Full text
John D. Pahlman, Ex'r of A. Rossiter, dec'd, Henry L. Rucker and James Campbell, Guardians of Minor Heirs of A. Rossiter, and Martha A. Rossiter, Widow, in Error v. Horatio G. Shumway, Miller & Davis, John B. King, E. Blackman, Adm'r, and H. H. Magie, Survivor of High & Magie, H. Stevens, Adm'r of F. M. Kerwin, in Error
Breese, J.
The first question presented by this record is, were the judgments against Rossiter, liens upon the equity of redemption, or residuary interest which he had in the land conveyed in trust, or upon the right he had to the surplus of the purchase money, after the payment of the debt secured by the deed of trust ? If they were such liens, then the court very properly appropriated the surplus to their satisfaction. If they were not such liens, then the surplus should have been decreed to the executors of Rossiter, to be distributed among his creditors generally, under the one hundred and fifteenth section of the statute of “ Wills.”
Our conclusion is, that these judgments were liens upon the residuary interest of Rossiter in the land. They were a lien on the land, subject to the incumbrance of the trust deed. But to make the lien available, it should have been enforced against the land by a levy and sale, subject to the incumbrance. This the judgment creditors did not do, but suffered the land to be sold to satisfy the incumbrance, which effectually cut off the liens. The incumbrance being prior in time, a sale to satisfy it had the effect to convert the land, into money, upon which the judgments were not a lien, and therefore entitled to no priority of payment.
By suffering the title of the land to pass, by the sale under the deed of trust, and thus cutting out these liens, the statute of Wills comes in and distributes the surplus money to the general creditors, judgments not attaching as liens by any statute in force here, to such surplus. Those moneys should be paid over to the executor of Rossiter, and paid out by him, in pursuance of section 115, chap. 90, (SCates’ Comp. 1206).
The trustee, defendant in error here, will be discharged from all responsibility, by paying over the surplus in his hands to the executor of Rossiter, in accordance with this opinion.
The decree of the court below is reversed, and a decree entered by this court, that the surplus in the hands of Shumway be paid over to the executor of Rossiter, as herein directed.
Decree reversed.