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whole compensation for the labor, expense, and responsibility of the ad-

18. An adıninistrator cavnot, therefore, be allowed any thing for his expenses

incurred in the administration of the estate, nor fur lawyers' fees incurred
by him in the course of his administration, to enable him to administer the
estate properly ; but if he have to bring suits for the estate, or defend those
brought against it, he is entitled to employ counsel for that end, and pay for

the services out of the estate. Ib.
19. It seems, however, that if an administrator have charged the estate with

travelling expenses and counsel fees, and, in allowing his account, the
probate court do not allow the entire sum charged by the administrator to
have been paid out by him, and the administrator appeal therefrom, the
high court of errors and appeals will not set aside the allowance in his

favor, as the distributees made no objection to it. 16.
20. If, after twelve months from the grant of administration, the administrator

permit money to lie on hand without any good reason, or if he use the
money himself, he will be liable for interest ; he himself must show the

necessity or reason for keeping it. Ib.
21. The probate court is not bound by the rules which regulate proceedings in

chancery ; it may refer an administrator's account to the clerk to report
thereon, and, without waiting for the report, may examine and decree upon
the account directly; and, if the decree be otherwise correct, it will not be

disturbed because rendered before the clerk made his report. Ib.
22. It is in the discretion of the probate court to fix the amount of the commis-

sions allowed administrators and executors within the limits fixed by law;
it is so much a matter of discretion with the probate court, that the high
court of errors and appeals would not interfere with an allowance by that
court, unless where there had been a manifest abuse; and in this case it did

not so consider an allowance of three per cent. Ib.
23. An administrator or executor of an insolvent estate is under no obligation to

lay before the commissioners of insolvency a claim upon which a suit was
pending against him prior to the declaration of insolvency, and not reduced to
judgment when the commissioners were appointed ; nor if such claim be laid
before the commissioners and rejected, is the administrator or executor
under any obligation to file exceptions to the report of the commissioners to

the probate court, exhibiting such rejection. Trezevant v. McQueen, 311.
24. Where, therefore, a creditor of a deceased person sued the administrator, and

pending the suit the estate was declared insolvent, and commissioners were
appointed, who in due time reported, excluding the claim sued for, and the
report was confirmed without exceptions from the administrator, whereby
the estate of the deceased person was discharged from the debt, and the
creditor sued out a scire facias to charge the administrator with the debt as
for a devastavit : it was held, on demurrer to the scire facias, that it pre-
sented no cause of action against the administrator. Ib.

25. The case of Trezevant v. Mc Queen, 12 S. & M.575, cited, and its reasoning

and expressions, as to the liability of administrators for not presenting to the
commissioners of insolvency claims against the estate on which they are

sued, limited and overruled. Ib.
26. The mere fact that a former administrator had in his possession a note of a

third party, due to his intestate, is not an administration of such note; nor
will his ceasing to be administrator, and delivering the note over to the
guardian of the children of his intestate, make the note any the less assets,
which may be administered by an administrator de bonis non.

Morse v. Clayton, 373.
27. Where a note secured by mortgage is payable to a deceased person, no one

but his administrator can enforce the collection of the note by the foreclosure
of the mortgage; nor will it be any obstacle to the administrator's right to
foreclose, that by some means a judgment has been had at law on the note

against the maker in favor of the guardian of the heirs of the payee. Ib.
28. The 12th section of the act of limitations of 24th of February, A.D. 1844,

which provides that no action at law or in equity shall be brought against
an executor or administrator, after the expiration of four years from the
qualification of such executor or administrator, is prospective, and applies
only to administrators appointed after the passage of the act.

West Feliciana Railroad v. Stockett, 395.
29. Were it otherwise, and the act to be construed to embrace administrators ap-

pointed prior to its passage, and the limitation to commence running as to
them from the passage of the act, it would not apply to a case where letters
of administration had been granted less than nine months before the act took
effect, until those nine months had fully elapsed; because, until their lapse,
no right of action existed in the creditor, and the limitation had nothing

until then to take effect upon. Ib.
30. However the rule may be with reference to the right to sue the sureties on an

administrator's bond, before the liability of the administrator be fixed, (and
whether the rule as to them be universal or not, which it seems is questiona-
ble,) such rule has no application to suits on guardians' bonds.

Burrus v. Thomas, 459.
31. The statute of this state, which provides that an executor or administrator

shall not be chargeable beyond the assets of the testator or intestate, by reason
of any omission or mistake in pleading, applies as well to executors de son

tort as to rightful executors. Ihill v. Henderson, 688.
32. In an action, therefore, against an executor de son tort, who has omitted to

plead plene administravit, it is error to take a judgment against him to be
levied of the goods and chattels of the testator and unadministered, and if
none, then of his own proper goods and chattels ; the judgment should be as
in the ordinary form against rightful executors. Ib.

See Executor and Administrator.

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When consideration, see Husband and Wife.

