41 Iowa 16 | Iowa | 1875
Catharine Scully, the executrix of the estate of John Scully, deceased, appointed by will, borrowed of defendant $3,000, which was secured by a conveyance absolute in form, executed by her upon the lands of the decedent, which are involved in this suit. The petition denies that defendant acquired any right under'the deed, and prays that it may be canceled. Defendant makes no claim of title under the instrument, but insists that he holds a valid lien thereunder in the nature of a mortgage, to secure the payment of $3,000 and the interest due thereon. The evidence shows that the executrix borrowed of defendant the sum of $3,000 for the use of the estate, and secured the same by an absolute deed. Upon the execution of the instrument defendant advanced $2,430; $570 being retained as interest upon the $3,000 for two years. The money so secured by her was used in paying claims against the estate, and expenses incurred by the executrix. Subsequently the executrix died, and plaintiff was appointed administrator de bonis non. TIe now insists that the money was borrowed, and the deed executed without authority of law. The defendant claims that the transaction is authorized under the terms of the will, and that it was reported to and approved by the Circuit Court, in discharge of its probate powers.. Unless authority is found therefor, it cannot be claimed that the transaction will bind the estate, for unless especially authorized either by the will or the law, the executrix possessed no power to do such acts.
III. The estate has received the benefit of the money which was advanced by defendant. It ought in good conscience to repay it with legal interest. This is not required because of the contract under which the money was borrowed, which is invalid, but on the ground that the estate has had the benefit of the money received from defendant. Therefore the interest to be paid defendant must be six per centum per annum, and not ten per centum as agreed by the executrix. Eor the same reason the estate should pay as principal only the sum originally received, viz: $2,430. The judgment of the Circuit Court is, therefore,
Affirmed.