Foltz v. Peters

Hanna, J.— Wilgus, in his lifetime, contracted in writing [245] with Ford, to deliver him ten thousand eight hundred bushels of corn, for which he acknowledged the receipt of the price. Afterward, Ford assigned the contract, in December, 1856, to Peters, with a credit of six hundred and forty bushels of corn, and $118, indorsed thereon. Peters filed the contract as a claim against the estate of Wilgus. Foltz set up certain facts, first, as a payment of the said claim; apd, second, as an estoppel, &c.; namely, that at the time the contract was made, and to secure the due performance thereof, Ford took a mortgage from Wilgus on certain lands, &c., which was also assigned to Peters ; that said lands were of the value of $3,100, and were encumbered by another mortgage for $1,279, of which Peters had notice; that Wilgus died in January, 1856, and in July, 1856, defendant filed his petition to sell these lands, &c.; that they were appraised at nothing, subject to said liens, which amounted to' $1,100, and were sold to the said Peters for one dollar, subject to said mortgages ; that a deed was made and delivered to him therefor. A demurrer was filed to these answers, stating that they did not show facts sufficient, &c., in this, that they did not aver that the said lands, so mortgaged and purchased, were of as much value as the mortgage of the purchaser, after paying the said prior lien. The demurrer was sustained, which presents the only point made here. The appellant has cited us to but one authority upon which he relies, viz., 2 R. S., § 89, p. 269; which provides, that, whenever any executor, &c. shall sell any lands subject to any lien or charge thereon, he may take a bond of the purchaser, with sureties, conditioned that such purchaser will make all payments, and indemnify him a.nd all persons interested, &c. against all liabilities of the deceased on account of said land. It is insisted that this statute changes the rule laid down in the cases of Murphy v. Elliott, 6 Blackf. 482; and Johnston v. Watson, 7 id. 171. In those cases it was substantially decided, that if he who held a lien on real estate should purchase it in, it operated as an extinguishment of the lien, to the value of the property, and no more. With those decisions in view, as enunciating the correct rule of law at the time of the [246] adoption of the statute in question, we are unable to see any necessity for such statute, unless it was intended, as its language would indicate, to change the rule which thus prevailed. We are of opinion that such was the purpose of its adoption. We are strengthened in this interpretation by the reading of the latter clause of the' same section, which is in this language: . “ but the Court may make an order for the sale of any real estate of the decedent, &c., for the payment of the purchase money, or valid lien thereon.” It is manifest then, that the Court may order the property to be sold subject to existing liens, or for the purpose of discharging liens. If a purchase should be made under the former order, the purchaser would buy subject to, and the property be liable to, the liens, in addition to the sum the purchaser might agree to pay; .and the representative of the estate might also require a bond, that such liens should be discharged, and should not become a claim at any future time against the estate. If a sale should be made under the latter clause, and an order based thereon, the purchase money would be applicable to, or toward, the discharge of the lien, and the purchaser would receive the property relieved from such lien, although it might not be fully paid; the balance remaining a claim against the estate, if in a condition to be presented as such. If the holder of the lien should agree to pay a sum for the property in addition to the lien, such sale would operate'as an extinguishment of the lien, and no bond from him, to hold the estate harmless, would be necessary. John J£. La Rue and D. Royse, for the appellant. D. P. Vinton and John F. Miller, for the appellee. Per Guriam. The judgment is reversed, with costs. Cause remanded, &c.