The opinion of the court was delivered hy
SiMPSON, C. J.In this case the plaintiff, (respondent), a judgment creditor of one Easley, deceased, brought this action against Gossett, administrator of Easley, and the other defendants, (appellants), who claimed to be judgment creditors also of Easley, to have the judgment claimed by Evins, William and Emily Choice, appellants, known as the William Choice, Sr., judgment, declared paid, and to require the administrator to pay out the moneys in his hands to the unsatisfied judgments, her own among others.
The appellants, who had become the owners of the William Choice, Sr., judgment, resisted this action, or so much of it as alleged that their judgment had been paid. They claim that this question had been settled in their favor in a previous action, to which the administrator of Easley was a party • that the administrator represented all the creditors in this action; that the plaintiff, being one of the creditors, was bound thereby, and that the question now raised by her was res judicata. ■
The case was referred to J. J. Norton, Esq., as special referee. Mr. Norton seems to have been of the opinion that the William Choice judgment had been legally satisfied by the receipt of certain moneys by the sheriff, in 1861, which should have been applied to this judgment; but, believing this question to be settled the other way in the previous case, he sustained the plea of res judicata and reported the judgment still open and entitled to its share of the moneys in the hands of the administrator. And he recommended that the assets in the hands of the administrator, Gossett, after first being applied to certain expenses connected with the litigation, be paid out pro rata, on four judgments established before him, including the Choice judgment, *575upon which last judgment he held that the previous proceedings, "out of which the plea of res judicata had sprung, had established' that the sum of $2211.88 was due on February 1st, 1861. Judge Pressley overruled this report, holding upon the facts of the previous case that the plea of res judicata could not be legally interposed by the appellants; and he adjudged that the Choice judgment had been paid. He, therefore, ordered the administrator, ‘Gossett, to apply the assets in his hands, after expenses of administration, &c., in the due course of administration, according to the legal priorities and liens of the several creditors, excepting "the Choice judgment.
This appeal is from this decree of Judge Pressley, and it in-wolves the single question whether Judge Pressley was in error in overruling the plea of res judicata relied on by the appellants and sustained by the referee. To determine this question we must now examine the previous proceedings.
During the lifetime of William Choice, Sr., the precise date not given, but some time in 1874, he instituted a proceeding by rule upon the then sheriff of Pickens county, the county in which his judgment had been entered, to show cause why he should not be attached for contempt in not paying over the money in his hands to his judgment, the one now in controversy, and also to the Cleveland judgment. This rule was referred to William H. Perry, to-ascertain and report what amounts, if any, bad been paid on the various judgments against Easley, then standing on ■the sheriff’s books. Mr. Perry reported that, among other judgments, he found the Choice judgment, after deducting all payments, open to the extent of $2211.88.
The administrator of Easley, by attorneys, excepted to the referee’s report, as far as he reported a balance due on the Choice judgment, on the ground that the sheriff had received, in the sale of the real estate of J. A. Easley, Jr., also covered by this judgment, over $6000 more than he had applied, which surplus it was his duty to apply, and, if applied, the judgment would be paid.
How the administrator of Easley became a party to this rule— whether by service of process or by his own voluntary act— ■does not appear, nor does it appear whether his exceptions were heard and considered by the court. He is not mentioned *576in the proceeding, and at no stage appears, except in the filing of these exceptions. This is the first and last that we hear of him in the rule. In the order of Judge Cooke, confirming the report of Mr. Perry, and making the rule absolute against the sheriff, these exceptions are not overruled or referred to in any way whatever.
It is expressly admitted in the argument of Mr. Shand, appellant’s attorney, that the object of the rule was to have applied to the Choice judgment the proceeds of the sale of the land sold by the sheriff, and which were in his hands. Now, the position taken by the appellants is, that Gossett, the administrator of Easley, having been a party to this rule, either voluntarily or otherwise, and one of the issues arising under the rule being whether their judgment was still open, which issue had been determined in their favor without appeal, that this question is now res judicata, estopping the administrator and all creditors, as his privies, from denying its existence, and that the Circuit judge should have so held.
It cannot be denied that a direct and final judgment or decree of a court of competent jurisdiction is forever conclusive and binding as to the subject matter embraced between the same parties and all privies in law or estate. Manigault v. Deas, Bail. Eq. 284.
