*6781. adminirvrtien'imieiitestate.*677I. The evidence shows that Hezekiali Fagan was appointed administrator of the estate of S. Y. Keene, deceased, on»the 16th of February, 1858; that Thomas F. Withrow was appointed administrator of said estate, in conjunction with Fagan, April 6th, 1858; that Withrow and Fagan resigned February 18th, 1860, and defendant was appointed administi-ix. All the payments, on account of which plaintiff recovered, were made before defendant was appointed administratrix. The first question which arises is, were the several payments by Savery made for the use of the estate in such manner that the estate is bound thereby? It quite satisfactorily, we think, appears from the evidence that Savery paid the three several sums upon which he recovered, amounting to $405.00, on account of the notes and mortgage in question, partly to the defendant in person, and partly by her direction to other persons. The evidence shows that the part of said sum paid to other parties was paid to the use and for the benefit of the estate. ' As to the part paid defendant in person, she either *678applied it to the use of the estate, or was indebted to the estate in that sum, at the time of her appointment as’ administratrix. If she was so indebted, the amount of the debt became assets in her hands, and so went to the use of the estate. See Winship v. Bass et al., 12 Mass., 198; Bigelow v. Bigelow, 4 Ohio, 147; Collards., Adm., v. Donaldson, 17 Ohio, 266. It may fairly be found, upon the whole record, that the several sums paid went to the use of the estate, and that the estate is liable therefor to plaintiff, unless some legal objection stands in the way of his recovery. :
2 judgment : estoppel. II. The question which next presents itself is, is Savery concluded, by the judgment upon the notes and the decree of foreclosure, from having his claim against the estate allowed? It appears that Savery appeared by attorney in the foreclosure su^ au<^ an 8,11 swer setting up certain defenses, and pe ina(Je no claim of set off’ on account of these payments. It appears further, that the case was never tried upon the issues presented. The judgment was the result of a settlement or compromise. It was agreed between plaintiff and the attorney of defendant, and we think, with the knowledge, assent and concurrence of defendant, in consideration of certain undertakings of plaintiff, that the mortgaged property should be bid off in full satisfaction of whatever judgment might be rendered. This arrangement seems to have been entered into upon the part of plaintiff in entire good faith, so far as the evidence discloses. If the judgment, whether small or large, was to be satisfied by the sale of particular property, it became a matter of indifference whether the-judgment was entered for the face of the note and interest, or for that sum less the payments made. The evidence shows that plaintiff relied upon this agreement, and that, because of it, he neglected to insist upon a reduction of the judgment on account of payment. lie might have amended his answer at any time before trial, and claimed the benefit of these payments, and, from the testimony, we are bound to "conclude that but for this agreement he would have done so. After the judgment, and the satisfaction of it by the sale of *679mortgaged property, defendant repudiated the agreement, and caused the sale to be set aside. It was this act which placed plaintiff in a condition to sustain injury from the failure-to have the -payments - allowed as credits. If defendant had adhered to her agreement, the amount of the judgment would have been no prejudice to plaintiff. As plaintiff failed to interpose offsets, which would have availed to reduce the juclg-. ment, through reliance upon defendant’s agreements, which she has since repudiated to his prejudice, the -record in that case should not estop plaintiff from insisting upon those offsets now. If he should be so estopped the defendant would be enabled to perpetrate a fraud. Doyle v. Reilly, 18 Iowa, 108, is not inconsistent with these views.
é ADamnseRUms^be11 filed. III. Is plaintiff’s claim barred by section 2405, Re.vision of 1860? This section provides that all claims of the fourth-class, not filed and proved within one year and a ^ie °*' notice by the executors of their appointment, shall be forever barred,.unless the claim is pending in the District or Supreme Court, on unless peculiar circumstances entitle the claimant to equitable relief. These claims did not exist against the estate at the time of the decedent’s death. They arose afterward because of payments made on account of a debt which plaintiff owed the estate, payments made, it is true, not to one legally entitled to receive them,- but which were applied to the use and benefit, of the estate. Suppose defendant, at the’time of making these payments, had been the administratrix of the estate, and that, from any cause, the payments had not been credited upon the notes, and through fraud, accident or mistake, a judgment for the whole amount had been recovered against the plaintiff, and that there was no impediment in the way of his recovery except this section.' Would any one insist that plaintiff could not recover because the claim had not been filed and proved within eighteen months? Is it not apparent that in such case the claim of plaintiff would be a mere right to insist upon the allowance of a credit, and that it would in no sense come within the provisions of section 2405? Such payment might be made more than eighteen months after the exeeutor.had *680given notice, and in such case section 2405 could not apply. The illustration shows that this section, referred to claims existing at the time of decedent’s death, .and cannot apply to matters arising afterward. This section does not bar the demand.
'4 statute op c™ínito0ís: claim. IY. It is claimed that plaintiff’s demand is barred by the general statute of limitations. Revision, section 2740, subdivision 3, which requires the action to be brought within five years from the time it accrues. We have seen the several payments were made on account of a debt plaintiff owed the estate. This payment gave the plaintiff no right of action against the estate. It simply discharged a part of the debt, and was by the debt itself cancelled. If the payments were not credited on the notes, plaintiff acquired the right to insist that they should be allowed as offsets, whenever he should be sued on the notes. The statute of limitations does not run against a set-off or counter-claim. Revision, See. 2752. After the judgment Upon the notes, and the decree of foreclosure, plaintiff could not sue on account of these payments. He had agreed that the judgment, whatever it might be, should be discharged by the sale of the mortgaged property. He could not have this judgment so discharged, and then maintain an action against" defendant on account of matters which should have gone simply in diminution of the judgment. This would have operated as a fraud upon the defendant. It was not, then, until defendant repudiated the agreement, and discharged plaintiff from its observance, that the right of action accrued. This did not occur until the 13th of May, 1865. The action was commenced within five years of that time, to-wit: November 9th, 1869. It is not, therefore, barred by this statute.
*6815. verdict : finding of the court.*680' Y. We see no sufficient reason for disturbing the judgment of the court on the remaining portion of plaintiff’s claim, which is for costs of the foreclosure suit and fees paid White, defendant’s attorney. The evidence clearly shows that when the sale and satisfaction of judgment were set aside, the judgment was credited with the costs which plaintiff had paid. This-fact plaintiff does not controvert. It also appears that *681the judgment was credited with the further sum of $400.00. There was evidence to support the finding of the > , . . _'rr , , „ . court that this included the attorney’s lees, or at least as much thereof as defendant was properly chargeable with. There is some evidence that White agreed to perform the service rendered for $100.00. This action is at law, and the finding of the court upon a question of fact stands -as the verdict of a jury.
The case is affirmed upon both appeals. The defendant will pay the costs of appeal.
