#### JEHU B. LAMBERT *against*JOHN HOBSON *and others.*

Where an executor made a deed in pursuance of a bond for title executed by his testator, with a covenant of warranty, on which he was sued and subjected to the payment of damages, he has a right to be substituted to the rights of the obligee, and be reimbursed out of the estate.

Where there was a bill filed and a decree for the settlement of an estate, and the executor failed to have himself protected in the decree against a suit for damages, in which he was primarily liable, but for which the estate would be liable to him, he cannot, without some explanation of, or excuse for, his apparent laches, maintain a bill for reimbursement against the legatees to whom he has paid their legacies.

Cause removed from the Court of Equity of Randolph county.

The plaintiff is one of the administrators with the will an*425nexed of John Lambert, sen’r. The testator, claiming to be the owner of a tract of 230 acres of land, in Chatham county, sold the same to one John J. Burke, for about $200, and made a bond conditioned to make title for the same whenever the purchase-money was paid. Burke paid part of the purchase-money, and then assigned his rights, under this bond, to John Headen. Upon the death of the testator, Headen paid to the plaintiff and his co-administrator, John Lambert, the remainder of the purchase-money, and they made a deed for the land, with a general warranty, which bound them individually. It turned out that John Lambert, sen’r., the testator, had no title to the land thus contracted by him to bo sold, but the land belonged to one Joab Lambert, who brought an action of ejectment for the same and recovered possession from Headen. The latter then sued the plaintiff and John Lambert on their warranty, and recovered about six hundred dolktrs. The plaintiff alleges that he paid the whole of this sum out of his own means, his co-warrantor having become insolvent and left the State. The plaintiff insists, in his bill, that having exonerated his father’s estate by making good thes.e damages, he is entitled to be subrogated to Headen’s rights under the bond, and to be paid back the same out of that estate. He says, however, that having paid over all assets in his hands to the several defendants, who were legatees under the will, he has no means wherewith to indemnify himself by retaining, and prays the Court to decree a reimbursement of, the amount thus paid by him, from the defendants who have i;eceived the estate.

It appears from the answers of the defendants, and from the exhibits filed by them, that a bill was filed against the plaintiff and his co-administrator in the court of equity of Randolph county, by most of the present defendants, seeking a settlement of the estate of the testator in their hands ; that the same was transferred to the Supreme Court and an account ordered, which was taken by the clerk of this Court and confirmed; that a decree passed in pursuance of the same, and under this decree the payments of their legacies *426were made to such of the defendants as were made parties plaintiff. They aver and show that the suit, for a breach of warranty, was pending at the time the decree was rendered in the Supreme Court. They plead and claim the protection of that decree against further molestation on this account.

After tlie decree in the Supreme Court, several other of these defendants, who were parties defendant in the case above-mentioned, and. who, on that account as they say, could not get a decree for their portions, filed a petition in the county court of Randolph, for their shares of the said estate under the will, and in that suit the plaintiff having brought in this claim for reimbursement, the same was allowed in the decree therein made, and the proportionate amount was deducted from the shares of each of the petitioners, and ordered to be paid into the clerk’s office of Randolph county, for the benefit of the plaintiff, which was dono. This decree is also pleaded as a bar for such of the defendants as were parties to this latter proceeding.

*J. H.*Briján, for plaintiff.

*Borrell*and IF. *J.*Long, for defendants.

PeaRSON, J.

The testator by himself and administrators with the will annexed, received the price of the land. Tie was under obligation by force of his bond to make title; this was discharged by the act of the administrators with the will annexed, by reason whereof they became individually liable, and'the plaintiff has been compelled, in consequence of the assertion of superior title, to pay a large sum. As bis act exonerated tlie estate of the testator, he had an equity under the doctrine of substitution, to stand in the place of Burke and Iieaden the assignee, in respect to tlie amount they were entitled to under the bond, and to be reimbursed that sum out of the estate of the testator.

Tlie only question is, whether the plaintiff is not too late in seeking relief. In respect to such of the legatees as have paid into the office of the county court of Chatham their rela*427tive parts, the plaintiff is not entitled to relief under the bill now filed, for there is nothing to prevent him from *applying*for and receiving the fund which has been retained for his use. In respect to the other legatees, the plaintiff had an opportunity, and ought to have availed himself of it, when the bill was pending for the settlement of the estate, and before a final decree was entered in this Court, under which these legatees recovered from him their respective shares, to have brought forward this claim and had it passed on and provided for in the decree. It is too late, after a final settlement of the estate under the decree of the court, and after he has, in pursuance of that decree, paid over their shares, for him to file another original bill for the purpose of recovering back by the decree in this case, a part of what he has paid by a decree in that case. Thei’e must be an end of litigation.

The bill is singularly defective in respect to dates ; enough, however, appears from the pleadings and exhibits to show, that while the bill for a settlement of the estate was pending, Joab Lambert instituted an action of ejectment for the land, and the plaintiff was thereby notified of his danger, and was called upon to provide against it. He failed to do so, and there is no allegation to account for, or excuse, his neglect and laches.

Per Curiam, Bill dismissed.