majority">COLLIER, C. J.

The first charge assumes, that if the slaves were the individual property of George Swink, to entitle the defendant to set up fraud in the sale by the administrator, it was necessary for him to show that the branch bank at Decatur was an execution creditor of Swink, or of one of the mercantile firms of which he was a partner. Conceding that it is not competent for a stranger to gainsay a judgment against a dead man until it is vacated or annulled by a direct proceeding, and still we think that such judgment must be inoperative as against his estate, which has passed to an administrator. The regular grant of administration eo instanti invests the personal representative with the assets of the deceased ; and they are not subject to seizure and sale under an execution issued on a judgment thereafter rendered against the intestate. This principle of law does not become inapplicable, by proof that the administrator has converted, or fraudulently disposed of the assets committed to him. For mal-administration, he and his sureties incur a personal liability, and there is doubtless some course of procedure, by which, if need be, the misappropriated assets may be reached and devoted by creditors, to the payment of debts. There is then no error in instructing the jury, that the Decatur Bank should have been a creditor of Swink, by execution, when the slaves in question were sold by his administrator, to enable the plaintiff to avail himself of the alledged fraud. The sale by the bank was under an execution issued on a judgment rendered against Swink after his death, and after his administrator had taken possession of, and sold the slaves. Now, although the administrator’s sale may have been fraudulent, yet if the bank had no lien by an execution at that time, it could not sell the slaves under its *165judgment, obtained after S wink’s death, when the administrator’s title had vested; and consequently the defendant, who is the vendee of the bank, is not in a condition to alledge the fraud.

2. Conceding that the sale by the administrator, and purchase by Carter were fraudulent, and that Harris and Carter combined in the commission of the fraud, yet the mere fact of Harris being in possession,' would not give him a legal right to hold the slaves as against Carter, who was the purchaser from the administrator. If Carter and Harris had been joint purchasers, and had both combined with the administrator to perpetrate a fraud, and in pursuance of such combination and joint purchase, Harris had taken possession of the slaves, the principle invoked by the prayer for instructions, would perhaps have been applicable. But the charge of the court is not asked upon this hypothesis. It assumes that if there was a fraudulent combination between Carter and Harris to purchase, although Carter may have purchased individually, their fraudulent scheme, which was a matter of joint arrangement, would subject the slaves to the payment Harris’s debts, or that Carter could not have asserted a title against him. The maxim inpari, delicto melior est conditio possidentis, is certainly a salutary one, but will not admit of such illimitable tension.

In Armstrong v. Toler, 11 Wheat. Rep. 258, it was decided, that where a contract grows immediately out of, and is connected with an illegal or immoral act, a court of justice will not lend its aid to enforce it. So if the contract be in part only connected with the illegal consideration, and growing immediately out of it, though it be in fact a new contract, it is equally tainted by it. But if the promise be entirely disconnected with the illegal act, and is founded on'a new consideration, it is not affected by the act, although it was known to the party to whom the promise was made, and although he was the contriver and conductor of the illegal act. To the same effect is the opinion delivered by me in Carrington v. Caller, 2 Stew. 175, which, by the division among the judges who participated in the decision, must be regarded as the law of that case.

The prayor for instructions forestalls the inquiries of the *166jury upon the point, whether Harris did not hold the slaves under a subsequent contract with Carter, although there is proof in the record tending to show that such was the fact. If this contract was not simulated, but entered into in good faith, there can be no doubt but Carter’s title is paramount to Harris’s, though there may have been a fraudulent combination between them, which led to the purchase from the administrator. Upon this contract Carter could have recovered without proving his own purchase, by showing Harris’s recognition of his title, and undertaking to deliver to him the slaves — all which is abundantly manifest from its terms. He would require no aid from the illegal purchase, and this may be regarded as a fair test of his right to recover.

3. The second charge, or as it is inappropriately called a qualification, of the prayer for instructions, is a substantial reiteration of the first charge, and is consequently unexceptionable. We have but to add, that the judgment of the circuit court is affirmed.

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