Black v. Black , 42 Iowa 694 ( 1876 )

Day, J.

When this case was before us upon the former appeal we held that Wetherell, notwithstanding the decree of foreclosure, was entitled to receive a pro rata portion of the-proceeds of the personal property of the estate, and that, in the absence of any proof of an intention to charge the lands in the hands of the minors, as between them and the estate, the property could not be charged therewith, and that the creditor, at his option, could enforce the claim, either against the lands or the proceeds of the personal property in the hands of the administrator. Hence we reversed the order of the Circuit Court that the payment of Wetherell’s claim pro rata should effect an assignment pro tanto of the decree of foreclosure to the administrator, for this order in effect nullified the order for payment of Wetherell’s claim out of the personal assets, and ultimately cast the whole charge upon this realty, to the extent of its value.

The abstract now, however, shows facts which did not appear before. The administrator’s report is now attached, and shows the total amount of personal assets to be $2359.38; the total credits, $1765.30; and the amount remaining in the administrator’s hands, $591.08. If Wetherell’s claim had been paid pro rata by the administrator, as he is now directed to do, then the assets would have fallen short of satisfying the general creditors, by the difference between the amount now on hand and the amount of the fro rata payment which the administrator is directed to make, which difference is $181.56. The general creditors would then have had a right to resort to this land, subject to Wetherell’s prior lien for balance of unpaid purchase money, for the payment of their claims, at least to the extent of the liens against it, which had been discharged out of the personal assets. Rut, as the administrator has paid the general creditors, and thus relieved this la.nd from this claim, it is but equitable that he should be subrogated to the rights which they would have had, had their claims not been paid.

The payment of plaintiffs’ claim y?n> rata shall, therefore, operate as a transfer to the administrator of the decree of foreclosure in favor of Wetherell to the extent of $181.56, subject to the prior right of Wetherell, to the satisfaction of the unpaid balance of his claim, out of the property foreclosed.

Thus modified, the judgment is

Affirmed.