
    
      * Jeremiah Fairfield versus Obadiah C. Williams and Abijah Smith.
    If an administrator binds himself to convey part of his intestate’s land to A B, it is no legal defence to an action upon the obligation, that, the estate being insolvent, he has sold the land, under a license of Court, to the highest bidder, the obligee being present and requesting him so to do; nor that, since the obligation, the whole of the land has been covered by a town way legally laid over it; though this latter fact may avail the defendant upon a hearing in equity.
    Debt upon bond. Upon oyer of the bond and condition, the latter is recited as follows, viz.: “ The condition of the foregoing obligation is such, that whereas the said Williams and Smith have agreed to sell and convey to the said Fairfield a certain piece or lot of land situated in the town of Winslow, described as folioweth, &c.: Now, therefore, if the said Williams and Smith, in their said capacity or otherwise, shall make and execute to the said Fairfield, his heirs and assigns, a good and sufficient deed of conveyance of the premises above described, and warrant and defend the same to him and them free and clear of all encumbrances, excepting roads, within one year from the above date, and shall save the said Fair-field harmless from any let, suit, molestation, or disturbance, by any of the heirs of the said Obadiah Williams, Esq., or any other person or persons, by their means, right, or title, then the above obligation to be void; otherwise to remain,” &c.
    The defendants then plead in bar that they, as joint administrators of the estate of the said Obadiah Williams, obtained an order from the Court of Common Pleas for this county, to sell the real estate of the said Obadiah Williams, deceased, for the purpose of paying his just debts, said estate being insolvent; that they, in pursuance of said order, after duly advertising the sale, did expose the same to sale at public vendue, and at the special instance and request of the plaintiff, he being then and there present, exposed to sale the premises described in said writing obligatory, they being part of the said real estate of said Williams, deceased ; and the same premises were struck off to one Levi H. Perkins, he being the highest bidder therefor. And the said Smith and Williams aver that they have saved the said Fairfield harmless from any let, suit, molestation, or disturbance, by any of the heirs of the said. Obadiah Williams, or any other person or persons, by their means, right, or title.
    * And for a second plea in bar, the defendants say [ * 428 ] that, before the making and executing the said writing obligatory, viz., on, &c., the selectmen of the said town of Winslow laid out a certain town road, &c., [describing it,\ which road was afterwards duly accepted by the inhabitants of said town, and recorded as a town way. And they aver that the said road covers and extends over the premises mentioned in the said writing obligatory, and that the said road has never since been discontinued, but remains as a town road. And this they are ready to verify. Wherefore, &c.
   The plaintiff demurs to both these pleas in bar, and the defendants join in demurrer; and the parties submitting the cause without argument to the Court, their opinion was afterwards delivered as follows by

Parsons, C. J.

It appears, from the first plea, that Obadiah Williams died seised of the land mentioned in the condition of the bond; that the defendants, having obtained license to sell the same for the payment of the deceased’s debts, they accordingly sold it at public auction to one Perkins, the highest bidder; that the plaintiff was present at the sale, and that he requested that the land might be sold at auction. These facts are pleaded in bar, to which títere is demurrer and rejoinder. And it is very clear that this bar is bad. It is not a performance of the condition, nor is it any legal excuse for not performing it. The plaintiff could not obtain a legal title, but by a sale at auction, in which he was the highest bidder, ot some other person, from whom he might afterwards purchase. I' was the business of the defendants to procure some person to become the highest bidder, who would reconvey to them, or convey to the plaintiff, who was not obliged to bid higher than any other person ; and he acted very properly in consenting to, and in requesting a sale at auction, without which he could obtain no' legal title.

Wilde for the plaintiff.

Rice for the defendants.

The second plea in bar alleges that, before the execution of the bond, the whole land was legally covered by a highway laid out by the selectmen, and approved by the town. To this plea also there is a demurrer and joinder. This second plea is also bad. The soil and freehold still remained in the former owner, f *429 ] notwithstanding the encumbrance of the* road ; and the obligors ought to have executed the conveyance, subject to that encumbrance.

In hearing the parties in equity, the defendants may avail themselves of the location of the road, to reduce the damages arising from the breach of the condition ; but that location cannot be pleaded as a performance to the condition, or as a legal excuse for not performing it.

The penalty of the bond must be considered as forfeited at law, and the defendants may be heard in equity.  