Paschall v. Hailman
| Decision Date | 31 December 1847 |
| Citation | 9 Ill. 285,1847 WL 3860,4 Gilman 285 |
| Parties | NATHANIEL PASCHALLv.ELIZA S. HAILMAN, administratrix of William Morrison, deceased. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
THIS was the case of an appeal from an order of the probate justice of Randolph county, allowing the administrator a preference claimed by him over the creditors of the estate. It was taken by agreement from the probate to the circuit court of Randolph county, where, at the November term 1847, a judgment, pro forma, was made affirming that of the former court, from which, by further agreement, the case was brought by appeal into this court.
The facts of this case appear in the opinion of the court.
J. SEMPLE, for the appellant, made the following points:
I. The appellant contends that the whole of the assets in the hands of the administrator should be paid pro rata to all the creditors of Edgar, who had filed their claims and had them allowed within two years from the date of administration in the court of probate, and that the administrator could not retain his debt, or have any preference.
The statute of wills (section 105), provides that “when any real estate shall at any time be ordered to be sold, the moneys arising from such sales shall be received by the executor or administrator applying for such order, and shall be considered as assets in his or her hands for the payment of debts, and shall be applied in the same manner as assets arising from the sale of personal property.”
The same statute (section 110) provides that
The same statute (section 114) provides that “all claims and demands against estates, when allowed by the court of probate, as aforesaid, shall be classed, and paid by the executor or administrator, in the manner provided in this act, commencing with the first class; and when the estate is insufficient to pay the whole of the demands, such demands in any one class, shall be paid pro rata, whether the same shall be due by judgment, writing obligatory, or otherwise, except in such cases as shall be herein excepted.
The same statute (section 115) provides that “when any executor or administrator shall have any demand against his testator or intestate estate, he shall be required to file his demand with the court of probate, as other persons, and the court shall appoint some discreet person to appear and manage the defence for the estate.”
Section 119 makes further provision for a pro rata division of assets among creditors at each and every settlement. Nothing can be clearer than these statutory provisions and directions, that all debts, including judgments by name, shall be paid out of the assets of an insolvent estate pro rata in each of the classes shown.
Unless, then, it can be shown that Morrison's judgments had some lien or right to preference in payment, established by law, making them an exception to these general provisions, then this statute settles this question beyond all doubt.
II. The appellant contends that Morrison never had any lien whatever on the personal estate of Edgar, or on the assets in the hands of his administrator, nor could he retain as administrator, that right being taken away by the statute (Sec. 115), which requires him to “file his demand as other persons.” The same principle of an executor proving his debt as other persons, is decided by the supreme court of the United States in Nichols v. Hodges, 1 Peters, 565, and Paige v. Patton, 5 do. 311. In this last case the court, after deciding that the executor may retain his own debt of equal dignity but not inferior dignity, under the laws of Virginia, say, that “in some of the states this rule would not apply, as there is no difference made in the payment of debts between a bond and simple contract.”
This is one of the states in which all debts being placed on the same footing by statute, the decision above applies, and thus excludes the idea of an executor retaining his own debt even of the same dignity.
III. The appellant contends that Morrison had no lien on the real estate of Edgar, because his judgment being obtained in 1826 came under the provisions of the act of 17th January, 1825, which limited judgment liens to seven years, which lien ceased at the death of Edgar, or if it extended beyond his death, it had expired before the sale of the lands aforesaid in 1834 and 1836. During all the time of the existence of the lien, he had the right, undisturbed by injunctions or otherwise, to proceed with his lien against the lands of Edgar; but he failed to do this, stood by and saw the lands sold, or rather sold them himself as administrator, and turned into personal assets without even attempting to assert his lien, and now, more than twenty-one years after his judgment was obtained, claims his lien on the assets in the hands of the administrator.
In the case of Bustard v. Morrison, administrator of Edgar, 1 Scam. 235, this court say: “If by the lapse of time, and their (the plaintiffs') own laches they have lost their lien, a court of chancery can not aid them, by extending the lien beyond the period limited by law.”
In Indiana, the courts have gone much further than ours in cutting off these judgment liens when an estate is insolvent, and subjecting the whole to the more equitable rule of a pro rata division.
In Berry v. Marshall, 1 Blackf. 340, a judgment obtained in the lifetime of deceased, and a pending lien on his land at the time of his death, was held to be divested by a statute passed subsequent to the judgment, but before the death of deceased, and the court ordered the insolvent estate to be divided pro rata according to the last mentioned statute. This decision was made under the act of 1821. The act of 1828 changed this rule and preserved the lien on an insolvent debtor's estate obtained in the lifetime of the deceased.
But even under the statute thus preserving the lien, it was held in Joyce v. Hufford, 7 Blackf. 382, that a judgment against the heirs must give way to an equal distribution among the creditors.
In these cases, the act of 1828 preserving the lien was passed after the act of 1821 requiring a pro rata division. In our state, the act of 1829 requiring an equal distribution was passed after the act of 1825 giving the lien, and repeals all acts coming within its purview or conflicting with its provisions. It is therefore respectfully suggested that the case of Reynolds v. Henderson, 2 Gilm. 110, is not good law.
The case of Menard v. Marks, 1 Scam. 25, rests on different grounds. The distinction seems to be, that a mortgage is a contract between the parties, which the law can not divest, but a judgment lien, being given by statute, creates no vested right which may not be taken away by the same power in a subsequent statute. See Bank of Hamilton v. Dudley, 2 Peters, 522, where this point is decided.
Here we might rest the case either on the ground that the lien was lost at Edgar's death, or that if it continued after his death, it expired by the parties' own laches before the sale of the lands; nor could it by any known rule of law be followed to the proceeds of the sales of the lands when reduced, under the statute, to assets in the hands of the administrator.
IV. But to take this in every possible or supposable contingency, even should the lien be construed to extend beyond the seven years, the appellant contends, that by filing his judgments in the court of probate to come in for a pro rata distribution of the assets, Morrison waived any lien he might have had.
V. The appellant further contends, that in this case the judgment, in any event, would only be a lien on Edgar's lands in the county of Randolph, and could not extend to the lands situated in other counties. See case of Bustard v. Morrison, administrator of Edgar, 1 Scam. 235.
There might have been some reason on the part of Morrison for filing his claim to come in pro rata, for at the time of these sales, the lands in the counties of Madison and St. Clair were considered the most valuable and the most saleable. Morrison might have supposed that he would get more out of his pro rata on the whole of Edgar's lands in the state, than he could have obtained by enforcing his lien on the lands in the county of Randolph. Though it does not appear on the record, and it may be improper to allude to it, yet, in point of fact, the lands in other counties brought a great deal more than the lands in Randolph. The record, however, shows that there were judgments against Edgar prior to Morrison's, which would have taken a considerable part of the lands on which Morrison's judgment was a lien.
VI. If any lien existed, the only remedy of the party was to pursue his lien by a proceeding in rem against the lands subject to the lien, and he can in no state of case pursue it as against...
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Relfe v. Columbia Life Ins. Co.
...to priority as a debt of higher dignity than simple contract debts. Toller Execs., 258; Woodworth v. Paine, 1 Ill. (Breese) 294; Paschall v. Hailman, 9 Ill. 285; 2 Williams Execs., (6 Am. Ed.) p. 1065, § 2, chap. 2. But as our law, especially by sections 6032 and 6047, preserves the priorit......