Scott v. Dunn

• Decision Date: 31 December 1836
• Citation: 1 Dev. 425,21 N.C. 425,30 Am.Dec. 174
• Court: North Carolina Supreme Court
• Parties: JOHN SCOTT, et al. v. JOHN DUNN, et al.

1 Dev. & Bat.Eq. 425

21 N.C. 425

30 Am.Dec. 174

JOHN SCOTT, et al.

v.JOHN DUNN, et al.

Supreme Court of North Carolina.

December Term, 1836.

Where an executor sold lands, and applied the proceeds to the payment of debts, under a mistake of his power, and the purchaser is evicted by the devisee, the land, in equity, will be subjected to indemnify the purchaser, to the extent to which his money was applied to the debts, over and above the personal estate.

THE bill charged, that William Kooling the elder, by his last will and testament, whereof he appointed the defendant Dunn, and others, his executors, after directing all his just debts to be paid, devised a certain tract of land, in distinct parcels, to his two sons and five grandsons, the other defendants to the bill. That after the death of the testator, the defendant Dunn alone proved the will, and finding that there was an insufficiency of personal assets to satisfy the debts of the testator, and believing that, by the will, the land devised was so charged with the payment thereof, as to authorize him to sell it, advertised the same for sale at public auction: that the plaintiffs became the purchasers at said auction, at the price of two hundred and forty-two dollars and fifty cents; have paid the whole purchase-money to the executor, Dunn, and received from him a conveyance, in fee, accordingly. The bill further charged, that the title to the land being contested by the defendants, the devisees, the plaintiffs instituted an action of ejectment to establish it, and to recover possession thereof; but failed in said action, because, in law, the executor had no authority to make the sale aforesaid. It also charged, that of the purchase-money so paid by the plaintiffs, all but the sum of one hundred and one dollars and seventy-eight cents, was applied by the executor to the payment of the debts of his testator; and that this sum yet remained in his hands: and it prayed that the defendant, Dunn, might be decreed to refund to the plaintiffs the part of the purchase-money remaining in his hand: and as to the residue, that the necessary accounts might be taken, to ascertain whether the whole personal estate was not administered in the payment of debts, without fully paying the same, (should the matter be denied by the defendants,) and that the plaintiffs might stand in the place of the creditors who have been thus satisfied, and who might have enforced these demands against the land; and that the land might be decreed to be sold for the payment thereof. The answer of the executor admitted all the substantial allegations in the bill, except that it averred that he received from the plaintiffs, but the sum of one hundred and eighty dollars in payment for the land; and that the whole of this was applied to the payment of the testator's debts, except the sum of ninety-five dollars eighty-six cents, which it admitted to be yet in his hands; and which sum he was willing to pay over as the court might direct. To this answer was annexed an account of his administration of the assets of his testator, which showed a result corresponding with that above-mentioned. The other defendants, the devisees, admitted the execution and probate of the will, and the sale of the land, as charged, but insisted that the personal estate was fully sufficient for the satisfaction of all the debts of the testator; and denied the right of the plaintiffs, if the personal estate had been insufficient, to be subrogated to the rights of the creditors of the testator, because the law had pointed out the course to be pursued, in subjecting the real estates of deceased debtors, to the...