concurring.
The contract or agreement made at the time the caveat to the will of William Dennard was withdrawn, doubtless was in the language of this Court, in 35 Georgia, 190, “ a.n obligation for a conveyance which a Court of equity will enforce.” This is true, and it could have been enforced against Burton T. Dennard or against his representative. It may further be true, as remarked by Judge McDonald, in 24 Georgia, 135, that after the payment of a certain debt against the estate of William Dennard, “if a judgment should be obtained, Mrs. Brady, (now Wilcher,) has the highest claim under the agreement of compromise. That agreement was never executed, and she has a right to demand its execution before the property can be appropriated to the debts against her deceased brother.” I shall not contest the truth of this last proposition. It was made in a case where there was a contest as to her priority over other creditors. But I cannot think that the Judge or the Court in either of these cases meant that Mrs. Wilcher had such a lien on, or legal or equitable title to, or interest in any portion of Burton T. Dennard’s property by virtue of that contract, as to be good against a bona fide purchaser from Burton T., or under a judgment against him or his estate. It was an equity in her that was not good against legal rights or titles derived from or through him, unless the holders thereof were affected by notice. As to all such persons, and even as against a purchaser from her husband, William M. Brady, without notice, for he under the law as it then was, had the right to sell her interest as heir, if there were no debts, she was simply a creditor, a creditor it is true, with a certain priority, but with no such charge on the property or title to it as to prevent a bona fide sale by him or by the sheriff or by her husband, except if made by the husband before her debt was paid, she stood with the same right as all other creditors, the right to subject all the property of her debtor to a due administration and payment of debt.
I have said if there had been no debts against the estate of *657Burton T. Dennard, William M. Brady’s sale, without the joinder of his wife would have been good, except as to her right of dower, which is not in question here. He was the husband of Julia M. Brady, the sole heir of Burton T. Dennard, and a sale by him would have been the assertion of his marital rights to the property. After such a sale an administrator of Burton T. could not recover from the purchaser unless he shows on the trial “that it was necessary for him to have possession for the purpose of paying the debtsCode, section 2450; and the condition being that there were no debts and no necessity “for making a proper distribution,” he could not recover. If there be debts then it is clear the administrator could recover.
In this case the administrator charges that there are debts. He does not specify any in his bill, not even the claim of Mrs. Wilcher, and further shows he was aware of the purchase by the defendant from W. M. Brady, the husband. No point was made on this omission to set out the debts which “it was necessary to pay,” nor the creditors, nor was any objection made on the trial to the evidence that Mrs. Wilcher was a creditor. There was no proof of any other debts. The defendant sought by his answer and proof to show that Mrs. Wilcher was not a creditor, who could have her debt enforced against the property bought by him from her husband, and also, at sheriff’s sale; that she had joined her husband in the conveyance; that her debt should be credited, or paid with certain money alleged to be in the administrator’s hands, received from defendant, and that, to allow a recovery for her benefit, would be to permit her to commit a fraud on him, etc. Thus the issue, the whole contest was made to turn on the question, whether Mrs. Wilcher could enforce her claim or debt on this land, and this too when she was not a party.
In my opinion, no decree, that she has no legal right to enforce her judgment, if she has a judgment, or should obtain one, against this property, or that the administrator cannot administer it for her payment, could bind her, unless she be a party to that decree; and therefore no attack on her right as *658a creditor of Burton T. Dennard, ought to be allowed, until she be made a party. This the defendant could do by cross-bill, and then every question touching every equity of all the parties could be finally adjusted, the amounts that may be due creditors ascertained, and their priorities, and if this land be held liable, and is more than sufficient to pay the debts, a proper disposition of the surplus can be made, and, if equitable, paid over to defendant. For, under the • view I have taken, as it can only be recovered from the defendant to pay debts, if there be a surplus, it should go to him. In a case so made, the question could be raised as to defendant’s rights on account of the mortgage money paid to Irene Dennard, and the money paid by him to the administrator, on the purchase from W. M. Brady. Also, the further question presented in the record, as to the competency of Mrs. Wilcher, as a witness to impeach her contract or conveyance, when the other party is dead.
The question may be asked how can a defendant in such a case show that there is no creditor or that any particular person has no valid debt, not knowing who the creditors are or who that particular creditor is ?
Where an administrator, under the provisions of section 2450 of the Code, which is but a statutory affirmance of a principle existing long before the Code, sues to recover lands from a purchaser holding under the heir-at-law and seeks to avoid that sale on account of the “necessity to pay debts,” in my opinion it is not only “necessary for him to show on the trial that it is necessary to pay debts,” but he should set forth the debts and the creditors in his bill in order that the defendant, the purchaser, may be put on notice as to the facts on which his property is sought to be condemned. If it can be taken from him for that purpose and no other, and is to be adjudged liable to pay a debt, he should have notice of what is thus attempted to be asserted against him. Any other rule would work manifest injustice, would disable heirs-at-law from ever availing themselves of their right to possess or sell, or subject themselves or the purchasers from them to the danger *659of a recovery, on the ground of some unjust or illegal claim or debt of which they would have no notice until the trial. If notice be given as to who are the creditors, provided there be any, and the heirs or those holding under them have just cause of defense against illegal or fraudulent claims, they would then have the opportunity to be heard and of protecting their rights. The administrator cannot complain of this, nor can any bona fide creditor when such a proceeding is necessary. When the right is given to an administrator to file a bill to marshal assets, which is for his own protection and safety, this very duty is required of him and he must make the creditors parties. When he proceeds against the heirs-at-law or claimants under them, which may be also for his protection and benefit, he should not be allowed an unconscionable advantage. No objection was made on this trial to the evidence that Mrs. Wilcher was a creditor of Burton T. Dennard and the defendant had no right to raise the questions that were set up against her claim as a creditor unless she had been a party. His permitting the proof without objection was equivalent to a waiver of the necessity of her claim being set forth in the bill, and he was bound by it as much as if it had been so set forth. Had he made such objection the complainant could have amended his bill. No such objection being made, and Mrs. Wilcher not being a party so as to be able to object to the attack on her claim or debt or to defend the same, the defendant could not have demanded a decree founded on the fraud or invalidity of her claim as a creditor.
I therefore concur in affirming the judgment granting a new trial.