Sloan v. Mendenhall

John S. Dare on ti e death of.bis mother became the owner of the hoce and lot, in ice simple, as her heir at law subject to a power of sale by her adminis--trator in the event, that a sale was necessary for the pay-mem of her debts.

Die plaintiff? by the suits and judgments'undeT their at-tachmer.is, acquired a Hen on the hcu<-e and fot, and but for V c cerche of the power of sale by the administrator cf Mm. .VPtehell, tlmy would ! a?*:- been m-tiCcd to have the house and In' told tor the payin'-nt of thair debts. Havii.<? been <?op dved "f tins right at lew, by the sale of the rdmirblrstor. the <p;c.eJon is, whether they are not entitled in j, <'•; hit ofe-mity to if ¡low the innd in the bands of the who:nisir, for, and he e if oppliwl in disdiarge of their debts, a few 'fedfifeiry ¡be io-iount1 pplied by the ad~ inlnisUvbv in p iVi-cnf «T d;c deh-ia r?h'-. ir.tr afrie.

"We 0 ink the .-^uify ;) eh-.-í ■-.no. The pfe.inhffa lu¡d ac-ai-d bji-vo ;.n uy 1 'improperly v;r to ¡he crb'.h.V: (joven .. '.¡or iv.k.’hL l.i t!\:; j 1 .. t 1-c. .. lije V. ’V *y.t her. (S' fee v Tiffs br.\ h- - h -d i:e rlcb. (lei'i-sub-'.t 1 >: handy of tb.o udmhds'r.dor, Bueh, or a-, the ey nl of IX ’ • la-l'u'a t d ficm the ;;:‘d ~rfor : ever v.liich ? t o? the cater. The 1 co, it fci'os, e -jliat the ■’irpoao of the fund in the bad the a«h;rh.h;i.raior as r-y right to vial.a an application of the teed rern'-dning in Ida luvuds, after discharging t.he.debf-: of. iris intestate.

It is pv-.-peily conceded that the deed executed by Dare to It, M. Lindsay is of no effect, and it is equally dear that the plaintiffs' J and II. £Hoan me not estopped by receiving *4a part of the fund, from sotting up their equity to have such an amount as may bo necessary, applied to the payment of their debt, as they had acquired the first lien.. The administrator, if be was in doubt as to the right of the creditors of .Dare, ought to have retained the fund and filed a bill of interpleader. As two of the plaintiffs Sloan and Lindsay, were sureties on the debt of R. M. Lindsay, to which the administrator applied the fund, he is entitled to a credit as against them, fo«* a rateable part of that debt; that is such as they were bound to pay upon contribution with the other sureties of Dare.

There will be a reference to ascertain this amount and show the sama to which the plaintiffs are respectively entitled» ' * •