Admr. of Crary v. Hall.

1848, and before the assignment had been made to her, bargained and sold the whole of the home farm of the deceased, to a Mr. Button for nearly six thousand dollars; and that he had paid the price to Fox which he applied to the payment of the debts of the testate, the specific legacies and the expenses of the settlement of the estate; and that he had paid the balance of what remained to Clarissa; and that she, to save expense of getting an order of sale from the probate court, and to carry out the arrangement made between Fox, the executor, and Button, only three days after this arrangement was made, quit-claimed to John Fox all title to every part of the home farm. This deed bears date the 24th of February, 1848, though not recorded until the 14th day of July, 1853; and that the defendant, when he purchased and took his deed from Clarissa of the 25 acres, on the 16th day of June, 1853, had full notice of this deed to Fox. This action is prosecuted by Button, in the name of the administrator, de bonis non, for his own benefit, in pursuance of an arrangement between him and Fox, made no doubt on account of the adverse possession set up by the defendant to the 25 acres of the home farm, in the life-time of Mr. Crary.

The whole of this evidence was considered immaterial by the county court as having no effect upon the title set up by the defendant under Clarissa, and was excluded.

We are to inquire whether there was error in this; and also in the court's directing a verdict for the defendant. Under the laws of this state, real estate becomes assets in the hands of the administrator or executor for the payment of debts; and, sub modo, passes to them, and their rights are, for the time being, paramount to the rights of the heirs or devisees, though they have but a trust interest; and the statute expressly enacts that no action of ejectment or other action to recover the seizin and possession of any lands, or for any damage done to such lands, shall be maintained by any heir or devisee, until there shall be a decree of the probate court, assigning such lands to such heir or devisee, or the time allowed for paying debts shall have expired, unless the administrator or executor shall voluntarily surrender the possession to the heir or devisee. In the present case, the purposes for which the real estate of the deceased became, sub modo, assets in the hands of the executor, had not been answered, in point of fact, and the object of

Admr. of Crary v. Hall.

the arrangement for a sale to Button was for the payment of the debts, &c. The sale to Button was by the consent of Clarrissa, and enured to her benefit; and, to carry out the arrangement, she quit-claimed all her title to the home farm to Fox.

We think it is quite clear that the defendant cannot defend the action upon the strength of his deed from Clarissa. She having consented to the sale, by the executor, to Button, and having, also, confirmed the same by her deed to the executor, she would be concluded from setting up a title in herself, adverse to the rights of Fox, and of Button; and, as the defendant had notice of the deed from Clarissa to the executor, when she conveyed to him, he can stand in no better situation, in this respect, than Clarissa would, and is equally concluded from claiming under that deed. He is chargeable with having acted in bad faith. If Clarissa had gained a legal title to the home farm, by force of the will, and the effect of the assignment of it by the probate court, it would enure to the benefit of Fox, at law, though in trust, by means of estoppel, and, in equity, to the benefit of Button. The question then arises, is the present action defeated by means of the deed from Clarissa to Fox? We think not. As the case shows that the defendant was in adverse possession, at the time of the death of Mr. Crary, and this, we are to presume, was continued up to the time Clarissa deeded to Fox, that deed would not have the effect to convey the legal title to Fox, as against the defendant; and though the defendant did not, upon the trial, insist upon his adverse possession, yet we think it was competent for the plaintiff to prove the adverse possession, in order to show that the action could still be maintained by the representative of the estate of Nathaniel Crary. For the purposes of this hearing, we are to take whatever the testimony tended to prove, as proved, as well as what was offered to be proved.

By our statute, Comp. Stat., chap. 50, § 16, the present administrator has the same power, and may proceed in the same way, in settling the estate, as the executor, Fox, could have done; and, if Fox, the executor, in his life-time, could have maintained this action, it may well be maintained by the administrator, de bonis non, though a recovery may enure to the benefit of Button.

Judgment of the county court reversed, and the cause remanded,

Sartwell v. Horton.

EDWARD L. SARTWELL v. ROLLIN V. R. HORTON.

Arbitration. Recovery of money paid on an unfounded claim.

Parties agreed to submit certain matters of difference to arbitrators who, after hearing and consultation, informed the parties they had agreed, but that neither party was to be bound by their determination, and would be under no obligation to abide by it, and then announced the conclusion to which they had arrived. Held that their conclusion was merely advisory, and of no binding force as an award.

Money may be recovered back which is paid in discharge of an alleged claim which is fictitious and false, and known so to be to the party making the claim, and who induces the payment by menaces, duress, or taking an undue advantage of the other party's situation.

ASSUMPSIT. The cause was referred. The principal claim of the plaintiff was for $465.84, in reference to which the referees reported the following facts.

