Page:Federal Reporter, 1st Series, Volume 10.djvu/61

 PUIiLIAM V. PULLIAM. 4:9 �On the eleventh day of March, 1858, Joel L. Pulliam, by deed, con- veyed absolutely to his father an undivided one-half of the land for the consideration of $2,200 to him "in hand paid, and balance to be paid." A paper called an obligation, also dated March 11, 1858, signed by John N. Pulliam, is also introduced in evidence, by which it appears that the two purchasers from Isbell executed in payment of the purchase money their four bonds for $1,100 eaeh, payable re- spectively December 25, 1857, 1858, 1859, and 1860; that J. N. Pul- liam had paid the first of these bonds, and by this instrument obli- gates himself to pay the others; and, in consideration of his having paid the first bond and binding himself to pay the others, the deed by Joel L. Pulliam to his father was made. This paper is not regis- tered ; neither it nor the deed reserves any lien on the land to secure the performance of this obligation ; neither does the deed from Isbell to them reserve any lien. It is claimed in the answers and said in the depositions that the testator did not fully pay for the land, and that at the time he died the encumbrance for the unpaid purchase money was greater than the value of the land. This fact is sought to be established by inferences as to the value of the land drawn from the consideration mentioned in the deeds; for the parties have not seen fit to prove its value., nor the exact amount of the unpaid pur- chase money. It is said in argument (though the facts are not proved in the record) that the alleged lien for the purchase money was foreclosed, — how, does not appear, — and that the land was purchased by Joel L. Pulliam, and by him conveyed to Alfred's children. �The theory of the defendants is that Alfred B. Pulliam took one undivided half of the land under the deed of gift, discharged of all lia- bility for the purchase money due ; that he took the other half under the will subject to an encumbrance for the whole of the purchase money, and because there would be nothing left after paying the encumbrance, the executor had no duty to perform, and is not to be charged with anything on account of this land. But it does not legally appear here that Alfred had any deed of gift ; and, if it had taken effect, it is questionable whether he could claim that half dis- charged of its liability for the purchase money as against Jiis co- devisees. It was the executor's duty to sell this land for the payment of debts. If the debt for the purchase money was a valid and subsist- ing one, not barred by the statute of limitations, he could have paid it, and it was his duty to pay it, and he would be entitled to credit in his accounts for the amount paid. If the debt became barred by the T.lO.no.l— e ��� �