THOMPSON V. CANTERBURY.
of the cigars, which one witness, Samuels, identifies as the same spliced oar that he saw the day previous on board and belonging to the Esch's (5) finding on board the Esch, after the seizure of the cigars. cigars of the same brand in small quantity in the possession of the captain.
There are several of 'suspicious nature ones. shown, but the foregoing are The respondents meet these circumstances mainly by a vigorous denial either of the particular fact, or ,by a general denial that the Each brought the cigars. , The concealment of the schooner's course and the excuses made for not taking on a boarding officer are almost e:{ltirely unexplained. The absence of the yawl and crew is denied. Tha spliced oar ,is repudiated, and the fact that when siezed the Esch had only one oar for her yawl is 'explained by a circumstantial account given by all of the witnesses of the loss of an oar overboard in the gulf on the ,homeward voyage. The mud and grass on the yawl are accounted for by showing that the two boys had the boat in the day-time, rowing for pleasure in thEj harbor, making a landing at one where there was sand and grass. Nothing is said as to the particular brand of cigars given by the captain to his friends. Finding, as I have before, that the evidence on one side must rejected, I cannot avoid the conclusion that the evidence of the government witnes,ses is best entitled, under all the circumstances, to credence. This evidence, with that undisputed in relation to the opportunity.for the Esch to have unloaded the goods, and. thil!t .no other vessel.could have done so, makes a complete case for the government, and warrants the judgment of condemnation repdoo:ed by the distric,t court. A decree will therefore be entered affirming the judgment r.endered in this case by the district court, with costs.
a
THOMPSON V. CANTERBURY,
Adm'r.
(Circuit Oouit, D. Iowa.
July, 1881.)
ESTATES OF DECEASED-CONTRACT OF ADMIXSTRATOR.
A contract with administrators or executors made in the interest and f(\r the benefit of the estate, if made upon a new and independent consideration, as for property sold and delivered, or other consideration moving between the promisee and executors as promisors, does not bind the estate, and a suit thereon against the administrator as such, and not personally, is demurrable, Doctrine applied to a case where the administrator sold and delivered a patented article for the benefit of the estate.
FEDERAL REPORTER;
Oo'Demurrer·. Action for damages. This was an action for damages brought against an administrator, in his representative capacity, for a violation of plaintiff's rights, by selling and conveying to divers parties, a certain article which plaintiff claims the exclusive right to make and vend. Bremmerman lt Rohde, for plaintiff. P. H. Smyth Son, for defendant. MCCRARY, '0'. J. The defendant is sued as administrator for having, in violation of plaintiff's rights, sold and delivered certain patented articles. If defendant did make the sales in question, as alleged, he did not thereby bind the estate. Whether bis aot be regarded in the light of Ilo oontract or a tort, it is olear that he did not bind the estate represented by him, and that no recovery can be had against him in his representative oapacity, or to be levied de bonis testatoris. Even a contraot with administrators or exeoutors, made in the interest and for the benefit of the estate, if made upon a new and independent oonsideration, as for property sold and delivered, or other oonsideration moving between the promisee and the exeoutors as promisors, does not bind the estate. This upon the ground that an administrator or exeoutor may disburse and use the funds, or oharge the estate, only for the purposes authorized by law, and may not bind the estate by flo new contraot, thus creating a liability not founded upon a oontract or obligation of the testator or intestate. Austin v. Mum'o, 47 N. Y. 360, and oases cited; Toller, Executors, 457. Ot course, if the administrator oould not bind the estate by flo contract to pay plaintiff the sum he now olaims as damages, he could not do so by his own wrong in violating the plaintiff's rights under the patent. As defendant is sued as administrator, and not personal1y, the demurrer must be sustained.
SINGEB MANtlF'G CO. V. YAHGEB.
!::SINGER MANUB"G
Co. ".
YARGER."
(Circuit Oourt, D.
iowa.
October, 188'0.)' ',,;
1, TAX SALE-COLLU!!IVE BIDDING-CERTIFICATE VOID.
Whe;re there was a tacit agreement among the bidd,ers present at a tax yle that they were to take turns in bidding, and that they were not to bid againit each other', the sale and certificate are void. ' 2.
l'AXE!!.
SUBJECT TO INFIRHITIE!!.
The assignee of such,a certificate lloldg; to all tbeinfirnuties by whicJ,1 it would ha.ve been affected in the hands of the purchaser at the. sale. S. RELIEP PROM '. ·
, Where 1'raud has been committed,' a'nd by It the' complainant, lias been injured; the 'gci1eral principles of' equity jurisprudence aft'ord' a remedy. So, inthe,case of. a frimdulent combination to deprive of security : i sale of the without notice· and wlthout,competition among bidders. ., '. " . l,
In Equity;, Phillips, Goode .tI; Phillips, for complainant. C.J. The oomplainant is the owner ofs. mortgage !ilxeeuted by the defendant, Yarger, upon certain, lots in the city of Knoxville, in this state, given to secure a promissdry note for $9;000 and interest. The respondents McCormick;and Baker are the grantees in a certain tax, deed of the same premises, which, if valid, is prior and paramount to the complainant's mortgage. The bill alleges that the tax deed is void, and prays a decree t-o cancel the same and fora foreclosure of the mortgage. The question to be decided is whether the tax deed is a valid conveyance of the property all against the complainant's mortgage. The tax deed is attacked upon the ground that the tax sale was fraudulent and void by reason of the fact that the bidders at the sale entered into an unlawful combination, whereby each wlJ.S to take his turn in bidding, it being understood that there was to be no competition, and that they were not to , bid against each other. The evidence establishes the fact that there was, if not an express, at least a tacit agreement among the bidders present at the sale that they were to take turns in bidding, and that they were not to bid against each other. That such a combination among bidders is fraudulent, and vitiates the sale, is, as a general proposition, entirely clear. Whether this doctrine is applicable to the present case is the only matter of controversy. The respondents MoCormick and Baker, who claim under the tax title, were not the purchasers at the tax sale, but are the assignees of the ta,x certificate. It is settled as the