#### *Wilson’s Curator v. Shelton’s Adm’r.

April, 1838,

Richmond.

Curators — Liability to Suit.* — A curator of a decedent’s estate appointed under the 24th section of the statute 1 Rev. Code, ch. 104, is not liable to suit of the decedent’s creditors in chancery; and though a curator appointed under the 42d section, is liable to be sued in like manner as an administrator, it must be shewn by the record, in a suit against a curator, that he is such a curator as is in law liable to be sued, and capable of defending the decedent’s estate.

Sale *of*Land — Recital of Payment in Deed — Estoppel.†— A vendor of land executes a deed of conveyance to the purchaser, in which he acknowledges receipt *127of Uie purchase money, and subjoins to the deed a receipt in full for the same : yet upon proof that in fact the whole purchase money was not paid, he is not concluded from claimirur the balance due him in equity.

Josiah Shelton exhibited a. bill in the superiour court of chancery of Williamsburg, against Thomas Russell curator of Willis Wilson deceased, and John Shepherd executor of Benjamin Coleman, — alleging, that the plaintiff Shelton and Harriet the wife of Baker Rudd being entitled as tenants in common to a parcel of land in York county, Shelton and Rudd contracted with Wilson and Coleman, during their lives, to sell the same to them for 2200 dollars ; and Wilson and Coleman being jointly interested in the purchase, it was understood and agreed that Wilson should pay Shelton one half of the purchase money for his moiety of the land, and Coleman should pay Rudd the other half for his wife’s moiety. That Shelton executed a deed of conveyance to Wilson and Coleman of his undivided moiety of the land, and Rudd’s wife being an infant at the time, Rudd covenanted with the purchasers for the conveyance of her moiety to them when she should attain to full age. That Coleman paid the moiety of the purchase money due to Rudd ; and Rudd’s wife having attained to full age after the death of both Wilson and Coleman, a deed was executed *by Rudd and wife to Russell the curator of Wilson, and Shepherd the executor of Coleman, conveying her undivided moiety to them. That of the moiety of the purchase money (1100 dollars) which was due to Shelton, Wilson paid him only 625 dollars, leaving 475 dollars still due, for which Wilson agreed to give him his bond and a mortgage of the land to secure the payment, but he died without having executed the bond or mortgage, or paid the debt. That Shelton brought an action at law against Russell the curator of Wilson, for the balance of the purchase money due liim ; but being advised, that his acknowledgment of the receipt of the whole consideration, contained in his deed of conveyance of the land to the purchasers, would be an estoppel against his demand at law, he had dismissed that suit. And the bill, without shewing what kind of curator the defendant Russell was, or what authority the order appointing him curator had conferred, prayed a decree against the personal estate of Wilson in the hands of the curator, for the balance of the purchase money due to Shelton, and that the land should, if necessary, be subjected to the debt.

Russell, the curator of Wilson, nowise contested his liability in 1hat character, for the debt claimed of the decedent’s estate, to the extent of the personal assets in his hands, if the debt was justly due; but he earnestly denied the justice of the claim. He relied not only on the acknowledgment of full payment of the consideration contained in the deed executed by Shelton to the purchasers, but on a formal receipt for the whole purchase money subjoined to the deed and signed by him, as conclusive of the fact of payment; and he stated some extrinsic circumstances, which, he insisted, corroborated that written evidence.

The answer of Shepherd executor of Coleman averred the full payment by his testator to Rudd, of the half of the purchase money due to him for his wife’s moiety of the land, which Coleman had undertaken to pay.

*The order appointing Russell curator of the estate of Wilson, was not exhibited; nor did it appear in any way, what was the nature of that appointment.

The deed executed by Rudd and wife to Russell the curator of Wilson, and Shepherd the executor of Coleman, and the deed of Shelton to Wilson and Coleman, were exhibited. The latter contained the acknowledgment of the payment of the purchase money due to Shelton, and there was subjoined to it Shelton’s receipt in full for the same, as stated in the answer of the defendant Russell.

But there was full and clear proof, that in fact only the sum of 625 dollars was paid by Wilson to Shelton, and that Wilson, when he received Shelton’s deed with the receipt thereto subjoined, agreed to give him his bond for the balance of the purchase money yet due to him, and a mortgage of the land to secure the payment.

