6 T.B.Mon. 410
Court of Appeals of Kentucky.
Hammon and Wife v. Pearl,
Pearl v. Hammon and Wife.
Jan. 3, 1828.

William M'Elwee published his last will and testament, dated 17th June, 1810, which was proved and admitted to record in Lincoln county court, at their July term, 1810. But the will, he devises half his estate, after payment of his debts, to his wife Ann, (now the wife of Hammon), for life, the other half to his unborn child, since born and named Martha Ann, but if the child should die without issue, then, the estate as well, that devised to the child, as that devised to the mother, to go to the children of his brother David M'Elwee. The will authorizes his executors to give such part of his tract of land on Yellow creek, (which he supposes may be interfered with by other claims), as they may deem sufficient to such persons as they may think proper, for the purpose of adjusting and quieting the conflicting claims, such persons running all risques and paying all costs in quieting said claims. "And my said executors are further empowered, to sell and dispose of said tract of land for the purpose of paying debts if necessary, or for the benefit of my said devisees." Job Gresham and William Findley, were appointed executors, but have never qualified.

McElwee's will and testament.
At October term, 1810, more than three months having elapsed from the death of the testator, and no person applying for administration, the county court of Lincoln, ordered the sheriff, William Pearl, to take the estate into his possession, and make sale of so much "as the payment of debts shall make necessary, or shall be perishable, or be directed to be sold by the will."

Executors having refused, the estate committed by the county court to the sheriff. In pursuance of this order the sheriff sold on the 21st November, and on the 22d December, 1810, personal property to the amount of <>122 16 10 and on the 21st January, 1811, returned to the court an inventory of the slaes, and of the bonds taken on the sales, which was ordered to record.

Sheriff's sale of the personal property.
At December county court, 1810, the sheriff informed the court, that the personal estate would not be sufficient for payment of debts; thereupon, the court ordered the sheriff to make sale of the Yellow creek tract of land in the will mentioned, at a credit of nine months, to execute deed to the purchaser to transfer the title, but without any warranty of title; the sale to be made at the court house door of Lincoln, by public auction, to be advertised at various places, specified by the order of court.

Order of the county court for the sale of the Yellow Creek lands.
Under this order, Pearl sold the Yellow creek land at public auction, at the court house door, as required by the order, and William Smith became the purchaser at the price of $120; and on the 14th March 1811, Pearl, as sheriff, acting under the order of court, made a deed to said Smith.

Sheriff's sale of the land to Smith.
Between the time of committing the administration to the sheriff and July term, 1812, the county court of Lincoln, at various terms, made orders upon the sheriff, to pay to certain persons the amount of their claims against the estate; subject to legal deduction in case of deficiency of assets.

Orders of the court, allowing claims and directing their payment.
At July term, 1812, the county court entered an order, stating that they were informed by the sheriff, that the personal estate was not sufficient to satisfy the debts, and required the sheriff forthwith to sell the tract of land in Lincoln, on which the testator resided at the time of his death.

Order for the sale of the Lincoln lands.
On the 20th August, 1812, Thomas Hammon, who had married the widow, and Martha Ann, the daughter of the testator, exhibited their bill against Pearl for an account of the estate, charging him with waste, and against Smith the purchaser, charging collusion between him and Pearl; that the personal estate was sufficient to pay the debts; stating also, that Thomas Hammon applied to Pearl, and requested him to sell the Yellow creek land, in Knox county, wherein it lay; they pray to set aside the sale made by Pearl; to enjoin him from selling the home tract; that Pearl may settle his account; and for general relief.

Bill by the devisee against the sheriff and Smith as purchaser of the lands.
Pearl answered in February, 1813, exhibiting an inventory of the sales and of debts paid, and the various orders upon him, made by the county court, directing those debts to be paid; and his settlement with the county court, in January, 1813, returned by the commissioners appointed to settle with him, which the court received and ordered to be recorded, by which a balance of $65 is reported in favor of Pearl. Smith and Pearl both deny any fraud or collusion in the sale.

