90 Ind. 75 | Ind. | 1883
— Stephen B. Adams died intestate, seized of the land in the complaint described, leaving surviving him his widow and eleven children, to whom the same descended. Thereafter, Jesse Adams, one of the children and one of the appellees, mortgaged the land to Alpheus Green to secure a note of $310, dated 'December 10th, 1874, due in one year, with ten per cent, interest. Subsequently, the appellant, as administrator of the estate of Stephen B. Adams, sold that portion of the land which descended to the children for the
Jesse Adams and Mary Adams were defaulted. The appellant demurred to the complaint, for the want of facts. The demurrer was overruled, after which he filed an answer of five paragraphs. The second was the general denial, and the others were special. Demurrers were sustained to the special paragraphs, and judgment rendered as prayed.
These several rulings are assigned as error.
The appellant insists that the action is premature. This conclusion is based upon the assumption that the proceeds of the real estate must be regarded as personal property for distribution, and as an heir can not maintain an action for his distributive share until after final settlement of the estate the appellee, w7ho, at most, only represents an heir, can not maintain this action. These assumptions are groundless. The case proceeds upon no such theory. The sale of the land divested the mortgage, but the proceeds were bound by the encumbrance the same as though the estate had not been altered. “ Where either real or personal estate upon which there is an outstanding mortgage, is turned into money, the rights of the mortgagee continue unaltered, and the court will direct the application of the money according to the rights of the parties as they existed previous to the alteration of the estate.” Astor v. Miller, 2 Paige, 68; Brown v. Stewart, 1 Md. Ch. 87; Gimbel v. Stolte, 59 Ind. 446.
The proceeds of the fund being bound by the mortgage, the
The third paragraph of the answer averred that the estate was unsettled, and that the amount to be paid to Jesse Adams was then unknown. This constituted no defence, as has been shown, and the demurrer was properly sustained to it.
The remaining paragraphs alleged matters in defence as set-offs. Some of them alleged that Jesse Adams was indebted to his father in his lifetime, and is still indebted to his estate, in a sum in excess of anything that will be due him after the payment of the decedent’s debts. The others averred that Jesse Adams was indebted to the estate in the sum of $138.14 for property purchased by him at the administrator’s sale, and this sum the appellant offered to set off against an equal sum arising from the sale of the land.
These several paragraphs are based upon the theory that the administrator had the right, as against the appellee, to apply any sum of money in his hands arising from the sale of such realty, and belonging to Jesse Adams, in payment of any sum that said Adams owed the estate or the administrator. No authority is cited to support this position, and we know of none. Nor do we believe it can be maintained on principle. The administrator had authority to sell this land to pay the decedent’s debts, but no power to sell in order to collect a claim from the owner. After the payment of the decedent’s debts, the residue of the money, if any, will belong to Jesse Adams, and its retention by the administrator will not make the estate the debtor of Adams, nor will it make the administrator such debtor except at the option' of Adams. In addition to this, the appellee has a
Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment be, and it is hereby, in all things affirmed, at the appellant’s costs.