Harmon v. Durham , 3 Wend. 367 ( 1829 )

By the Court,

Marcy, J.

Two objections are urged against the rejoinder: 1. That it is a departure from the plea; 2. That the matter set up by it is no answer to the replication.

The rules in relation to a departure in pleading do not, I apprehend, strictly apply to this case. The replication sets up matter happening since the plea, in avoidance of it. The object of the rejoinder is to answer this new matter; and as it has happened since the plea pleaded, it is not reasonable to require .the rejoinder in such a case to pursue and fortify the plea as strictly as it must do in the ordinary course of pleading. The objection to the rejoinder as a departure from the plea is not well founded.

The covenants being cancelled and annulled by Willinck and others, no action against the defendant can ever be sustained on them. He does not therefore owe a debt by specialty to them. By what authority then can he retain against the claim of the plaintiff?

The principal of law which makes it the duty of an administrator to pay what is due on a contract for land out of the personal estate for the benefit of the heirs, settles nothing as to this case. When the administrator has nothing that he can by law retain, the obligation to pay, on such a contract, no more exists than it would if no assets had ever come to his hands. The heirs of the intestate, and not the administrator, had an interest in the contract annulled, and it is for them to object to the act of the vendors in annulling it. They doubtless can, if the contract has not become forfeited, compel a specific performance in a court of equity; but it can never be the duty or the right of the administrator, after the covenants are annulled, to retain against the claims of creditors the assets, and apply them to set up a contract for the benefit of the heirs. The question would present itself in an entirely different aspect, if, after the payment of the debts of the intestate, there was enough left of the personal effects to discharge what was due on the contract at the time of its cancelment by the vendors.

Judgment for plaintiff on demurrer, with leave to defendant to amend.