Scherrer v. Ingerman

• Decision Date: 16 March 1887
• Citation: 110 Ind. 428,11 N.E. 8
• Parties: Scherrer v. Ingerman, Adm'r.
• Court: Indiana Supreme Court

110 Ind. 428

11 N.E. 8

Scherrer

v.Ingerman, Adm'r.¹

Supreme Court of Indiana.

March 16, 1887.

Appeal from circuit court, Hamilton county.

Kane & Davis, for appellant. F. M. Trissall, for appellee.

ZOLLARS, J.

Appellee, as the administrator de bonis non of the estate of William Bishop, deceased, on the twenty-second day of March, 1886, filed his petition asking for the sale of real estate to make assets with which to pay a claim in favor of one Abel Welsh, and the cost resulting from the litigation thereof by the former administrator, which claim was allowed by the judgment of the court on the twenty-eighth day of May, 1872. It is averred in the petition that the personal estate which came into the hands of the former administrator was wasted by him, or applied in the payment of preferred claims; that no personal estate has come into the hands of appellee; that the former administrator, and the sureties on his bond, are insolvent; that the land in question is the only property left by the decedent from which money can be derived with which to pay said debt against the estate; that while the Welsh claim was pending for allowance, and was being litigated by the former administrator, a part of the heirs of the decedent, by quitclaim deed, conveyed the land to a remote grantor of appellant, through whom he now claims title to the land as owner. The court below sustained a demurrer to several paragraphs of appellant's answer.

The discussion by his counsel is confined to the third and tenth paragraphs. As the tenth paragraph contains all that is alleged in the third, it will be sufficient to state briefly the contents of that paragraph. It is therein averred that William Bishop died intestate in June, 1867; that a few days thereafter one Ira Bishop was appointed administrator of his estate; that there came into his hands personal estate more than sufficient to pay all the debts and costs against the estate; that the Welsh claim was filed in 1868, and allowed by the judgment of the court in 1869; that that judgment was reversed by the supreme court, and the claim again allowed by the court below, in 1872, as alleged in appellee's petition; that in 1868 the heirs of the decedent, among whom was the wife of Welsh, by a deed of conveyance in which Welsh joined with his wife, conveyed the land to a remote grantor of appellant for a full, fair, and adequate consideration, which was paid to the wife of Welsh and the other heirs; that in 1883, more than 15 years after the filing of the Welsh claim, and the placing of it upon the issue docket, and more than 10 years after it was finally allowed, appellant purchased the land, and paid therefor a valuable consideration in good faith, and without any knowledge of the Welsh claim, or any other unpaid claim against the estate; that the grantees of the heirs of the decedent have held the sole, continuous, and adverse possession of the land for more than 18 years prior to the filing of appellee's petition, claiming to be the exclusive owners thereof in fee-simple, and free from all claims in favor of the administrator or creditors; that neither the administrator nor creditors, prior to the filing of the petition herein, ever claimed that the land was liable for the payment of the Welsh claim, or any part thereof, but, on the contrary, said Welsh, with full knowledge of all the facts, elected to and did prosecute to final judgment an action against the former administrator and his sureties; that this proceeding is prosecuted wholly in the interest of Welsh; and that all other claims and costs against the estate have been fully paid.

It is claimed by appellant that the facts thus set up show that the proceeding is barred by the 15-year statute of limitations, and that both Welsh and the administrator are estopped from prosecuting this action.

It was held in the case of Cole v. Lafontaine, 84 Ind. 446, that section 212 of the Statute of 1852 (2 Gavin & H. 160; 2 Rev. St. 1876, p. 124; Rev. St. 1881, § 294) is applicable to proceedings of this character, and that the expiration of 15 years from the time the cause of action accrues will bar such a proceeding.

