The slaves in controversy, were sold by the plaintiff in error as coroner, by virtue of an execution against the representatives of the estate of William King,, and the question is, whether they belonged to that estate, or to the estate of J. C. Oalhoun, as the property of which they are now claimed.
Previous to Spence, the defendant in error, becoming the administrator of King, Calhoun, as King’s executor, and by virtue of power derived from the will, had exposed the slaves in controversy with others for sale, and had purchased them himself; but under such circumstances as would have enabled the legatees or creditors of King to set aside the sale on application to a court of chancery. Subsequently Calhoun died, and Spence, in virtue of his office as sheriff, succeeded his predecessor, Griffin, in the administration both of the estates of King and Calhoun.
When this case, or one involving the same points, and between the same parties, was here at a previous term, (Mc-Lane v. Spence, 6 Ala. 898) we held, that as the purchase by Calhoun was voidable at the election of those inter-' ested in King’s estate, Spence, as the administrator of both estates, might elect to consider the purchase by Calhoun as set aside, as he could not sue himself, and might do that voluntarily which a court of equity would have compelled him to do; but until the sale was set aside by a competent court, or by the election of the administrator of both estates, the ■ title passed to Calhoun by his purchase. The sale has never been set aside by a court of chancery, and the motion for instructions upon the whole evidence, presents the question, whether Spence has himself elected to consider the slaves as the property of King’s estate.
The remarks made in McLane v. Spence, supra, were predicated upon the facts as they were set out in the bill of exceptions. We have now before us- the record of the entire proceedings of the orphans’ court upon both the estates of King and Calhoun, and in our opinion it does not justify the inference, that Spence elected to consider the slaves the property of King’s éstate. The facts relied upon are, that Spence, in rendering an inventory of the estate of Calhoun, did not return these slaves as belonging to that estate. This *180■ fact is of a negative character, and would not be of much avail, unless he had reported them as belonging to the estate of King, in his inventory of that estate, which he did not do. The omission may be accounted for by the fact, that he never had actual possession of the slaves, they having been hired out by his predecessor before his appointment, and sold by the plaintiff in error before the expiration of the term of hiring. We think, therefore, the mere fact, that he did not return them in his inventory as the property of Calhoun’s estate, does not establish the fact contended for. Nor is it of any weight, that the notes taken for the hire of these slaves, during the year they were hired out as above stated, were made payable to the administrator of King. The hiring took place under the administration of Griffin, the predecessor of Spence, by virtue of an order of the court directing him to hire them out, as the property of Calhoun, and it is shown that the notes were made payable to the administrator of King by the mistake of Griffin’s agent, he being unable to attend the sale. But independent of this, no .conclusion •could be drawn against Spence from this act, as he was neither a party, or privy to it.
• The fact principally relied on is, that in making an estimate of the assets of King’s estate, preparatory to an order declaring ,the estate insolvent, he puts down among the debts due by the estate, $229 31, the balance due on McCartney’s .judgment. This sum is the balance due upon that judgment, after crediting it by the amount of the sale of the slaves now in controversy, made by the plaintiff in error. The argument, and indeed it may be said the said the just inference from this fact unexplained, would seem to be, that it was an admission that the slaves were rightfully sold as the property of King; but this inference is shown to be unjust, when the accompanying facts are considered.
The report for the insolvency of King’s estate was made on the 8th November, 1842, after the execution of McCartney v. King’s administrator had been returned satisfied, except for the sum of $229 31, and we cannot think it was the duty of the administrator of King, to assert that a larger sum was due than the plaintiff himself claimed. It is true, the money was made by a sale of these slaves as the property of King’s es*181tate, but the sale was forbidden by Spence, and the slaves clamed by him as the property of Calhonu’s estate, and eight days before this report of the insolvency of King’s estate, this suit was brought to recover the value of the slaves as the property of the estate of Calhoun. These facts, in our opinion, explain the character of the item relied on as an admission. It is evidently nothing more than a statement of what McCartney claimed to be due on his judgment. He also in the same report, puts down as an item of debit, $8,442 16, the amount of the purchases of Calhoun of the estate of King. This is clearly a mistake, as it should have been put down among the assets, and is according] y so put down; but the consequence of thus neutralizing the two items is, that the estate, which from the showing made, appears to have an excess of assets of $3,665 14 beyond the claims against it, is declared insolvent. There may have been other matters brought to the notice of the orphans’ court, and which influenced its judgment in declaring the estate insolvent, but the report of the administrator is so loose, incoherent and unsatisfactory, that no inference of any kind can be deduced from it, without great danger of mistake. Certainly, when considered in connection with the other facts which have been stated, it is entitled to no weight whatever, as an admission of the fact attempted to be deduced from it.
Some reliance is also placed upon an admission in the answer of Spence, to a bill in chancery filed by David A. Calhoun against Spence and others, claiming these and other slaves, as his' property, as the heir of- his 'father, of whom King was the administrator. The record of the chancery cause was rejected by the court below, but if we could look to it for this purpose, it would not avail the defendant in error. The admission made by Spence, is of two slaves, not involved in this suit; which he had levied on and sold as sheriff, before he was administrator either of King or Calhoun. But in addition to this, the entire record, and decree were offered in evidence, and from other answers of Spence, made after he was appointed administrator of these estates, he claims these slaves as belonging to the estate of Calhoun. This motion for a charge upon the entire testimony of the cause, is in the nature of a demurrer to the evidence, and in. *182/our opinion it establishes, that Spence, since he has been the administrator of these estates, has always claimed to hold these slaves as the property of the estate of Calhoun.
The plaintiff, at the trial of the cause, pleadedyws darrein continuance, the record of a suit in chancery instituted by one David A. Calhoun, against Spence, the present defendant, McCartney and others, the purpose of which was to subject the slaves in controversy, and others, to the payment of his distributive share of his father’s estate, in the hands of King, its administrator, and claiming those slaves as the property of his father’s estate. See this case reported supra.
The chancellor decreed that these slaves were a fund, out of which the complainant was to be paid his distributive share, and that they were liable in the hands of McCartney, and others as purchasers with notice of his equity. He further made a reference to the master to ascertain what was due to the complainant as distributee, crediting King’s estate with the proper compensation for the board, education and clothing of the complainant. He also directed an account to be taken of the value of the slaves held by the different defendants, with the value of the hire, and when the sum due the complainant was ascertained, he further directed the master to apportion it among the different defendants, according to the value of the slaves held by them, purchased as aforesaid, and if they did not pay the sum so ascertained to be due within thirty days after notice, an execution was to issue against them, and each of them, for the amount so withheld, &c. To this plea the court sustained a demurrer.
Waiving alljother objections to this plea, it is sufficient to say, that it presented no fact, by which the jury could ascertain, either the right of the defendant to a verdict, or the damages, if any, to which the plaintiff was entitled. Conceding that the defendant could in this action avail himself of any defence which the purchasers at the execution sale could make, and supposing further, that a liability to pay, was equivalent to a payment in fact, yet the decree does not ascertain what sum, if any, the purchasers of the slaves are liable to pay. The only fact definitely ascertained by the decree, is, that the complainant has a lien upon these slaves in the hands of the purchasers, for an aliquot portion of the *183sum which, upon taking the account, may be found to be due from King, the administrator, to the complainant. What that sum is, or what the share or proportion of each will be, or whether any thing is due, is wholly uncertain. Indeed the decree, though in form final, is in its nature essentially interlocutory merely, and the demurrer to the plea was properly sustained. See the case of McCartney, et al. v. Calhoun, supra.
These remarks apply fully to the motion made to offer the decree in evidence, in mitigation of damages.
Judgment affirmed.