
    Perry and another v. Booth, Adm'x.
    
      •Qnere whether the Probate Court can confer on an administrator authority to sell notes and accounts belonging to the estate of the intestate.
    if it were conceded that the Probate Court cannot confer on an administrator authority to sell notes and accounts belonging to the estate of the intestate, and that the purchaser therefore acquired no title, yet that would be no defense to an action on a note given in consideration of such a sale, unless the defendant return or offer to return the notes, &c., or otherwise account for them. (Note 60.)
    <Where a note for a large amount, which was barred by the statute of limitations, had been presented to the administratrix and been rejected, and then put in suit, the creditor and administratrix contracted to the effect that the administratrix should desist from any further defense against said suit: that the administratrix should apply for and obtain an order of sal© of all the property of the estate, including notes, accounts, that the creditor should bid and secure at the sale the sum of two thousand dollars, or a sum sufficient to pay all the other debts of the estate and the expenses of administration ; that the administratrix, after paying the other debts and expenses of administration, should apply the balance of proceeds of that and till previous sales to the note aforesaid, which the creditor was to receive in full satisfaction thereof; that so soon as tho salo was made the creditor should dismiss his suit, and that the note should be delivered to tho administra-trix, to be used by her as a voucher in tl$ settlement of her account: Ileid, That the administratrix had no authority to make such a contract, and that she was not bound in her personal capacity: first, because she did not contract in that capacity; second, because the claim being against another and being barred, the promise was without consideration.
    Error from Jefferson. This suit was brought by the appellee against, (he appellants. upon their promissory note for the payment to the former, “admin-istratrix of the estate of Robert E. Booth,” of eighteen hundred and twenty-two dollars.
    The defendants pleaded a failure of consideration, and also in reconvention. Tlie former plea averred that the note was given in consideration of purchases >made by the defendant Perry, of “promissory notes, accounts, land papers, belonging to tho estate of Robert E. Booth, deceased, sold by the plaintiff ;at a public sale made by her of the property, real and personal, of her said Intestate, to whom in his lifetime the said notes, accounts, and land papers belonged; that the plaintiff, as administratrix, had not lawful authority •to sell them at public sale, and that the defendant by his purchase acquired no right or title to them. The plea in reconvention set up and sought to enforce .an agreement, made in 1849 between the defendant Perry and the plaintiff, which contained the following recital and stipulations: That the plaintiff’s •intestate, on the 15th day of September, 1843, gave to the defendant Perry his promissory note for the sum of $10,046.42, payable three days after date; that the same, after the death of the said Robert E. Booth, was presented to the plaintiff, administratrix of his estate, for allowance, and by her rejected; •that thereupon, on the 15th day of January, 1S49, the defendant Perry brought suit in the District Court of Jefferson county, to establish his claim against the estate of the deceased. Then followed the stipulations of the agreement, which were as follows : In consideration that the said Elizabeth Booth, administratis : as aforesaid, shall desist from making any defense against said suit, the said Perry is to bid and secure at a public sale of the property of the estate the sum ■of $2,000, or a sum sufficient to pay the debts of the estate and the expenses of •administration, and is not to prosecute his suit further, but so soon as the sale can be legally effected, shall dismiss the same at his costs. And, in consideration of the dismissal of the suit, the said administratrix agrees to apply for .and obtain an order of sale, and to sell all the property, including all notes, accounts, laud papers, &c,, belonging to the estate, except the portion.theretofore set apart to the widow of the deceased, and to apply the proceeds, with the proceeds of all previous sales and all money of the estate, after paying debts and the expenses of administration, to the. payment of the note of the deceased held by the said Perry, and heretofore rejected by the administratrix and sued oil as aforesaid; and the said Perry is to receive the same in full satisfaction ■of the note, which is to be delivered to the administratrix, to be used by her :.as a voucher in the final settlement of her administration.
    
