
    James J. Faran, Adm'r of James H. Ewing, deceased, v. John Robinson and others.
    1. Where an administrator has made settlement, believed by him to be final, of the estate of his intestate, and the personalty of the estate has been exhausted in the payment of debts, and of statutory allowances to the widow; and afterward an action is brought against the administrator on a liability contracted by the intestate, resulting, though contested in good faith, and with due diligence, in a judgment against the administrator, such judgment remaining unreversed and unsatisfied, is conclusive evidence of indebtedness against the estate, and can not be collaterally impeached for mere error.
    *2. In such case, the administrator is entitled to an order for the sale of so much of the real estate of which the intestate died seized, as may be-necessary to satisfy the judgment, although such real estate may have been' partitioned among the heirs of the intestate, and by them sold and conveyed, wholly or in part, to purchasers thereof.
    3. The debts of a decedent are a lien upon his real estate; and purchasers from his heirs take the same cum onere, and subject to the application of the maxim caveat emptor.
    
    Appeal. Reserved in the district court of Hamilton county.
    This is a suit brought by the plaintiff, as administrator of the-estate of James H. Ewing, against Ewing’s heirs and others, the object of which is to obtain an order to sell real estate belonging to him at the time of his death, for the payment of debts.
    The answer and cross-petition of William H. Chatfield, administrator de bonis non of Israel L. Clark, sets up the recovery of a judgment against Ewing’s estate, and asks that the real estate described in the petition may be subjected to the payment of this judgment.
    The case was reserved in the district court upon the following agreed statement of facts :
    1. On the 15th of July, 1843, James H. Ewing was appointed administrator of the estate of Israel L. Clark, deceased, and gave bond, with Richard S. Spader and Samuel E. Cary as sureties.
    Ewing died intestate, and on August 18, 1849, James J. Earan was appointed and qualified as his administrator, and gave legal notice of his appointment.
    
      William H. Chatfield was appointed administrator de bonis non ■of Clark’s estate in November, 1856.
    2. By agreement among the heirs of Ewing, Faran collected the Tents from all Ewing’s real estate, and accounts for the same in his administration account, together with the personal effects of the estate; and on November 3, 1853, the following general account was filed in the probate court, viz ;
    1. Amount received from debts due the estate...,...... $1,139 30
    2. Amount receipts of personal property, as per appraisement................................................. 205 00
    3. Amount received from rents of real estate-.,....... 2,955 07
    Total................................................ $4,299 37
    ^CREDITS.
    1. Personal property to widow.........................,.... $205 00
    2. Expenses of administration........................... 457 39
    3. Cash j>aid sundry creditors................................. 164 90
    4. Debts paid on account of real estate..................... 1,104 31
    5. Cash paid widow, as per schedule........... 1,748 29J
    6. Cash paid other heirs of Ewing................ 327 24
    Balance due estate.................................... $291 22
    The same account contained the following report:
    “ A judgment for $368.80 was recovered, at the October term-of the Commercial Court of Cincinnati, against James W. Gazley and 'Samuel F. Cary, which has been appealed to the district' court, by the defendants. The administrators have no doubt that the money will be fully made of the defendants.”
    This account was allowed December 4, 1854.
    3. James H. Ewing left a widow, Sarah Y. Ewing (who subsequently intermarried with Henry McBride), and two infant children, both of whom died previous to 1852, intestate, unmarried, and without issue. His brother and sisters were Jacob W. Ewing, Martha A. Ferris, and Catharine P. Floyd.
    4. James H. Ewing died seized of several pieces of real estate in Cincinnati, viz., the two lots described in plaintiff’s petition, a vacant lot on Spring street,, and a house and lot on Ninth street; all worth, say $13,000. All of which property, except the vacant lot •on Spring street, came to him by will of Elmore Williams, deceased, his maternal uncle.
    5. In 1854, after the death of said children, the widow, and brother and sisters of said Ewing, with the knowledge and assent of plaintiff, divided the real estate among themselves, and, by partition deeds, released to each other.
    The widow received, for her entire share therein, the lot on Spring street, and-the Robinson lot, which was also incumbered by the dower interest of Lucy A. Williams, deceased. Mrs. Eerris received the lot now owned by Bell.
    Mrs. McBride and Lucy Williams are both living.
    6. McBride and wife, on the 13th of September, 1855, conveyed the lot, now owned by Robinson, to E. P. & W. H. Harrison, -^incumbered by the dower of Mrs. Williams, for $3,000. On the 1st of December, 1856, the Harrisons reconveyed the same to Mrs. McBride for $3,000. On the 9th of March, 1858, Lucy A. Williams conveyed her dower in said lot to Mrs. McBride for $500. McBride and wife conveyed the same by the following mortgages, viz:
    One to Newman, for $2,500, November 9,1854.
    One to same, for $1,000, March 15, 1855.
    One to J. J. Walker, for $3,000, April 1,1857.
    One to A. Akley, for $1,300, February 5, 1858.
    Suits were brought to foreclose the Newman and Walker mortgages, and a decree of .foreclosure entered on the Newman mortgage, on the 4th of December, 1858, for $3,963. An order of sale issued on the decree, and the property was, on the 7th of March, 1858, sold at sheriff’s sale for the sum of $4,875.
    This sale was subsequently, on application of McBride and wife, set aside. On the 1st of April, 1859, by consent of parties, said lot was sold to Robinson for $6,000. At this time McBride and wife lived in New York, and, in making said sale, J. G-. G-ibbons acted as their attorney; and he distributed the $6,000 as follows, viz:
    To Abner Newman.............................................$4,128 29
    Cost of suit...................................................... 71 71
    To A. Akley............................................;......... 920 00
    Attorney fee..........................*........................... 50 00
    