If, then, the decision rendered on this rule was a decision by a competent court, on the same subject matter and between the same parties, the principle announced above would apply and the plea of res judicata would be conclusive. This plea, However, to be effective, requires the concurrence of four conditions: 1st. Identity in the thing sued for. 2d. Identity in the cause of action. 3d. Identity in the persons or parties. 4th. Identity in the quality of the persons for or against whom the claim is made. Bouvier L. Dic. 465. As an example of the last condition, a final judgment against a party in his own right would be no bar to an action by him as administrator.
If any one of these unities is wanting, and especially the unity of parties, the plea cannot be made out, because, while it is just and proper that litigation between the same parties, after they have once had their rights adjudicated by a competent tribunal *577without appeal, should end, yet a thing done between others ought not to injure another. A transaction between two parties ought not to operate to the disadvantage of a third. The maxim ’ res inter alios acta nooere non debet is as strong for the protection of those not before the court as that of res adjudicata for those who are present.
There is no question here as to the competency of the court. The rule was in the nature of a special proceeding, not unusual in cases of this kind, aud it was heard by a competent tribunal. The thing demanded by the rule was the money supposed to be in the hands of the sheriff, derived from the sale of the real estate of the judgment debtor. The cause of action involved ■the right of Choice to have the money applied to his judgment.
The parties were the judgment creditor, the sheriff, and, the respondent contends, Gossett, the administrator of the deceased debtor; the quality of the judgment creditor being in his own right, that of the sheriff in his official capacity, and that of Gos-sett as administrator of the debtor.
Now, how does the case before the court stand as to these matters ? The thing demanded here is the money in the hands of the administrator derived from the personal estate of the ■debtor. The cause of action involves the right of the Choice judgment to a portion of this money. The parties are the plaintiff, a judgment creditor, the administrator of the deceased debtor and the present owners of the Choice judgment. The thing demanded in both cases is money belonging to the deceased debtor; in the first case being proceeds of his real estate, and in the latter that of his personalty. The object of the suit in each •case is to determine the proper application of the assets of the deceased debtor, and especially whether the Choice judgment should receive any portion; the main question is the same, and the parties are the same, with the addition of the plaintiff. The ■conditions, then, may be regarded as the same in each case, with the exception that the plaintiff, who is a party in the present proceedings, was not a party, at least nominally, in the first.
This exception is fatal to the plea, unless it can be made to appear that the plaintiff, although not nominally before the ■court in the former proceeding, was yet present by her repre*578sentative in such way as to bind her. And this is the real question in the case. Now, waiving the point whether the admistrator was a party to the former proceeding or not, the question arises, was he a necessary party ? and in such sense as that, his-being a party, the judgment of the court, unappealed from, bound him as well as the creditors and distributees of the estate which he represented.
It will not be denied that the acts of the administrator are binding as to all matters over which he has legitimate control as such administrator. The power delegated to the administrator-is to administer the goods and chattels, rights and credits which were of his intestate at the time of his death, and the condition-of his bond is to perform this duty. His power goes to this extent, and no further. Within the range of this power his acts-not only bind himself, but also all those of whom he is in law the representative; creditors and distributees are his privies in-law, and his acts, when free from collusion, bind them. As to all matters, therefore, connected with the goods and chattels, rights- and credits of the deceased, undergoing litigation, he is not only a proper, but a necessary party.
But the administrator does not represent the real estate of his-intestate. The real estate, it is true, may be made subject to the debts of the intestate, but not by the action of the administrator — that is, by virtue of his administration. The creditors may reach the real estate without his aid, and he is not responsible on his bond if it be lost. He can commit no devastavit in connection therewith.
In the case of Garlick v. Patterson, Cheves’ Eq. 27, referred to-in the argument, it was held that where a balance is found in the hands of a sheriff, after the sale of the real estate of an intestate in satisfaction of executions, the administrator is not-entitled to this surplus, either in law or equity, as assets for the payment of debts, though the creditors themselves may claim it. Nor would his bondsmen be liable even if it passed into his-hands. In the case of Bank v. Inglesby, Spears’ Eq. 399, the same doctrine is held as to a surplus in the® hands of the-master upon sale in foreclosure of a mortgage of real estate. The-master was ruled by the administrator. Chancellor Dunkin-*579dismissed the rule, and, upon appeal, Chancellor Johnson said: “That the defendant is not, in his character as administrator, entitled to receive the money is directly decided in Ex parte Foster, Rice’s Eq. 19.” “ It is plain, therefore,” says the Chancellor, “ that the sureties on his bond would not be liable for money arising from the sales of real estate.”
