ON SUGGESTION OF ERROR. The judgment of the court below was affirmed on December 5, 1932, and is reported in 144 So. 703.
On the suggestion of error it is earnestly insisted that Mrs. Lucretia Walker was not disqualified to become a purchaser at the trustee's sale of the property involved, because George Walker, executor of the will of Henderson Walker, deceased, was not conducting the sale.
George Walker had qualified as executor prior to the sale, and his report to the court as executor of the assets in hand prior to the date of sale was sufficient to show that he had property in his possession sufficient to pay all the probated debts, including the debt secured by the deed of trust. It was clearly his duty, as such executor, to convert, with reasonable dispatch, the property into money, and to pay the probated debts. He could not, consistently with his duty, let the deeds of trust be foreclosed and then either he or his wife become the purchaser at a sale thereof.
In Bailey v. Dilworth, 10 Smedes M. 404, 48 Am. Dec. 760, it was held that executors and administrators are bound to the exercise of such prudence and caution in the administration as a judicious man, looking to his own interest, would exercise in regard to his own affairs. Manifestly, no prudent or judicious man would permit a sale under similar circumstances.
In Deanes v. Whitfield, 107 Miss. 273, 65 So. 246, it was held that an executor who has not been discharged *Page 486 has such relation to a beneficiary for life as precludes him from acquiring a tax title thereto, and, where one purchases from a life tenant, such person is chargeable with the facts, and cannot recover from a remainderman for improvements placed on the property.
In Whitfield v. Miles et al., 101 Miss. 734, 58 So. 8, 11, it was held that: "Under the terms of this will, there was not only a life estate created in an undivided interest in this land, . . . but there was also a vested right in the remainderman which the trustees could not defeat."
In Clark v. Rainey, 72 Miss. 151, 16 So. 499, it was held that, where land is owned by B and G as tenants in common, is sold for taxes, and B and wife redeem, their grantees hold as tenants in common with G, with disabilities as such.
In Hamblett v. Harrison, 80 Miss. 118, 31 So. 580, 581, it was held that, where a husband, before his marriage, acquired a title, in actual fraud, to land, his widow, under a conveyance from him during coverture, could not hold it as against those whom he had defrauded. In discussing this case, Judge CALHOON, quoting from Robinson v. Lewis, 68 Miss. 71, 8 So. 258, 259, 10 L.R.A. 101, 24 Am. St. Rep. 254, said that: "If the rule which prevents one spouse from securing a title where the other is disqualified rested only upon a supposed privity of estate between them, it might well be argued that our statutes upon the subject have destroyed its foundation. But the rule is founded upon considerations of public policy, and conclusively imputes to the one, as derived from the other, knowledge of those facts the existence of which precludes the other from action. The opportunities that would be afforded for fraudulent practices would be so numerous, and the difficulty of exposing them so great, that courts apply the doctrine of estoppel to both, and thus close the door that offers the temptation." *Page 487 The case of Fox v. Coon, 64 Miss. 465, 1 So. 629, holds to similar effect.
In Wade v. Barlow, 99 Miss. 33, 54 So. 662, it was held that, where a purchaser is put in possession, he cannot afterwards acquire a title, set it up in opposition to the vendor, and recover damages for breach of his covenant, and, if he extinguish an incumbrance, or buy in an outstanding title, all he can ask or require is payment of the money so laid out; and that this reason is equally operative, whether the purchase of the incumbrance be by the vendee or his wife, because there is such an identity between them that what under such circumstances cannot be done by the husband cannot be done by the wife.
