31 Miss. 353 | Miss. | 1856
delivered the opinion of the court.
The only question presented in this case is, whether a bill filed to enforce the vendor’s lien, for unpaid purchase-money, against the administrator of the purchaser, before the expiration of nine months from the date of the letters of administration, can be maintained.
The statute provides, “ that no suit or action shall be brought against any executor or administrator, in such capacity, till after the expiration of nine months from the date of proving the will, or granting letters of administration. Hutch. Code, 674. Its policy was to allow time to administrators to examine, and understand the condition of the estate; to provide the means of paying its debts, if practicable, without suit, by collecting its assets; and to be advised in relation to any demands against it, which it might be necessary to defend; The exemption is broad, and applies to all suits and actions against administrators, in which they are necessary parties.
In a proceeding like the present, the administrator is a necessary party, because the demand is sought to be enforced as a debt of the estate, for which the personal assets are primarily liable. Story, Eq. PI. § 177. The course is, first, to establish the debt, and then to decree that, unless it be paid out of the personal
Under this view of the case, the bill was prematurely brought, and the decree must be reversed, and the bill dismissed.
A re-argument was asked for, but refused.