#### Thomas Adams, *vs. G.*W. Holcombe *and others.*

*Bill to recover a debt due to complainant by the deceased father of defendants, on. the grounds that no administration had been taken out on the estate of the deceased, and that defendants were in possession of all his property, under voluntary conveyances made subsequently to the accruing of plaintiff’s demand, and otherwise without lawful authority. Decree against defendants, to be liable*in the first instance, *in proportion to the value of the property they had respectively derived from, the estate of deceased.*

Chancellor *Desaussure.*— This is a suit brought by complainant to be indemnified for the loss he has sustained on the purchase of a slave named Anthony, from John Evans now deceased. The complainant states, that the slave was conveyed to him by bill of sale, dated 8th April, 1818, but was recovered from him in an action at law, by John Cheatham, who claimed tinder a bill of sale made by Mrs. Evans, the wife of John Evans, and confirmed by him, before the sale to complainant.

The complainant brought suit at law against John Evans, on the warranty in the bill of sale; but before he could recover, the said Evans died, intestate; and no person has administered on his estate, so that no suit at law could be instituted.

*203The defendants, who have married the daughters of John .Evans, have possession of his real and personal estate, partly under voluntary deeds, made after the above transaction, and partly since Evans’ death, without any authority at all. The defendants admit *the*voluntary conveyances made to them by John Evans, and their possession of his property; but they endeavored in their answer to make a different case from that seated in *the bill*respecting the sale of the slave. As it was however, a distinct and independent statement of newly alleged facts, not interrogated to by the bill, such a statement in the answer could not be supported thereby without proof.

The defendants feeling this, and having no proofs to offer in support of such allegations, filed a cross bill against Francis Adams, charging the facts which they had previously alleged in their answer. The defendant, Francis Adams denied those allegations, and made his own statement of the case. The case then depends on the proofs, and these are simply the bill of sale, with warrant}', by John Evans to Francis Adams, on the 8th April, 1S18, of the slave Anthony, for five hundred dollars; also the record of a suit at law, by John Cheatham against Francis Adams, for the above Anthony, under an elder bill of sale, (21st January, 1817) of the slave Anthony, signed by Mrs. Evans, and confirmed by John Evans at a subsequent time; and the recovery in that action, by verdict and judgment, for $720, besides costs. The complainant in the original bill, Francis Adams, is therefore entitled to recover against the defendants in this court, as indeed he would have been at law, if the voluntary deeds by John Evans to his children, and the absence of any administration, had not obliged the complainant to come here for relief. The complainant however, does not claim the recovery of so much as he was obliged to pay on the verdict and judgment. He furnishes a statement, by which, instead of claiming *$720,*the amount of the verdict, and $97, the amount of the costs, he claims $510 39, including all costs and fees, and to be indemnified *against his note*for $144, passed away to a third person by John Evans, as part of the original purchase money *of*the slave Anthony,

*204The voluntary conveyances made subsequent to the transactions, and the possession of the property of John Evans by his children, who refused to administer, cannot be set up to bar this just claim.

It is therefore ordered and decreed, that the defendants* do pay to the complainant, Francis Adams, the sum of five' hundred and ten dollars, out of the estate and effects of the late John Evans, which came into their hands by the voluntary deeds abovementioned, or otherwise. And that they do indemnify the said complainant against the sum of *$144, on*note passed away to a third person; or repay the same sum to said complainant, if he pays the same to the holder of the note.— Costs to. be paid by defendants.

The appeal was on the ground that the defendants should have been made liable in the first instance, in proportion to the value of the property they had respectively derived from the estate of the deceased John Evans.

*By the Court.*

We are of opinion that the decree of the circuit court is correct. The appellant however requests that the decree may be modified, that each of the defendants may be made liable in the first instance for a share of the demand in proportion to the amount received of John Evans; we think this equitable.

It is therefore ordered and adjudged that the decree of the circuit court be affirmed. But that the resort shall be had in the first instance to each of the defendants according to the amount each received from John Evans; all to be ultimately liable. The commissioner to examine and report the proportions.

Chancellors *Desaussure, Guillará,*Waties, *Thompson*and-*James,*concurred.