George J. Cohea et al. v. The State of Mississippi, to use, &c.
1. Contract: voidable: ratified by suit. — An action by the obligee upon a bond which is voidable at his election, is a ratification of the contract.
2. Same : bond of administrator to sell realty under act of 1830. — A bond given by an administrator, and payable to the State for the use of the *180heirs, and conditioned to apply the proceeds of a sale of land, made on his suggestion, for the benefit of the heirs, under the provision of the Statute of 1830 (Hutch. Dig. p. 667), although it may be voidable at the election of the heirs, is binding on the obligors, if the heirs elect to sue upon it.
3. Practice: where verdict exceeds renaltv oe bond. — If the verdict exceed the penalty of a bond, the court may enter judgment for the proper amount.
In error to the Circuit Court of Lawrence county. Hon. John E. McNair, judge.
This was an action by the State of Mississippi, for tlm use of the heirs of Manly H. -Smith, to recover upon a bond, executed by the defendants below, for $1000, and payable to the said State.
It appeared that at the March term, A. D. 1854, the defendant, Cohea, who was the administrator of one Manly II. Smith, obtained an order to sell certain lands belonging to his intestate, upon the suggestion in his petition that it would be for the benefit of the heirs of said Smith, and that he executed a bond, with the other defendants as sureties, payable to the State, and in the penalty of $1000; and conditioned “ that said Cohea would apply the proceeds of the sale in the same manner that the land would have descended in case there had been no sale.”
It was alleged in the declaration, that Cohea sold the land for $1900, and had collected the proceeds, and refused to pay them to the usees.
The defendants denied generally the allegations of the complaint, and the cause was submitted to a jury, who found a verdict for the plaintiff for $1900, upon which the court rendered a judgment against the defendants for $1000.
No bill of exceptions was taken in the court below.
The defendants sued out this writ of error.
John D. Freeman, for plaintiff in error,
cited Washington v. MeCaughan.
JD. Shelton, for defendant in error.
Pur Curiam.
The bond being necessary to invest the administrator with the power to sell the land, although it may have been in some respects *181improperly executed, must be regarded as valid and binding upon the obligors. It may be voidable at the option of other parties, but they ratified it by suing on it to recover the purchase-money.
The court could render a judgment for the proper amount, if the verdict was for too much. The defendants below cannot complain of what was for their benefit.
Judgment affirmed.