The plaintiff dying pending the suit, it was revived in the name of his administrator. And it was discontinued as to the defendant Shepherd executor of Coleman, without prejudice, however, to the plaintiff’s claim against that defendant hereafter.

The cause having been transferred to the circuit superionr court of Elizabeth City, that court, upon the hearing, decreed, that the defendant Russell curaiorof Wilson, should, out of the estate of that decedent in his hands, pay Shelton the balance of the purchase money due to him, with interest &c. And from this decree, Russell, by petition to this court, prayed an appeal; which was allowed.

Harrison, for the appellant,

objected, 1. That such a bill could not be maintained against a mere curator of a decedent’s estate, such as (for aught that appeared iu the record) Russell was; Wynn’s ex’or v. Wynn’s adm’rs, 8 Leigh 264. — 2. That the heirs and administrator of Wilson, as well as the heirs or devisees and executor of *Coleman, were proper and necessary parties. 3. That the formal receipt of Shelton for the whole purchase money from Wilson, subjoined to his deed, shewed that the acknowledgment of payment in the deed itself was not merely formal, and that this concluded Shelton in equity, as well as at law, from alleging that he had not received the purchase money. 4. That the deed made by Rudd and wife to the curator of Wilson and the executor of Coleman was nugatory ; and the court, in all events, ought not to have decreed the payment of the purchase money, till the title of Rudd and wife was conveyed to the heirs of the purchasers.

Daniel and Robinson, for the appellee,

answered, 1. That this case was distinguishable from that of Wynn’s ex’or v. Wynn’s adm’rs. There it appeared, that the curator had been appointed under the 24th section of *128the statute, 1 Rev. Code, ch. 104, p. 380, merely to collect and preserve the goods of the decedent, during the pendency of a contest for the administration, and the objection to the proceeding against the curator was presented by the pleadings. Here, the curator, while he controverted the claim upon its merits, nowise denied his responsibility in that character, to the extent of the decedent’s estate in his hands,- if the debt was justly due ; and as a curator appointed under the 42nd section of the statute (Id. p. 386,) was liable to the suits of creditors' in like manner as an administrator, this court ought to regard the defendant in this case, as such a curator liable to be sued. 2. That as Coleman had paid all he was bound to pay, and as the curator of Wilson had assets in his hands to pay the debt, and those assets were primarily liable for it, the objection for want of parties was merely formal and immaterial. 3. That the proof was full and clear, that the purchase money due to Shelton had not been paid ; and as to the alleged estoppel, though it concluded the plaintiff at law, it could not bar him of relief in

equity. *Shelly v. Wright, Willes 9 ; Ford v. Grey, 1 Salk. 285; Gillespie and wife v. Moon, 2 Johns. Ch. Rep. 585, 596. 4. That Shelton having executed a conveyance of his moiety, was entitled to payment of the purchase money due to him, which Wilson had agreed to pay him, and to a lien on Wilson’s- share of. the land ; and it was incumbent on the heirs of the purchasers to procure from Rudd and wife a proper conveyance of her moiety. That was their lookout, not Shelton’s.

*

Curators — Liability to Suit. — A curator may now “be sued in like manner as an executor or administrator.” Va. Code 1849, p. 520, § 24; Va. Code 1887, § 2534.

†

Sale of Land — Recital of Payment in Deed — Estoppel. —In accord with the principal case, see Radcliff v. High, 2 Rob. 271. See also, monographic *note*on “Estoppel" appended to Bower v. McCormick, 23 Gratt. 310.

PER CURIAM.

The decree is erroneous in decreeing against the appellant as curator of the estate of Wilson, though it nowise appears, either from the allegations of the bill or the facts stated in the record, that he was such a curator as is by law liable to be sued or capable of defending the estate of the decedent. It is also erroneous in decreeing payment of the purchase money of the land, when no proper title had been made to the heirs of Wilson, to whom, and not to his curator, the property should have been conveyed-. The heirs of Wilson, together with the heirs and devisees of Coleman, ought to be made parties. The deed to the curator ought to be vacated and annulled, and a proper conveyance decreed to the heirs of Wilson; upon the execution of which, payment of the balance of the purchase money should be decreed against Wilson’s personal representative, with liberty to resort to the land, if the decree against the personal representative should be unavailing. The decree is, therefore, to be reversed with costs, and the cause remanded to the circuit superiour court, to be proceeded in according to the principles above declared.

Decree reversed;_