1877 March Utterb'k's V. stranger to C. H. Utterback and his property and af Term. fairs; sent an agent to Virginia to examine the land; and employed counsel in Baltimore to advise him as adm'r to the title, to prepare the papers, and to carry the whole arrangement into effect. And he acted on the information, and with the assistance, thus received. And he acted in good faith, and without any fraud or usury. How then can it be said, that he is not entitled to the benefit of the lien for which he contracted? Cooper. Can it be said that he was bound to see to the application of the money which the administrator derived from him? Certainly not. An administrator is the legal representative of his intestate, and is entitled to receive, and bound to apply in a due course of administration, all debts due to the estate of such intestate, whether due by the administrator himself or any other person. No person who pays him the money is bound to see to its application. A person who participates in a breach of trust or devastavit of an administrator, is of course liable as the administrator is; but it is not pretended that E. K. Cooper was guilty of such a participation in this case. That the debt in this case was due by the administrator as an individual to himself as administrator can make no difference. Surely the administrator whose land was bound under a deed of trust to secure the payment of his debt to his intestate, had a right to pay off his own debt and to redeem his land from the incumbrance, so that he might make sale of it. To whom was he to make such payment? To whom but himself, who was the only legal representative of the creditor? How is a vendee from him to acquire title to the land but by stipulating with him that so much of the purchase money as was necessary should be 1877. March Utterb'k's adm'r applied to the payment of the debt, and by paying it to the administrator for that purpose. And if the ad- Term. ministrator receives it with that understanding and for that purpose, is not the debt paid, however the administrator may actually apply the money; unless, indeed, the person who pays it fraudulently participates in the misapplication, or at least has notice of an intention to misapply it when he makes the payment? An administrator is a complete legal representative of his intestate, and has power, and is in duty bound, to settle the affairs of his intestate's estate. Such a settlement, fairly made, is as conclusive as if made by the intestate himself in his lifetime. Though the administrator make such a settlement with intent to misapply the funds of the estate, and actually misapply them, those who deal with him are not liable for such misapplication, unless they participate therein, or have notice thereof. It is contended by the counsel of the appellant, that all six of the bonds of Charles H. Utterback to his father, secured by the deed of trust to Phillips, remained unpaid when the money was borrowed by Charles H. Utterback from Cooper. The said Charles proves that only the last three of said bonds remained unpaid, and those only were handed by him to the appellant as administrator de bonis non of Armistead Utterback. This proof is conclusive of that fact; but if it were not, Charles H. Utterback, while he was administrator of his father, declared that such was the fact, and made his settlement upon that basis with Cooper, who acted fairly in the transaction, and advanced his money upon the faith of the truth of such declaration, which cannot therefore be now denied as to him. Charles H. Utterback had a deed for the land from Armistead Utterback, subject only to the lien of the deed of trust to Phillips to secure the V. Cooper. March Term. Utterb'k's V. Cooper. 1877 bonds for the purchase money. Of course Charles H. Utterback had a perfect right to sell the land and make a good title to the purchaser, subject only to the adm'r payment of the prior lien to Phillips, and his only means of discharging that lien was by selling or incumbering the land. He could discharge the lien only by paying the amount of it to the legal representative of his father, and he was himself such legal representative. He could therefore lawfully make such payment to himself as such representative, and could in fact only make it in that way. If he had borrowed the whole amount of the eleven thousand dollars mentioned in his bond in money, stipulating as he did with Cooper that the prior lien should be discharged out of the money borrowed, nobody can doubt that the lender would have acquired a lien on the land free from the incumbrance of the deed of trust to Phillips. But he realized from the transaction a sufficient amount of money to discharge the said incumbrance with all the other incumbrances on the land; and it was an express condition of the loan to him by Cooper that he should do so. Is not that precisely the same thing in effect as if the whole amount of the loan had been made in money, at least so far as concerns this case? There was enough loaned in money to pay the prior lien and a stipulation for such payment by the borrower. The whole amount of the loan, beyond what was necessary to pay the prior lien, belonged to Charles H. Utterback, who might receive it in such commodity and on such terms as he pleased, That is a matter between him and the lender, with which the estate of Armistead Utterback has nothing to do. It seems to me that the foregoing views are conclu sive of this case, and steer clear of most of the difficulties raised in the case by the argument of counsel. I am therefore of opinion that there is no error in the decree and proceedings complained of, and that they ought to be affirmed. The foregoing opinion was written some time ago, and was read in conference during the last term of the court, but a majority of the judges not concurring in it, Judge Staples, one of the majority, was charged with the duty of writing an opinion for them. His opinion was read in conference on Tuesday last, the day before yesterday, before which time I had neither seen it nor heard it read, nor heard anything of its . contents. I have no doubt he prepared it as soon as he could, and read it in conference as soon thereafter as he could. I do not complain, and have no cause to complain of him; and mention what I have just done. only to show why I do not make more fully an explanation which his opinion seems to make necessary or proper in regard to mine. I did not ask to delay the decision of the case for the purpose, as it has already been very long delayed, but will now give the expla nation as well as I can consistently with the pressure of my present engagements. But it must necessarily be brief and imperfect, though I may hereafter, if I have time before the case is reported, enlarge and try to improve it. It will be observed that my opinion is based on the existence, among other things, of three facts which I think are fully sustained by the record; though I do not mean to admit, by any means, that the existence of all of them is necessary to the success of the appellee Cooper in this cause. Those three facts, with such VOL. XXVIII-33 1877. March Utterb'k's adm'r V. Cooper. 1877. brief commentaries as I deem necessary, are as fol March Term. lows: Utterb'k's adm'r V. Cooper. 1st. There was no usury nor fraud in the transaction in the proceedings mentioned between Cooper and Charles H. Utterback. On the 18th of September 1868 a decree was made in the cause that an issue be made up and tried on the common law side of the court, before a jury to be empannelled therefor, to ascertain: first, whether the consideration of the note of $11,000, executed by the defendant Charles H. Utterback to E. K. Cooper, the plaintiff, dated on the 5th day of July 1866, and payable two years after date, and secured by deed of trust from said Utterback to R. W. L. Rasin, of date the 5th July 1866, was a loan from the said Cooper to said Utterback, and if so, whether said loan was upon a consideration usurious in law; and, secondly, whether, if the jury find that the plaintiff sold to the said Utterback on the 5th day of July 1866, eighty-six shares of Navassa Phosphate stock, and that the purchase money of said stock entered into and performed a part of the consideration of said note of $11,000, there were any false representations or fraudulent devices upon the part of the said plaintiff, by means whereof the said Utterback was induced to become the purchaser of said stock; and if so, to what extent the said Utterback hath suffered damages by reason of the said false representations or fraudulent devices-in which issues the said Utterback shall have the right to open and conclude. In September 1870 the said issue was tried, and a verdict was found in these words: "We the jury find, first, that the consideration of the note for $11,000," &c., describing it, "was a loan of money and sale of stock by said Cooper to said Utterback, and that said loan was upon a consideration not usurious in law; we further find, |