
    Rufus C. Davisson, Executor, v. John H. Burgess et al.
    Where an order of court was obtained by an executor for the sale of lands to pay the debts of the estate, and'after the granting of the order, and . in consideration that the executor would forbear to carry it into execution, a bond was executed on behalf of the heirs conditioned that the obligors would pay the debts of the estate—Held: That the bond, although not in strict conformitjr to the statute (I S. & C. 591), which provides that if such a bond be executed before the order of sale, no order shall be granted, is nevertheless binding upon the obligors, and may be enforced against them by the executor.
    Error to the District Court of Lawrence couuty.
    This was au action by the plaintiff iu error against the defendants, for breach of the condition of the following bond, executed by the defendants :
    “ Know all men by these presents, That we, John H. Burgess, Archibald I. Rodgers, Nathan D. Burgess, Reuben D. Burgess, and John Ellison are held and firmly bound to Rufus C. Davisson, surviving executor of the estate of James Burgess, deceased, in the sum of five thousand dollars for the payment of which we do jointly and severally bind ourselves. Sealed and dated the second day of November, 1868.
    “ The condition o.f the above obligation is such that whereas the said Rufus O. Davisson did on the 25th day of August, a. d. 1856, procure an order of sale to be made by the Probate Court of Lawrence county, for the sale of real estate belonging to said estate, and whereas said order of sale was, on the 16th day of July, a. d. 1868, duly revived in said probate court for the purpose of selling the real estate belonging to said estate to pay the sum of about two thousand dollars, the amounts claimed to be due the creditors of said estate. Now, therefore, if the said John H. Burgess, Archibald I. Rodgers, Nathaniel D. Burgess, and Reuben D. Burgess shall pay all the debts mentioned in said petition and orders of sale that shall be eventually found due from the said estate of James Burgess with the charges of administering the same, then this obligation to be void, otherwise to remain in full force.”
    The petition alleges that the bond was executed upon the consideration “ that the plaintiff would forbear to execute said order of sale,” and avers that “ by reason of the premises the said plaintiff did forbear to execute said order of sale, and still forbears to do so.” The petition then sets forth a schedule of the debts due from the estate, which defendants have wholly neglected to pay, and asks a judgment against them for the aggregate amount of the debts so due.
    The common pleas sustained a demurrer to this petition, on the ground that it did not set forth facts sufficient to constitute a cause of action, and gave judgment for the defendants. This judgment was afterwards affirmed in the district court, and it is claimed now that both courts erred in holding the petition insufficient.
    
      Cherrington § Neal, and L'eete ‡ Hamilton, for the plaintiff' in error.
    
      0. F. Moore and John S. George, for defendant in error.
   "Welch, C. J.

The simple question presented is, whether this bond was binding upon the defendants, either as a statutory or as a common law obligation. That it is not in strict conformity to the statute must be admitted. The statute (1 S. & C. 591) authorizes the execution of such a bond before the making- of the order -of sale, and gives it the effect of preventing any such order being made. Here the bond was executed after the order of sale, and was to have the effect of preventing its execution. In other words, .the statutory bond supersedes the granting and execution of any such order of sale, whereas this bond was designed to supersede the execution alone. "Without undertaking to decide the technical question, whether the bond in controversy is to be denominated a statutory or a common law-bond, it is enough to say that we think the defendants are-bound .by it. It was executed, if the petition is true, upon a sufficient consideration, namely, that the plaintiff would forbear execution of the order of sale. The purpose for which the bond was executed, was not only lawful, but it' contemplated a substantial carrying out of the very object of the statute, which was, to prevent the sale of .decedants’’ lands to pay debts, if the heirs or devisees would give good security for their payment. The order of sale having already been made, the parties did all they could, at that late-date, to carry out the object of the statute, and we are satisfied that the bond, although not within the letter of the-statute, is binding upon the defendants. Whether it is to-be regarded as a statutory bond, and whether the creditors could have compelled the executor to enforce the sale notwithstanding the bond, we need not inquire. To make a case against the obligors it is enough that the creditors did' not interfere, that the obligors have had the benefit of all they contracted for, and that the arrangement was a substantial carrying into effect of the very object of the statute..

Judgment reversed.  