Preston v. Golde

Decided December 15, 1883

Tennessee Supreme Court · decided 1883-12-15

1. PARTIES. Administrator necessary. When■ If the vendor die while a hill is pending against him by the vendee for a rescission of the contract for a sale of land, and to recover the amount paid as purchase money, the cause must be revived against his administrator as well as his heirs. 2. Same. How heirs may he proceeded against alone. The heirs can be proceeded against alone only by strict compliance with the statute. There must be a suggestion of record that no one can be procured to administer, and a ¡motion for sci. fa. to revive against the heirs on this ground. S. Waiver. 'Appearance and defense by heirs is not. ’ When. The heirs’' by waiving such a sci. fa. and appearing and defending the cause on its merits, and not objecting to the want of an administrator, will not be held to have waived the same.

Cited by 2 later decisions — most recently August 2016

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1883-12-15

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Tuiiney, J.,

¶1says:

¶2I concur in the opinion of Judge Freeman. Before the statute, in a ease like the present, the complainant could not have proceeded at all after the death of the *274vendor without an administrator. The statute, by its-terms, puts upon complainant the burden of showing that no one can be found who will administer. The law will not presume that no one will administer. The complainant proposing to proceed under the statute must, by proof satisfactory to the court, bring himself within its provisions and show the fact made absolutely necessary by that statute to his procedure without an administrator. He has not done so, on the contrary, he files letters of administration, which defeats his right to proceed under the statute and stops there.