      The balance of the purchase money for the Robinson lot. was re-' tained by the said attorney for more than six montho, until the-Walker mortgage was satisfied of record, when it was paid over to Mrs. McBride. All the above amounts were paid with Robinson's-money.
    7. James B. Bell bought the lot claimed by him from Mrs. Ferris, on the 25th of September, 1857, for $4,000, in cash; and all the other pieces of real estate had been sold and conveyed by the heirs-prior to the date of the conveyance to Bell.
    8. Chatfield, in April, 1857, as administrator de bonis non of Clark’s estate, presented to Faran, Ewing’s administrator, a claim for money collected by Ewing, as administrator of *Clark’s-estate, and not accounted for by him before his death. This claim was rejected by Faran, and suit brought thereon, upon the administration bond of Ewing, against Faran, as administrator, and Cary and Spader, as Ewing’s sureties on the bond, in the Superior-Court of Cincinnati, on the 1st of April, 1857, and judgment of nonsuit was rendered in said cause on the 15th of November, 1857. A new suit was commenced in the court of common pleas, and in December, 1859, judgment was rendered against the said defendants on said bond for $885, and $12.82 costs.
    On the 24th of March, 1859, Faran, as administrator, filed his-petition, in the Superior Court of Cincinnati, against McBride and wife, and others, setting forth the pendency of the suit brought against him by Clark’s administrator, and that he had no property in his hands to satisfy that claim, and praying that the sale under the Newman mortgage might be set aside, or the proceeds retained in court until the amount of the claims against the estate of Ewing- and the expenses of administration were ascertained and paid.
    McBride and wife were then living in the city of New York, and Gibbons, as their attorney, acknowledged service upon the writ in that case, on the 24th of March, 1859, and the writ was returned by the sheriff on the 4th of April, 1859; and that suit is still pending, and nothing has been done therein since the return of the-summons.
    9. Mrs. Ferris was, at the time this suit was brought, the owner-of a lot in Cincinnati, worth $15,000, and she is abundantly responsible for more than the amount of the claim sought to be collected herein.
    10. No execution was ever issued on the judgment against the-•sureties of Ewing, until February 12, 1864, and then execution was ordered stayed by plaintiff’s attorneys in this case.
    The sureties, Cary and Spader, are responsible for more than the amount of said judgment; and both have property subject to levy and.sale on execution in Hamilton county.
    .The judgment against Cary and Gazley, referred to in No. 2 of this statement., has been paid.
    
