
    DuBIGNON v. FINCH.
    Where, in a complaint for land by an administrator, the defendants admit in their plea that the legal title was-in the plaintiff’s intestate at the time of her death, but aver that they are in/possession under a contract of purchase from her, with the greater part of the purchase-money paid, and make a tender of the balance and pray specific performance of the contract, a motion for a nonsuit should not be granted after evidence has been introduced • by the plaintiff which shows that he has been duly appointed administrator of the decedent.
    Argued June 21,
    Decided August 21, 1905.
    Complaint for land. Before Judge Seabrook. Glynn superior court. December 7, 1904.
    
      JR,. D. Header, for plaintiff. Ernest Dart, for defendants.
   Evans, J.

The plaintiff was nonsuited in the court below, and in his bill of exceptions complains of the judgment of nonsuit. The action was brought in the name of H. F. duBignon, as the administrator on thQ estate of Hannah Coburn, against John and Rebecca Finch, to recover a leasehold interest in a certain city lot described in the petition. The plaintiff alleged, that his intestate died in the fall of the year 1901, and was the owner, at the ' time of her death, of an estate for years in the premises, which had not expired; that the defendants were in possession of the premises, claiming that they had purchased the same from plaintiff’s intestate during her life; and that it was necessary to recover the premises for the purpose of paying the debts of the estate and making distribution among the heirs of his intestate. The seventh paragraph of the petition was as follows: “ Plaintiff shows that both hé and the said defendants claim title, as before shown, to said land under the same common grantor, viz.: Hannah Coburn.” The defendants filed an answer in which they denied the right of the plaintiff to recover, and by way of amendment set up the special defense that, in the year 1888, they bought the premises in dispute from Hannah Coburn for the sum of $230, of which sum $190 had been paid. They made tender to the plaintiff of the remainder of the purchase-money; and prayed specific performance of the contract of purchase, and that the administrator be decreed to make them a deed to the interest of his intestate in the premises, upon payment of the balance of the purchase-money. On the trial of the case the plaintiff introduced in evidence his letters of administration and an order of court granting his application for leave to sell the land described in the petition. A witness testified that he built the house on the lot which was in the possession of the defendants, for Hannah Coburn; that he had been told by John Finch, one of the defendants, that they rented the house from Hannah Coburn, and Denison Armstrong was collecting the rent for her, but th,ey “ couldn’t get along,” and he (Finch) wanted witness to take charge of collecting the rent. The witness further testified that Hannah Coburn died in 1901, and Denison Armstrong a year or so later. The plaintiff testified as to the rental value of the premises, and offered in evidence a" deed from Sarah Price to his intestate, dated September 15, 1890, covering the premises in dispute, and reciting that Hannah Coburn had previously purchased the property from the grantor and had paid the purchase-money in installments, the last'payment being made on April 24, 1880, and that no deed had been-made, though Hannah Coburn had gone into possession of the premises in the early part of 1880 and had remained in possession since, and had made improvements thereon. The plaintiff also introduced in 'evidence divers receipts, signed by Denison Armstrong,, each acknowledging the payment of five dollars by Finch, and covering a period from 1887 to 1900.

We think this evidence, considered in the light of the pleadings, was sufficient to withstand the motion for a nonsuit. The defendants admitted in their plea that the plaintiff’s intestate had the legal title tó the premises at the.time of her death. Upon proof of the issuing of letters of administration to the plaintiff and the granting of the order of court providing for the sale of the property, a prima facie case was made out showing his right to the possession of the premises, and the burden was cast upon the defendants to prove their special defense.

Judgment reversed.

All the Justices concur, except Simmons, G. J., absent.  