Westbrook v. Munger

Campbell, J.,

delivered the opinion of the court.

We reject as unmaintainable all of the grounds of defence urged by the counsel for the appellees, except that arising from a sale of the land to Munger, and a devotion of the proceeds to the purposes of the estate of Moye, by paying two thousand dollars to the administrator, Wesson, directly, and two thousand dollars to lawyers employed by the administrator for the estate. The devotion , of the land to the uses of the estate by the joint act of the administrator and the heirs in whom the legal title was put an end to all claim by the estate or its representative against the land. It was not the property of the estate, but only a security for the sum of money belonging to the estate which was invested in it, and when the representative of the estate consented to a sale of the land and received the proceeds no further claim could be made against the land by him, and as he could not assert a claim against the land, the creditor of the estate cannot, because he can claim only through the administrator. This defence seems to be established by evidence, but it is not pleaded or hinted at in the answer, and we have doubted whether it can be made available in the present state of the record; but as the evidence shows this state of facts, and it was passed on by the Chancellor, and has been argued by counsel here without an allusion to the non-existence of any such defence in the answer, and as the three Munger heirs, parties defendant, are infants, who defend by guardian ad litem, and entitled to protection by the court, without regard to the pleadings interposed in their • behalf, our conclusion is to sustain this defence.

We are informed by counsel that the Chancellor decreed for the defendants on the above ground and another, viz.: the devotion by the Dancys of about fifteen thousand dollars of their money derived from the sale of land in Noxubee County to the payment pro tanto of the Westbrook decrees. In our opinion, this did not present any reason for denying the claim of the appellant to be paid the balance due him out of the assets of the estate of Moye. He was not equitably estopped from this by the fact that the Dancys, who were heirs of Moye’s estate, had paid money of their own to discharge the estate. By accepting payment he did not lessen his right to go for the balance. ' If the heirs chose to pay the debt in whole or part which bound the estate, that worked no result as against the creditor, except to bar him from claiming against the estate what had been paid him in behalf of the estate. The Dancys were the heirs. They recognized the decrees as charges against the estate, which was their own. They desired to free it from this charge an'd devoted their means to that purpose. They did not thereby acquire any right or equity against West-brook, and it is wholly immaterial whether they ever got back from Moye’s estate any part or all of the fifteen thousand dollars or not. Whether they did or not-makes no difference, so far as Westbrook is concerned.

This was not a payment by the Dancys for the Oliver land, and was not so treated by them, and cannot be by the court. They were not regarded as debtors to the estate for the purchase-money of the Oliver land, and the sum they had received in their unpaid bid for that land was treated as distributed to them subject to be recalled for a future exigency.

Without further notice of the various grounds of defence, the decree is

Affirmed.