Anderson v. Duke et al.

George T. Swann, for appellant,

Cited and commented on the following authorities: Hutch. Code, 660, 71-75; Ib. 661, § 79; 3 How. 257; Blanton v. King, 2 Ib. 856; Green v. Creighton, 10 S. & M. 159; Caruth v. Anderson, 24 Miss. 60; Ib. 183; 3 How. 255; 7 Ib. 316; Compton v. Compton, 6 S. & M. 197.

Freeman and Dixon, for appellees,

In reply, cited Hutch. Code, 668; Satterwhite v. Littlefield, 13 S. & M. 302; Vuheer v. Martin, 10 Ib. 103; Acts of Leg. 1846, p. 144; Green v. Creighton, 10 Ib. 159; Marmichael v. Brander, 3 How. 257; Blanton v. King, 2 Ib. 856; 4 Art. of Miss. Constitution, § 18; 10 S. & M. 707.

Mr. Justice HANDY delivered the opinion of the court.

This was a bill filed by the appellees against the appellant in the district chancery court at Holly Springs. The allegations of the bill, material to the decision of this appeal, appear to be in substance, as follows: The complainants are creditors of Aaron Root, deceased, of whom the appellant was administrator at the time of filing the bill. They allege that the intestate's estate was large, and that large sums of money came to the hands of the appellant; that he reported the estate insolvent in 1841, and that commissioners appointed to audit claims against it, reported claims greatly exceeding the amount of assets which the administrator had reported to the probate court. These are the claims upon which the bill is filed, and their amounts respectively are stated in the bill. They charge that the administrator had not paid any of the debts of the estate; that he has bought up many of the claims at a great depreciation, using the funds of the estate for that purpose, and now holds such claims as vouchers for money paid by him in discharge of them; that he has had the large sums of money reported by him as funds of the estate in his hands for a long time, and has used them in buying lands, negroes, and other property, and in loaning them at interest, whereby he has acquired much property, and made great profits to himself; that

Anderson v. Duke et al.

they are not able to specify the claims bought up by him, nor the amount of money of the estate received by him, nor the particular property purchased by him with the funds of the estate; that he resists all steps taken by the creditors in the probate court to compel him to a final settlement or distribution among the creditors, and withholds and refuses to file in that court the vouchers of the claims purchased by him, for which he has taken receipts in full, though purchased at a great depreciation, in order to have distribution made by the court according to the report. The prayer is for discovery as to the claims purchased by him, and what property he has purchased with the funds of the estate, what amount he has loaned at interest; that he be compelled to account for such funds and property, and be declared a trustee of the property purchased for the complainants, &c.

After the appellant had answered the bill, an amended bill was filed reiterating the charge of the purchase of claims against the estate and property, with the funds of the estate, and especially that he bought certain negroes with such funds, and took the title in his own name, and now pretends to hold them as his individual property, when he should be declared to hold them as trustee for the creditors; and this bill shows that since the original bill was filed, the appellant has been removed as administrator, and a new administrator appointed. The prayer is for an account of all assets and effects of every kind in his hands belonging to the estate, and for general relief. To this bill, the appellant filed a demurrer, which was overruled, and from that order this appeal is taken.

The ground of error insisted upon in behalf of the appellant is, that a court of chancery has not jurisdiction to grant the relief prayed for, because the probate court has full and exclusive jurisdiction, and is competent to grant the relief sought; and hence that the demurrer was improperly overruled.

It is undoubtedly true, that the probate court is the proper tribunal in which to obtain relief upon several of the matters set up in the original and amended bills. Thus the probate court was the appropriate tribunal to compel a true account of the assets received by the administrator, and to make discovery

Robertson v. Wells.

in relation thereto; to compel the administrator to a final settlement, and a distribution to the creditors of the sums due them respectively; to hold him accountable for interest received by him upon funds of the estate loaned. It would also be within the powers of the probate court, in making the decree of final distribution of the assets among the creditors, to treat such claims as were purchased by the administrator with the funds of the estate, or fraudulently paid by him at a great depreciation for his own benefit, as extinguished, and exclude them from the distribution, except to allow him the amount actually paid by him on account of them. But that court would have no power to subject the specific property which the administrator had acquired in his own name by the funds of the estate, to its jurisdiction, and have it applied to the payment of the claims against the estate. Such a power belongs exclusively to a court of equity, and it is especially invoked in the amended bill in this case.

The bill being good in this respect, and the demurrer being to the whole bill, it was properly overruled.