Answers of Pearl, the heriff, and Smith.
Upon hearing, the court dismissed the bill as to Smith, but as to Pearl, they decreed against him for the Yellow creek land, the sum of two thousand dollars, with interest from the 4th of March, 1811, (the day of sale), to the time of the decree; also $60 assessed by the jury for personal estate remaining in his hands, to be credited by $45, allowed Pearl for commissions on the moneys paid out by him; that $120, received by Pearl of Smith, be retained by Pearl, and that he be discharged therefor from the suit of the complainants, with perpetual injunction against selling the home tract of land.

Decree of the circuit court.
Before the jury was impannelled, an interlocutory decree had been pronounced, charging Pearl as responsible for the value of the Yellow creek land, at the time of the sale to Smith, with interest from that time; also directing Pearl to be charged with <>122 16 10, the amount of the sales of the personal estate, with <>28 0 7, admitted in his answer, as omitted in his settlement with the county court; also with the sum of $184, due from the executor of Thomas Adams, subject to the credits for all sums paid under the orders of the Lincoln county court, and for all sums appearing in the cause which he can show he was legally bound to pay, and for his commission on the sums paid. The several sums to be ascertained, of value of land, and the credits aforesaid, by the verdict of the jury thereby ordered; all legal evidence, written or parol, as well for plaintiffs as defendants, to be used before the jury.

Interlocutory orders, fixing certain principles and ordering a jury to be empannelled.
This course of referring matters of account in equity, to a jury to be decided upon proof not appearing in the cause, and therefore, not subject to the revision of the appellate tribunal, can not be approved.

Matters of account in equity shall not be referred to a jury to be found on evidence not appearing in record.
The evidence to sustain a decree must appear; the appeal in equity cases is upon matters of fact, as well as matters of equity founded on the facts. In general, parol proof is not admissible in our courts of equity, unless it be merely to prove an exhibit, or such like. We must take such facts as true, and those only which are sustained by the proofs and exhibits sent up on appeal.

Appeals in equity cases are upon the facts, as well as upon the law, and the proofs must appear in the record, except the parol proof of exhibits.
The account of $184, charged by the decree against Pearl the sheriff, is thus made up: At January term of the Lincoln county court, an order was made, upon the motion of Thomas Hammon, suggesting that there were open accounts existing between the estate of William M'Elwee, deceased, and Thomas Adams, deceased, "it is ordered that John Wilkerson, Achilles Perrin, James I. Waltingham and William Pearl, or any three of them be appointed commissioners, who are hereby requested to settle and adjust the said accounts with John James, executor of the said Thomas Adams, and make report of their proceedings to this court." Under this order the commissioners made a report of the 4th April, 1812, of vouchers, as they are called in packets No. 1, 2 and 3; by which it is supposed that a balance is found in favor of the estate of William M'Elwee, of $184. Whether the commissioners did intend to report such a balance due, or not due or only that Negro Harry is the property of Thomas Adams, deceased, is not very clear. The document is a curious medley, and suited to the extraordinary jurisdiction assumed by the order of the county court to which it responds. It can not be admitted that this document can be the foundation of a just charge against the sheriff. Thomas Hammon procured the order of court; but it does not appear that the executor of Adams has participated in the settlement, or has acknowledged any such balance; there is nothing in the report, or vouchers as they are called, upon which the sheriff could maintain an action against the executor of Adams; no evidence is adduced conducing to show that Adams was so indebted to M'Elwee; nor any color of evidence, that such sum or any part of it was ever received by the sheriff Pearl. This claim is not alluded to in the bill or answer, but has crept in, without any color of evidence to fix the amount as of right to be accounted for by the sheriff. Claim against Adams relied on as a charge against the sheriff, disallowed. There is no evidence to justify the charging the sheriff with the value assessed for the Yellow creek land. The sale was advertised fairly by the sheriff, and sold at the place appointed by the county court. The sheriff was not at liberty to have sold it in Knox, as requested by the complainant Thomas. Many bidders were present, every opportunity was given to bidders to come in. Smith was the best bidder; no body would give more for a disputed claim in adverse possession of other conflicting claimants. M'Elwee's claim was then thought invalid and worthless, and the assessment by the jury and the court has been made for the value of the land, as if M'Elwee's title was clear and undisputed. There is no sufficient ground made out for charging the sheriff with collusion or unfair practice in the sale, nor for holding him responsible beyond the price he received from the purchaser.

