Joslin v. Caughlin , 27 Miss. 852 ( 1854 )

Mr. Justice Fisher

delivered the opinion of the court.

The note upon which this suit is founded, was given, by the defendants to secure the purchase-money agreed to be paid on account of a slave purchased by one of the defendants as agent for his wife at a public sale made by the plaintiff as executor of the last will and testament of John Joslin, deceased.

The defendants insist that this sale was void, and that no title passed to the purchaser of the slave. The plaintiffs, upon the cause being remanded to the court below, replied, among other things, to the plea setting up the invalidity of the sale; that the purchaser still retained the quiet possession and enjoyment of the slave. The defendants demurred to this replication,, and the court sustained the demurrer.

It may be safely admitted that the sale was absolutely void; yet so long as there is no offer to return the slave to the plaintiff', the defendants ought not to be countenanced in a defence resisting the payment of the note. The defendants, by their pretended purchase, got possession of the slave. They show that the plaintiff sold as executor under a void order of the probate court. If this be true, the property is still unadministered according to law, and they, by retaining possession, prevent the executor from performing his duty, in having the property legally administered or disposed of according to the terms of the will. The executor must make a legal disposition of the slave, or on failure to do so, be answerable in damages. If he should be held accountable for the value of the slave, then he should be permitted to collect the note as the only means of reimbursing himself. But it is not necessary that we should decide more than the first point, that the defendants not offering to return the slave have no right to resist payment of the note.

Judgment reversed, demurrer to replication overruled, and cause remanded.