      The defendants alleged that by reason of this agreement the plaintiff was-indebted to the defendant Perry the amount of the note of her intestate, described in the agreement, with interest.
    To these pleas the plaintiff demurred, and the court sustained the demurrer. There was judgment for the plaintiff, and the defendants brought a writ of error.
    The only error assigned which was noticed by the court was the ruling of' the District Court in sustaining the demurrer to the defendants’ pleas.
    
      Pedigo and Jones, for plaintiffs in error.
    I. There is no law authorizing the sale of claims due an estate; but several sections of the law contemplate their collection instead. (Hart. Dig1., art. 1177, 1182, 1190.) It follows that the sale was unlawful and void. Andan administrator should have no standing- in court when he seeks to enforce the-performance of a contract which originated from such an unlawful and void act upon his part; therefore there was error in sustaining the demurrer to the defendants’ plea which set up this defense. We say, too, that Perry acquired no title to the notes, &e., and that they may be recovered from him at the suit of the administratrix or of an administrator de bonis non.
    
    II. The plea in reconventiou was good. The plaintiff sued in her individual right; the words “administratrix of Tí. E. Booth” immediately following-plaintiff’s name in the petition, are no more than “words of description.” Such being the case, and the plaintiff' having made herself personally liable on her promise to pay the debt of her intestate due to Perry, the court below should have overruled plaintiff’s exception to this plea. It is unnecessary to-refer to authorities to show that the plaintiff made herself personally liable upon her promise.
    
      H. N. S,- M. M. Potter, for defendant in error.
    T. The only question in the case is upon the ruling of the court in striking out defendants’ pleas; the first of which states that the note was-given for the property purchased by Perry at a public sale, made by Mrs. Booth as administratrix of the estate of her husband, of the property of said estate ; that said property belonged to the deceased in his lifetime; that the administratrix had no right to sell the same at public sale, and that Perry acquired no title under his purchase. The commencement of this plea states that the property belonged to the estate, and that the administatrix sold it at public sale. If this be true, and if it bo true that every intendment will be taken the most strongly against the pleader, liten we are bound to presume that the sale was made according to the requirements of the law, and was legal ; and the statement in the latter jjart of the plea, that Perry acquired no title to the property by his purchase, cannot avail against the presumptions which arise ou tlie previous statements. But, aside from this, the defendants should have offered by their plea to return the properly received by Perry. “lie who would have equity must first do equity;” and it would hardly be equitable for Perry to keep the property and not pay the note. The plea was dearty uncertain and insufficient, in not stating some reason why Perry did not acquire a good title to the property purchased by him at the sale. (1 Chit, PI., 237;. Hart. Dig., art. 3170.)
    II. As to the second plea: 1st. We submit that a pica in reconvention will not be allowed where a plea in off-set would not be good. And it is well settled, both at law and inequity, that joint and separate demands cannot be set off against each other; the demands must be mutual and due to and from tlie • same persons in the same capacity. (Albright v. Aldrich’s Adni’x, 2 Tex. B,, 160; Dale. v. Cooke, 4 Johns. Ch. 11., 11; Duncan v. Lyon, 3 Id., 351; Murry v. Tolland, Id., 573; 2 Story’s Eq., sec. 1437; Leeds v. Marine Insurance Co., 6 Wheat It., 571, in 5 Cowl., 188; Tucker v. Oxley, 5 Cr. R., 34,. in 2 Comí., 382.) There are exceptions to this rule, but this case is not within, the exceptions.
    
      2d. The administratrix could not bind the estate by such an agreement; and the agreement is no defense to a note given to the estate for the purchase of property belonging to the estate.
    3d. According to the express stipulations bf the agreement, the $2,000 was to be paid by Perry for the purpose of paying off tiie general debts against the estate; and it, would be a fraud upon tiie creditors of the estate to allow this-fund to be withdrawn from them, and tiie court should not so administer the law as to drive the mass of the creditors to look to the bond of the adminis-tratrix merely for the benefit of one creditor.
    4th. By the plea and agreement it appears that the note given by Booth to Perry was barred by the statute of limitations, years before Perry brought suit against the administratrix to establisii the same. The administratrix did right in rejecting the claim; and she had no right afterwards to allow it, as there is no showing that it was duly verified for presentment and allowance. (Hart. Dig., art. 115S.)
    5th. Even were it true that tiie plea would have been good as to Perry, had. he pleaded separately, yet, having joined with Hillebrant, who had no interest in tiie agreement, and who asks for judgment in reconvention, and the plea being bad as to him, it is bad as to both.
   Wheelek, J.