Held, on the evidence, the sale of the land by the sheriff was fair, and he was, therefore chargeable with only the price obtained.
By the 57th section of the act concerning executors and administrators, (1 Digest, 533), the county court had jurisdiction to commit the estate to the sheriff to be managed under their control. The sheriff acts in such cases, under the direction and control of the court. The sheriff in this case acted in obedience to the orders of the court. The land was sold expressly by order of the court; the debts were paid by their order upon proof before them; there was not sufficient, without sale of the Yellow creek land to pay all. Instead of applying to the county court to compel the sheriff to a settlement according to the powers given to that court, and for distribution according to the mode pointed out; the sheriff being responsible to that court, as well for payment of debts, as for paying over the surplus, by assigning the bonds, or estate unsold, in case of surplus, after charges paid, and his commissions as upon estate taken in execution, the complainants have in the first instance, come into chancery, without any evidence of fraud or malfeasance in the sheriff. The act which confers the jurisdiction on the county court, in cases where no executor qualifies, and no administration is applied for, to commit the estate to the sheriff, is peculiar; imposes a duty on the sheriff very different from the administration to be made by executors and administrators; the county court is rather the executor or administrator, and the sheriff their agent; they are to hear the claims, direct the payments, apportion the assets without regard to the dignity of the debts; and order the surplus, if any, to the legatees or next of kin. The sheriff acts, not as executor or administrator, but under the orders of the county court, as sheriff, and as the officer of the court.

Where the executor refuses to qualify and no one will administer the estate, is committed to the sheriff, who acts as the agent of the court who allow the claims and direct the sales, apportion the assets, and order the payments.
The county court had the power to order the sheriff to make sale of so much of the estate, "by public auction, as the payment of debts shall make necessary, or as shall be perishable, or be directed by will." In making the order for sale of the Yellow creek tract of land, directed by the will to be sold, for payment of debts, or for the benefit of the devises and legatees, the county court acted within the pale of their authority and jurisdiction.

Where the will, in such case, directs lands to be sold to pay debts, the court may order the sale.
In the settlement, however, with the commissioners appointed by the county court, the answer admits that the commissioners omitted to charge him with << PoundsSterling>>>>>>28 0 7, from money received from debts due M'Elwee at his death, and so he is charged by the decree. But this is a mistake in the answer, he is charged with the amount of sales, <>122 16 10, and with an additional sum of <>28 1 2, (instead of <> 28 0 7,), making the sum charged against him five hundred and three dollars. The omitted charge is the sum of $120, received from the sale of the Yellow creek land; the commissioners omitted to credit the sheriff with his commissions expressly allowed him by the statute, as on sales under executions; thus a balance in favor of the sheriff of $65 was produced. There are debts liquidated by the county court yet unpaid, as appears by the orders made by the county court in favor of the creditors, compared with the receipts and settlement with the sheriff, some of those creditors, having received partial payments, and some no part of their demands. Therefore, it can not be seen without farther statement and settlement of the accounts, whether there is a surplus in the hands of the sheriff belonging to the legatees.

Errors in the accounts remarked upon.
The complainants can be entitled only to the surplus after payment of debts. They exhibited their bill before any attempt to call the sheriff to a settlement before the county court; and before any call upon the sheriff by the court to settle the accounts. The settlement by the sheriff was subsequent to the bill. Legatees of deceased entitled to demand of the sheriff only the surplus, after payment of creditors.

This application to the circuit court for an account and settlement, before any attempt to bring about a settlement before the county court, is deemed by Judge Mills not premature; and that the jurisdiction given by the statute to the county court, to settle the account and order the surplus, if any, to be paid by the sheriff, to the legatees or next of kin, does no divest the courts of equity of their general jurisdiction in cases of account and trust.
Judge Mills held the distributees or legatees may call the sheriff to account in the court of chancery, and demand distribution without first requiring a settlement in the county court.