It is contended by counsel for appellant that the cause of action here accrued not later than one year after the administrator was appointed, in 1867, or, at furthest, not later than 1869, when the Welsh claim was first allowed by the court. On the other hand, it is contended by counsel for appellee that the cause of action did not accrue until the final allowance of the claim, in 1872. We feel constrained to adopt the latter view, as applied to this case. The law in force at the time contemplated a final settlement of the estate at the end of a year from the appointment of the administrator, except where there were uncollected claims due the estate, or pending and undisposed of claims against the estate. In such case the estate could not be finally settled at the end of the year. 2 Gavin & H. 517; 2 Rev. St. 1876, p. 535; Rev. St. 1881, § 2393 et seq. It was also provided that, whenever the administrator should discover that the personal estate was insufficient to pay the liabilities, the court should order the sale of real estate upon the petition of the administrator stating the amount of the personal estate that had come to his hands, the amount of debts outstanding against the estate, and the insufficiency of the personal estate to pay them. A like application could be made by a creditor. 2 Gavin & H. 506, 508; 2 Rev. St. 1876, pp. 519, 523; Rev. St. 1881, §§ 2336, 2338, 2342.

According to both the petition and the answer here, the Welsh claim was in litigation until 1872, when it was finally allowed by the court; and, according to the answer, that was the only claim against the estate that was unpaid. According to the answer, also, the personal estate in the hands of the former administrator were sufficient to pay all the claim and costs against the estate. If they were thus sufficient, it was not known by that administrator, nor by the creditor Welsh, that there was any necessity for resorting to the land until after those assets were wasted. When that was, does not appear. And if, according to the answer, all claims and costs against the estate, except the Welsh claim, were paid from the personal assets, it was not and could not be known that it would be necessary to resort to the real estate until that claim was finally allowed. The administrator was litigating that claim, and if he had been successful in defeating it, and there were no other claims or costs against the estate, as alleged in the answer, there would have been no necessity for resorting to the real estate.

The creditor, Welsh, had no right to apply for a sale of the real estate until his claim was finally allowed, in 1872. Until that claim was allowed, it was not known that he was in fact a creditor. Upon the pleadings before us, it must be held that, both as to Welsh and the administrator, the cause of action accrued upon the allowance of the Welsh claim, in 1872. That was not 15 years before this proceeding was commenced.

In some of the states, where there are no statutes of limitations applicable to a proceeding of this character, it has been held that it must be commenced within a reasonable time after the discovery of the insufficiency of the personal estate, and that neither the administrator nor the creditor may resort to the real estate, if they have been guilty of laches which may deleteriously affect the rights of the heirs or their grantees in and to the real estate. Ferguson v. Broome, 1 Bradf. 10; Estate of Crosby, 55 Cal. 574;McCrary v. Tasker, 41 Iowa, 255;Wolf v. Ogden, 66 Ill. 224;In re Estate of Godfrey, 4 Mich. 307; Campau v. Gillett, 1 Mich. (annotated,) 416. But, as we have seen, it has been held that our statute, limiting the right to prosecute certain actions to 15 years from the time the cause of action accrues, applies to proceedings of this character.

The drift of the holdings has been, too, that, where limitations are fixed by the statute, parties have, under all circumstances, until the expiration of the time thus fixed in which to bring their actions. See Potter v. Smith, 36 Ind. 231;Harper v. Terry, 70 Ind. 264. There may be cases of statutory proceedings, or cases of purely equitable cognizance, where the laches of a party may be of such a character, and under such circumstances, as will bar his right to prosecute his action in less time than that fixed by the statute of limitations. But that is only in cases where the laches are of such a character, and under such circumstances, as to work an equitable estoppel. State v. Gordon, 87 Ind. 171;City of Logansport v. Uhl, 99 Ind. 531;Earle v. Earle, 91 Ind. 27.

We cannot say that in the case before us the administrator, or the creditor Welsh, has been guilty of laches of such a character, and under such circumstances, as to work an equitable estoppel against either. It is true that from the time the claim was allowed, in May, 1872, until this proceeding was commenced, in March, 1886, no steps were taken to reach the real estate; but we are informed by the answer that during that time Welsh, in an effort to collectthe amount of his allowance, prosecuted to final judgment an action against the former administrator and sureties on his bond. It is not shown when that action was commenced, nor when it terminated, nor how much time may have been consumed in an effort to collect the judgment. For aught that appears, that action may have been pending at the time appellant purchased the land. It was proper and right for Welsh to make an effort to collect from the former and delinquent administrator before resorting to the real estate. The personal estate was the primary fund for the payment of the debts against the estate, and if that was wasted by the administrator, as alleged, it was the proper thing to make him and the sureties on his bond respond for the amount...