
    A. Perry, Administrator Jacint Hicklin, v. John Brown.
    Columbia,
    May, 1828.
    An administrator has no interest in the real estate of his intestate; and is incompetent to make any contract for the sale thereof, or in relation to a sale thereof to he made by the sheriff.
    Tried before Mr. Justice Gantt, at Lancaster, Spring Term, 1828.
    The lands of the plaintiff’s intestate had been levied on in his life time, by the sheriff, under a writ of fieri facias; but before a sale was made, the intestate died. The plaintiff having obtained a grant of the administration, contracted with the defendant for a sale of the lands for the sum of $1000. The agreement, which was parol only, was that the defendant should bid the lands off at the sheriff’s sale, but whether he bid more or less, was to pay the price stipulated with the plaintiff. The defendant bid off the lands for the price of $615, paid that sum to the sheriff, took his title for the lands, and went into possession of them; and this was an action of assumpsit to recover the difference between $615 and 1000. At the trial, the plaintiff proposed to go into evidence of the above agreement, but his Honor, the presiding Judge, held the evidence to be inadmissible, on the double ground that the agreement was void by the statute of frauds; and that at law, an administrator had no right to contract for the sale of the real estate of the intestate.
    The plaintiff was nonsuited, and now moved the Court of Appeals to set aside the nonsuit, and to send the case back for trial, on the ground that the evidence of the agreement ought to have been admitted.
    Williams, for the motion.
    Miller, contra.
    
   Johnson, J.

delivered the opinion of the Court,

This Court concurs in opinion with the presiding Judge that the plaintiff was not entitled to recover in the case stated. The facts, I think, plainly develope that the plaintiff’s participation in the contract, was for the laudable purpose of securing a sale of the lands at their value; and by this means to add to the funds of the estate which he represented, for the benefit of creditors, or others that might be interested. And it is equally apparent, that the defendant has been guilty of a breach of good faith, in not fulfilling the contract on his part, after having availed himself of the advantage which it was calculated to give him. But he has thought proper to rest his defence on his legal rights, and we are bound to judge of them according to the rules of law.

As administrator, the plaintiff clearly.liad no interest in the lands of his intestate. His office was confined to the administration of the personal assets. He was incompetent, therefore, to make any contract for the sale of the lands ; and of consequence, a promise, founded on his contract to sell, release, or convey, however solemnly and firmly entered into, would be void for want of consideration; and on this ground the motion is refused.

Motion refused.  