The Chief Justice is of opinion, that considering the peculiar jurisdiction conferred by statute on the county courts, to commit the estate to the sheriff, because no one applies for administration, to order the debts to be paid, control the sheriff, settle the accounts, and order the surplus, if any, to the legatees or next of kin, no suit ought to be sustained by a court of equity against the sheriff, but to review and correct a settlement, made by the county court with the sheriff, for fraud of the sheriff, or mistake, or to compel a settlement, where the powers of the county court have been resorted to, and have been found insufficient or defective; that the jurisdiction given to the county court being explicit, not only to settle the accounts of the sheriff, but also to order the payment of the surplus, if any, to the legatees or next of kin, according to law, this cheap and expeditious mode of settlement ought not to be departed from in such cases, unless the complainant assigns some sufficient cause for failing to apply to the county court, or comes into equity to surcharge and falsify the accounts of the sheriff; that a court of equity ought not to indulge a capricious and vexatious application prematurely made to a court of equity, by a legatee or distributee, who would not take the administration of the estate.

Chief Justice holds the sheriff ought to be first required to settle in the county court, and equity ought not to entertain the application then first made, without special cause.

However, as it does appear by the answer and exhibit in the cause, that a mistake was committed in the settlement made with the county court, after bill filed, the judges concur in ordering an account to be taken, to ascertain if there be a surplus after payment of debts. Having received assets, the sheriff is bound to apply them to the debts liquidated by the county court, as there is no attempt to overhaul or impugn such liquidation.

Mistake having been committed in the settlement with the county court after the bill filed, the jurisdiction allowed and a complete account ordered.
It seems to this court, that the order of the county court, for the sale of the tract of land, not directed by the will to be sold, was without authority of law, and without jurisdiction of the county court, so to order; and as to that, the injunction should be perpetuated; but this court is further of opinion, that in so far as the bill seeks to impeach, or set aside the sale made by the sheriff, of the land on Yellow creek, there is no just cause of complaint; that the county court acted in that behalf within the pale of their jurisdiction, that the sheriff has conducted the sale without fraud, or collusion, that the purchaser, Smith, acquired a right thereby to M'Elwee's patent; the bill as to that subject should have been dismissed. County court have no pewer to order the sheriff to whom the estate of a decedent, of which none would administer, has been committed, to sell lands not directed by the will to be sold, but the court may order lands to be sold according to the will. And this court is further of opinion, that the defendant, Pearl, is not chargeable with the sum of $184, in the decree mentioned; nor to be twice charged with the sum of <>28 0 7; but that the settlement made by the sheriff with the commissioners, is incomplete; he is not charged with the sum of $120, received upon the sale of the Yellow creek lands, nor credited by the commissions allowed him by the statute.

Decision on items of the account.
Therefore, it is ordered and decreed, that the decree of the circuit court in dismissing the bill as to Smith, be affirmed, and the decree as to Pearl, be reversed, and that the cause be remanded, with directions to cause an account to be taken, to ascertain whether a surplus remains in the hands of the sheriff, after paying the debts of the testator, M'Elwee, as ordered and directed by the county court; in this account the sheriff is to be charged with the sums of <>122 16 10, <>28 0 7 and $120, from which the debts of the testator, as settled and ordered to be paid by the county court, and all other just allowances to the sheriff, are to be deducted; and if a surplus appears then that such surplus be decreed to be paid over to the complainants, on their giving bond and security, to refund their just proportions of such surplus, in case any debts not so taken into account, shall hereafter appear; and for such other and further proceedings, not inconsistent with the foregoing opinion as the principles and usages of equity may require.

Decree and mandate for a further account of matters not apparent in the record and for distribution of the surplus.
Bond to be required of legatees.
The complainants below, Hammon, &c., to pay the costs in this court, in both cases.

Judge Owsley absent.
Turner, Denny and Monroe, for M'Elwee's heirs;
Robertson and Triplett, for Smith and Pearl.
Ky.App. 1828.
Hammon and Wife v. Pearl, Pearl v. Hammon and Wife.
22 Ky. 410, 6 T.B.Mon. 410, 1828 WL 1170 (Ky.)


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