Lathrop v. Masterson ( 1876 )

Gould, Associate Justice.

Where the purchaser at administration sale is satisfied with his title and retains possession under his purchase, it is not competent for his surety to set up as a defense that the sale was invalid; at all events, not without making his principal a party to the suit.

In this case it appeared from the averments of the petition that Overton, the purchaser, was dead, and that the note sued on had been established against his estate as a valid claim, secured by lien on the lots bought. Masterson, one of the sureties on the note, being alone sued, his defense was, that the lots sold were the homestead of the intestate at the time of his death, and were still subject to the homestead claim of bis minor children. We do not think this a defense which he could set up whilst the estate of his principal continued in the possession of the lots bought, and the validity of the sale was not only not impeached by the representative of the estate, but was indeed affirmed by the acceptance of the note as a valid claim. It is unnecessary to inquire whether, if this defense had been set up by the purchaser, it would have been sufficient without some allegation of fraud or mistake, or without further averments showing that the sale had not been made to satisfy a vendor’s lien on the homestead, or was not otherwise in the exercise of the legitimate powers of the court. We think the special answer set up no valid defense, and the judgment is affirmed.

Affirmed.