same lot; the two former levies being at the time suspended by the appraise-
ment of the land, and its failure to bring the two thirds of the appraised
value, the land under this last levy was appraised subject to the former in-
cumbrances at $10,842, and was sold to Helm for $7228; being two
thirds of the last appraisement; Helm afterwards purchased the Planters'
Bank and Parker judgments, and was proceeding to enforce them out of
other property of the company; whereupon the company filed their bill to
enjoin their collection and procure their satisfaction: Held, that Helm having
bought the property subject to those incumbrances, was bound to extinguish
them, and could sell no other property under them but that which he had
bought; and if the company had paid any part of these judgments before
Helm purchased them, he must refund them the money so paid. 1b.
11. A purchaser of property at sheriff's sale, who settles his bid with the plaintiff
in execution, by a debt he holds against the plaintiff, is as much a bonâ fide
purchaser and entitled to the property, as if he had paid money; and it
makes no difference if the judgment under which he purchased is after-
wards reversed. Ib.
12. Where a judgment has been rendered in an attachment suit at law against an
absconding debtor, which is levied upon land, the proper process to issue,
under the statutes, to enforce the judgment, is an execution commanding the
sale of the specific land levied on; yet if an ordinary fieri facias issue, gen-
eral in its terms, and the specific land attached be sold under it, the pur-
chaser will, in the absence of proof that he had any notice of the irregu-
larity in the process, acquire a good title.
Swayze et al, v. McCrossin, 317.
13. After a sheriff has made a sale of real estate under execution to A., and
subsequently, at the request of A., his bid, by B.'s consent, is transferred
to B., who assumes to the sheriff to pay it, and fails to do so, the plaintiff
in execution cannot have the property resold, and hold B. liable for the
difference between the first bid made by A., which was assumed by B.,
and
what the land sold for on the last sale. In such case, the first sale would
not be obligatory on B. as a sheriff's sale. Mathews v. Clifton, 330.
14. The law requires a man to devote the whole of his property, with some
trivial exceptions, fairly to the payment of his debts; it will not tolerate
any subterfuge or device which is intended to divert it from that purpose.
The form of the contract or transaction gives it no validity when good faith,
which is necessary to the obligation of all contracts, is absent. A sale
under execution confers no exemption from this principle in behalf of those
who participate in such device. Trimble v. Turner, 348.
15. Where a sale under execution is so conducted by collusion between the plain-
tiff and the purchaser of the property levied on, as to cover the title to a
much larger amount of property sold under the execution than is necessary
to satisfy it, for the benefit of the family of the defendant in the execution,
it will be fraudulent; and no feeling of sympathy or benevolence of motive
on the part of those engaged in the transaction can redeem it from the
condemnation of the law.
16. It was agreed between a judgment creditor and a third party, that the latter
might purchase, under a sale upon his execution against his judgment
debtor, certain slaves of the debtor, which had been levied on, and, instead
of paying cash for them, as were the terms of the sale, might have a credit
which was agreed on; the purchaser bought for the benefit of the judgment
debtor, through whose active exertions on the day of sale, in preventing
bidders, the property levied on brought less than its value, and who expect-
ed, out of his crop then in the ground, and a sale of part of the property,
to meet the price the purchaser was to pay at its maturity; the sale took
place nominally for cash, but really on this credit, at a season when money
is always most scarce; and the property, after the sale, remained with the
judgment debtor, who paid the price bid when due: Held, that this sale was
fraudulent as to creditors, and the property purchased subject to the other
debts of the judgment debtor. Ib.
17. The principle which protects sales at execution from the presumption of
fraud where the original owner is left in possession, does not apply to a case
where, previous to the sale under the execution, an agreement is made
between the plaintiff and the purchaser that the latter shall buy at the sale
upon a credit agreed on; in such case, the sale is but a private one. 16.
18. While personal property under mortgage is not subject to seizure and sale
under execution, or ordinary attachments at law, a different rule prevails as
to distraints for rent, under the statute (Hutch. Code, 810, § 10,) which pro-
vides, that "any limited property or interest" in the goods and chattels
attached, may be distrained and sold for such interest as the tenant may
have. Prewett v. Dobbs, 431.
