| Miss. | Apr 15, 1905
delivered the opinion of the court.
The chancellor ruled correctly on every important proposition of law presented for his consideration.
ITis ruling in suppressing the deposition of Sullivan is sustained by firmly established principles. It was manifestly incompetent as contravening the statute,, which forbids a claim against the estate of a deceased person which originated in the lifetime of the decedent being established by-the testimony of the person asserting the claim.
The chancellor correctly held that the sale made by virtue of the decree in the first partition suit was void, and passed no title out of the owners. Regardless of other causes, it appears that the terms of the decree directing sale were not complied with, the purchase money was not fully paid, the note for the deferred payment was not given, and no commissioner’s deed was executed in pursuance of such sale. But while it is true that the sale under the first partition vested no title, yet it appears from the testimony of the special commissioner that certain moneys paid by the bidder at said void sale were applied to the satisfaction of a tax lien which Anderson held on the land at the time of the sale, and this payment by operation of law subrogated him to the rights of Anderson. Therefore the decree here under review should have directed the payment of the $35 to W. V. Sullivan instead of G. W. Anderson, Anderson having already been paid in full with Sullivan’s money. And, as this sum was expended for the protection of the entire estate, he was entitled to a refund of the same. It also appears from the testimony of the special commissioner that $22.20 of the money paid by Sullivan under the void sale was paid to complainants in the original suit through their solicitors. This statement, being uncontradicted and unexplained, leads to the conclusion that Sullivan would be entitled to receive a credit for this amount as well, and that the same should be charged against the appellees who received this sum, and deducted
The chancellor correctly held that appellants were not entitled to credit for the money applied to tire payment of attorney’s fees and court costs in the original proceeding.
We would, as requested, modify the decree in this court without remanding the cause, but the record fails to disclose which of the complainants in the original suit received any portion of the proceeds of the first sale; hence we are unable to say to whose interest it should now be charged.
The decree is affirmed in all matters save as to the' application of the two items of $35 and $22.50, and the cause is remanded for entry of decree as to these sums in accordance with the views herein expressed.
Modified and remanded.