Tarplee v. Capp, Adm.

court as a cash sale, which report was approved by the court, and he stands charged with the cash. In any event, it is shown that appellant let the matter rest as it is, so that the estate might get the benefit of the interest that would accrue, and that the money could be collected at any time when needed; and appellant testified, also, that he considered the note as so much cash, and that he was responsible for it as cash. In this connection it is also urged that the real estate set off to the widow in the partition proceedings belongs to the estate, and, therefore, constitutes assets not yet reduced to cash. Without going into any extended discussion of this question, it is a sufficient answer to appellant's contention to say that the real estate was regularly set off to the widow in a judicial proceeding, and that in a subsequent proceeding by creditors, to require the administrator to sell the real estate so set off to the widow to realize assets with which to pay debts, it was also judicially found that the insurance money received by the widow was used in the payment of debts of the estate, and that she was entitled to be subrogated to the rights of creditors, etc. These facts show that the question now raised by appellant is res judicata, and the judicial proceedings to which we have alluded cannot, in this collateral proceeding, be attacked.

The remaining question discussed by appellant's counsel is that pertaining to the conduct and management of the estate on the part of the executor and appellant as administrator de bonis non. We do not hesitate to say that the record shows very reprehensible management of the estate, especially on the part of Samuel B. Anderson, but, however reprehensible it may have been, any rights of creditors that have been prejudiced thereby are not here presented for adjudication, and we dismiss the subject without further

comment.

Appellant, as shown by the facts, received from the estate. money in excess of that to which he was entitled,-money

Farmers' Bank v. Orr.

paid to him under an honest belief and mutual mistake that the estate was solvent, and in excess of the pro rata share or per cent. which other creditors of the same class will receive, unless such excess can be recovered. He received the money to which in equity and in good conscience he was not entitled.

The legislature has classified debts against an estate, and has provided the order in which they shall be paid. $2534 Burns 1894, $2378 Horner 1897.

It is the policy of the law that claims of the same class shall stand upon an equality. In this case appellant's claim comes within the seventh class, designated as "general debts." It is not right, therefore, that he should receive payment in full of his debt, when others in the same class receive only seventy-seven and one-half per cent. on the dollar; and to the end that all creditors of this class may receive the same rate per cent. upon their claims, both good law and broad equity demand that appellant refund the excess received by him.

From the whole record, we believe the trial court reached a correct conclusion. Judgment affirmed.

FARMERS' BANK v. ORR ET AL.

[No. 2,538. Filed Oct. 25, 1899. Rehearing denied June 8, 1900.] PLEADING.-Payment.-A plea of payment to constitute a bar to an action must allege that payment was made before the commencement of the action. p. 79. SAME.-Payment.-Gravel-Road Certificates.—A plea of payment in an action by the assignee of a gravel-road certificate to enforce the collection thereof must allege that payment was made before the certificate was assigned and before notice to defendant of such assignment. pp. 80, 81. SAME.-Payment.-Gravel-Road Certificates.-An answer by defendant in an action by the assignee of a gravel-road certificate to enforce collection that he furnished gravel and performed certain labor in the construction of that part of the road abutting on his lands, under an agreement with the contractor that the same was to be applied in payment of his assessments, is insufficient, where

Farmers' Bank v. Orr.

pp. 81-83.

no date was specified on which such contract was entered into, and it was not shown that the contract was made prior to the issue and sale of the certificate. ESTOPPEL.-Payment.-Gravel-Road Certificates.-Pleading.-In an action on a gravel-road certificate by the assignee, the defendant answered that his assessments, on which the certificate was issued, had been paid by him in labor and material furnished in the construction of the road abutting his lands, under an agreement with the gravel-road contractor, with the knowledge and consent of the superintendent. Plaintiff replied that it had been the owner of the certificate for ten years and that defendant had made payments of interest thereon during such time, and asked for extension of time, and failed to inform plaintiff of the payment claimed to have been made by him to the contractor until it was too late to bring suit against the superintendent. Held, that the facts pleaded by the reply were sufficient to constitute an estoppel to the defense pleaded by the answer. pp. 83-89. APPEAL AND ERROR.-Assignment of Cross-Errors.-The action of the court in overruling a demurrer to the complaint cannot be reviewed on an appeal by plaintiff from the ruling on the answers where no assignment of cross-error was made thereon by appellee. pp. 89, 90. From the Clinton Circuit Court.