19. It seems that alleged fraudulent conduct, on the part of a sheriff about to sell
real estate under execution, by which he induced one interested in the sale not
to be present, under a promise that he would not sell, will not vitiate the sale
made by the sheriff to a purchaser for a valuable consideration without notice;
yet if, in a bill against such purchaser and others, to set aside such sale, the
complainant allege the facts, and without specifically charging notice upon
the purchaser, states that they amount "to a fraud upon his rights,” such
general charge must be answered by the purchaser, or a decree will be ren-
dered for complainant. Rollins v. Thompson, 522.
20. The question, whether the redemption law of 1842 (Hutch. Code, 919), is
constitutional or not, presented by this case, not decided because not neces-
sary to a decision of the case; its adjudication reserved for a case which
imperatively demands its determination. Ib.
21. Lands under mortgage are not subject to sale under execution against the
mortgagor, on judgments junior to the date of the mortgage; and it is incum-
bent on the purchaser at such a sale, who claims title thereunder, to show
affirmatively that the mortgage has been extinguished.
Henry v. Fullerton, 631.
22. In a controversy between judgment creditors, for the appropriation of money
made on execution, where all the judgments were rendered before the act of
limitations of the 24th of February, 1844, and the execution sale took place
after the 24th of February, 1846, the execution first levied on the property
sold will be entitled to the money, without regard to its date of enrolment.
Heizer v. Fisher, 672.
23. If, however, there be a judgment rendered against the same defendant, subse-
quent to the 24th of February, A. D. 1844, it will, if duly enrolled, be enti-
tled to prior satisfaction; inasmuch as the general lien of such judgment will
be in full force for seven years. Ib.
24. Where, on motion of the sheriff in the court below, to appropriate money
on several executions, that court awards the sum to a particular one, from
which decision only one of the excluded parties appeals, the high court in re-
versing the judgment will order the money to be appropriated to that creditor
entitled to it in the court below, without regard to the fact of his having made
no objection to the decision there. lb.
25. It is the duty of the sheriff, when he has raised money by execution sale, to
examine the docket of judgments enrolled under the act of February 24, A. D.
1844; and to appropriate the money made to the oldest lien, even though he
had no execution on the judgment having this prior lien, in his hands at the
time of sale; and this is the case whether such judgment having the prior
lien be rendered in the circuit court of the United States, or any of the courts
of the state. Bonaffee v. Fisk, 682.
26. Whether if the decision of the supreme court of the United States, in Massin-
gill v. Downs, 7 How. (S. C.) Rep. 760, were regarded as authority in this
state, holding that the registry law of 1841 of this state did not apply to judg-
ments rendered in the United States courts, a different construction of the act
of 24th of February, 1844, would not be given so as to exclude judgments in
the United States court from a right to appropriation of money made.on exe-
cutions from the state courts. Query? Ib.
27. Before a joint maker of a note, against whom a judgment is rendered in con-
junction with his co-maker, can, under the act of 1822, (Hutch. Code, 558,)
prevent a levy of the execution upon his property, on the ground that he is
a mere surety of his co-maker, and that his principal has property in the
county, he must make oath that he is only surety; and this rule is not
changed by the act of 1837, which forbids the creditor levying on the prop-
erty of a surety or indorser, without having first made and filed an affidavit
that the principal has no property in the state, out of which the money can
be made. The latter act applies to the case where the fact of suretyship or
relation of indorser, as required by the law, is placed upon the execution;
but where the relation of surety or indorser does not so appear, the act of
1822 is in full force. Walker v. Gilbert, 693.
28. It is therefore no foundation for a supersedeas of an execution against one,
who, being a defendant in a joint judgment, alleges himself to be a mere surety
therein, that the creditor has levied it on his property without having made
the required affidavit that the principal had no property in the state. He
should have first filed his own affidavit that he was a surety; without which
no affidavit could be required from the plaintiff. Ib.
EXECUTOR AND ADMINISTRATOR.
1. An administrator in the sale of his intestate's property sells only the title of
the decedent as it exists, neither more nor less; he makes no warranty; if he
were to do so, it would probably only bind himself individually, and not the
estate which he represents; and if he make no covenants for title, the pur-
chaser takes the risk of the title. Mellen v. Boarman, 100.
2. If an administrator make representations at his sale, which mislead the pur-
chaser, they may constitute a fraud on the purchaser, but not a covenant.
