103 So. 804 | Miss. | 1925
There is no conflict in the testimony, and the facts established are substantially as follows: During his life time W.H. Sandy owned a tract of land in Pontotoc county upon which there was a deed of trust in favor of the Bank of Sherman for the sum of four thousand dollars. He also owned a tract of land in Simpson county upon which there was likewise a lien to secure a balance of the purchase money amounting to several thousand dollars. He applied to the appellee for a loan of four thousand dollars representing to appellee that this sum would enable him to pay off the lien on this Simpson county land, his homestead. The appellee, who resided at Haynesville, La., finally agreed to loan him this sum with the distinct understanding and agreement that it would be applied toward discharging this lien on the Simpson county land, the loan to be secured by a first lien on said land. A deed of trust on this land was executed by Sandy and wife in favor of appellee and the loan consummated, but Sandy did not apply this four thousand dollars toward the discharge of the prior lien on the Simpson county land, and upon which he had given a deed of trust to appellee, but with this money he paid off the deed of trust in favor of the Bank of Sherman on his Pontotoc county land; the balance due on this deed of trust at the time it was paid being the sum of three thousand six hundred sixty-three dollars and thirty-three cents. A few weeks thereafter Mr. Sandy applied to the *168 appellee for an additional loan of two thousand dollars, representing to appellee that it had developed that he would have to borrow this additional sum to enable him to pay off the first lien on the Simpson county land. The appellee loaned him this additional sum of two thousand dollars and took a new deed of trust on the Simpson county land for the total sum of six thousand dollars. Sandy applied this two thousand dollars toward the liquidation of this first lien, as agreed upon, but nothing more was paid thereon.
Shortly thereafter Mr. Sandy died, leaving a will by which he devised to his wife and children, appellants herein, all the real estate owned by him at the time of his death, and appointing his wife, Mrs. Cora Sandy, as executrix of the will. Mrs. Sandy qualified as executrix and published the required notice to creditors to register and probate their claims against the estate. On account of the failure to discharge the prior lien on the Simpson county lands the appellee's security therein failed. He did not probate his claim or note, but filed this suit seeking to enforce a trust in the Pontotoc county lands for the repayment of the money used in discharging the lien thereon in favor of the Bank of Sherman.
Upon appeal there is no contention that the chancellor erred in holding that, under the facts, an implied trust was impressed upon this property, but the only contention urged by counsel is that the suit cannot be maintained for the reason that the claim was not probated against the estate of W.H. Sandy, deceased.
In support of the contention that it was unnecessary to probate the claim and note in order to enforce the same against the specific property sought to be subjected to the payment of the claim, the appellee invokes section 2111 Code of 1906 (section 1779, Hemingway's Code), which provides:
"A creditor of a decedent who has a lien of any kind on property of the decedent shall not be barred of his right to enforce the lien against the property by a failure *169 to present his claim and have it probated and registered, but shall be barred of all claim to be satisfied out of the assets not affected by such lien; and a person claiming to have a lien on any property of the decedent may be made a party to any proper proceeding by the executor or administrator or a creditor to test the validity of such claim to a lien, and to determine upon the right of such claim; and this may be in a proceeding to sell property, which may be ordered to be sold free from such lien, or subject to it; and the decree may be made as to a sale and disposition of the proceeds of the sale of the property, as may be according to the rights of parties before the court."
It will be noted that this section provides that a creditor who has "a lien of any kind on property of the decedent" is not barred of his right to enforce the lien against the property upon which the lien exists by a failure to probate the claim, but is barred of all right to have such claim satisfied out of assets of the estate which are not affected by such lien. In the case at bar the trust was not created by the decree of the court below declaring its existence, as contended by appellant, but the lien of the trust arose by operation of law from the misapplication of the funds by the testator in acquiring the particular property, and existed from the time of such misappropriation, and the heirs and devisees acquired and hold the property subject to the trust. The statute authorizes the enforcement of any and every kind of lien against the particular property affected thereby, without the necessity of probating the claim, and, in the absence of intervening rights of a bona-fide purchaser for value without notice, the lien of the trust impressed upon the property here involved may be enforced against the property, without first probating the claim against the decedent's estate.
The decree of the court below will therefore be affirmed.
Affirmed. *170
