Washington v. McCaughan

Fishbe,, J., delivered the opinion of the court. Tbe defendants below pleaded that the obligation, upon which the suit was brought, was given to secure the payment of the purchase-money of certain real estate, sold by the plaintiff as administrator of the estate of one Randall Bingham, deceased, under an order of the Probate Court of Harrison county; and that the plaintiff omitted to execute a bond at the time of obtaining the said order, as * required by the second section of the Act of the 16th of December, 1830. To which the plaintiff replied, that it was .true he failed to execute said bond, because the sale was not made under the provisions of the said statute, but under a different statute, for the purpose of making partition and division among the h'eirs-at-law. To this replication the defendants demurred, and the court sustained the demurrer; but, upon other issues, rendered a judgment final for the plaintiff. The whole merits of the controversy being presented by the demurrer to the replication above set forth, an examination of the other issues is unnecessary. When the court sustained the demurrer to the replication, it was equivalent to saying that the plea, the truth of which was confessed by the replication, was sufficient in law to bar the plaintiff’s action; and, conceding that the demurrer was well taken, the court should have rendered a judgment final for the defendants, unless the plaintiff desired to interpose another replication. The object of the plea was to show that the sale was invalid, and the obligation consequently without consideration. If it were true that the Probate Court proceeded under the provisions of the Act of 1830 to order the sale of land, the order not requiring the administrator to execute the bond required by the second section of the act, would, of course, upon familiar principles, be void, for the reason that it was not enough that he should be empowered to make the sale, but that he should be bound also to apply the money in the mode prescribed by the statute. The plea then setting up a [308] good defence, the question is, whether it was sufficiently avoided by the replication, which alleges that the sale was made for partition and division under the provision of the Statute of the 26th of November, 1821, and that no bond was required under the terms of this latter statute. It will be sufficient to remark on this subject, that an administrator can only be empowered by the Probate Court to sell real estate in those cases, where the power is expressly or by necessary implication given by the statute. The section of the statute relied on to sustain the replication, clearly means that the application to sell land, when an equal division cannot be made, shall come from some one or all of the parties interested in the division, and the application could not, therefore, be made by the administrator. The subject was one in no manner connected with the administration, and the power to sell could not be conferred by the court upon the administrator or any other person, except at the instance of the heirs-at-law, by a proceeding instituted by them for that purpose. The replication, therefore, so far from sustaining the sale, showed it to be absolutely void. This issue presenting the whole merits of the controversy, the court should have rendered a final judgment on the demurrer for the defendants. The fact appeared that the defendants were in the peaceable and undisturbed possession of the land, and upon this state of the case it may be presumed that the judgment was rendered below for the plaintiff. The rule is now firmly settled in this court, in regard to a sale of personal estate by an administrator, that the purchaser retaining possession, and not offering to restore the property to the administrator, shall not be permitted to resist the payment of the purchase-money on the ground that the sale was invalid. The administrator, in regard to personal estate, holding the title in trust for creditors and distributees, is bound to account for the property or its value ; and it is in virtue of this liability to account, that a purchaser will not be allowed to retain the property, and at the same time resist the payment of the purchase-money. But the case is wholly different in regard to real estate: the administrator is responsible for nothing until he shall have made a sale under the authority of the Probate Court, legally authorized. In this case, upon the administrator’s own showing, he could not be clothed with any authority whatever to make the sale. Nor is he entitled to the [309] rents and profits of tbe land, nor to the possession, if the defendants were to offer to restore it to him; or, in other words, he cannot be injured or subjected to liability on account of the defendants’ acts. Judgment for the plaintiff below reversed, and judgment on the demurrer to the third replication for the defendants.