
    J. D. Boyd, Administrator of J. Boyd v. Robert Sloan.
    An executor, acting under a will which was afterwards set aside, leased the lands of his supposed testator for a year, and the tenant enjoyed the demised premises without interruption: Held, that neither the administrator subsequently appointed, nor the heir of the intestate, could maintain an action for use and occupation against the tenant.
    Tried before Mr. Justice Earle, at Laurens, February Term, 1831.
    This was an action of assumpsit for the use and occupation of a mill, which formed part of the estate of J. Boyd, deceased. R. F. Simpson had qualified as executor of a supposed will of the deceased, and demised the premises, by parol, for one year, to the defendant, who entered and enjoyed them without interruption. Subsequent to the demise, the will was set aside, and administration granted to the plaintiff, who, on the expiration of the term, brought this action. The plaintiff was one of the heirs-at-law of his intestate, but he declared as administrator. The supposed will was not produced, and it did not appear, whether it contained any authority to make leases of lands.
    
      •, It was objected by the defendant, on a motion for a non-suit, |that the action should have been brought by the heirs, and not i_by the administrator. The presiding Judge, referring to the case of Gregory v. Forrester, 1 M‘C. Ch. 328, observed, that it Swas by no means well settled, how far an administrator might, in this State, interfere with the management of lands. He might, by confessing judgment, enable the creditor to sell even the fee, without making the heirs parties; and that too when there were personal assets to satisfy the debts. Martin v. Latta, 4 M‘C. 128. It was, however, unnecessary to consider the question in this case ; and it was equally immaterial, whether the executor possessed any authority, under the supposed will, to make a lease: The defendant could not deny the title of his landlord; and the contract having been made by Simpson as executor, the plaintiff, who stood to him in a relation similar to that of an administrator de bonis non, succeeded to all his rights and duties. The liability of the defendant was clear, and it was equally clear, that the plaintiff’s intestate was ultimately intitled to the money; and although it might be questionable, whether the plaintiff could maintain this action, his Honor was not satisfied that he could not.
    The motion was therefore overruled, and the jury found for the plaintiff. The defendant now renewed his motion for a nou-suit, in the Court of Appeals.
   Harper, .T.

delivered the opinion of the Court.

It does not appear in this case, whether the executor, Simpson, was, or was not authorized, by the supposed will of his testator, to lease the mill in question; nor is it material to the result of the case. Whether he was, or not, the tenant, to whom he demised, and who enjoyed the premises without interruption, would have been liable to him. But we are of opinion, that the administrator cannot sustain the present action. The executor or administrator is the legal owner of the goods of his testator or intestate; and if he sell them on credit, it is his personal demand, and he is liable to creditors or distributees. If he take a note or obligation he must sue in his own right. Selw. N. P. Wheaton’s edition, 589: and if he should name himself executor or administrator, though this might not vitiate, it would be because they would be regarded as words of description, and surplusage. If he should die, the right of action would foe in his representative, to whom the administrator de bonis non would have recourse. So, if he lease or sell for a term. It follows, whether we suppose the lease a valid act, done by an executor in fact, or the unauthorized act of an individual unconnected with the estate, that the representative of Simpson is the proper party to sustain the present action.

Young, for the motion.

A. W. Thompson, contra.

It was urged that the plaintiff is one of the heirs of the testator, and may sustain the action for use and occupation in that capacity, and that his description of himself, as administrator, will not vitiate. If Simpson was authorized by the will to lease, it was his contract, and his representative alone can sustain the action. If he was not authorized, the heir cannot sustain the action for use and occupation; there being no contract between himself and defendant. Defendant’s possession was a trespass as to him. The motion must therefore be granted; and a non-suit ordered.  