Sloan v. Mendenhall

John 8. Dare on ihe death of his mother bec'ame the owner of the house and lot, in fee simple, as her heir ; i law subject to a power of sale by her ¡administrator in the event, that a sale was necessary for the payment ofher debts. •

The plaintiffs by the pulls and judgments under their attachments, a‘quited alien on Ihe house* and lot, raid but for the o* w/m.-e ot the powi-r of 'ride by the administrator of Mrs. M'tehcil. thry won hi have. Leen entitled to have ' the l.o:;: e and Jot t'ohl '(he, paym-vJ. of their debts. Having bom dep ivod of ibis rigid at bnv, by the sale of the admin:: Tab-r, the quc-Ium is, whether they are not, entitled i-> * court nfequih t ’ follow the fund in the hands of the ; ’.h n’niulrsi'.or, ..•?•<! hi; :o it applied in discharge of their debía, nffei deduclin;; i; « unu-ont implied by the ad-rninbtnd or pi uncr*!- of ;].•■ d-bts ofh:s inli’fet&tc.

We third: ihe ;:ity a clear one. Tin- plaint’ffs had uv-ipjiroJ a Lb v and have r.n > qri'y to bo 'choud fioiu (he a'i.ideu.t that the p;r petty \va? --o'd under a j moor which the law gc.-';. to the edtKhib.'rvb.-r oí the. raaestor. The ]*• is of the- piídr.íiff.? having altad cd, it follows that the deffvnh.n! b';r\% hid no light tqdis-pose of the ford in the hand-, of the admb.is'rr.ior,,!;'.'!’ had the administrator as such, or tv- the eger.l cf Dure, v.ry light to male an application of the fund remaining in Lis-bards, after discharging the debts of ft is intestate.

It is prepoily conceded that the. deed executed by Dare to Ib M. Lindsay is of no effect, and it is equally clear that the plaintiffs J and It, Sloan are note-stopped by receiving *4-a part of the fund, from setting 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 he was in doubt as to the right of the .creditors of Dare, ought to have retained the fund and filed a hill 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, for a rateable part of that debt; that is such as they were bopnd to pay upon contribution •with the other sureties of Dare.

There will be a reference to ascertain this amount bud show .the sima 'to which the p'alntife are respectively entitled.