Pyron vs. Lowe,

ent was in direct contempt of the order of the Court, passed at the April Term, 1849, removing him from the said office of Clerk of the Court of Ordinary; and it was farther ordered by the Court, that Pyron, the respondent, turn over to the Clerk holding a commission dated 1847, to wit: John H. Lowe, said office of the Court of Ordinary, and all the books and papers appertaining thereto, and that the said Pyron pay the costs of this proceeding; and upon his failure to comply with this order, it was farther ordered, that an attachment absolute issue against him; whereupon Pyron, the respondent, excepted.

The only question made for our judgment upon this record is, whether Pyron, the respondent, was in contempt of the order or judgment of the Court, ousting him from his office, held under his first appointment, made on the second Monday in January, 1849. It does not appear that the judgment of the Superior Court of Henry County, upon the quo warranto ousting Pyron from office, decided any thing in relation to the validity of the election of John H. Lowe, in January, 1849; as to that question, the record is silent, and we infer, that the Court below did not consider that question as decided, from the fact that, in the last judgment holding Pyron to be in contempt, the books and papers appertaining to the office, are ordered to be turned over to John H. Lowe, the Clerk holding a commission dated in 1847.

The judgment of the Court, upon the hearing of the quo warranto, was, that Pyron be removed from office, upon the ground he was not elected according to law. The only election of Pyron to the office of Clerk of the Court of Ordinary of Henry County, embraced by this judgment, was the one had on the second Monday in January, 1849. The validity of no other election of Pyron was in issue before the Court on the hearing of the quo war

ranto.

The answer of the respondent to the rule nisi explicitly states, that in obedience to the order of the Court for his removal from office, he did thenceforward cease to exercise any of the duties, privileges or immunities of the said office, until the 20th day of April, 1849, and until his subsequent election to said office, by the Justices of the Court of Ordinary of said County of Henry; that pursuant to said last election and qualification, under the judgment and authority of said Justies of the Inferior Court, so appointing him Clerk as aforesaid, he has exercised the duties,

Pyron vs. Lowe.

privileges and immunities of Clerk of the Court of Ordinary of said County, and none other. The respondent's answer is supported by the judgment of a majority of the Justices of the Inferior Court of Henry County, declaring the office vacant, and that an election be had for Clerk of the Court of Ordinary, which was held, and Pyron, the respondent, declared to have been duly elected, was qualified, and gave bond and security.

This answer of the respondent does not appear to have been controverted, and, in our judgment, he fully purged himself of any contempt of the order of the Court on the quo warranto. He never exercised the duties of the office of Clerk of the Court of Ordinary, under the appointment which the judgment of the Court, on the quo warranto, declared to have been illegal, subsequent to the rendition of that judgment, but under a new and distinct appointment from that which the Court, by its judgment, had vacated upon the hearing of the quo warranto.

The latter election was, prima facie, valid-the facts necessary to authorize an election by the Justices of the Inferior Court appearing on the face of the order made therefor.

By the Act of 1820, it is made the duty of the Justices of the Inferior Court, or a majority of them, when any vacancy happens in the office of Clerk of the Court of Ordinary, by death, resignation or otherwise, to proceed, without delay, to appoint some fit and proper person to fill such vacancy. Hotchkiss, 690. The order of the Inferior Court of Henry County, ordering the election on the 20th April, 1849, recites, that there is a vacancy in the office, and that the Court proceed, without delay, to fill such vacancy; whereupon, Pyron, the respondent, was declared duly elected.

It is in virtue of this last election, and under the authority thereof, and none other, that the respondent was exercising the duties of the office of Clerk of the Court of Ordinary of Henry County; according to the answer of respondent, consequently, he was not acting under the authority of, or by virtue of the appointment made in January, 1849, which the Court, by its judgment on the quo warranto, declared to have been illegal. The election of the 20th April, 1849, was not adjudicated by the Court, on the quo warranto-the validity of that election was not embraced in that judgment, therefore the exercise of the duties of the office of Clerk, under the new appointment, was no conVOL. VIII. 30

Worthy et al. vs. Hames.

tempt of the judgment of the Court, ousting the respondent from office, under the first appointment. Whether the election of Lowe, on the second Monday in January, 1849, was a valid election, or whether the election of Pyron, on the 20th April, 1849, was a valid election, we express no opinion. We leave those questions entirely open, to be determined whenever the proper proceedings shall be instituted to inquire into the validity thereof. What we now decide is, that according to the uncontroverted answer of the respondent to the rule nisi, calling upon him to show cause why he should not be attached for contempt of the judgment of the Court on the quo warranto, he was not in contempt of that judgment, by exercising the duties of the office under his new appointment, which has never been judicially declared to have been invalid, by any appropriate proceeding for that purpose.

