Keith v. Molineux , 160 Mass. 499 ( 1894 )

Holmes, J.

The question intended to be presented is whether the defendant has in his hands any assets applicable to the payment of a debt admitted to have been due to the plaintiff from the defendant’s intestate. The only property was an interest in real estate subject to a mortgage. This was sold by the defendant for eight hundred dollars, that being just about the amount of the mortgage and interest. The question more specifically is, whether the eight hundred dollars are to be applied to the mortgage in the first place. The plaintiff, going on the fact that the defendant, as administrator, only had authority to sell the intestate’s interest, assumes that the proceeds of the sale were received for the equity of redemption; and if this is so, the rest of his argument is plain sailing. But there was nothing to prevent the defendant from selling the land free of the mortgage, if he could arrange to do so. In fact, at the time of the sale the defendant had bought and owned the mortgage. Whether properly or not, the advertisement makes no mention of the mortgage, the purchaser’s agreement and the deed to him made no mention of it, and after the sale the mortgage was assigned to the purchaser, seemingly as part of that for which he had paid his eight hundred dollars. The account evidently was not intended to express a different transaction, although it puts in the whole eight hundred dollars on one side, and the mortgage debt on the other. Putting it at the lowest, if the agreed statement was intended to authorize the Superior Court to draw inferences of fact, the court was well warranted in inferring that the eight hundred dollars was paid for the land free of the mortgage. If no power to draw inferences was intended to be given, the plaintiff cannot get paid unless the contrary appears as matter of law. Of course, if the land was sold free of encumbrances by arrangement with the holder of the mortgage, only what was left after paying the mortgage would belong to the estate.

Although the case comes before us upon an agreed statement, and although the plea of plena administravit is not used in Massachusetts, (6 Dane’s Abr. 144, Cushing v. Field, 9 Met. 180, 181,) substantially the defendant is in the position of one who prevails upon such a plea, since the few dollars of assets appear by the account to have been exhausted in paying preferred claims. Pub. Sts. c. 136, § 5. If, as we are inclined to take it, the statement was intended to give the Superior Court power to draw inferences of fact, the defendant prevails upon an issue of fact. Therefore he would be entitled to judgment, according to the modern English law. Wms, Ex. (7th ed.) 1979, 1980. 2 Wms. Saund. 217, note 1. 1 Rolle’s Abr. Executors, 929 (B), pl. 2. See Y. B. 33 Hen. VI. 23, 24, pl. 1; 34 Hen. VI. 24, pl. 42.

Some American cases have' given the plaintiff judgment of assets quando acciderint. Osterhout v. Hardenbergh, 19 Johns. 266. Nimmo v. Commonwealth, 1 Hen. & M. 470. Burnes v. Burton, 1 A. K. Marsh. 349. And although that form of judgment has not been used in this State, (Cushing v. Field, 9 Met. 180, 182,) yet as a judgment de bonis testatoris against an administrator here does not establish conclusively that he has assets in his hands sufficient to -pay it, it might be possible to enter such a judgment for the plaintiff. Fuller v. Connelly, 142 Mass. 227.

On the other hand, it was assumed in the Year Books cited that a judgment for the defendant on plene administravit is no bar in case of new assets coming to his hands, and if not, there is no objection to entering judgment for the defendant. Clearly it ought not to be a bar in such case, since the plea admits the debt. . Shipley's case, 8 Co. Rep. 134. The plea is “ not a perpetual bar; for if it had been so found as was pleaded, yet assets coming after to the hand of the executor, the plaintiff should then have relief and satisfaction out of these since accrued assets.” Wentw. Ex. (Am. ed. 1832) 344, 345. See also Markham and Prisot, JJ., in Y. B. 34 Hen. VI. 24. So after entry of judgment for so much as was found to be in the executor’s hands, as was formerly the practice in the English Court of Common Pleas, (Hargthorpe v. Milforth, Cro. Eliz. 318, 2 Wms. Ex. (7th ed.) 1976,) it cannot be doubted that the residue of the debt could be recovered if new assets should come into his hands. In Townesend, Second Book of Judgments, 68, pi. 29, it is said that .the plaintiff could have scire facias on such a judgment upon assets in futuro. Acc. Fortescue, C. J. and Prisot, J., in Y. B. 34 Hen. VI. 24.

In addition to these general considerations, it is to be noticed that the language of the statute allowing the settlement of an account showing that the estate has been exhausted in paying preferred claims to be pleaded is, “ such settlement shall be a sufficient bar to any action ” by a common creditor; Pub. Sts. c. 136, § 5 ; and that the record in the case of Parcher v. Bussell, 11 Cush. 107, shows that judgment was entered in this court for the defendant on plene administravit. In view of these facts, and as we are of opinion that, if new assets should come to the defendant’s hands, the plaintiff could recover his debt under Pub. Sts. c. 136, § 11, notwithstanding the present judgment, we are of opinion that the proper form will be to enter judgment for the defendant on the agreed statement. If there were no agreed statement, it would be proper that the judgment should show the ground it goes on, and that the plaintiff prevails upon the general denial in the answer.

Judgment for the defendant.