Bohannon v. Fulton, 31 Miss. 348

Bohannon v. Fulton

31 Miss. 348 | Miss. | 1856

Fisher, J.,

delivered the opinion of the court.

The defendants in error were sued in the Circuit Court of Kem*350per county, upon a promissory note, which they had given to secure the purchase-money of certain slaves, sold by the plaintiffs as executors, &c. The defence set up was, that the executors sold the slaves under ah order of the Probate Court, made without notice to the legatees under the will, or to the heirs of the deceased. The court overruled a demurrer to the plea, setting up this defence. But upon a trial upon the merits, a verdict and judgment were rendered for the plaintiffs below.

We have deemed it unnecessary to notice the bill of exceptions, as the defendants below could do no more than prove the truth of their plea; and proving it true, it is still insufficient. It may be conceded, for the sake of the argument, that the slaves were sold under a void order of the Probate Court, yet the defendants might be liable upon their note. By their purchase they acquired possession of the slaves; and if the sale was void, they should instantly return the property to the executor, to be administered in due course of law. The executor stands chargeable with the estate, and, to rid himself of responsibility, he must show a legal administration. If he should fail to account to the legatees for these slaves, he may be held liable for their value. Parties, therefore, who set up the illegal action of an executor or administrator, as a defence for not performing their contract, ought either to return or to offer to return the property, which they admit that they have acquired in violation of the rights of others. Their defence proceeds upon the ground, that the representative of a deceased person should conform to the requirements of the law in disposing of the estate in his hands. Knowing such to be his duty, and that he has failed in his duty in this respect, every principle of justice and common honesty ought to admonish them to return the property to the representative, that it may be administered according to law; or, if they are not disposed to return it, they ought not to object to paying, according to their contract, as this is the only indemnity which the administrator or executor can have in the event of his'being held liable by those interested in the distribution of the estate. -

Judgment affirmed, as the result is right.