Opinion
(June Term, 1864.)
A. dies intestate, seized of land in fee simple in this State, which descends to her heir at law resident in another State. His creditors here sue out attachments which are levied on the land, and final judgments are obtained therein and writs of venditioni exponas issued. The land is sold by B., the administrator of A., under an order of the county court, for the payment of the debts of the intestate. After payment of them, the administrator is bound in equity to pay the residue to the creditors who attached the land, notwithstanding that the administrator has paid it by order of the nonresident debtor to another bona fide creditor.
IT appeared by the pleadings and exhibits in this case that Mrs. Mitchell was seized in fee of a house and lot in the town of Greensboro, and died intestate in the year 1855, and the defendant Mendenhall was her administrator, and applied by petition to the county court of Guilford for an order to sell the house and lot, alleging that the personal property was insufficient to pay the intestate's debts; and such (554) order being made, the premises were sold, and out of the proceeds of the sale the debts were paid, and part of the residue was applied to the payment of a debt which the heir of Mrs. Mitchell, John S. Dare, owed to R. G. Lindsay, one of the defendants, by the express order of Dare, and the other part was paid to J. and R. Sloan, two of the plaintiffs, in part satisfaction of a judgment obtained by them against Dare, as is hereinafter stated. In 1848 Dare was indebted to R. G. Lindsay, and J. and R. Sloan were his sureties for the payment of the debt. Dare executed and delivered a deed purporting to convey his interest in the house and lot, stated therein to be an estate in fee in remainder after the death of Mrs. Mitchell, which deed was absolute on its face, but it was admitted by the defendants that it was intended by the parties thereto to be a security for money; and it was not registered until after the lapse of seven years or thereabouts. The defendant Dare was indebted to J. and R. Sloan, to Jesse H. Lindsay, and to John A. Mebane, and in 1843 removed to another State, where he has ever since resided. After Mrs. Mitchell's death, before the sale by her administrator, the plaintiffs J. and R. Sloan sued out an attachment against Dare as an absent debtor, which was levied on the house and lot and prosecuted to judgment, and a writ of venditioni exponas was issued. The plaintiffs Lindsay and Mebane severally attached the same property for debts due to them respectively, and prosecuted their attachments with like effect. The defendant Mendenhall had notice of the attachments before he paid the money in discharge of the debt to R. G. Lindsay. The plaintiffs severally demanded of Mendenhall the payment of their respective claims before this suit was brought, out of the proceeds of the sale, but he refused so to apply the money, except the sum which he paid to the (555) Sloans in part payment of their judgment.
J. T. Morehead for plaintiff.
Gilmer for defendants.
John S. Dare, on the death of his mother, became the owner of a house and lot, in fee simple, as her heir at law, subject to a power of sale by her administrator in the event that a sale was necessary for the payment of her debts.
The plaintiffs, by the suits and judgments under their attachments, acquired a lien on the house and lot, and but for the exercise of the power of sale by the administrator of Mrs. Mitchell, they would have been entitled to have the house and lot sold for the payment of their debts. Having been deprived of this right at law by the sale by the administrator, the question is, whether they are not entitled in a court of equity to follow the funds in the hands of the administrator, and have it applied in discharge of their debts, after deducting the amount applied by the administrator in payment of the debts of his intestate.
We think the equity a clear one. The plaintiffs had acquired a lien, and have an equity to be relieved from the accident that the property was sold under a power which the law gave to the administrator of the ancestor. The lien of the plaintiffs having attached, it follows that the defendant Dare had no right to dispose of the fund in the hands of the administrator, nor had the administrator as such, or as the agent of Dare, any right to make an application of the fund remaining in his hands after discharging the debts of his intestate.
It is properly conceded that the deed executed by Dare to R. M. Lindsay is of no effect, and it is equally clear that the plaintiffs J. and R. Sloan are not estoppel, by receiving a part of the fund, from setting up their equity to have such an amount as may be necessary (556) 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 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, for a ratable 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 sums to which the plaintiffs are respectively entitled.