We are of opinion that the costs should he paid by Mounger’s administrators, out of the assets of their intestate.
Tindall's executors v. Mounger, 5 N.C. 290, 1 Mur. 290 (1809)
July 1809
·
Supreme Court of North Carolina
5 N.C. 290, 1 Mur. 290
Tindall’s executors v. Mounger and others.
V From Rowan. J
V. gives his bond to Make title to a tract of land to B, and dies intestate, leaving three sons, his heirs at latv, one of age, the other two, infants. B. dies; the administrators of A. recover of the executor of B. a judgment for the balance of the purchase money for the land. The executors and devisees of B. file a bill, praying for a specific execution Of the contract, as against A’s heirs at law, and an injunction as against A’s administrators, on the ground that part of the land w as claimed by an elder title. The heirs, in them answer, declare their readiness to make title, and the administrators admit assets. Injunction dissolved, upon Defendants’ giving security to make title agreeably to the prayer of the hill; and the costs ordered to be paid by A’s administrators, out of the assets of their intestate.
Henry Mounger, by his bond dated. 1st January, 1784, hound himself, his heirs, executors and administrators, in a penalty, conditioned to make to James Tindall, his heirs and assigns, a good and clear right and title in fee simple, td three tracts of land, as soon as rights could be obtained. The land had been entered by Mounger, and the grants-afterwards issued and came to the hands of Tindall. In FcbrU'kry, 1795, Mounger died intestate, leaving three sons, Edwin of full age, Thonlas and Henry infants. Thomas afterwards arrived to full age. In May, 1795, Tindall died. Afterwards the administrators of Mounger recovered a judgment upon a bond given by Tindall, for the balance of the purchase money of the land j and thereupon, in February, 1797, a bill was filed by the executors and devisees of Tindall, against Moun-ger’s heirs aforesaid, and also against David Cowan, a person who claimed two of the tracts sold as above, by an elder title, to carry into specific execution the contract of sale appearing in the bond aforesaid; and for an injunction against the judgment at law, on account of the claim of Cowan. The Defendants put in their an - swers, and admitted the bond for title, and Thomas and *291Edwin, who were of age, said they were ready to make titles ; the infant Henry, submitted to act as the Court should direct. The administrators admitted the estate of their intestate, Henry Mounger, deceased, was solvent-On these answers, the Court, at Septemoer term, 1799, ordered the injunction to be dissolved, on bond and security to amount of the judgment being given to make title agreeably to the prayer of the bill. The case coming on to be heard on the hill and answers, it was referred to this Court to decide which of the parties to this suit should pay the costs.