Beard v. Cash

The opinion of the court was delivered by Manning, C. J. Reuben White, one of the defendants, had been appointed administrator of the succession of William Nesbitt, and sold under order of court a tract of land of seventy acres to pay debts of the succession. Nesbitt’s heirs were three collateral relations, and the plaintiff purchased the interest of two of them in the succession. White filed an account of his administration, which was opposed by the plaintiff, and on appeal to this court, it was amended by increasing the balance against White. Opinion Book at Monroe, July Term 1878. Cash was the purchaser of the land at the succession sale, and paid the price, which formed the principal part of the assets accounted for by White, which were used, so far as was necessary, in the payment of the succession debts and charges, leaving a residue, two thirds of which were adjudged to be due the plaintiff. This action is to annuli the sale of the land on many alleged grounds of informalities, of invalidity of White’s appointment as administrator, of want of qualification, etc. An exception was made to the action— that the price of the land had been paid, and was used in part for the legitimate purposes of administration under and according to a decree of this court, and the residue was decreed tobe paid to the heirs of the deceased, viz.: to the plaintiff as assignee of two of the heirs, and to the third by name — that the plaintiff was a party to these probate proceedings, and obtained an increase of the balance due from the administrator on his opposition to the account — that as a condition precedent to the institution of this suit, the plaintiff should have tendered the price of the land which has not at any time been done — and that as the plaintiff has a judgment against the administrator for the residue of [124] the price of the land, he cannot recover the land also, or any part thereof. This exception was referred to the merits, and a trial was had resulting in a judgment for the defendants. The plaintiff, with a final j udgment in his favour for his proportion of the balance on account due from the administrator, rendered on his opposition to that account, and increased at his instance — the proceeds of sale of the land forming the principal part of the assets accounted for, and being the exclusive fund out of which his judgment is to be paid — cannot be heard to claim the annulment of the sale which produced the assets, and to assert his title to the land. Nor can he reven-dicate the land without first tendering the price, or so much thereof as was applied to the extinguishment of the debts and charges of the succession. Coiron v. Millaudon, 3 Annual, 664. He is estopped by his own judicial proceeding, and judgment was rightly given against him on the merits. Judgment affirmed.