Let the judgment of the Court below be reversed.

No. 39.-DOE, on the demise of JOSEPH S. WORTHY et al. plaintiffs in error, vs. ROE, casual ejector, and JOHN HAMES, tenant, defendant, &c.

[1] A sale of lands, under a judgment against an executor, de bonis testatoris, conveys a good title to the purchaser, and the title of the heirs is divested.

Ejectment, in Troup Superior Court. Decision at November Adjourned Term, 1849, by Judge HILL.

This was ejectment for title, (and mesne profits,) by the heirs at law of Thomas Worthy against John Hames, for a lot of land, owned by Worthy at his death.

It was admitted in the bill of exceptions, that Worthy owned the land at his death; that it was levied on and sold by virtue of a fi. fa. vs. his executor and executrix, in the usual form, " to be

Worthy et al. vs. Hames.

levied of the goods and chattels, lands and tenements of said Thomas Worthy, to be administered by them."

The only point made was made by plaintiffs, that the title to the land of the heirs of Worthy, was not divested by the said Sheriff's sale, which the Court overruled; whereupon, plaintiff's counsel confessed judgment, reserving the right to except to said decision, which was then and there done, and thus the case comes up.

JOHN L. STEPHENS, for plaintiff in error.

B. H. HILL and BULL, for defendants.

By the Court.-NISBET, J. delivering the opinion.

11.] The defendant derives title to the land through a judg ment, de bonis testatoris, against the executors of the plaintiff's father. The plaintiff insists, that a sale of land, under such a judgment, does not divest the heirs; because, he says, the title is primarily in the heirs; that it does not pass to the executor; and although lands are liable to pay debts, yet only secondarily liable after the personal estate is exhausted, and only then liable, through an order to sell, by the Court of Ordinary. The heirs may, as we have held, maintain ejectment against a stranger. Their title, though, is in subordination to the right, and, indeed, obligation of the representative of the decedent, to appropriate the lands, if necessary, to the payment of debts. Lands are assets in Georgia, to pay debts, as well as personalty. Whether an executor or an - administrator can convey a title, except through an order of the Ordinary to sell, would be a very different question-a question not made. There is no doubt but that the law, through a judgment, can sell lands of a decedent. A judgment de bonis testatoris, binds all the property of the estate, both real and personal. Here, as well as in England, the personal estate, if there be no express directions in the will about the payment of debts, is generally first liable. It is the duty of the representative so to apply it, and if he fail in this duty, and the real estate is unnecessarily sold, under judgment, to pay debts, he may be guilty of a deyastavit. Here is a valid judgment against the whole estate, rendered by a Court of competent jurisdiction. If, by neglect, the

Worthy et al. vs. Johnson et al.

executors have permitted the judgment to pass, and the heirs are wronged by an unnecessary sale of the land, let them look to them. The lien of this judgment attached upon the land, and a sale under it divested their title.

Let the judgment of the Court below be affirmed.

No. 40.—JOSEPH S. WORTHY et al. plaintiffs in error, vs. SANKY T. JOHNSON et al. defendants.

[1.] To sustain a bill against the charge of multifariousness, it is not indispensable that all the parties should have an interest in all the matters contained in the suit. It is sufficient, if each party has an interest in some matter in the suit, which is common to all, and they are connected with others.

[2.] Creditors and heirs, as a general rule, can only sue third persons through the representative of the estate. The exception is, where there is collusion, insolvency, unwillingness to collect the assets, when called on, or some other like special circumstance.

[3.] If heirs elect to set aside purchases made by executors, administrators, or guardians, at their own sale, they must go into Equity; and such sales are voidable only, and not, per se, void.

[4.] The doctrine of market overt in England, has not been generally recognized or enforced in this country.

[5.] The doctrine of market overt, applies to judicial sales, as well as to public sales, made under authority of law, by executors, administrators and guardians; and caveat emptor is the rule of all such sales.

[6.] Neither are Sheriffs, executors, or other officers of the law, and trustees, liable for the title or soundness of property sold by them, at public sale, unless upon their own express warranty, or where fraud exists. [7.] Neither Sheriffs, nor executors, or administrators, can bind the execution debtor, or the estate of their testator or intestate, by any covenant respecting the property sold, or any other contract originating with themselves, and unauthorized by law.

[8.] All such covenants are personal merely, if it can be plainly inferred that they intended so to bind themselves.

[9.] Is it necessary to its validity, that every order of the Court of Ordinary,

authorizing a sale of real estate or slaves, should recite, upon its face, that