64 Ind. 541 | Ind. | 1878
The appellee filed her claim against the estate of Thomas M. Alexander, consisting of three promissory notes executed by said Thomas M. to said Martha A., each for the sum of one thousand seven hundred and seven dollars and thirty-three cents, dated March 4th, 1871, and payable, respectively, in one, two and three years from date, with interest at the rate of ten per cent, per annum.
The claim was filed in the court of common pleas, but the cause was transferred to the circuit court, upon the dissolution ot the court of common pleas. In the circuit court such proceedings were had as that judgment was rendered for the plaintiff in the sum of four thousand four hundred and thirty-one dollars and fifteen cents. That judgment was reversed by this court, and the cause remanded for further proceedings. See Alexander v. Alexander 48 Ind. 559.
After the cause went back from this court, the appellee filed her demurrer, for want of sufficient facts, to the fourth paragraph of the defendant’s answer, which was sustained, and exception taken.
Such further proceedings -were had as that the plaintiff had judgment of allowance for two thousand "nine hundred and thirty-two dollars.
But one question is now here raised, viz., did the court below err in sustaining the demurrer to the fourth paragraph of answer*?
The paragraph of answer in question alleged, in substance, that, at the time of executing the notes, the deceased transferred and assigned to the plaintiff’ a judgment rendered in the Floyd Circuit Court, on October 28th, 1870, for five thousand and nineteen dollars and fourteen cents, in favor of Martha A. Alexander, against John Gordon, of which judgment the said Thomas M. Alexander was then the owner, which judgment was assigned to the plaintiff
But, according to the answer, the collateral is good, and can be collected, and is more than sufficient to pay the plaintiff’s claim against the estate, and the plaintiff still holds it; there is not enough personal property belonging to the estate, other than the judgment thus held by the plaintiff as á collateral, after deducting the amount to which the widow is entitled, and other debts and expenses, to pay the plaintiff’s claim; and, if allowed, real estate will have to be sold to pay it.
The personal property of an estate is the primary fund out of which debts not secured by a specific lien on real estate are to be paid. An administrator can not proceed to sell real estate for the payment of debts, until, he shall have discovered that the personal is insufficient. If the judgment in question were restored to the administratrix, she could not proceed to sell real estate to pay the plaintiff’s claim, until she had taken steps to collect the judgment; and its collection would render it unnecessary to sell real estate. But the plaintiff holds the judgment as collateral security for the payment of her claim. She holds the primary fund out of which her claim ought to be paid, before resorting to the realty. She neither collects the judgment nor restores it to the administratrix, whereby the latter might collect it and pay her claim.
We think, that, in equity, she ought to be required to proceed on the' collateral, and collect .her claim, or so much thereof as she may be able to, before asking
"We think the paragraph of answer was good, and that the demurrer to it should have been overruled.
But the appellee claims, that there was another, the sixth, paragraph, under which the matters alleged in the fourth could have been given in evidence. The sixth paragraph was a counter-claim, setting up some of the piatters alleged in the fourth, and some not contained in it; but it was entirely silent in respect to the facts on which we hold the fourth good, and those facts could not have been given in evidence under it.
The judgment below is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.
Note. — Howk, C. J., having been of counsel in the cause, did not participate in this decision.