Welton v. Hull

Bliss, Judge, delivered the-opinion of the court. Jesse Welton, deceased, was administrator of the estate of Lewis Welton, deceased. One Townley held a claim against the estate for over $5,000, which was presented and allowed and assigned to the fifth class. This demand had been secured by a deed of trust upon real estate of decedent, but that fact was not shown when it was presented. Afterwards the administrator obtained an order for the sale of the real estate for the payment of debts. This debt, among others, was named in the petition. No allusion was made to the deed of trust. The land was appraised and sold precisely as though no such deed existed. It seems to have brought a full price, being six-sevenths of the appraised value, and the proceeds were applied to the payment of [298] the debts, including the one so secured upon the land. All the debts were paid, and on final settlement by Jacob Hull, on behalf of the administrator, who had died, the heirs of Lewis Welton appeared and objected to the credit of $6,044.17, being the amount paid upon said secured debt, and claimed that only the interest of the estate in the land was sold, subject to this debt; that the creditor should look to the land, and not the estate; and that the administrator had no right to pay the claim out of the general assets. The administrator did not attempt to follow the provisions of sections 6 and 8, chapter 122, Gen. Stat. 1865 (Wagn. Stat. 94), but sold the land us required by section 10. The application was not to sell the interest of the estate subject to the trust deed, but the land itself, or rather the interest of decedent as owner in fee, and there were no special orders of the court in regard to its redemption or sale subject to the debt. It is unnecessary to indicate the whole duty of the administrator in the premises, but it is clear that he acted in good faith; that it was his duty to pay all claims properly presented and allowed; that the purchase-money of the land was applied to their payment ; and now, to make his representatives pay to the heirs of his intestate the amount of this large debt so paid off by him would be grossly unjust. The creditor pursued the estate generally, as he had a right to do. There is no special statutory provision applicable to this state of facts. Had the debt been paid previous to the sale, the whole would have passed; and we need not now say whether its payment, after an apparent sale of the whole estate, would discharge the lien. At the time of the sale the lien existed, and it may still exist, in favor of the creditors; but I do not feel at liberty, without further investigation, to say more upon this point. It is sufficient that the administrator could not compel the creditor to look alone to the land, and that he had a right to pay his claim., It is for-paying this debt that it is now sought to charge him, and not for neglect of duty in any other particular; and I think the judgment of the Circuit Court, which affirmed the action of the Probate Court, should be affirmed. The other judges concur. Lay <$• Belch, on motion for a rehearing. I. The decision is in conflict with an express statute. The statute provides that where lands of deceased are encumbered by deed of trust, etc., “if such redemption would injure the estate or creditors, or there would not be assets to redeem such estate after payment of debts, the court shall order all the right, title and interest of the estate to such property to be sold at public sale.” (Wagn. Stat. 94, § 8.) No other interest can be sold, yet the court decides that the administrator sold the legal as well as the equitable title. II. This decision is in conflict with the decision in the cases of Delassus v. Poston, 19 Mo., on pages 480-32 ; also the case of McNair et al. v. O’Eallon, 3 Mo. 188, opinion on page 202 ; and the case of Lumly v. Robinson, 26 Mo. 364, which are cited by plaintiff. HI. The court clearly misapprehended the facts, and the opinion is based upon the fact that the sale was not made under sections 6 and 8 of article III, Wagn. Stat. 94, when the record shows that the administrator, by order of the court, was directed to sell only the right, title and interest of the deceased in and to the land. The question is, does the money arising from the sale of an equitable legal title go to the estate of the deceased, or to the person holding the legal title? This question the court does not decide.'