The opinion of the Court was delivered by
Willard, A. J.The complainant, the father of intestate, at the death of his son, took possession of a store and a stock of goods belonging to the estate of his son, without authority of law, and carried on the business, selling and buying goods, and dealing with the property as owner. It was not until about a year from the death of intestate, that he sought for and obtained letters of administration on the estate of intestate. Subsequently the stock of goods was sold, under an order of the Ordinary. Complainant now claims that, in an accounting as administrator, he should be allowed, as a credit, as against the amount chargeable to him, as the proceeds of such sale, the sum of $1,412, alleged to have been advanced by him while conducting the business, for the purchase of goods in addition to such stock.
The Referee disallowed this claim wholly on the ground that “ the plaintiff has unadvisably mixed up his own goods and moneys with those of his intestate, and he furnishes no testimony or rule, by which the separation may be effected, without doing injustice to the creditors of his intestate.” He applies to the ease the doctrine applicable to a confusion of goods, citing the authority of Blackstone, (2 Vol., 405.) The decree of the Circuit Court sustains an exception to the ruling of the Referee, and allows the claim of $1,412, without diminution, directing the accounts to be recast, in that respect.
It is clear that the view of the Circuit Court was wrong. The stock of goods was sold at public auction, and it is not to be assumed that it brought an amount equal to the first cost of the goods. If the administrator is entitled to an allowance, it must be upon the ground that the estate has been benefitted by the advance of his money.—Welsh vs. Davis, ante, p. 110; Magwood vs. Johnson, 1 Hill, 228. It is clear that we cannot assume that the estate has been benefitted to the extent of the amount thus advanced. The decree of the Circuit Court, on this report, cannot be sustained, unless the amount so advanced affords the legal measure of the benefit sus*248tained, and as this proposition is unsound, the decree cannot stand.
Nor can the view of the Referee stand without modification.
The principle on which the accounting was conducted was that of debiting the administrator with the amounts realized from the' sale of the stock of goods, both at public and private sale, and with interest, against which are placed amounts properly standing to his credit as administrator. The entire stock of goods, including that part purchased with the money advanced by complainant, was sold under an order of the Ordinary, as the goods of the intestate, and the whole proceeds of the sale debited against the administrator. To this course of proceeding, the complainant brings before us no exception under which we can review its correctness, nor do the defendants ask that the accounting be conducted on the basis of regarding the complainant’s possession of, and interference with the assets, prior to administration, as tortious. The objection made by complainant’s second exception to the Referee’s report, proceeded on the ground that the sum of $1,412 advanced by him should have been placed on the credit side of the account, not that the amount debited as the proceeds of sale should be reduced by that sum. We are compelled to assume that the parties are satisfied with the principle on which the accounting was conducted, as no exception is before us calling that principle in question. We must, therefore, treat the case as one of an advance, in .character of administrator, towards keeping up the stock, and carrying on the business of the intestate, and determine upon what principle an allowance should be made to him, if any is proper under the circumstances of the case.
It is clear that the principle governing a wrongful confusion of goods is not directly applicable to the case. This principle is stated by Lord Elden in Lupton vs. White, (15 Ves., 432,) as follows : “If one man mixes his corn or flour with that of another, and they are of equal value, the latter must have the given quantity ; but if articles of different values are mixed, producing a third value, the aggregate of both, and if, through the fault of the person mixing them, the other party cannot tell what was the original value of the property, he must have the whole.”
If the complainant was before us resisting an order for the sale of the goods in question, as the proper goods of the intestate, on the ground that such order included his individual property, not subject to such sale, it might be a question how far such claim was affected by the principle just stated; but after such order of sale *249lias been made, and assented to, and the goods sold by the administrator, as the proper goods of the intestate, and after the proceeds of sale have been carried into the debit side of the account, it is too late to raise any question as to the title to the goods purchased with complainant’s advance.