Applying these principles to the case at bar, under all the facts, it is clear that George Walker could not have become the purchaser at the trustee's sale, it being his duty to protect both the interest of the life tenant and the remainderman by paying off the debts with the assets he had collected, or which he could, by reasonable diligence, have collected; and that, being in this condition of disqualification, his wife would also be disqualified and prevented from purchasing. This would be true even if the wife had acquired a deed directly from the trustee, as seems from Walker's testimony was his purpose, and which his bid really contemplated being done. In fact, however, the trustee's deed was made to Mrs. Sylvia Walker, widow and the life tenant of the deceased, Henderson Walker, and, instead of correcting the mistake when it was discovered, if it was a mistake, Lucretia Walker accepted a warranty deed from Mrs. Sylvia Walker, and took no steps to correct the error. The deed from Mrs. Sylvia Walker to Mrs. Lucretia Walker did not recite any mistake of the trustee in making the deed, or that the deed from Mrs. Sylvia Walker to Mrs. Lucretia Walker was made for the purpose *Page 488 of correcting such mistake, and the accounts introduced by George Walker, as administrator, between himself and Mrs. Sylvia Walker, showed that this money was paid to Mrs. Sylvia Walker by George Walker.
The vendee, Mrs. Lucretia Walker, having elected to accept the warranty deed from Mrs. Sylvia Walker, and letting that stand until after Mrs. Sylvia Walker died, is precluded from now setting up this contention. That would be laches of the grossest kind, and it would be impossible for the court to obtain from Mrs. Sylvia Walker the facts as they existed in her understanding.
The report of George Walker as administrator shows that he had paid all the claims probated against the estate, including these deeds of trust, and the notes which they secured were shown to have been duly probated. It is also shown in his report that he had collected assets of considerable value and was allowed a commission on all the assets shown in his report.
In the present case, he attempts to show that this report was incorrect, and that, in fact, he had no such assets in his hands. This clearly he cannot do. Faith must be reposed in judicial proceedings, and an administrator who collects assets and receives credit for them, and receives commission on them, will not be permitted thereafter to show that the report he made was, in fact, false or fraudulent. In Crowder v. Shackelford, 35 Miss. 321, it was held that, if at the instance of an administrator and upon his suggestion that his accounts are incorrect, they may be referred to a commissioner or auditor to be restated, he cannot afterwards object that the appointment was unauthorized by law, and that an examination of his accounts was then improper and not warranted by the pleadings. It was also held that as a general rule an administrator has no control or authority over the freehold estate of his intestate; yet it is subject to the payment of debts, before the actual appropriation of it for that purpose, and the heir may *Page 489 waive his right in it, and a compliance with the conditions prescribed by law, for the regular exercise of the power of the administrator over it, and may consent to his acts appropriating it to the payment of his ancestor's debts.
In Singleton v. Garrett, 23 Miss. 195, it was held that the final decree of the probate court, on final settlement of an administrator, when regularly made after due notice given, is conclusive against the administrator himself.
In Coffin v. Bramlitt, 42 Miss. 194, 97 Am. Dec. 449, it was held that annual accounts of guardians are final, and conclusive against them in the court where rendered and can only be set aside by due course of procedure. Inaccuracies in such accounts arising from sheer inadvertence, oversight, or palpable mistake or miscalculation may, in proper cases, be corrected in the court where returned; and he cannot impeach the balance shown by saying that it was collected in depreciated issues of broken or suspended banks, or confederate money, or invested in confederate bonds.
In Lowry v. McMillan, 35 Miss. 147, 72 Am. Dec. 119, it was held that an administrator is no longer subject to jurisdiction of the probate court when he, in obedience to a valid decree of that court, has made final distribution and has been discharged; and that an administrator, who, of his own accord, undertakes to decide who are entitled to the estate and makes distribution, acts at his peril.
These cases and others of our own court show that the administrator, George Walker, was not competent to testify as a witness in this case to sustain the claim of his wife to the lands involved, and that the chancellor was correct in refusing to permit him to open and falsify his accounts which had been closed for many years. *Page 490
In the original opinion heretofore rendered, we directed that said opinion was not to be reported in the state report, but, in view of the importance developed by the arguments in this suggestion of error in respect thereto, we think it proper to direct that the original opinion be reported in the state report with the opinion here on the suggestion of error.
Suggestion of error overruled.