H. C. Sheridan, for appellant.

Reversed.

L. J. Curtis and Morrison & Morrison, for appellees.

WILEY, J.-Appellant was plaintiff below and brought its action against appellee Orr and others to foreclose and enforce a lien for certain gravel-road certificates held by it as assignee. The cause was put at issue, and trial was had by the court, resulting in a general finding and judgment against appellant on its complaint and in favor of appellee Orr on his cross-complaint. The errors assigned question certain adverse rulings to appellant, in this: (1) The overruling of appellant's demurrer to the cross-complaint of appellee Orr; (2) the overruling of appellant's demurrer to the second paragraph of the separate answer of appellee Curran; (3) the overruling of appellant's demurrer to the fourth paragraph of the separate answer of appellee Curran; (4) the sustaining of the demurrer of appellee Orr to the second paragraph of reply to the second and amended

Farmers' Bank v. Orr.

fourth paragraph of the separate answer of appellee Orr; (5) the sustaining of the demurrer of appellee Orr to the second paragraph of answer to the cross-complaint of Orr; (6) the sustaining of the demurrer of appellee Orr to the third paragraph of reply to the second paragraph and fourth amended paragraph of appellee Orr's answer to the complaint, and (7) the sustaining of the demurrer of appellee Orr to the third paragraph of appellant's answer to the cross-complaint of appellee Orr.

While these several paragraphs of pleading are voluminous, the questions at issue may be briefly stated. The three paragraphs of complaint are identical, except that they are each based on different certificates and describe different tracts of real estate, and a statement of the facts charged in one will suffice for all. The complaint avers the filing of a petition in the commissioners' court, praying for the improvement, grading, etc., of a certain described highway; that the board of commissioners duly found that the requisite number of petitioners whose lands were within two miles of the proposed improvement had signed the petition; that the board thereupon appointed viewers, as required by statute; that they were directed by the board to proceed to examine, view, lay out, and straighten the road to be improved, and make their report to the board at a time fixed in the order appointing them; that the board also appointed an engineer; that said viewers were duly qualified, and filed their report; that said proposed improvement was found by said board to be of public utility; that the benefits assessed exceeded the expenses and damages, and it was ordered and so entered of record that said improvement be made. It is also averred that one Samuel Merritt was appointed superintendent to superintend the proposed work; that as such superintendent he executed his bond to the approval of said board; that he was duly qualified and entered upon the duties of his said office. It is then alleged that said road was constructed; that appellees' lands, describing them,

Farmers' Bank v. Orr.

were assessed therefor in a fixed sum; that the pro rata share of said lands, as fixed by the superintendent, was a certain and definite sum, which is specified; that said superintendent made, executed, and issued certificates of assessment for the construction of said road against the real estate of appellee Orr, by the terms of which the payment thereof was divided into six equal instalments, due six, twelve, eighteen, twenty-four, thirty, and thirty-six months from date as designated by coupons attached. It is further averred that after the levy of said assessments and the issuance of said certificates the same were sold and assigned to appellant before maturity for a valuable consideration, and indorsed by said superintendent and Thomas Slattery & Company. It is also charged that the said Merritt is dead, and his children and heirs at law are made parties. It is then charged that the first two coupons on account of said certificate have been paid, and that on May 23, 1891, the interest on the coupons was paid by appellee Orr to such date. It is then averred that on October 13, 1887, the improvement of said highway was reported to the board as completed and was then turned over to the board of commissioners by said superintendent. It is further charged that such certificate is a first lien upon the real estate described therein; that the appellee Orr is still the owner of the same; that said certificate is due and remains unpaid, wherefore, etc. Copies of the certificate and coupons upon which each paragraph of the complaint is based are filed as exhibits. A demurrer to each paragraph of complaint was filed and overruled. Appellee filed a cross-complaint and an answer in four paragraphs.

The cross-complaint avers, in substance, the same facts as set out in the complaint as to the petition and proceedings before the board of commissioners, the assessment of his lands, the issuing of the certificates sued on, and their assignment to appellant. It is then charged that said certificates have been fully paid by the appellee in the follow