Ib.
3. If, in an administrator's sale, there be neither fraud nor warranty, and the
sale be regular, the purchaser is bound to pay his bid. lb.
4. An administrator sold a lot belonging to his intestate; and at the sale it was
proclaimed by a surety of the intestate, that the latter had not paid all the
purchase money of the lot, and he as surety had paid part, and intended to
claim his right to be subrogated to the lien of the intestate's vendor; the
administrator stated at the sale, that he did not think the claim could be
maintained; the purchaser heard both statements: Held, that the purchaser
who afterwards arranged the claim of the surety, by giving him half the lot,
could not set up, when sued on the note for the purchase money by the
administrator, either a failure of consideration; or set up an offset against it
for the amount thus settled with the surety. Ib.
5. A debt due by a deceased person, is not an offset under the statute of 1840,
(Hutch. Code 854,) to a note given to the administrator for property pur-
chased at his sale of the intestate's property; and this is especially so where
the estate is insolvent. Ib.
6. The personal property of a testator, specially bequeathed by him, is subject
to be sold under execution against the executor, issued upon a judgment
founded on a debt of the testator, obtained against the executor after the
property had passed into the hands of the legatee with the assent of the exe-
cutor, and had, upon the legatee's death, passed to his distributees.
7. The case of Turner v. Chambers, 10 S. & M. 308, in so far as it undertakes
to declare the remedy of a judgment creditor of a deceased person, after dis-
tribution of his property, to obtain payment of his debt, to be in equity, de-
cided to be in conflict with Brooks v. Lewis, 1 How. 207; and Vanhouten v.
Reilly, 6 S. & M. 440, and not to be law. Ib.
8. An administrator to whom a debt is due by the estate, for money expended by
him in the course of administration, has a right to retain it out of the funds
of the estate; but if he omit to do so, and resign his letters, he must occupy
the place of a creditor of the estate. Fort v. Battle, 133.
9. However illegal the course of administration of an administrator, yet the dis-
tributees may waive the objections to it, and ratify his acts; and if they
agree to submit his actions to arbitrators, and approve the award of the ar-
bitrators in favor of the administrator, the distributees cannot be heard after-
wards to complain. Ib.
10. It seems that where an administrator's final account has been presented, and
an order made on the records of the probate court, that "the final account
be filed and recorded," though no formal judgment of allowance be entered,
yet it will be a sufficient judgment of ratification of the account. lb.
11. The judgment of the probate court, allowing the final account of an adminis-
trator, is void, unless the notice required by statute be first given; and this
notice the record must show affirmatively. 16.
12. Where the distributees of an estate, some adult and some minors, cite the ad-
ministrator to a settlement, and his accounts are made out and allowed; they
will be final and conclusive without further notice, because the parties are in
court; but if the proceeding by the distributees be withdrawn, and the mat-
ter submitted by the parties to arbitration out of court; and the accounts are
stated, and an award made, which account and award are afterwards ex-
amined and allowed by the probate court, to make the latter allowance bind-
ing as a judgment of the court, notice must be given according to the
statute. Ib.
13. It is error after an estate has been in the course of administration several
years, to enjoin the administrator from making distribution; the distributees
are entitled to distribution after one year. Ib.
14. An administrator has nothing to do, unless the estate be insolvent, with the
realty of his intestate; upon the death of the latter, it passes at once to his
heirs. Bullock v. Snead, 293.
15. Therefore an administrator, against whom as such a judgment at law has
been obtained by a creditor of the deceased, cannot, by bill in equity, have an
indebtedness of such creditor, for rent of land which belonged to the intes-
tate, accrued since the intestate's death, set off against the judgment in the
creditor's favor. The rent belonged to the heirs, and not to the adminis-
trator. lb.
16. An administrator, as such, and by virtue of the law of this state, has no
power to collect assets of the estate in another state; but if he do so, and
bring such assets into this state, and subject them voluntarily to the order
of the court of probates in this state, they must be governed by the same
rules with the assets in this state. Satterwhite v. Littlefield, 302.
17. An administrator, by the laws of this state, is entitled to a commission of
from one to ten per cent. on the whole amount of assets administered, for his
compensation, to be allowed by the decree of the probate court; this is his
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