Lofland v. Cowger

Supreme Court of Arkansas

Lofland v. Cowger

57 S.W. 797, 68 Ark. 274, 1900 Ark. LEXIS 46

DecidedJune 9, 1900

StatusPublished

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Bluebook

Lofland v. Cowger, 57 S.W. 797, 68 Ark. 274, 1900 Ark. LEXIS 46 (Ark. 1900).

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Opinion

Riddick, J.,

(after stating the facts.) The question raised by this appeal has ali’eady been considered by the court. In the recent case of Jamison v. Adler-Goldman Com. Co. 59 Ark., 548, we held that the assets of an insolvent decedent’s edate are to be apportioned among creditors of the same class in proportion to the amounts severally due them at the time of the apportionment, and that, in ascertaining the amounts due to secured creditors, any sums realized by them on their securities since obtaining their judgments in the probate court should be deducted. Now, at the time the order of apportionment was made in this case nothing had been paid on the claim of Lofland. The fact that it was secured by a mortgage on real estate was a matter of no moment, so far as the apportionment was concerned; for, as we stated in the Jamison case, “secured and unsecured claims are classed and paid on the same basis.” The mortgage given to secure the debt did not constitute a payment, either in whole or part, and, as no part of his judgment is paid, Lofland is entitled to a pro rata on the whole amount thereof, in accordance with the order of the probate court.

Whenever the debt is paid in full, the mortgage will of course be discharged, and the property, relieved of the lien, will belong to the estate; but the court cannot, after the apportionment has been ordered, compel the creditor to foreclose his mortgage, and credit the proceeds on his debt, in order to reduce his claim, and lessen the amount of the apportionment due theron. Jamison v. Adler-Goldman Com. Co. 59 Ark. 548; Erle v. Lane, 22 Col. 273; Philadelphia Warehouse Co. v. Anniston Pipe Works, 106 Ala. 357.

Whether this could have been done before the order of apportionment was made is a question we need not consider in this case. For the reasons stated the judgment of the circuit court will be reversed, and the cause dismissed for want of equity.

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Riddick, J.,

(after stating the facts.) The question raised by this appeal has ali’eady been considered by the court. In the recent case of Jamison v. Adler-Goldman Com. Co. 59 Ark., 548, we held that the assets of an insolvent decedent’s edate are to be apportioned among creditors of the same class in proportion to the amounts severally due them at the time of the apportionment, and that, in ascertaining the amounts due to secured creditors, any sums realized by them on their securities since obtaining their judgments in the probate court should be deducted. Now, at the time the order of apportionment was made in this case nothing had been paid on the claim of Lofland. The fact that it was secured by a mortgage on real estate was a matter of no moment, so far as the apportionment was concerned; for, as we stated in the Jamison case, “secured and unsecured claims are classed and paid on the same basis.” The mortgage given to secure the debt did not constitute a payment, either in whole or part, and, as no part of his judgment is paid, Lofland is entitled to a pro rata on the whole amount thereof, in accordance with the order of the probate court.

Whenever the debt is paid in full, the mortgage will of course be discharged, and the property, relieved of the lien, will belong to the estate; but the court cannot, after the apportionment has been ordered, compel the creditor to foreclose his mortgage, and credit the proceeds on his debt, in order to reduce his claim, and lessen the amount of the apportionment due theron. Jamison v. Adler-Goldman Com. Co. 59 Ark. 548; Erle v. Lane, 22 Col. 273; Philadelphia Warehouse Co. v. Anniston Pipe Works, 106 Ala. 357.

Whether this could have been done before the order of apportionment was made is a question we need not consider in this case. For the reasons stated the judgment of the circuit court will be reversed, and the cause dismissed for want of equity.

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Bluebook (online)

57 S.W. 797, 68 Ark. 274, 1900 Ark. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lofland-v-cowger-ark-1900.

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