94 Ind. 587 | Ind. | 1884
Action upon a bond executed by an administrator and his sureties for the purpose of selling real estate to pay the decedent’s debts.
The ease made by the complaint is this: The relatrix is the widow of Nelson Sparrow, who died, testate, in 1877. She elected to take under the law. The decedent’s real estate at the time of his death was encumbered by taxes and by a mortgage executed by him and his wife, the relatrix. The appellee Jerome T. Kelso was appointed and qualified as administrator with the will annexed. No personal property came to his hands except what was taken by
1. That the administrator failed to take from the purchaser of the real estate a bond to secure the payment of the liens y that the purchaser refuses to pay such liens; that the mortgage has been foreclosed, and the land sold under the foreclosure at sheriff’s sale.
2. That the administi'ator, instead of using the money received from the sale of the land to discharge the liens uj>on the real estate assigned to the widow, applied the same to the payment of general debts of the estate.
To each of these breaches of the bond so assigned, the appellees demurred for the want of facts. The demurrer was sustained. The appellant excepted, and, not amending, judgment was rendered in favor of the appellees for costs. The ruling on the demurrer is assigned for error.
The assumption of payment of liens, as part of the purchase-money, by a grantee, need not be in writing. Where a conveyance is made subject to liens, the amount of which is allowed to the purchaser by a deduction from the price of the land, the grantee thereby became bound for the payment of the encumbrances. Suit may be maintained on the contract by the grantor or the lien holders in whose favor the payments were to be made. McMahan v. Stewart, 23 Ind. 590; Helms v. Kearns, 40 Ind. 124; McDill v. Gunn, 43 Ind. 315; Campbell v. Patterson, 58 Ind. 66; Carter v. Zenblin, 68 Ind. 486; Rodenbarger v. Bramblett, 78 Ind. 213.
As to the second alleged breach of the condition of the administrator’s bond, we think his final report, until set aside for mistake or fraud, is a complete bar to an action for such breach. Barnes v. Bartlett, 47 Ind. 98; Holland v. State, ex rel., 48 Ind. 391; Peacocke v. Leffler, 74 Ind. 327. The appellant’s cause of action, if the complaint was good in that respect, for the administrator’s failure to take a bond from the purchaser of the land to pay liens, would probably not be barred by the- final report, as the action in that respect would not. involve the correctness of such report. But an action against the administrator on the second ground of complaint, for-using money in paying general debts against the estate which should- have been applied to discharging liens, does involve the correctness of the final settlement, and can not be maintained until the final settlement of the estate is set aside for fraud or mistake within the time limited by statute.
Our conclusion is that the trial court did not err in sustaining the demurrer to each assignment of the breaches of the conditions of the bond. Affirmed, with costs.