The opinion of the court Avas delivered by
Mr. Chief Justice Simpson.
It will be necessary, for a proper understanding of this case, that the complaint and ansAvers should be set out in full, and also the decree of the Circuit Judge, his honor, Judge Pressley. These papers, therefore, Avill be appended to this opinion, so that they may be incorporated by the reporter as a heading hereto. A short synopsis of the case, hoAVever, Avill be given here.
[250]*250The plaintiff held two mortgages of the defendant, Sarah Jones. One covered a tract of land known as the “mill place,” and Avas given to secure the payment of a sealed note for $911.15, to which the defendant, Jos. Hill, was surety; the other to secure this first note and another for $494.55 (reduced by a credit to $294.55), bearing 10 per cent, interest. This covered a tract of land known as the “home place.” This note was dated in January, 1884, the first in February, 1882. At the time of the mortgage of the mill place, it was represented to the plaintiff that Mrs. Jones was the sole owner thereof, and the plaintiff accepted the mortgage with that undei’standing. The mortgages contained a power of sale, and under this power the said lands were sold by the plaintiff, the defendant, Mrs. Gist, purchasing the home place at $595, and the plaintiff the mill place at $705.
After this sale, the plaintiff became satisfied that he had been misled as to-the ownership of the mill place by Mrs. Jones, the mortgagor, and the action below was instituted for relief from his purchase, seeking to set' aside the sale of the mill place to himself on account of misrepresentations by Mrs. Jones, and also a decree ordering a resale of said place, the proceeds to be applied to the notes, and a judgment for any deficiency against the defendants — Mrs. Jones and the surety, Jos. Hill, we suppose. The defendants answered separately. Hill claimed that he had been released from his suretyship, because time had been given his principal, and insisted that' the sale of the mill tract should be declared good and valid, and that the plaintiff should be held to his purchase, admitting that he had represented to the plaintiff that Mrs. Jones had title to said place, which he believed to be true. Mrs. Jones admitted that she had made the representations mentioned as to the mill place, believing at the time that she had titles thereto, because she had paid certain debts of her deceased husband, by Avhose will this place was directed to be sold to pay his debts. Mrs. Gist claimed that she was the owner of one undivided half of the land embraced in the mortgage,' as heir at law of her deceased father, Jesse Jones, and as heir at laAv of a deceased sister, Laura, Avho had died since the death of her father, and she prayed an accounting from her mother Sarah for [251]*251the rents and profits while she had been in possession, some eighteen years.
Judge Pressley, who heard the case, held, first, that Hill could not be released from his suretyship, as the testimony negatived his ground for discharge. He held, second, that Mrs. Jones had paid debts of her husband more than the value of the land, sufficient to give her a lien on the mill place for reimbursement, said place having been directed in the will of her husband, Jesse Jones, to be sold to pay his> debts, of which will she and her brother, the said Jos. Hill, were executors; and that her long-possession, with this lien, had perfected her title, which had vested in the plaintiff to the extent of his note and interest. He further adjudged “that Mrs. Gist had no interest in the property mortgaged to pay plaintiff’s debt,” and, further, he decreed “that the question of the final liability of Joseph Hill, for any balance which may remain unpaid on the notes to which he is surety, after exhausting the mortgaged property, must remain undecided until the end of the litigation, if any, concerning the sale of the home place. If there should be no such litigation, then the $595, for which it sold, must be applied pro rata to the second note, and the balance which may remain unpaid on the first note, after applying to it the proceeds of the mill place” ; finally ordering James Munro, clerk of the court, to sell the mill place on certain terms, the proceeds when collected to be applied to the costs of this case, the remainder to be paid to the plaintiff, not exceeding the sum of $911.95, with interest from December 25, 1882, giving leave to the plaintiff to amend his' complaint, by adding other allegations, as deemed necessary, for the proper sale of the home place, and also leave to the defendants, Sarah Jones and Joseph Hill, to offer testimony as to the rent of the mill place for the year 1884, and to have the amount applied to the mortgage debt.