It may well be doubted whether an order of tiie Probate Court could confer on the administratrix authority to sell tiie notes and accounts belonging to the estate of her intestate. The statute does not in terms authorize tiie sale of claims for money due the estate, but enjoins their collection. (Hart. Dig., art. 1182.) It may be true, therefore, tiiat the defendant did not acquire a good title to the notes and accounts purchased by him at the sale by tiie administratrix. But this question it is not necessary now to determine, for to constitute the plea setting up such defect of title a good defense to the action, he should have averred a return or offer to return, or should liave otherwise accounted for tiie notes and accounts so purchased by him. He cannot be permitted to retain and appropriate the notes or their proceeds to Ills own use, and resist the payment of the note given by him as the consideration of the purchase, on the ground of tiie want of authority in tiie administratrix to sell.

That which is a benefit to the promisee or a prejudice to the. promisor is a sufficient consideration to support a promise. The defendant does not aver tiiat he derived no benefit from the purchase, but only that he did not acquire a good title. He does not allege tiiat his right has been disputed, or that payment of the notes and accounts has been refused.

But if tiie purchase was not a benefit to the defendant, it will scarcely be denied that it was a prejudice to tiie plaintiff. If, as insisted, the sale'was unauthorized, she thereby incurred a liability to tiie estate to the extent of' any injury which may have resulted. To have rendered tiie defense availing, it was incumbent on the defendant to have restored the plaintiff' to the rights enjoyed by her at the time of the making of the contract. And, for the reason that the plea contains no averment of a return or offer to return tiie notes, &c., purchased, the plea was insufficient.

The legal sufficiency of the plea in reconvention must depend upon the validity and binding effect of the agreement which it seeks to enforce. That this agreement was not valid and binding as to the estate, was, we think, very properly conceded in argument. But it is insisted that the plaintiff thereby hound herself in her personal capacity. It is evident, however, from the terms and import of tiie agreement, that it was tiie intention of tiie plaintiff to contract in her representative and not in her personal character; and that tiie agreement should he obligatory on her in the former and not in tiie latter character, was evidently the intention and understanding of both tiie contracting parties. To give it tiie effect now contended for, therefore, would he contrary to the intention of tiie parties. And this is a sufficient answer to. the argument that the plaintiff bound herself personally by her agreement. But it is susceptible of another answer, resting on obvious principles. The agreement of the plaintiff, taken as an agreement or promise to pay the debt of her intestate, was without any consideration to support it. The debt bad been barred by the statute of limitations. As administratrix, she had refused t,o allow it. An acknowledgment by the debtor oí a debt barred by the statute is supported on the ground that there is resting on him a moral obligation to pay the debt, which'is a sufficient consideration to support his promise. But the administrator is under no moral obligation to pay ont of his own funds the debt of his intestate. The consideration of a moral obligation, to render the plaintiff personally liable, was wanting. Her promise, therefore, to pay the debt of her intestate gave no right of action against her in her personal character. (1 Whart. Penn. 11., 66; Angell on limitations, 293 to 290; Chit. on Conr., 270.) Nor can the agreement he enforced against her in her official character.

Note 69. — Claiborne v. Yoeman, 15 T., 44; Fortson v. Caldwell, 17 T., 627; Lemmon n. Hanley, 28 T., 219.

We are of opinion, therefore, that the court did not err in sustaining the exceptions to the defendants’ pleas, and tiiat the judgment he affirmed.'

Judgment affirmed.  