40 Iowa 88 | Iowa | 1874
-No question is raised as to the correctness of the order requiring payment to be made to Wetherell; objection is only made to this condition prescribed by the order, namely, that the judgment should be transferred, tanto, upon the payment.
There was no evidence offered, other than the assignment and bond, pertinent to the point raised. It cannot be doubted that the creditor, at his option, could enforce his claim either against the land or come in as a general creditor of the estate. Allen v. Moer, 16 Iowa, 307. If he sought his remedy against the estate upon the notes, in case the land had been transferred by the deceased in his lifetime, we are unable to see any grounds upon which the administrator could claim a remedy against the lands in the absence of proof that the purchaser had undertaken to pay the debt. A transfer of the bond as a conveyance of the land, without more, would not imply a contract on the part of the transferee or grantee to pay the sum imposed and secured by the bond. This undoubtedly is the general rule. The fact that the deceased transferred the bond to his children, will not alone, defeat its application in this case. There is no showing of an agreement or an intention of the parties concerned that the debt of the deceased should be paid out of the property, which, upon the assignment of the bond, became in equity theirs, and that he should have-
That part of the judgment providing that payment upon Wetherell’s claim by the administrator shall operate, pro tanto, as a transfer of the judgment held by him, is reversed. The payment will operate to discharge the judgment pro tanto.
REVERSED.
