Wilson v. Slaughter
| Decision Date | 12 April 1890 |
| Parties | WILSON v. SLAUGHTER |
| Court | Arkansas Supreme Court |
APPEAL from St. Francis Circuit Court, M. T. SANDERS, Judge.
Suit by Sallie Slaughter and others, heirs of Edwin Jones, deceased against D. M. Wilson, trustee under a mortgage, John I Jones, one of the heirs of Edwin Jones, and Philander Littell, execution purchaser of the distributive share of John I. Jones in the estate of Edwin Jones, to settle the right to a one-third share in a fund in the hands of the trustee belonging to said estate and claimed by plaintiffs and by defendant, Littell. The court decreed that the fund belonged to plaintiffs. Defendants, Littell and Wilson appealed. The facts appear in the opinion.
Judgment affirmed.
John J. & E. C. Hornor for appellants.
Under the facts in this case, the relation of principal and surety existed as to the mortgage debt. If Edwin Jones had paid the debt in his life-time, his remedy against his principal, John I. Jones, would have been that he was entitled to be refunded the amount paid by him with interest. Mansf. Dig., secs 6401, 6402.
The payment would only have created a debt against John I. Jones. It did not in any manner affect the heirship to the property of Edwin Jones. Having died without a will, the law cast the descent of his property upon his heirs. The payment by his estate of the debt created a debt in favor of the administrator, but it could not change the law of inheritance.
James P. Brown for appellees.
No relation of debtor and creditor ever existed between Edwin and John I. Jones, either in the life-time of Edwin or after his death. Neither Edwin nor his administrator ever paid the mortgage debt. The administrator never had anything to do with the proceeds of the sale, or the surplus after the debt was paid. This surplus could not go to the administrator, because, first, although the surplus was money, yet it was not personal property, but it was real estate by equitable conversion. Jones on Mortg., 3d ed., secs. 1695, 1931; Perry on Trusts, 3d ed., sec. 602, ff.; Story, Eq. Jur., sec. 790. And second, the surplus being real estate, the administrator of Edwin had no right to it except to pay debts, and there were no debts.
The heirs of Edwin inherited the tract encumbered for more than one-third of its value for the benefit of one of the heirs, John I. It was their property as equal tenants in common, subject to said mortgage encumbrance, and a court of chancery will not decree to one of these tenants in common, who is hopelessly insolvent, an equal share, when he has already enjoyed, and had the benefit of, more than his share.
John I himself cannot claim it, and Littell having purchased with notice, stands in no better attitude. All of John I.'s...
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