Pool v. Ellis

Coopee, C. J., delivered the opinion of the court. We do not find it necessary to determine whether, since £he adoption of the constitution of 1869, it is competent for a chancery court under any circumstances to direct a sale of land to be made in tracts exceeding one hundred and sixty acres. It is indisputably true that the sale made in 1872 was thought by all parties to be invalid because of the excess in quantity of each tract offered, and a re-sale was made to conform to the constitutional provision. No objection to the second sale was made by Pool. He acquiesced [563] in wbat was done, and appeared at the second sale and bought again the land which had previously been sold to him. Neither the sale made in 1872 nor that made in 1873 was ever confirmed by the court. The appellant was not under obligation to pay to the administrator any portion of his bid before confirmation, and such payment was not binding upon the estate or the heir-at-law. The administrator held the money as a mere depository of the purchaser, and if it was wasted or misappropriated by him the loss must be borne by the purchaser. State, in re, v. Cox, 62 Miss. 786 ; Fearing v. Shafner, Ib. 791. The Chancellor by subrogating the appellant to the rights of the. creditor, to the payment of whose debt against the estate a part of th.e purchase-money was applied, extended to him the full measure of relief to which he was entitled. The debts due from the intestate to the administrator were properly liquidated by applying to them the assets of the estate wasted and misappropriated by him. If it is true that some portion of the estate was converted into money and appropriated to his own use by the administrator, after he had received the purchase-money of the land from the appellant, it would not give to the appellant the right to be sub-rogated to the position of the administrator as creditor of the estate, and to cause a second payment of the debts by the heir-at-law of the intestate. Their rights are superior to those of the appellant, and subrogation, which is an equitable scheme to preserve rights which would otherwise be lost, cannot be invoked as against one occupying an equal position with him who invokes it. Whether the sale of the land for taxes was valid, or void, as found by the Chancellor, because of excessive taxes and an indefinite description of the lands, is in our opinion immaterial, since the appellant by reason of his relation to the land could not assert the title thus acquired against the heirs-at-law. ■ If, because of the appropriation of a part of the purchase-mdney to the payment of debts of the intestate he had an equitable charge lipón the lands, he would occupy the position of a mortgagor in possession receiving the rents and profits of the estate, and therefore a purchase by him would be treated only as a payment of a com [564] mon charge made for the benefit of the whole estate. If, on the other hand, he was a mere intruder, liable to the owners for the rents of the land, these rents, which exceeded the amount paid for taxes, would operate eo instanti as payment of the amount expended in the purchase and as a redemption of the property. Gaskins v. Blake, 27 Miss. 675. So also it is immaterial whether appellant was in possession of the lands in the year 1874, as some of the witnesses for the appel-lees say he was, or only went into possession in 1875, as he contends. In either event the appellant became liable for rents and profits in excess of his bid before the expiration of the period allowed for redemption. Until the lapse of the time in which the owner is permitted to redeem, the title of the purchaser is inchoate and does not carry with it the right to the possession of the land as against the owner. And the disability to buy carries with it the disability to invoke the special statute of limitations provided for the protection of those who hold under tax sales. McGee v. Holmes, 63 Miss. 50. We find it unnecessary to explore the voluminous record to weigh the testimony as to the value of the rents of the land which were awarded to the appellees, or to - determine what rate of interest should have been allowed on some of the claims propounded by the appellant against the estate, or to examine the correctness of the Chancellor’s decree in disallowing the claims which were rejected. All of the rejected claims were barred by limitation at the date of the decree of insolvency, as were all those for which an allowance was made to appellant, save only the judgment in favor of Gaston of which he became the owner. Administration was granted upon the estate of the intestate on the day of 1866, the petition to declare the estate insolvent was filed on the day of 1869, but the decree thereon was not made until November, 1872, more than six years after the grant of letters of administration. It is evident that unless the statutes of limitation were suspended by the petition to declare the estate insolvent all claims not sued on were [565] barred by art. 10, ch. 57, p. 400, of the Code of 1857 (art. 2155, Code of 1871,) which declared that “ No action, or scire facias, shall be brought against any executor or administrator upon any judgment, or other cause of action, against his testator or intestate, but within four years' after the qualification of such executor or administrator.” By the act of November 21, 1821 (Hutchinson’s Code 667), it was declared that no action or suit should be commenced or sustained against an executor or administrator “after the estate of the testator or intestate be represented insolvent.” This act was afterward amended so that suits pending against the personal representative at the time of representation of insolvency should not thereby abate but might be prosecuted to final judgment, but no execution might issue thereon. Act of June 30,1822; Hutchinson’s Code 673. In the revision of the laws by the Code of 1857 the amendment of 1822 was alone brought forward, and since that time there has been no statute prohibiting a creditor from instituting his action -against an executor or administrator who had represented the estate of his testator or intestate to be insol vent. By a decree of insolvency the property of the estate is withdrawn from liability to seizure and sale under legal process. Parker v. Whiting, 6 How. 352. And since by the decree creditors are prevented from suing, it suspends the running of the statute of limitations upon their demands. Hendricks v. Pugh, 57 Miss. 157. If the decree should be reversed and the account stated on the basis contended for by the appellant as to all claims properly chargeable on the lands and not barred by limitation at the date of the decree of insolvency, the result would be to increase rather than to diminish the decree against him. Without, therefore, deciding whether there was or was not any error in the method directed by the Chancellor for stating the account, it is sufficient to say that if there be error it is more than counterbalanced by the allowances erroneously made in his favor, and he cannot complain of the final result. The decree is therefm'e affirmed.