#### PIATT v. ST. CLAIR’S HEIRS AND OTHERS.

Limitation — debt—non resident — assignment—administrator’s allowance — overlooking the record of a deed — master’s supplemental report — taxes and improvements on land after death — exceptions to master’s report — creditors coming in under the complainant contribute to the expense — withdrawing claim from the report and proceeding de novo — valuing improvement — sale on credit.

Under the act of limitations of 1820, debt on simple contract was not barred, and from analogy where a simple contract claim is asserted in chancery, on which debt might be brought, it will be held not within the statute.

When a right of action on a contract accrues to one not a resident of the state, the statute of limitations does not run against the claim until he come within the state.

A party who claims to have paid a judgment, and relies upon a discharge of one claiming to be an assignee of the plaintiff, must prove the judgment and the authority of the person giving the discharge.

Where one pays money on account of another by reason of having been bound for him as security, his right of action accrues when he pays the money, not when he became liable to pay. *

If an assignment of a judgment misdescribe it, the error must be corrected to make the assignment operative.

Befoie an administrator can obtain an increase of his allowance he must show his right.

Taxes and improvements upon improved r.eal estate after the death of the holder are chargeable upon the income, or heir, noton the personal assets of the deceased.

A master may by supplemental report correct a mistake in his report before confirmation.

A mistake in overlooking the record of a deed by the recorder when called on, in no way affects the title, if in fact the deed be of record.

An exception to a master’s report will not be allowed because the objector neglected to get evidence within his reach before the master, particularly after the amount has been before adjusted, by a jury, the court, and the parties.

Where a party has obtained his claim before a master, he will not be let in by way of exception to show, that he ought to have claimed more, which by his own mistake he omitted.

Where a creditor has proceeded to compel a settlement of an intestate estate and to subject real assets to pay his debt, while it is unknown whether the estate is solvent, he proceeds for himself and the other creditors of the estate; but when the estate is solvent, he may proceed to make his own debt, and leave other creditors to pursue their’s. Other creditors coming in under his bill must contribute to his extra expense, and- if they proceed with his suit after he is satisfied, indemnify him from costs, they becoming actors for themselves.

Where a claim has been acted on before a master, under mistake of its amount, the creditor may have leave to withdraw the claim from the report and present it de novo.

Where the parties agree to have improvements on property aliened, valued, and the sale made on credit, it will be incorporated into the decree.

In Chancery. The master to whom this cause was referred at the last term *(ante*261) having filed his report, amongst other things allowing claims against the estate of St. Clair, amounting in all to $36,000:

*Haines*and Fox,for the defendants,

filed sundry exceptions to the report as to several of the claims which were brought on to hearing, and are particularly noticed in the opinion .of the court.

Wright, J.

The exceptions filed by the administrators to the report of the master will be considered in their order.

The first exception embraces four distinct claims which it is objected were improperly allowed, because they were barred by the statute of limitations. The first is anote given to one Jolly and payable *on demand.*This Court has frequently decided that such a note is not *due,*and will not draw interest, *until demanded.*There is no evidence of any demand of this note until its exhibition to *527the master: it was properly allowed by him. The second is a note which fell due in 1820, and barred, if at all, under the limitation act of 1810: (1 *Ch. O. L. 655.)*Under that act no bar was provided against the action of *debt*on simple contract, and none was provided by any law against that action until 1824: 3 O. *R.*389. As debt could be brought on this note, equity will not hold it barred absolutely, because the election of the payee may bring it within, or place it without the statute. He asserts his claim in this Court, and in that way evinces his desire to place it beyond the reach of the statute. The third and fourth are demands which were presented to the former administrator before the time limited by the statute had run. The first exception is therefore disallowed.

1. The second exception is to a claim of the *Miami Exporting*Company, because it has been before paid. That claim is a judgment in the Court of Common Pleas. The evidence on which it is claimed to be paid, are 1. A paper signed by N. Guilford (who describes himself assignee of the judgment) releasing the demand to the administrator of St. Clair in consideration of a transfer to him of a mortgage and judgment held by the administrator against one Baymiller. No evidence is exhibited of Guilford’s authority to release or in any way to intermeddle in this bussiness — his acts, therefore, are those of a stranger. The burthen of proving the authority and payment was upon the administrator. The exception must be disallowed; but we will listen to an application to let in such proof if made within a reasonable time.

