Wilson’s Red Book, 265
Court of Common Pleas of Delaware, Sussex County.
November 15, 1799.
William Paynter and Jesse Williams, administrators de bonis non
of Joseph Warrington, preferred a petition under the Act of Assembly [1 Del. Laws 292] for sale of intestate’s lands or so much etc. to satisfy his debts, accompanied by a copy of the account passed in the Register’s office by the late administratrix and widow of said Warrington, on which a large balance was due her for debts paid beyond the personal estate. The above administrators de bonis non
were some of the heirs of the said widow (West).
Peery, who said he was employed by Sarah Warrington, the heir of Joseph Warrington, objected to the granting the said petition. Sarah Warrington is in possession of the lands prayed to be sold. She disclaims all title under her father. Joseph Warrington never owned those lands, and perhaps there is no title to them in any person, and the court will not suffer administrators to sell lands of which they are not possessed.
Wilson. If the objection that the administrators are not in possession is a valid one against granting the order, the Act of Assembly for sales in satisfaction of debts will be in a great measure defeated. The administrator is allowed one year to settle
Page 247
the personal estate in. He has only a right to the crop on the ground and cannot plant another. Consequently, he usually loses the possession (where he happens not to be the heir) before he has settled up the personal estate, and then, according to this doctrine against which the practice has been uniform, he cannot be satisfied for monies that he shall advance on account of the estate. This doctrine would be highly inconvenient, for hereafter the administrator, knowing he cannot be reimbursed, must in every instance suffer himself to be sued, that the lands (as he cannot plead want of assets while there are any) may satisfy the debts by execution, which expensive and tedious mode of proceeding was what the Act was designed to prevent. There is no difference in this respect between the law for sales by administrators and that by executors, yet the latter cannot take possession of lands devised away, nor can they require refunding bonds for them, which administrators are directed to require but have not the means to compel the giving of.
If Joseph Warrington had no title (which no doubt his daughter would have destroyed, if a destruction of his title papers could effect it), then we shall not be able [to] obtain possession after a sale and purchase of the land, and no injury can be done to Sarah Warrington, whose possession is a defense until a better title is shown; but if, on the other hand, he had a title, we are by a rejection of this petition prevented from obtaining a satisfaction of our debts. But at all events the question of title ought only to be decided by jury, which will no doubt be done on the event of a sale
PER CURIAM. BOOTH, C. J.
If the party petitioning is not in possession of the land, we cannot grant the order.