Coker & Co. v. McConnell ( 1898 )

Little, J.,

dissenting. One who buys land sold under execution by the sheriff is bound to pay for the same. The fund arising from such sale can not be distributed by the sheriff except at his own risk. That officer is bound to bring it into court for distribution. Nor can the purchaser retain in his hands a part of the purchase-money, under an arrangement made with one of the administrators of the defendant in execution to allow such part of the purchase-money to be applied by the purchaser on a debt due to him by one of the administrators individually, without showing that there were no creditors of the intestate who were entitled to prior payment. Funds in the hands of an administrator are not his individual funds; and this is true even if the administrator is an heir at law, and would be entitled to a part of the fund remaining over after payment of the execution under which the land was sold. In this case the plaintiffs in error bought a tract of land for six hundred dollars at sheriff’s sale, under an execution against the estate of Howell. By an agreement with one of the administrators of the estate, the plaintiffs in error appropriated to the payment of an individual debt, due to them by the person who was administrator, a part of the purchase-money; and on a suit brought by the sheriff to recover the amount of the purchase-money, they set up as a defense that this balance had been settled with J. S. Howell as administrator, who was one of the heirs at law of the intestate and entitled to one fifth of his estate, and that the sheriff acquiesced in such settlement. It is sufficient for my purpose to say, that primarily the administrator had no right to appropriate any part of this fund to the payment of his individual debt, and the plaintiffs in error had no legal right to receive it, and they were liable to the sheriff for its payment. If it be true that Howell, the administrator, was entitled to a particular part of the purchase-money, I see no reason why, upon proper proceedings in the court, that part might not be awarded to a creditor of the heir at law. But in order to authorize this to be done, it was necessary to show that there were no creditors of the intestate who were entitled to this fund before the heir at law could receive any part of it. The record in this case is ominously silent as to whether there are any such creditors, and in the argument it was neither asserted nor admitted that there were none. No part of the purchase-money of this land belonged to the heirs at law until the creditors, as well as the expenses of the administration, had been paid. I am therefore of the opinion that a recovery against the purchaser was right and legal, and that the fund should have been brought into court for distribution according to law.