3. The third exception is to the allowance of the claim of Gano, which it is alleged was barred by the statute. From the évidence returned, it appears this demand is evidenced by a judgment recovered in 1829'by the Miami Exporting Company against Gano and one Shepard jointly, on a note of Shepard endorsed by Gano- and St. Clair. About $400 of the judgment was paid in 1830, of which $307 17 were paid by Gano. No other evidence is offered of any further payment, but a paper purporting to be an assignment of a part of said judgment ($917 38) to Gano is exhibited, dated in 1827. *This appears to assign a judgment rendered more than two years before the judgment in question.*There is error in this matter, but what it is we know not. There is no evidence that Gano was a joint security for Shepard with St. Clair, or that any steps by notice or otherwise were taken to charge St. Clair as endorser, or as co-security. If the claim result from the note itself which bears date in 1820, it would not be barred, under the statute of 1810, provided the party asserted it at law in the proper way, as he may be supposed *528to do here. If at the date of the supposed assignment in March, 1827, or of the previous settlement spoken of in 1826, more than six years had elapsed before the presentation to the master, the claim might be barred under the act of 1824; but if the claim arose out of the payment by Gano in 1830, it is not barred. In this uncertainty as to the claim, the safest way is to allow the exception, and suspend the claim, leaving the party to adduce proof as he may be advised. The third exception is therefore allowed.

4. The fourth exception is to the rejection of a claim of the former administrator, Lytle, for $1483, for his per cent, on *$*16,388, claimed to have been disbursed by him, and for his extra expenses concerning the estate. The evidence is, that the probate court allowed him $1223 64, and there is no proof to show that allowance insufficient, the master was right as to this demand. The fourth exception is *disallowed.*

*5.*The fifth exception is, that the master rejected several demands on account of disbursements for taxes, pavements, &c., in and about portions of the real estate, made since the death of St. Clair. There is nothing before us to show oh what particular portions of the estate these expenses were incurred. If the lots upon which this expense was incurred were improved lots, they are chargeable upon the rents and profits. If the expenditure, were upon unimproved lots, it is barely possible the amount paid upon each lot may be asserted as a lien upon such lot, but of that we have no evidence. We cannot regard these as claims upon the estate in the first instance. This exception is disallowed.

It is certainly singular, though not the most singular feature in this complicated suit, that many of the objections by the administrator (acting for the estate and the heirs) to the proceedings of the master, are to his rejecting doubtful claims upon the estate to a large amount. If he feels it to be unconscionable to leave these demands unpaid, we are unable to see why he does not pay them. It requires no order of this Court to enable him to pay honest demands.

By agreement of the parties the case was then recommitted to the master, to correct certain calculations, and amongst others, that upon which the amount of the decree of the last term was settled in favor of the complainant.

The master presented a supplemental report in which he stated that he had ascertained since his report, that a deed of conveyance for a portion of the estate in dispute, was omitted in the report by mistake; he proposed so to amend his report, as to place that prop*529erty on the schedule of lots claimed, in the name of the grantee of that deed.

*Fox*and *Haines*for the administrator,

excepted to this report, because the sum included about $2000. due on Baymiller’s notes, which were paid, and are barred by the statute, and because, in the calculation of interest the master made a rest at the time of the payment upon the mortgage of the complainant, deducted-the payment, and then cast interest on the balance. The exception was argued at length.

*Veto Viti*a purchaser of a portion of the scheduled property, aliened of a prior date, excepts to this supplemental report and the proposed correction, because he is a bona fide purchaser, of prior date, without notice, and the correction will subject him sooner.

Wright J.

This deed was recorded, but the recorder in searching for conveyances, in the multitude of them, by mistake overlooked this. Will chancery hold parties bound to a mere error in the proceedings while the case is in court? It would be a strange court of equity if it did. But the recording a deed is to give notice to purchasers of the *same*property, not to notify an after purchaser of *other*property, of the *same*individual. The question before us is not one of notice to an after purchaser of the same property; but if it were, *the fact*of the deed being on record would be conclusive, the *mistake*of the recorder in overlooking it could not have the effect of divesting the legal title from one guilty of no laches or fault. The principle which protects an after purchaser without notice, has no application to the case before us. The question is one of mere priority of conveyance, as *a fact:*and whether the deed was recorded or not, we do not see how the question between these parties can be affected by it. All who deal with heirs for lands coming to them by descent, deal at their peril as to the ancestor’s debts, and must see to their title. The party now excepting is not only in this difficulty, but is involved in perhaps a still greater one. All his rights accrued pen dente lite. The exception is disallowed.

The master having also reported that there was due to the complainant at the date of the decree, the sum of $22,916 20, instead of the sum of $22,913 97, as found by the court, that is $2 23 more than was before found.

