Brasfield v. Cardwell

Tennessee Supreme Court

Brasfield v. Cardwell

75 Tenn. 252

DecidedApril 15, 1881

StatusPublished

This text of 75 Tenn. 252 (Brasfield v. Cardwell) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brasfield v. Cardwell, 75 Tenn. 252 (Tenn. 1881).

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Opinion

Freeman, J.,

delivered the opinion of the court.

Brasfield had judgment before a justice of the peace for $86 against defendant, in the form as stated, to-wit: George R. Brasfield, administrator of David and Candis Winston. Land of defendant was levied on and sold under venditioni exponas from the circuit court of Weak-ley county. Ejectment was brought for the land by Brasfield, who had bought it for debt and costs. The title under the levy and sale was defective, and judgment for defendant. Thereupon, a sci. fa. was issued under our statutes to set aside the satisfaction of the judgment, and have execution. Cardwell defended, plead payment before issuance of the sai. fa. On trial of this issue, judgment was had in favor of plaintiff, [253]*253from which the defendant appealed in error to this court.

Since the appeal and the cause pending in this ' court, Brasfield has died.

Plaintiff now moves to revive in the name of Brasfield’s administrator, which is resisted by defendant, who insists the revivor should be in the name of the administrator de bonis non of the said David and Cardis Winston.

We take it the demand sought to be recovered in this case is unadministered assets of the Winstons. It is a chose in action, that must be collected before it can be appropriated to the payment of debts of the intestate, or used in due process of administration. The fact that it is to be recovered as the assets of the Winstons, and when so collected, to be .appropriated to pay debts, or in process of administration, and then surplus distributed, fixes the party who shall recover it, to-wit, the administrator de bonis non. The administrator of Brasfield has no such duty imposed on him. He is not bound' to pay the debts of the Winstons, and if he collects this money, would be bound to pay it over to the administrator de bonis non. As administrator of Brasfield, he is only bound for collection and faithful appropriation of the goods and chattels, rights and credits of his intestate — not of other parties.

We hold, therefore, the revivor must be in the name of the administrator de bonis non of David and Cardis Winston.

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Freeman, J.,

delivered the opinion of the court.

Brasfield had judgment before a justice of the peace for $86 against defendant, in the form as stated, to-wit: George R. Brasfield, administrator of David and Candis Winston. Land of defendant was levied on and sold under venditioni exponas from the circuit court of Weak-ley county. Ejectment was brought for the land by Brasfield, who had bought it for debt and costs. The title under the levy and sale was defective, and judgment for defendant. Thereupon, a sci. fa. was issued under our statutes to set aside the satisfaction of the judgment, and have execution. Cardwell defended, plead payment before issuance of the sai. fa. On trial of this issue, judgment was had in favor of plaintiff, [253]*253from which the defendant appealed in error to this court.

Since the appeal and the cause pending in this ' court, Brasfield has died.

Plaintiff now moves to revive in the name of Brasfield’s administrator, which is resisted by defendant, who insists the revivor should be in the name of the administrator de bonis non of the said David and Cardis Winston.

We take it the demand sought to be recovered in this case is unadministered assets of the Winstons. It is a chose in action, that must be collected before it can be appropriated to the payment of debts of the intestate, or used in due process of administration. The fact that it is to be recovered as the assets of the Winstons, and when so collected, to be .appropriated to pay debts, or in process of administration, and then surplus distributed, fixes the party who shall recover it, to-wit, the administrator de bonis non. The administrator of Brasfield has no such duty imposed on him. He is not bound' to pay the debts of the Winstons, and if he collects this money, would be bound to pay it over to the administrator de bonis non. As administrator of Brasfield, he is only bound for collection and faithful appropriation of the goods and chattels, rights and credits of his intestate — not of other parties.

We hold, therefore, the revivor must be in the name of the administrator de bonis non of David and Cardis Winston.

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Bluebook (online)

75 Tenn. 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brasfield-v-cardwell-tenn-1881.