Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-04-12

VIM Rankin J. A. Black, Admir- and Others Musadorz
/ ana Byron Pope Vim. Rankin and others -
The ouIy contest in this is upon the petition
! Of s. D. RoWen 10 be relieved from the purchase Of
/ eertain lots Of ground in aud near the town OF
McMinnYille sold under the decree Of the ChaneerY
Court in these cases. upon the ground that owing 10
the defects in the proceedings, good ti,le cannot
| be made to him VIM Rankin aud Lavender Pope
\ purchased Of F. K Bell thirteen and one>haf acres
/ OF ground including tavern house in MeMnnville,
/ a. So OOO in 1852. Pope died soon after, leaving
/ NJ ldora his widow and Byron his oniy child He
had paid only about $3.50 Of she consideration be-
| fcre his death, and Rankin Largely more. Black
administered on the eatate-
| Rankin fled his bill against the administrator,
widow and minor heir of Pope charging his excess
Of payment, that tbs estate WAS iBsOlEsnt the land
not susceptible of equal division, and praying that
it might be sold, the Iayuents equalized, and the
proceeds divided after the full payment Of the con-
sideratiOn, taxes and expenses Such proceedings
were had, as that the land sold in SIX lois On
] the 9th Dee 1854, for $3.50 RaRkia vas the
purchaser Of four Of the lois at s., $50. At March
term, 1856, the report OF this sale was confirmed,
and title vested in the purchasers, subject to the
J lien for the puI chase moaey. @
Musadora Pope for herself and as next friend of
I her son, Byron, filed her bill the 4th Deeember
1856 to set aside the sale which had beea made
and have division or e sale, because the former
proceedings bad been such, as to be binding
upon b0eLn luis OH was uicu hAHEiQ anu
the other purchasers, ard d. Mercer, who had
become administrator de boHis aOH Of L. Pope. The
prayer was granted, and resale ordered There
was no exceptinn to the decree On the part Of the
purchasers, the original comp sinants. although
they resisted it in their answers and eontended for
the validity If the SALE under which they puTchas
ed. Bui the Court ii aside, because the infant
had not properly become party, and the parties
aequiesced.
At the resale on the 26th of September, 1857, S.
d RoWen, being substituted TO the bids OF J. NJ.
Cain, was the purchaser of lots Nes. / and 2
for l90 BrittOn and others bid off ihs other four
lots at 81, los, making total of 4,3S5, being
sdvance upon the irsI sale OF S1l5.a ...-.
On the 2Sd of March, 1853, The said D. ROWen,
the largest purchaser under he last sale flied his
petition be released from his purchases, because
8 good title could not be made 10 the lots as the
So E was irregular and void as 10 tae infant. The
widow and the guardian ad Iisa CT the infant an
sWer and insist thar The sale was legal aad attri~
butte the anxiety Of the petitioner 10 pry cut defeoas
in the proceedings, to fall in the price and value
Of the property. The Intelligent guardian Of the
minor Gays in his answer that il would be most un-
just and injurious his ward TO aunul the sale as
the property could not be sod for much again.
So far then the interest Of the infant s concern
ed, the proceedings should be sustained if consist
with the law. TIE question In such case il, WAS
the sale utterly void, only voidabe, aHd capable
of confirmation?
The defects are thus stated in the petition: HA
coed and sufficient title be made 10 yCur pc
tiIioEer, fur the reason that proof was taken
to the necessity Ct selling the lots in order to divide
the same among The claimants, and for the further
reason that no account, previous TO SAID sale, Of
assets debts and credits IT the estate of said Le-
Wander Pope, deceased" Again it is stated, that
there proof ths PARTITION could not be made,
nor that il maIifesty TO the interest OF the par
ties TO sell. We will bIi,hy examine these grouRos
Of objection to the title ..--....
This is not the ordinsry case Of an spplea ion
for q sale for partition by heirs or tenants in
mOn nor by the administrator or eredi.orP for the
payment Of debts on the failure Of assets, yet,
isji the usual case Of bill by vendor to assert
his lien for the purchase money 1t rather cams
bines Of the features Of al with the additional
feature that the original complainant Rankin, snd
tAe decedent, L Pope were joint purchasers, who
made unequal psy ments Of the consideration. The
main object CT the bill is TO gqallzs the payments
by tbe sale Of the properly aud divide The profits if
any Il is charged Ihst the deeedent only pail
$3.50 in his lifetime, and his administrator about
S40O more and that the balance was paid By the
complainant The administrator is made PartytO
asce tain the state of accounts, and make exhibit
Of the assets in his hands. He answers that the
tate is iusolvent, charged in the bill, and so it
turns out upcn the report Of the master afterwards
made The widow and infant heir we're made par
/ lies bat because the sbsser Of the guardian ad
teta and Of the widow, werenot such as the rules
Of The court required The first sale set aside
upon their eross-bl that purpose, aud the re.
sale. upon the prayer Of iheir bill, ordered Il is
difficult TO see how any defects IN the services of pro.
cess or answer Of the inan in the original case if
any ex sted could affect the last sale, there
! made when he was properly before the court, by
next friend in the eross-bi with prayer for dgis
] / o or sale
We held in The case Of Gee vs.. Gee, 9 Saesd 395,
that in case of joint purchase Of land if one psid
more than his half of The purchase money, court
Of equity would hold the land bound fer the excess
In that case il was insisted that there was results
Mt 70 the extent OF the OseFPs yment, and that
EACH was entitled to an interest in tie land equal 10
The extent Of his payment; so that # enc had Pal4
pooe he could have no interest, though joint pur>
chaser That would be in case Of q resulting
/ frnst but that was not such q case, nor Is thIs
where the adventure is joint, each is entitled 10
pariieipate equally in prsft loss, without regard
TO equality in payment. But il is clear principle
of equality, that the common property viii be held
J bound for any excess paid BY one over the other.
Il l. analogous the law Of partnership by which,
as between the partners, the capital must be equal
ized out Of the partnership effects before the pr ,hs
4 can be decided
This case, then does net fall under the rules sets
tied BY our decision in case Gf sale fer par itiOn
and for the payment Of debts, in relation to she
eessary proof accounts, &c, and,t that is ths
upon which the petition is bssed. il sppe ,red by
the bill and answer in the original case that the
complainant aud deceased joint puSeh sssrs Of
the land and lots, thattheirpayments We Uaequal
sad also that the estate Of Pope vas insolVent.
Pbs ~as arn7Iob 10 authpriza The sale Of the prou@