The decree is, therefore, affirmed, and the cause remanded, and the appellant required to answer the part of the bill above mentioned within ninety days.

ABNER ROBERTSON vs. A. D. WELLS.

Where R. and W. disputed as to what sum should be paid W. on account of a breach of contract on the part of R., and the matter was referred to arbitrators who agreed that R. should pay W. $19 per month dating from a certain time, but in computing the time, the arbitrators made a mistake and gave W. too much, and a note was executed for the amount ascertained by the arbitrators to be due by R. to W., and suit was brought on it: Held, that it was competent for the court, upon a proper showing, to correct the mistake in the calculation of the arbitrators, for which amount the note was given.

IN error from the circuit court of Calhoun county; Hon. Lock E. Houston, judge.

Robertson v. Wells.

Robertson and Williamson disputed about the length of time and the price of labor which the latter had performed for the former, when the matter in controversy was by them referred to arbitrators, who agreed to allow Williamson $19 per month for the labor he had performed for Robertson, and computed the time at six months. Robertson executed his note to Wells at Williamson's request, for labor, according to a calculation of that period of time; but subsequently it was discovered that Williamson had only performed services for four months and twenty-two days.

Wells sued Robertson on the note, who offered to prove and did prove that the note was given for too much, according to the calculation of the arbitrators; but the jury rendered a verdict for the whole amount of the note.

Robertson moved the court for a new trial, which was refused by the court, when he prayed a writ of error to this court.

Evans and Inge, for appellant.

Wharton, for appellee.

Mr. Justice FISHER delivered the opinion of the court.

This was a suit in the circuit court of Calhoun county, founded upon the note of the defendant below to the plaintiff.

The facts are as follows: One Williamson and the defendant Robertson, had a dispute as to what sum should be paid to Williamson, on account of a breach of a certain contract on the part of Robertson. The plaintiff below and one Pass were selected as arbitrators, and agreed between themselves that Robertson should pay Williamson $19 per month from the 1st of January till some time in May following, when Williamson quit the employment of Robertson. In computing the time, the arbitrators made a mistake, computing it as six months, whereas it was only four months and some days.

The question is whether this mistake ought to be corrected. To this question there can be but one answer, and that is, whether the proof is clear that the mistake was made. Pass,

Prewett et al. v. Buckingham.

the only witness who was really disinterested on the trial below, proves the facts as above stated.

Judgment reversed, new trial granted, and cause remanded.

KIRK PREWETT, administrator, et al. vs. STERLING H. BUCK

INGHAM.

S. H. B. and W. H. were copartners in the mercantile business, and as such they recovered a judgment at law against W. M. B. and B. O., under which certain lands were sold and purchased by the said W. H.; to whom a deed was made by the sheriff, in his (W. H.'s) individual name in the year 1840, but no money was paid except the cost of the suit, yet the money was treated as paid, the purchaser being one of the plaintiffs in the execution; and W. H. went into possession of the lands immediately after the purchase, retaining the same until his death in the year 1850, enjoying the proceeds and profits to his own use. In May, 1843, in writing, W. H. agreed that S. H. B. was entitled to one half the lands; that the deed should have been made to them jointly, and that S. H. B. and W. H. had agreed to sell the land jointly as one tract, and the proceeds to be equally divided between them, and that they should be joint partners in the land. S. H. B. filed a bill to recover the land, setting forth the above facts; and further, that the firm of S. H. B. and W. H. are indebted to the law firm of D. C. & G. in the sum of $565 due in 1840, and that there are no assets of the firm to pay that debt except the balance due on the above-mentioned judgment and the lands held in the name of W. H., with the rents and profits thereof, who left at his death a widow and heir at law, now claiming title to the lands, and are made defendants to the bill. The prayer is for an account of the moneys collected by W. H. on the judgment, and for rents and profits of the lands, and that the lands be sold and the attorney's claim against the firm be paid, and the residue equally divided between the complainant and the representatives of W. H., deceased. The answer admits the main facts of the bill, and relies upon the statute of limitations as a defence; it being proven that W. H. admitted that the land was bid off by him for the firm, but that he stated at the time the firm was indebted to him for his private means advanced, and that it was agreed that he was to take the land at $1,000 in a settlement made or to be made between them of the firm affairs, and that the repairs and improvements made by W. H. were equal in value to the rent during his lifetime. The court below decreed an account of the transactions to be taken between the partners, and of the amount due on the attorney's claim,