The attorney of appellant has placed upon the record an admission that the money in controversy in the rule was derived from the sale of real estate of the deceased debtor. Under the decisions referred to, the administrator had no legal interest in this money. He was not entitled to demand or receive it from the sheriff by virtue of his powers as administrator, and if he had received and wasted it his bondsmen would not have been liable. If this be so it was no interest of his, nor was it any part of his duty, to see that the sheriff applied this money properly. That was a matter for the sheriff, the heirs-at-law and the creditors. Such being the' fact, we cannot see how the administrator was a necessary or even a proper party to the rule. If he was not a necessary or proper party, then his appearing in the case, either voluntarily or otherwise, would be an act outside of his duty and beyond his power as administrator, and would not bind those of whom administrators are .the representa-' tives, to wit, distributees and creditors. It is urged, however, that • the main question in controversy under the rule, was whether the Choice judgment had been paid, and that this was a question in which the administrator was interested as administrator, and that this interest rendered it necessary and proper that he should have been made a party to that proceeding.
If the effort in the rule had been to establish the judgment of Choice against any funds under the control of the administrator, and a judgment or decree sought to be enforced therein against him as administrator, or if the funds in the hands of the sheriff had been derived from the sale of personal property, and were a subject of controversy between himself and Choice ‘and the rule had been resorted to to settle the rights of the parties, he should have been a party. But neither of these cases existed; no redress was prayed against the administrator, nor was he entitled to any relief. No act of his had given rise to the rule, nor was *580any interest of his imperiled by its issue. Was it not time •enough for him to attack the judgment when an effort was made io set it up against the personal estate in his hands? Was he bound, or was it in any sense his duty, to intervene in a proceeding between others, simply because a question was incidentally raised there which might possibly thereafter be raised against him ? If he had been in possession of any facts showing payment of this judgment, why could he not have been a witness, instead of a party ? We cannot see that he was either a necessary or proper party, and we find no error in the order of the Circuit judge overruling the plea of the appellants.
The appellants contend that where money arising from the sale of lands of an intestate is in the hands of the sheriff, whether a judgment claiming this money has been paid or not, is an issue to which the administrator of the deceased is a proper party, and to support this position the following authorities have been referred to in the argument, to wit: Story’s Eg. Pl., §§ 176,169 ; Rae v. Stead, 2 Cr. 407; Fretwell v. Neal, 11 Rich. 371; Rogers v. Huggins, 6 S. C. 356; Pomeroy 315. We do not think that the authorities referred to fully sustain the position claimed. It is stated both in Story and Pomeroy that the administrator or executor is a necessary party to an action against the heirs on a debt of the ancestor, on account of real estate descended or devised to them ; but in this case the debt in question had been reduced to judgment against the intestate in his lifetime, and the rule was not intended to obtain a judgment against the heirs, but to have the judgment already obtained paid out of moneys in which they were interested. Whether the judgment was satisfied came up incidentally as one of the facts in the case upon which the main issue depended, but it was not in itself the main issue.
The second proposition of appellants is no doubt correct.
The third, that where an administrator appears in a proceeding, whether personally a party or' not, he is 'bound and es-topped, may be true, and yet his appearance in such case would not bind his privies, unless the administrator had a right to appear as-a necessary and proper party.
*581The fourth, that where the administrator is estopped, having been a party, the creditors, who are privies, are also estopped, is true as to all matters where the administrator legitimately acted as administrator ; but in this case, as we have seen, this doctrine does not apply.
Besides, the proceeding under the rule was had in 1875, some three years before this action commenced. The rule was made absolute against the sheriff. It does not appear but that the sheriff paid this money on the Choice judgment, since the order making the rule absolute. The plea of res adjudícala should not shut off an inquiry of this sort.
If it could avail at all, it should only avail as to the matters involved in the rule. We think there was no error in the Circuit judge overruling the plea, but we think, under all the circumstances, the Circuit judge should not have held that the Choice judgment was satisfied. This is a matter which should undergo a full investigation, unencumbered with the former proceeding.
The judgment of this court is that the judgment of the Circuit Court be modified so that so much of it as overrules the plea of res judicata be sustained, and so much as holds the Choice judgment satisfied be reversed, subject to further investigation, and that the case be remanded for such further proceeding as may be necessary.
McIver and McGowan, A. J.’s, concurred.