Thompson v. State ex rel. Harris ( 1846 )

Dorsey, J.,

delivered the opinion of this court.

The county court, we think, erred in over-ruling the appellant’s demurrer to the appellee’s first rejoinder to the replication filed by the plaintiff below. By the express terms of the 22nd section of the act of 1820, ch. 191, the bond before us is required to be, and, in effect, is conditioned for the payment over of the purchase money, for which the land sold to the representatives of the deceased, “in such proportions as each may be entitled to, agreeably to the order of the court.” Until, then, the court has passed an order ascertaining the proportion to which a representative is entitled, non-payment, as to him, is no such breach of the condition of the bond as would enable him to maintain an action upon it. The first rejoinder of the appellant denies the passage of any such order by the court before the institution of this suit, and the demurrer admits the truth of such denial. It hence follows, that the rejoinder demurred to, was a bar to the action; and that the demurrer ought to have been ruled good, and judgment of non suit entered against the appellee. It is true that this court, in the case of Ridgely vs. Iglehart, 6 Gill & Johns., 49, did intimate a doubt whether the words in the 22nd sec. of the act of 1820, chap. 191, “agreeably to the order of the court,” were intended to relate to the proportions to which each of the heirs might be entitled. But after mature reflection, and a thorough consideration of the subject, we are satisfied, that the words in the act of Assembly and bond, “agreeably to the order of the court,” ■do apply to an order of the court in relation to the proportions of the representatives of the intestate, and not to the mere order of the court, directing the bond to be given to the State. The court, however, in Ridgely and Iglehart, (which was a proceeding in chancery,) conceived, no matter what construction, in this respect, should be given to the terms referred to in the bond and act of Assembly, that a court of equity could, for the reasons assigned, grant the relief sought by the bill, and enforce the lien of the purchase money upon the lands sold, and render full and adequate justice to the parties concerned. According to the strict and technical rules of the common law, we are of opinion, that no recovery can be had in the action on the bond before us, without the preliminary order as to the proportions of the representatives of the intestate.

The correct determination of the issue in law definitively settling against him the right of the appellee to the prosecution of his suit, there remained no ground for the trial of any issue in fact.

The judgment of the county court is reversed. No procedendo will be awarded.

JUDGMENT REVERSED.