Jackson v. McCoy

56 Miss. 781

Opinion

GeoRGe, C. J.,

delivered the opinion'of the court.

The appellee sold land to one Jackson, and gave a bond to make title upon payment of the purchase-money. The vendee died, and no administration has been granted on his estate. The purchase-money having become due, the appellee tendered a deed to the heirs of Jackson, and demanded payment. The heirs declined to pay; and thereupon the appellee filed his bill, asking for a sale of the land for the purchase-money.

The heirs of Jackson demurred, upon the ground that the bill could not be maintained against them alone, when there was no personal representative of the vendee. The demurrer was overruled, and the heirs of Jackson appealed.-

We think there was no error in the ruling of the chancellor. If there had been a personal representative, he would have been a necessary party; but as the vendor had, by the contract of sale, a right to hold the title to the land until payment was made, and as this title, upon the payment of the price, was to be conveyed to the heirs, it would be improper to delay and embarrass the vendor in the collection of his debt by requiring him to cause administration to be granted on the estate of his debtor. An administrator, when appointed, would be the representative of the personal assets only. The vendor does not seek any relief as against these assets. He is content to abide by the security which he reserved in his contract. He is not concerned with the application of the personal assets in exoneration of the security which he holds. The heirs alone, are interested in that; and if they desired to have such application made, it was their duty to have caused an administrator to be appointed. Having failed to take this step for their own benefit, they cannot complain that the vendor presses his security against the only parties who are in esse and liable to be sued, and who are the legal representatives of the property sought to be subjected.

Decree affirmed.