From this decree, or at least from portions of it, each of the defendants, except Mrs. Jones, appealed upon separate exceptions. Mrs. Gist, because his honor held that the defendant, Mrs. Jones, had a lien on the mill place for the money advanced to more than its value, and that.her holding had perfected her title; and, fur-, ther, that her right had vested in the plaintiff to the extent of [252]*252bis note; and, further, because he held that she, Mrs. Gist, had no interest in the property mortgaged. Joseph Hill, because his honor held that the proceeds of the home place should be applied ratably to the two notes after applying the proceeds of the mill place to the note secured thereby, and also because he held that the plaintiff should be relieved from the purchase of the mill place when the complaint should have been dismissed. And the plaintiff appealed, because his honor should have decreed that the proceeds of the sale of the home place should have been applied first to the payment of the second note and not applied pro rata to both notes.
The other portions of the decree stood unappealed, to wit: the refusal to discharge Joseph Hill from the note on which he was surety, his final liability thereon for any balance, and the sale of the mill place ordered, which, in effect, set aside the previous sale made by the defendant under the mortgage, except that Joseph Hill urged that the plaintiff should be held to his purchase.
We will take up Mrs. Gist’s exceptions first. She claims that his honor erred in holding that Mrs. Jones had a lien on the mill place for moneys advanced for the estate, and that her long holding of the mill place had vested in her title therein, wThich had vested in the plaintiff to the extent of his note and interest, and also in holding that she, Mrs. Gist, had no interest in this property.
Upon an examination of the will of the testator, Jesse Jones, it will be found that he made no disposition of the proceeds of this tract of land nor of the eight negroes embraced in the same clause of the will with this land except impliedly, the implication arising from a subsequent clause in which he stated, “if the property willed to be sold is not sufficient to pay my just debts, I will that Lyge and Wesley, if both be required, be sold for that purpose.” There is no residuary clause in the will. Nor does he dispose of his personal assets., if any, except the negroes. He first directed that all of his just debts be paid, and after giving his home place to his wife for life, then to his two daughters, and also disposing of certain of his negroes, he directed eight negroes and the remainder of his land (mill place), to be sold as above, •with the two negroes, Lyge and Wesley, as above. He therefore [253]
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The opinion of the court Avas delivered by
Mr. Chief Justice Simpson.
It will be necessary, for a proper understanding of this case, that the complaint and ansAvers should be set out in full, and also the decree of the Circuit Judge, his honor, Judge Pressley. These papers, therefore, Avill be appended to this opinion, so that they may be incorporated by the reporter as a heading hereto. A short synopsis of the case, hoAVever, Avill be given here.
[250]*250The plaintiff held two mortgages of the defendant, Sarah Jones. One covered a tract of land known as the “mill place,” and Avas given to secure the payment of a sealed note for $911.15, to which the defendant, Jos. Hill, was surety; the other to secure this first note and another for $494.55 (reduced by a credit to $294.55), bearing 10 per cent, interest. This covered a tract of land known as the “home place.” This note was dated in January, 1884, the first in February, 1882. At the time of the mortgage of the mill place, it was represented to the plaintiff that Mrs. Jones was the sole owner thereof, and the plaintiff accepted the mortgage with that undei’standing. The mortgages contained a power of sale, and under this power the said lands were sold by the plaintiff, the defendant, Mrs. Gist, purchasing the home place at $595, and the plaintiff the mill place at $705.
After this sale, the plaintiff became satisfied that he had been misled as to-the ownership of the mill place by Mrs. Jones, the mortgagor, and the action below was instituted for relief from his purchase, seeking to set' aside the sale of the mill place to himself on account of misrepresentations by Mrs. Jones, and also a decree ordering a resale of said place, the proceeds to be applied to the notes, and a judgment for any deficiency against the defendants — Mrs. Jones and the surety, Jos. Hill, we suppose. The defendants answered separately. Hill claimed that he had been released from his suretyship, because time had been given his principal, and insisted that' the sale of the mill tract should be declared good and valid, and that the plaintiff should be held to his purchase, admitting that he had represented to the plaintiff that Mrs. Jones had title to said place, which he believed to be true. Mrs. Jones admitted that she had made the representations mentioned as to the mill place, believing at the time that she had titles thereto, because she had paid certain debts of her deceased husband, by Avhose will this place was directed to be sold to pay his debts. Mrs. Gist claimed that she was the owner of one undivided half of the land embraced in the mortgage,' as heir at law of her deceased father, Jesse Jones, and as heir at laAv of a deceased sister, Laura, Avho had died since the death of her father, and she prayed an accounting from her mother Sarah for [251]*251the rents and profits while she had been in possession, some eighteen years.
