ROBERT F. JOHNSTON against STEPHEN L. HOWELL.
Whore the administrator of an estate, permitted two slaves to go into possession of a distributee, before all the debts were paid, upon condition that he should give a refunding bond, which he sold to another without giving the bond, and an action of trover was brought by the administrator against the purchaser, and recovery had for the value of the slaves, in a bill by the purchaser to enjoin the collection of this judgment, for all beyond the distributees’ share of the unpaid debts, it was Held that his liability is that which would have existed against the distributee on his refunding bond, had he given one.
Appeal from an interlocutory order, made in the Court of Equity of Davie county, dissolving an injunction. Judge Bailey presiding.
The bill filed by the plaintiff, upon which the injunction issued, stated, in substance, that ¥ra. E. Kelly died intestate, iu tlie county of Davie, leaving bis wife and ten children, him surviving; that he had a large -property, real and personal, but was much involved in debt; that tlie defendant administered on his estate ; that before lie had paid the debts, he concurred in a petition, filed in the County Court of Davie, for a partition of the slaves, and that such partition was accordingingly made, but that before tlie defendant gave up bis right to tlie property, he required and took refunding bonds from tbe next of kin, in every instance, except that of one of the son’s, Jolin Kelly, who got possession of two valuable slaves, Kerr and Amy, under an understanding, and upon condition, (as it afterwards appeared) that be would execute and deliver to the administrator forthwith, a refunding bond, such as is required by law; that the said John Kelly might then have given the bond, if the administrator had urged it, but that afterwards becoming insolvent, lie was totally unable to comply with this requisition ; that John Kelly, after getting possession of the slaves, sold them to the plaintiff, for a full price, and delivered them to him, and the plaintiff avers that he then liad no knowledge of John Kelly’s insolvency, nor of the condition upon which the slaves had gone into the possession *88of the said John, and had no ground to doubt the entire sufficiency of the title which he made him; that afterwards on being called on to deliver up the slaves in question, or give the refunding bond required'by the agreement with Kelly, in the full belief that he was not bound to do so, either in law or equity, he refused to do either; that the defendant, as administrator, brought an action of trover against him, for the conversion of the slaves, and finally obtained a judgment in the Supreme Court., for the value, to wit, $---; that execution was taken out for that amount, and was at the time of issuing of the injunction in the hands of the sheriff of Davie county; that lie wrent to the defendant and offered to make a refunding bond in behalf of John Kelly, and requested him to stop the execution, except as to the costs, which the plaintiff proposed to pay, and also offered to pay the defendant a proportional part of the debts that had come against him, as the administrator of ¥m. E. Kelly, since the partition, that is, the proportion in respect to the value of these slaves, for which the recovery was had, but that the defendant refused to stop the progress of the execution, and was threatening to enforce it for the whole amount.
The defendant states, in his answer, that there are several important debts unpaid, which will require about $500 of the recovery made against the plaintiff in the court of law, as the proportion of John Kelly, that in this estimate is included about $150, which the said John Kelly owes for property purchased by him at the administrator’s sale ; that he had given instructions to the sheriff only to raise the sum of $500 upon the execution in his hands, and that it is not his intention to collect the residue, unless other claims arise against the estate of his intestate, of which he has no knowledge.
On the coming in of the answer, the defendant moved for the dissolution of the injunction, which was ordered, and the plaintiff appealed.
jBoyden, for the plaintiff.
Clement, for the defendant.
*89Battle, J.
Had the plaintiff given the refunding bond, which we think the defendant, as administrator of William E. Kelly, had a right to demand, he would have been responsible thereon, for the whole liability of John Kelly, in the contributions necessary for paying the outstanding debts due from the estate of the defendant’s intestate. Át least, such would have been the equity of the plaintiff, as against the distributees of the estate of the intestate, other than John Kelly, from whom the plaintiff purchased the slaves mentioned in the pleadings. As the defendant permitted the next of kin of his intestate to divide the slaves before he had paid off the debts and settled the estate, relying on the refunding bonds, which they respectively gave, we think he can not, in a court of equity, call upon the plaintiff for more than may be necessary to pay his share of the outstanding debts. From this, it appears that the injunction ought not to have been dissolved m toto, but only pro tanto, the amount indicated above ; and in that amount, is not to he included the sum due the defendant from John Kelly, on account of his purchases at the sale. 'That is a debt which the defendant ought to have collected, or at least secured, before he permitted the division of the slaves, and for it, the plaintiff is in no way responsible.
The interlocutory order, dissolving the injunction in toto, must be reversed, and this opinion must be certified to the Court below, to the end that the proper order may be there made as herein indicated.
Per Curiam, Decree accordingly.