Wright, J.

The amount found by the court and by the master as due the complainant, is resisted with much more than usual warmth.

The objection to the 2000 and odd dollars is, first, that it has *530been paid, and second, that it is barred by the statute of limitations'. If paid, it is incumbent on the administrator to prove payment, it is prima facie a debt, and no evidence at all is offered to prove the payment, except the opinion of a man by the name of *Kirby,-*who seems always at hand with a deposition, whenever any thing is decided against his notions, and to be blessed with a conscience that enables him to swear with equal confidence as -to matters known only to others, as he does things known to himself. Kirby was sworn as witness in the cause, and' heretofore undertook to tell all he knew. He now *asserts*that Thomas Morris can prove what is necessary — still no proof is exhibited. As to the bar of the. statute, we have already once or twice decided in this case that an objection of that kind, will not hold as to a debt of the date of this. Moreover, this claim has been adjusted by two juries long before this court had any thing to do with it. When shall the amount be held as adjusted..

As to the general report of the amount due, the parties agreed to recommit to the master, to correct some errors in calculation, which it was supposed the court had fallen into. The result increases-the charge upon the estate, and the parties must a *bide by it,*unless some error is made manifest to our understanding. We do not see any. The exceptions to the master’s supplemental report are *disallowed.*

The *Miami Exporting Company*filed sundry affidavits, alleging the discovery of a mistake of several thousand dollars against them in their claim upon the estate, and filed exceptions to the report of the master.

Wright, J.

These exceptions cannot be permitted to be filed. The claimants have had a full opportunity to establish their claim before the master — it consists of but one item, a judgment; and he allowed all that was claimed — two exceptions were filed by the administrators, opposed by the Miami Exporting Company, and disallowed — now they claim that they have given credit for several thousand dollars, which they ought not to have given, and would proceed by exception to establish their right, that cannot be done in this way. The exceptions are disallowed; what other course is open to the party it is not material for us *now to decide.*

It is admitted at the bar that the estate of St. Clair, is abundantly sufficient to pay the demands against it. Many of the inquiries made by the master were directed, with the design of ascertaining that fact, because, if the estate was *insolvent,*the complainant would only be entitled to a pro rata allowance out of the common fund, *531bis proceeding being in that aspect of the case, for the benefit of all the creditors, who should be admitted by the court. But as the' estate is now found solvent, equity does hot require of the complainant, to embarrass himself with the collection of funds to pay other creditors, and common justice will leave him at liberty to proceed and make his own debt, leaving the other creditors to assert and prosecute their claims as they may be advised. Under certain restrictions, they may proceed in this suit, as the court has the subject before It, and can do justice. Our rules will require them to become themselves the actors for their respective claims, contributing a proportion of the complainant’s *extra*expenses, and relieving him from future responsibility, a further decretal order will be drawn up upon these principles, and allowing the complainant to proceed by sale to make his money: (2 *Mass. R.*259*to*299; 2 *John Ch.*655.)

*V. Worthington*for the Miami Exporting Company,

then asked and obtained leave to withdraw its claim, and present it de novo to the master.

The Court is also advised by the counsel for the administrator, that certain of the claims reported upon by the master are no longer to be disputed, which will be noticed in the decree, and that' the claim of the Miami Exporting Company, is designed to be disputed.

The Court then ordered a confirmation of the master’s report as to the claim of the complainant; and as to Jolly, Haines, Chute, John,ston, Fosdick, Wallace,' Kent, Cleardale, Morgan, Lodge <Sb Co.,1 Riddle, Stone, and Springman, and Kneply, and directed the master in case the said claims with interest and costs were not paid in ninety days, to proceed to sell so much of the estate of St. Clair, In Hamilton county, as might be necessary to raise the money, with accruing interest and costs, first, selling that held by the heirs jointly, second, that held by them in severalty, and third, that aliened by them since the 10th of July 1828, beginning with the last sold and proceeding back in order.

And *the Court*finding the estate solvent, gave leave to other creditors to file suggestions of their claims with the clerk, and to proceed before the master at their own expense, to establish them by legal proof, to be reported at the next term.

By agreement the master was ordered, in valuing for sale, to value improvements made on the lots by alienees, and to sell for one fourth cash, and the remainder in six, twelve, eighteen and twenty-four months, on interest, to be secured by mortgage.

The master was also directed to state an amount of the expenses and charges paid by the complainant in prosecuting this suit, and *532to apportion the same among the claimants, including himself, and for the coming of the reports, and further oi’der, the cause was continued.