Judge Pressley, who heard the case, held, first, that Hill could not be released from his suretyship, as the testimony negatived his ground for discharge. He held, second, that Mrs. Jones had paid debts of her husband more than the value of the land, sufficient to give her a lien on the mill place for reimbursement, said place having been directed in the will of her husband, Jesse Jones, to be sold to pay his> debts, of which will she and her brother, the said Jos. Hill, were executors; and that her long-possession, with this lien, had perfected her title, which had vested in the plaintiff to the extent of his note and interest. He further adjudged “that Mrs. Gist had no interest in the property mortgaged to pay plaintiff’s debt,” and, further, he decreed “that the question of the final liability of Joseph Hill, for any balance which may remain unpaid on the notes to which he is surety, after exhausting the mortgaged property, must remain undecided until the end of the litigation, if any, concerning the sale of the home place. If there should be no such litigation, then the $595, for which it sold, must be applied pro rata to the second note, and the balance which may remain unpaid on the first note, after applying to it the proceeds of the mill place” ; finally ordering James Munro, clerk of the court, to sell the mill place on certain terms, the proceeds when collected to be applied to the costs of this case, the remainder to be paid to the plaintiff, not exceeding the sum of $911.95, with interest from December 25, 1882, giving leave to the plaintiff to amend his' complaint, by adding other allegations, as deemed necessary, for the proper sale of the home place, and also leave to the defendants, Sarah Jones and Joseph Hill, to offer testimony as to the rent of the mill place for the year 1884, and to have the amount applied to the mortgage debt.
From this decree, or at least from portions of it, each of the defendants, except Mrs. Jones, appealed upon separate exceptions. Mrs. Gist, because his honor held that the defendant, Mrs. Jones, had a lien on the mill place for the money advanced to more than its value, and that.her holding had perfected her title; and, fur-, ther, that her right had vested in the plaintiff to the extent of [252]*252bis note; and, further, because he held that she, Mrs. Gist, had no interest in the property mortgaged. Joseph Hill, because his honor held that the proceeds of the home place should be applied ratably to the two notes after applying the proceeds of the mill place to the note secured thereby, and also because he held that the plaintiff should be relieved from the purchase of the mill place when the complaint should have been dismissed. And the plaintiff appealed, because his honor should have decreed that the proceeds of the sale of the home place should have been applied first to the payment of the second note and not applied pro rata to both notes.
The other portions of the decree stood unappealed, to wit: the refusal to discharge Joseph Hill from the note on which he was surety, his final liability thereon for any balance, and the sale of the mill place ordered, which, in effect, set aside the previous sale made by the defendant under the mortgage, except that Joseph Hill urged that the plaintiff should be held to his purchase.
We will take up Mrs. Gist’s exceptions first. She claims that his honor erred in holding that Mrs. Jones had a lien on the mill place for moneys advanced for the estate, and that her long holding of the mill place had vested in her title therein, wThich had vested in the plaintiff to the extent of his note and interest, and also in holding that she, Mrs. Gist, had no interest in this property.
Upon an examination of the will of the testator, Jesse Jones, it will be found that he made no disposition of the proceeds of this tract of land nor of the eight negroes embraced in the same clause of the will with this land except impliedly, the implication arising from a subsequent clause in which he stated, “if the property willed to be sold is not sufficient to pay my just debts, I will that Lyge and Wesley, if both be required, be sold for that purpose.” There is no residuary clause in the will. Nor does he dispose of his personal assets., if any, except the negroes. He first directed that all of his just debts be paid, and after giving his home place to his wife for life, then to his two daughters, and also disposing of certain of his negroes, he directed eight negroes and the remainder of his land (mill place), to be sold as above, •with the two negroes, Lyge and Wesley, as above. He therefore [253]*253died intestate as to tbe eight negroes and the mill place, except that they should be sold, and impliedly that the proceeds thereof should be applied to his debts — nothing said as to the excess, if any.