1. In an action for unlawful detainer, where a tenancy on the part of the defend-

ant from the plaintiff is shown, it is not competent for the defendant to object
to the want of right of possession or of property in the plaintiff; the tenancy
being proved and its expiration, the right of the plaintiff to recover is clearly

established. Newman v. Mackin, 383.
2. A party in possession of real estate, who is sued for an unlawful detainer,

cannot defeat the plaintiff's right by abandoning the possession to another;
such third party will occupy the same relation to the plaintiff that the de-

fendant did. 16.
3. Where the relation of landlord and tenant is shown to exist between the

plaintiff and defendant in an action of unlawful detainer, it is not competent
for the defendant or one coming in under him, to prove by documentary evi-

dence of title the want of title in the plaintiff. 16.
4. Where, on the trial of an unlawful detainer, the proof was that the defendant,

soon after the institution of the suit, abandoned the possession, and other
persons intruded into the premises, claiming not for her, but for themselves :
Held, that she could not be responsible for the rent which accrued after her

abandonment. Ib.
5. Where the jury, in an action for unlawful detainer, have assessed more rent

than is lawsully due, the plaintiff may, by remitting the excess, obtain a
judgment in the high court of errors and appeals, for what the proof shows
him to have been lawfully entitled to. 16.


See Execution.

1. None but a creditor having a judgment in this state can attack a deed of

trust as fraudulent, with the view of having the property conveyed by it,
subjected to the creditor's demand ; not even though the parties to the deed
of trust are non-residents, and the bill be a creditor's foreign attachment
bill; nor will it aid the creditor that he has a judgment on his demand in the
state where the parties to the deed of trust reside.

Berryman v. Sullivan, 65.
2. Where, after a public sale under a deed of trust of personal property, the

property sold is left in the possession of the grantor in the deed of trust,
no presumption of fraud will arise therefrom ; and if the sale be otherwise
free from fraud, a purchaser under a judgment against the grantor in the

deed of trust, in whose possession the property is left, junior to the
sale under the deed of trust, will acquire no title to the property.

Ewing v. Cargill, 79.
3. Where, in the trial of the right of property, the claimant claims by purchase

under a deed of trust, executed by the defendant in execution of date older
than the judgment, and the jury find for him, such verdict will relieve him

from the imputation of fraud in fact in the purchase. 16.
4. The conveyance of property by deed of trust, which is consumable in the use,

is not in itself fraudulent, unless it be stipulated in the deed that the grantor
may use it; and whatever may have been the intention of the parties, if it
be not so expressly stipulated in the deed, a bona fide purchaser of property
at a sale under the deed of trust, for valuable consideration without notice,

will be protected in his purchase. Ib.
5. A purchaser of land and slaves, under a deed of trust, allowed the grantor in

the deed of trust, out of kindness, to remain upon the property, and exercise
a sort of agency over it for the purchaser, the latter employing an overseer,
and his right as well as the nature of the possession of the grantor in the
deed of trust, under which the purchaser bought, being notorious : Held,
that three years of such possession did not render the property subject to
the debts of the grantor in the deed of trust; it was in fact the possession
of the purchaser, the grantor having no loan of the property or other inter-

est or use in it. lb.
6. A bona fide purchaser for valuable consideration without notice, under a deed

of trust, not void upon its face, cannot be affected by any intended fraud of

the grantor in the deed of trust.
7. When fraud is charged in the bill, it need not be answered, if the bill, admit.

ting the fraud, presents no ground for relief; a bill therefore to enforce a
parol sale of land, charging the defendant with fraudulently refusing to re-
duce the agreement to writing, though it was part of the contract it should be
80 reduced, may be demurred to, without an answer to the charge of fraud.

Bor v. Stanford, 93.
8. A deed made voluntarily, and without any pecuniary consideration,

stand as against a creditor whose debt was valid and subsisting at the date

of the deed. Swayze v. McCrossin, 317.
9. 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.
10. 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. lb.
11. 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.
12. Where a deed or other instrument or transaction is set aside because of fraud

as to subsisting creditors, it becomes wholly void, and cannot stand in the

way of subsequent judgment creditors. Ib.
13. After proof of a combination between parties to a fraud is made, the acts or

declarations of one are evidence against the others. 16.
14. 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. Ib.
15. In this case, one of the questions presented, was, as to the validity of a sale

by one to his brother, and a conveyance by the latter to the wife of the former;
the court review the facts, and reach the conclusion, that the sales were
fraudulent, and made to enable the first vendor to evade the payment of his
debts, and retain his property in his wife's name.

Henry v. Fullerton, 631.
16. Voluntary conveyances are not necessarily void as to subsequent creditors;

the presumption of fraud arising from indebtedness, or fraud in law, may be
repelled by circumstances tending to show the absence of actual fraud ; but
if a subsequent creditor can show fraud in fact, by showing that the convey-
ance was made to avoid future debts about to be contracted, or to defraud
existing creditors, the conveyance is void, not only as to present, but as to
subsequent creditors also; and will be declared so at the instance of such

subsequent creditor. 16.
17. In this case the deed of trust provided that the trustees might sell upon joint

request of B , the cestui que trust, and W., the grantor, or in case B.

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