
    Robert Smith v. Thomas Raymond's Admr. and Heirs.
    Descent and Distribution — Administrator and Heirs — Ancestors’ Covenant of Warranty.
    Appellant sued Raymond’s administrator and heirs for a breach of a covenant of warranty binding the vendor and his heirs. The administrator, after answer, was permitted to withdraw it and move a dismission of the petition, because the sufficient demand had not been made of the administrator. And the court accordingly dismissed the petition without prejudice. Held, that before full preparation such an answer may be withdrawn and a dismission ordered, although the heirs could not require such statutory demand.
    APPEAR FROM HARRISON CIRCUIT COURT.
    October 5, 1869.
    
      Trimble for appellant.
    
    Ward, for appellees.
    
   Opinion of the Court by

Judge Robertson:

Smith, sues Raymond’s administrator and heirs for a breach of a covenant of warranty binding the vendor and his heirs.

The administrator, after answer, was permitte’d to withdraw it and move a dismission of the petition, because a sufficient demand on the proper statutory affidavit had not been made of the administrators. And the court accordingly dismissed the petition without prejudice.

It has been already adjudged that, before full preparation, such an answer may be withdrawn, and such a dismission may be ordered.

And, though the heirs could require no such statutory demand, yet, as their liability is ulterior and joint, the dismission as against the administrator must prevent a separate proceeding against them also. The personal assets must be exhausted before the real can be made liable. Hill v. Golden, 16th B. M., 555.

Wherefore, the judgment is affirmed.  