It may well be questioned, whether a Court, in the exercise of equitable jurisdiction, will go farther than Lord Elden went in Lupion vs. White, in the direction of applying this principle. In that case, one who was bound to account for the mineral produced from a lead mine, wrongfully suffered such mineral to become inseparably commingled with property of his own of a like nature. It was as strong a case for the application of the doctrine applicable to the wrongful confusion of goods, as can be well supposed, and the extent to which the Lord Chancellor went, was to charge the party in fault, in the first instance, with the value of the whole property thus commingled, and to leave the defendant to make such proof as he might of the value of his own property, so as to reduce this primary charge. That case involved the idea that one bound to render a clear account, who has wrongfully defeated the possibility of the taking of such account, may be charged with a gross sum, reasonably assumed as a basis of accounting, and be compelled to discharge himself therefrom. In Lupton vs. White, this basis was arrived at, on a principle assimilated to the common law doctrine as to a confusion of goods.
It is clear that the common law doctrine, above stated, cannot be applied in a Court administering equity, and in a matter of accounting, as a ground of forfeiture, apart from such influence as it ought to have in controlling the application of the ordinary rules governing the taking of accounts. In this respect, the Referee lays down a rule inconsistent with the nature of the accounting before him.
In view of the principle of accounting mutually assented to in this case, the proper course would have been to allow the complainant to show, that the estate of his intestate had derived benefit from an advance made by him, in the course of administering, and to show the extent of such benefit. This should be clearly shown, or the administrator would not be entitled to the allowance.
The third exception of complainant to the Referee’s report, involved a claim, on the part of the complainant, of a credit arising out of the following facts. Many years before the death of J. McKee, the intestate, the complainant, his father, allowed him to occupy a lot of his land. He took possession of the lot, and exercised acts *250of ownership thereon, and erected a valuable building, and at the time of his death had so held and occupied the lot and improvements for many years, though without a conveyance to him. The decree of the Circuit Court allowed the matter of this exception, giving a credit to the complainant of $750, as the value of the lot.
The question of the title to this lot is not involved in the present aspect of the case, as it would appear either to have been actually sold under an order for the sale of intestate’s real estate, or to be bound by such order, nor is any appeal from such order before us. The only question is, whether the complainant is entitled to an allowance of the value of the lot in question, exclusive of the improvements. No promise or assumption on the part of the intestate is shown as the foundation of this claim.
It was held in Edings vs. Whaley, (1 Rich. Eq., 301,) that land occupied by a child, with the assent of his parent, without a deed of conveyance, cannot be regarded as a parental gift, though the rule is otherwise with regard to personal property. In that case it was also held that the statute of limitations might run, as between parent and child, so as to make a complete title by lapse of time. It is not made clear, by the evidence, when the exclusive occupation of the lot in question, by the intestate, commenced, although the evidence makes it probable that the full statute period had elapsed prior to the death of the intestate. It is not necessary to rest the case upon proof of an adverse possession for the statutory term. Nor is it necessary to decide whether the fact, that the complainant stood by and allowed his son to make valuable improvements upon the premises would, in equity, characterize the transaction as a parental gift. The present controversy is between the administrator and the creditors of the intestate, and whatever equity the complainant may assert must be considered in its bearing upon the legal and equitable rights of the creditors. The complainant, as administrator, has treated the lot in question as the property of the intestate, and allowed it to become affected by the order for the sale of the intestate. If he has a right to an allowance of the value of the lot, that claim did not exist, in the specific form in which it is now advanced, prior to the death of the intestate, but arises from the fact that the complainant has abandoned a right of entry and damages in favor of the estate.
The complainant has no equity which he is entitled to set up as superior to that of the creditors of the intestate.
*251They had a right to assume, from the ostensible ownership of the intestate, that he held title, and must be regarded as having given him credit on the strength of such representation. The creditors not only have the superior equity, but, as the assets in the hands of the Court are legal assets, the creditor must be regarded as having the better right, both legal and equitable. The decree of the Circuit Court should be reversed, the cause remanded, and the report of the Referee affirmed and established, except as to the matters embraced in the second exception, of complainant to the report, which exception should be sustained to the extent ,of allowing a further reference to ascertain whether any, and if any, what benefit was derived by the intestate’s estate from the advance of $1,412 made by the complainant in the purchase of goods, by way of addition to the stock in trade of the intestate, and the complainant should have a credit in account for the amount of any such benefit ascertained to have been derived therefrom.
Wright, A. J., concurred. Moses, C. J., absent at the hearing.