The defendants, Sarah Jones and her brother, Joseph Hill, qualified as executor and executrix, and thereby they became invested with the power to sell the property mentioned. In the meantime the title to the mill place descended to the heirs at law,to wit, the widow and the two daughters; and one of the daughters having since died (Laura), leaving her mother, Sarah, and her sister, Mary, her heirs at law, her share descended to them, in whom the title has been ever since in equal moieties unless the title of Mrs. Gist has been divested and obtained by Mrs. Jones by her long possession. As to this we find no such ouster in the case as would entitle Mrs. Jones to claim the land by possession. She took and held possession under the will of her husband for a certain purpose, and there does not seem to have been any act of hers “until the execution of the mortgage” showing any claim against the will.
Now, the question arises, had she, by virtue of paying the debts of the estate from her own means, such a lien on the mill place, as held by the Circuit Judge, which she could transfer to the plaintiff to secure a private debt of her own? No doubt Mrs. Jones, upon final settlement of the estate of her husband, would be entitled to reimbursement for all sums she may have paid from her own funds, and no doubt she could transfer this right to another, but before obtaining such reimbursement she would be required to account for all of the assets of the estate which she had held as executrix. In other words, before she could claim reimbursement she should show that she had made payments over and above the assets for which she was legitimately accountable. But we know of no authority by which she could in advance of settlement lay claim to any specific property of the deceased and deal with it as her own; for instance, mortgaging it for her private debts, as was done here of the mill place. The executors under the will had power to sell the mill place, the proceeds to be accounted for to the estate and the distributees thereof. This was the extent of their power and their duty.
[254]*254Have they made such sale ? Not so, unless the mortgage to the plaintiff can be regarded as a sale, and therefore an execution Of the power. The mortgage was not a sale; certainly not such as the will directed. It was not in execution of the power with which the will invested the executors. It wras therefore void as a legal paper, and the sale by the plaintiff under it was equally void. The land then stands as if no such sale had been made with the title thereto in Mrs. Jones and the defendant, Mrs. Gist, and it has been subject to be sold under the will by the executors during' all the time since the death of the testator. It has not been sold, and now the decree of his honor below has ordered a sale. From this portion of the decree there is no appeal, either from Mrs. Jones or Mrs. Gist, and wre are not warranted therefore in disturbing it. Besides, doubtless, if there was an appeal this is the best course to be taken under all the circumstances.
But then comes the application of the proceeds which presents á difficult question. The decree directs that these shall be applied after the costs to the payment of the plaintiff’s note for $911.95. This was directed on the theory of the lien of the plaintiff through the mortgage.. According to our view above the plaintiff has no lien, therefore he is not entitled in the first instance to the proceeds of the sale. On the contrary, we think that these proceeds must be the subject of administration by the executors or under the direction of the court, as the other assets of the estate may he, Mrs. Gist being entitled as one of the distributees of her father’s estate to one-half of such portion of said proceeds as may remain after payment of the debts of the estate, Mrs. Jones first accounting for the other personal assets previously disposed of (in so far as she may be accountable), before subjecting these proceeds to her reimbursement, and the plaintiff being entitled to set up his mortgage against the share of Mrs. Jones therein, should there be any remaining after Mrs. Gist has been paid not only her half of these proceeds but also such other portion as she may be entitled to from the balance of the personal estate, if any, after paying of debts and reimbursing Mrs. Jones for such amounts as she may have paid on the debts from her own funds. This is a complicated matter and it is not free from difficulties in any view which may be taken, but we think the [255]*255course indicated above is the best that can be done in view of both the legal and equitable rights of the parties.
The Circuit Judge made no decree as to the sale of the home place. In fact, that matter was not embraced in the complaint, and no prayer therein in reference to said sale. He did, however, decree that, in the event there was no subsequent litigation about the home place, that the proceeds thereof should be applied pro rata upon both notes after applying to the first note for f911.95, the proceeds of the mill place. There was no error in this, supposing that there were proceeds of the mill place now to be applied; but there being none as yet, the proceeds of the home place should be applied pro rata to both notes secured by it, in case there is no further litigation as to the home place. The Circuit Judge also left the final liability of Joseph Hill, as surety, open; as also whether the defendants should pay such deficiency of the notes as might remain after the application of the proceeds of the sales. As we have said, there has been no appeal from these matters. They are, therefore, not before us. The exceptions of the defendant, Joseph Hill, and of the plaintiff, Graham, are disposed of above.
It is the judgment of this court, that the judgment of the Circuit Court be modified as herein, and that the case be remanded for- further proceedings as the parties may be advised.