.
    Fourth. That the Circuit Court in Chancery can not appoint the guardian in the first instance affords no argument against its power to remove or control him. Otherwise we must deny its power over executors, administrators and testamentary guardians.
    2. The argument that the jurisdiction of the Probate Court is exclusive, because that Court alone has power to appoint a guardian, is unsound. Because,
    First: It is not conceded that such is the fact in the case of a person imbecile from old age.
    Second: It proves too much, for it would divest Chancery of all control over executors, testamentary guardians and other quasi trustees not appointed by itself.
    3. It is respectfully suggested that on principle, the attempt to discriminate between the control of Chancery over this guardian and other guardians of person and estate is utterly without reason or expediency.
    The defendant, Joseph Campau, is confessedly non compos, and his estate is actually in the hands and management of a guardian, as much so as if he were an infant.
    The defects in the modes of procedure in the Probate Court, and in its jurisdiction and functions, to give full protection, and to administer adequate relief, are just as great in this case as in any other ease of guardianship.
    This jurisdiction is vested in the Probate Court in the same manner by statute, as in the case of infants. The powers of the guardians and the control of that Court over them in both cases are similar. And it is utterly impossible to deny the jurisdiction in Chancery in this case, on the ground of the Probate Court having it exclusively, without doing so on principles that will apply equally to guardians of infants, and to executors and administrators.

    And as to this, see in addition to former cases: — Wal. Ch. 314; Har. Ch. 206, 259; 39 N. H. 410; 5 Mason, 95.
    It is most earnestly contended that the refusal of jurisdiction to Chancery in this class of cases is pregnant with danger.
    'The Court of Probate is a special court, with limited powers. It can not enlarge the functions of the guardian, as declared by statute. As to this, see 2 Comp. Laws, pp. 972, 973.
    Suppose there be a necessity for special powers, as in ‘Willoughby's case, 11 Paige, 257, and in Heeney's case, 2 Barb. Ch. 327.
    Again, suppose that a guardian is wasting the estate, neglecting the ward, &c., and that the Judge of Probate orders his removal. An appeal is taken, and the bond given, as required by C. L. §3632. Then under §3640, all proceedings are stayed, until the appeal be decided.
    Perhaps the Circuit Court may not sit for a year, and the guardian may go on with his misconduct and waste. Is the Court of Chancery powerless?
    VI. But suppose it be conceded that the Court of Chancery has no power to appoint or remove a guardian. The bill shows that proceedings have been taken in other courts to appoint a general guardian, and that the special guardian protracts and delays the termination of these, and in the meantime is neglecting his duties and abusing his trust. It is submitted that a case is made for the intervention of equity to enjoin him and appoint a receiver.

    The bill shows a clear case for the appointment of a receiver. The power of the Court of Chancery to grant this relief, while the questions involved are in litigation in another court, is unquestionable. See Shelf. on Lunatics, p. 313; Story Eq. §§827, 828, 829, 836, and 3 Dan. Ch. Pr. p. 1949 to 1971, where the whole doctrine is exhibited. See especially pages 1956, 1958, 1961, 1962, 1963, 1969.
   Campbell J.:

An application is made to this Court for a writ of prohibition, to restrain the Circuit Court for the county of Wayne in Chancery, from entertaining jurisdiction of a bill filed for relief touching the affairs and estate of Joseph Oampau, alleged to be non compos mentis.

It appears that the Probate Court appointed a guardian, and that on appeal the order was reversed and another guardian appointed, and the cause was remanded to have security given by the new .appointee. It is alleged that a writ of error has been sued out, and that the Probate Court regards this writ as a supersedeas. A special guardian having been appointed by the Probate Court, and an application for his removal having been instituted and entertained, he has appealed to the Circuit Court from the order requiring him to answer.

A bill is now filed setting up this complicated litigation, alleging also the threats of the special guardian to prolong and further complicate it, and also very gross misbehavior on his part, and asking for an injunction and receiver, for an accounting, and for the removal of the special guardian, and for the appointment of a general guardian.

As the writ of prohibition, if issuable, is only for excess of jurisdiction, it is not material, on this motion, whether the facts charged are true or not.

There seems to be no power to issue this writ to restrain any action which can be disposed of by appeal, or other ordinary method of review. And as all decrees upon the merits are open to review on appeal in equity, we are only concerned with the application for relief pendente lite by injunction and receiver.

It is unnecessary and improper, therefore, in such a proceeding, to determine the questions which will thus be brought up, any further than may be required to settle the preliminary rights. I am very strongly inclined to the opinion that under our Probate system the Court of Chancery has only jurisdiction in those cases in which an adequate remedy does not exist in the Probate Court.

That there are some such cases there is no doubt, but there is as little doubt that a very large portion of the old equity jurisdiction has been vested in the Courts of Probate.

The facts alleged in the bill show that there is a contest for possession between a general guardian appointed on appeal from the Probate Court, who has not been allowed to qualify, and a special guardian who has by an appeal suspended proceedings for his own removal, who threatens further litigation, and who is charged with gross fault. The Probate Court can make no effectual order settling this difficulty which is not liable to be suspended in the same way, and can, therefore, use no effectual means to prevent at once any abuse or mismanagement of the trust. The facts charged amount to an alleged abuse of legal process, attended by danger of damage to the person and property under guardianship. Courts of equity have always had power to preserve property in peril during litigation, from loss which could not be repaired by ordinary means: —3 Dan. Ch. Pr. 1961-2. And in a case like the present, where disputes exist concerning the rights of both guardians, and those disputes are alleged to be delayed of settlement in such a way as to create constant difficulty and litigation, there can be no doubt of the power of equity to take charge of the fund and manage it until some person obtains a legal right to retain it.

We can not assume that the Court of Chancery will not decide fairly and legally in the matter, nor can we by prohibition control that' Court if acting within its jurisdiction. The writ should be denied.

The other Justices concurred.