Fairfield v. Williams

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.