About sixteen years prior to 1853, the plaintiff and defendant entered into an agreement, by which the plaintiff was to take the charge of the defendant's grist-mill, as the miller, and receive onehalf of the proceeds or tolls, and the defendant the other half. The plaintiff thereupon took the charge of said mill, and proceeded to discharge the duties of miller, and so continued to do until sometime in Febrnary, 1853. Up to this period there was a perfectly good understanding, and no suspicion existed on the part of either that there was anything wrong in the dealings of the other.

In February, 1853, the plaintiff entered into an agreement, by which he was to take charge of a grist-mill in Hydeville, and leave the defendant's mill. After this fact came to the knowledge of the defendant, he professed to have suspicions that the plaintiff had not been dealing honestly with him, and had not given him his just share of the tolls; and that he had taken his (the defendant's) grain without authority, and disposed of, or appropriated it to his own use; and procured a writ in trover to recover the value of the grain so taken or withheld. After having procured said writ he went to the mill where the plaintiff was, and after looking it over, told the plaintiff to get certain notes which the plaintiff had against the defendant, amounting, in all, to between six and seven hundred dollars, and go up to the defendant's house and settle, which the plaintiff did. They went into a room by themselves, and the defendant fastened the door, and then told the plaintiff that he had ascertained

Sartwell v. Horton.

that the plaintiff had stolen his grain and that of everybody else; and that he could prove it by various individuals; and that he had got a county court writ in his pocket against him for it. The plaintiff got up to leave, but the defendant told him he should not. The plaintiff took the notes above referred to, and told the defendant to take what he a had mind to from them. This he declined to do, saying that somebody else must say how much he was to have. The plaintiff was a simple-minded man, and during this interview was alarmed and excited. It was finally proposed by one of them to leave the matter to others to say what should be done in the matter, and N. H. Eddy, Wm. P. Abbott and H. N. Skeels were selected as the persons to whom the subject was to be submitted. This interview was on Saturday. On the Monday following, (being the 28th of February, 1853,) the plaintiff, defendant, and the above named persons, met at the defendant's house. The parties agreed to introduce no testimony; the plaintiff took no further part in the business of the hearing; the defendant made a statement, and the arbitrators retired to decide. After they had agreed, they called in the parties and told them that they had agreed, but that neither party were to be bound by their determination, and would be under no obligation to abide by it. The plaintiff said he would hear what they had to say, and then determine. They then stated that they had concluded that the plaintiff ought to pay the defendant the sum of $465.84. The plaintiff then said he had offered defendant more than that, (referring to his offer to have him take what he pleased from the notes.) The plaintiff then produced his notes, and the defendant figured up the amount, deducted the $465.84 and paid plaintiff the balance, and took them up.

There was no testimony introduced before the arbitrators, and they had no knowledge that the plaintiff had done any act that had affected injuriously the custom, business or reputation of the mill; and they all testified that they did not know but the plaintiff was as attentive and faithful to the business of the mill as any other man. They knew that the mill did not do as much business as it had formerly done; but other mills had been erected in the vi cinity; the business of the place had diminished; the store there had been broken up,-there was consequently less to call customers there; the mill was getting old; and what effect these causes had

Sartwell v. Horton.

produced upon the business of the mill, the arbitrators could not tell.

The referees further reported that they found that this claim of the defendant had no foundation in fact, and would not have been set up if the plaintiff had not determined to leave the defendant's mill; and they submitted to the court, whether, upon the facts reported, the plaintiff should recover said sum of $465,84 with the interest thereon.

The county court, September Term, 1855,-PIERPOINT, J., presiding, rendered judgment for the plaintiff, to recover the balance reported in his favor, together with said sum of $465.84, and the interest thereon. Exceptions by the defendant.

A. A. Nicholson and S. H. Hodges for the defendant.

The award was valid, notwithstanding the opinion expressed by the arbitrators; Ennos v. Pratt, 26 Vt. 630.

The referees have found no such misconduct in the arbitrators or the defendant, as should invalidate it at law; Caldwell on Arbitrations, 208 &c. (94 ;) Emerson v. Udall, 13 Vt. 477; Howard v. Puffer, 23 Vt. 365.

Neither can it be inferred from the judgment of the county court, which was, in effect, pro forma; Bartlett v. Churchill, 24 Vt. 218, The payment by the plaintiff was a voluntary one, made upon demand, and with full knowledge of all the facts; Centre Turnpike Co. v. Smith, 12 Vt. 212 & cas. cited; Brisbane v. Davis, 5 Taunt. 144; Clarke v. Dutcher, 9 Cow, 674; Pangburn v. Bull, 1 Wend. 345.

Briggs & Hyatt for the plaintiff.

There was no consideration for the plaintiff's surrender of his notes, as the referees have found that the defendant's claim had no foundation in fact. His claim was a fraud upon the plaintiff, sought to be enforced by duress and threats; Farnam v. Brooks, 9 Pick. 212; Chitty on Contracts 193.

The opinion of the court was delivered, at the circuit session in June, by

ISHAM, J. The exceptions in the case are confined to the claim