JUNE TERM, 1864.

#### JAMES and ROBERT SLOAN, JESSE U. LINDSAY and JOHN A. MELANE *vs*CYRUS P. MENDENHALL, Administrator of MRS MITCHELL and ROBERT *G.*LINDSAY *a*nd JOHN S. DARE.

A, dips intestate f-eizetl of land in fee s m¡'>le in f .Is State, which de-scendí to her heir at law re*?dent in m-othcr Slate. IIis emitting top, me i ut attachment wi.ieít &>e levied on the land, and final judgments are. obtained therein rwl writ i of lV-if/iVi-.n-' *Exponas*is-ti <1 'i he lamí ie mid b B. the adnd'.ii.-traior of A. «mía* an order of the County Court, for the payment of the cobts of the iutefttale. After paj ment of them, the admiiii.-trato'- is bound in pqaiiy to pay the rest due to the creditors who attached the noiwith&iaiuiing that tha adminietr^tor has paid it-by order of the *non*-refiidcut debtor to another bona fide creditor. . ,

It appeared by the pleadings and exhibits ia this case that Mrs, -Mitehdl was seized in tee of a house and lot ia the Town of Greensborough, gad died inféstate in the year 1855, and the defendant Mendenhall, was her administrator, and applied by petition to the County Court of Guil-*2ford for an order to sell the house and lot, alleging' that the personal property was insufficient to pay the intestate's debts; and such order being made tho premises wero sold and out ot the proceeds of the sale, the debts wero paid, and part of the residue was applied to the payment of debt which the heir of Mrs. Mitchell, John S. Dare, owed to It. *tí.*Lindsay, one of the defendant’s, by the exprern order of Dare, and the other part wa< paid to J and It. Sloan two of tho plaintiff's, in part satisfaction of a judgment obtained by thorn against Dare as *U*hereinafter stated. In I.v-v8 Dare w-.h indebted to J*. (-1. Unubuy and -I and li. Bioan w ;re bis sureties far’the payment of the debt. Dare execut'd oed delivered a. cocui purporting- to convey his interest in the house au'd lot,-stated therein to he nr, estate i:i fee in remainder afler the death of Mrs. Mitchell, 'which deed was absolute on im fice, but it was admitted by the defendonfs that it was Inhioded by the parti".-; thereto‘to he a security ior money; and it- was not registered until afr-v the -yp-;e of seven years or the) e^bontc. The def irdant Dart vv;v! indebted. to -1 and It. Biosn, t<» Jesse II. Liudciy ;V.el to .John A.Moba.,o, and in 184-3 re moved io «'.other ¡dír-p-e whenft hob s ever since ros/ded. Nfttr fir-. Mitchel.’s death, hefo.'e tho sale by her admin-3 ¡i.'.ttor. l?:.t ;i5al*:t'T, J and J». hh.-ai seed oat <ui iitlach-Dare; an an absent <U.hb>r, which was levied on -h.o •• ,uv an:! let, and prosoesl'.ul to judgment, and a wr’t of *J ponas*wat issued, h Iso plamtiih I i-’cif ay c-vl Met .one scveially a/.t chcd the .-riñe property ier debts bribe;-'. respect i'’eh. , end pr .ucv.-stod thei; adachmesds with life, effect. The defendant Monde had had rcxice of the alttehmouts before ],o paid tho money *it:*«bsehsirge of the debt to R. (1. Lindsay. T..e plahitiffi. 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, *3except the sum which -he paid to the Sloans ia port *payment vi*their judgment.

*J. T- Moorehead*for the plaintiff.

*(Till::nr*Par tbs defendant;-'.

EkatísoN, (’. J.

John S. Dare on ti e death of.bis mother became the owner of the hoce and lot, in ice simple, as her heir at law subject to a power of sale by her adminis--trator in the event, that a sale was necessary for the pay-mem of her debts.

Die plaintiff? by the suits and judgments'undeT their at-tachmer.is, acquired a Hen on the hcu<-e and fot, and but for *V*c cerche of the power of sale by the administrator cf Mm. .VPtehell, tlmy would ! a?*:- been m-tiCcd to have the house and In' told tor the payin'-nt of thair debts. Havii.<? been <?op dved "f tins right at lew, by the sale of the rdmirblrstor. the <p;c.eJon is, whether they are not entitled in j, <'•; hit ofe-mity to if ¡low the innd in the bands of the who:nisir, for, and he e if oppliwl in disdiarge of their debts, a few 'fedfifeiry ¡be io-iount1 pplied by the ad~ inlnisUvbv in p iVi-cnf «T d;c deh-ia r?h'-. ir.tr afrie.

"We 0 ink the .-^uify *;)*eh-.-í ■-.no. The pfe.inhffa lu¡d ac-ai-d bji-vo ;.n uy 1 'improperly v;r to ¡he crb'.h.V: (joven .. '.¡or iv.k.’hL l.i t!\:; *j*1 .. *t*1-c. .. lije V. ’V **y.t*her. (S' fee v Tiffs br.\ h- - h -d i:e rlcb. (lei'i-sub-'.t 1 *>:*handy of tb.o udmhds'r.dor, Bueh, or *a-,*the ey nl of IX ’ • *la-l'u'a t*d ficm the ;;:‘d ~rfor : ever v.liich ? t o? the cater. The 1 co, it fci'os, e -jliat the ■’irpoao of the fund in the bad the a«h;rh.h;i.raior as r-y right to vial.a an application of the teed rern'-dning in Ida luvuds, after discharging t.he.debf-: of. iris intestate.

It is pv-.-peily conceded that the deed executed by Dare to It, M. Lindsay is of no effect, and it is equally dear that the plaintiffs' J and II. £Hoan me not estopped by receiving *4a part of the fund, from sotting 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 be 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, fo«* a rateable 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 sama to which the plaintiffs are respectively entitled» ' * •