      * Collins & Serrón, for plaintiff:
    1. The record shows a valid and subsisting claim against Ewing’s ■estate.
    It is admitted that a judgment was rendered by the court of common pleas in favor of the administrator of Clark against the administrator of Ewing, for the amount of this claim, and that this judgment is still unreversed and unsatisfied. It can not be impeached collaterally for error, Ludlow’s Heirs v. Johnson, 3 Ohio, 553, 560; but only by proof of fraud or mistake. O’Conner and Dennison v. Ohio, 18 Ohio, 225.
    In the present case there is no claim of fraud on the part of the plaintiff through which this judgment was obtained. It was not permitted by him to be obtained without resistance* He employed counsel, he filed his answer, and used every means in his power to defeat the claim. There was clearly no fraud.
    Was there any mistake? There are no facts now presented to this court showing that the sum now claimed was not, in fact, due. It is not denied in the record that Ewing, as administrator of Clark, collected money and died without having accounted for it. There was then no mistake as to the facts on which the judgment was predicated. 1 Story’s Eq., sec. 110; Jeremy’s Eq. Jurisd., B. 3, pt. 2, p. 358.
    Error of law in the court having jurisdiction of the subject-matter, is not such a mistake as will impeach the judgment of that court in a collateral proceeding. Admitting the right of the defense to go behind the judgment of the court of common pleas, is there any evidence to show that said judgment was not properly rendered ?
    The only objection raised in the case to the judgment is,-that the ■claim was not presented within four years after the appointment ■of plaintiff as administrator of Ewing. S. & C. 585, sec. 101.
    To this we answer: 1. That the action was founded on a bond as to which the limitation is ten years; 2. This case comes under tbe exception stated in sec. 103, p. 586, and sec. 248, p. 614, S. & C. Stat.
    The claim sued on in the present ease did not accrue until the appointment of Chatfield as administrator de bonis non of *Clark. On the death of Ewing there was no party in being to present this claim to his administrator, and hence the statute of limitations did not apply to it. Ang. on Lim. 61; Murray, Adm’r, v. The East India Co., 5 Barn. & Ald. 204; Hobart v. Connecticut Turnpike Co., 15 Conn. 148; Hansford v. Elliott, 9 Leigh, 79; Fishwick’s Adm’r v. Sewell, 4 Har. & Johns. 393; Ruff’s Adm’r v. Bull, 7 Har. & Johns. 14; Gallup, Adm’r, v. Gallup, 11 Met. 447; Lewis v. Broadwell, Adm’r, 3 McLean, 568; Finney, Adm’r, v. State, 9 Mo. 228; Lee v. Gauze, 2 Iredell; 440; Ferguson v. Fyffe, 8 Clark & Fin. 121; Perry v. Jenkins, 1 Mylne & Craig Ch. 118; Levering v. Rittenhouse, 4 Whar. (Penn.) 139; Bucklin v. Ford, 5 Barb. 393; Douglass et al. v. Forrest, 6 Bing. 686.
    2. The real estate of Ewing, if still in the hands of his heirs, was liable to the payment of this claim at the time this suit was> brought.
    The real estate of Ewing, at his death, descended to his heirs,, subject to the payment of his debts, and which were a lien thereon. Ramsdall v. Craighill, 9 Ohio, 199; Stiver, Adm’r, v. Stiver’s Heirs, 8 Ohio, 220; Niemcewicz’s Ex’rs v. Dayton’s Adm’r, 13 Ohio, 271.
    3. The conveyances of the real estate described in the petition to Bell and Robinson do not release it from the payment of this claim. “No circuity of conveyance will free the land from this burden.” Stiver v. Stiver, supra; Pratt v. St. Clair’s Heirs, 8 Ohio, 240.
    In the present case the defendants had legal notice of this claim against the property which they proposed to purchase.
    There is nothing in the case nor in the acts of the plaintiff to relieve the real estate described in the petition from being subjected to the payment of Ewing’s debts.
    
      French & Qunningham, for defendant Robinson:
    1. The plaintiff is not the party to maintain this action, even if it could be maintained, because he is not liable for the debt.
    2. There is no valid debt subsisting against the estate of Ewing.,
    *3. If there be a debt, as claimed, there are personal assets sufficient to pay it..
    
      4. The claim was barred, by the lapse of four years before its presentation, as in section 101, which gave the heirs the right to-convey their lands discharged of all lien for this debt, and said lands are now held so discharged by defendants.
    5. Chatfield must resort to this judgment against the sureties; and they pursue the heirs, under part 9 of the administration law.
    6. If the court find the lands still liable, Eobinson’s title being the dower interest of two widows, and both living, should be protected, not being liable for any debts of the estate of Ewing. The cause should be sent back, to have the lands of the estate brought in, and contribution made between the several tenants.
    7. The interest of estates and the protection of the rights of purchasers require this court to enforce the rule of limitation laid down in the statutes; and this is a fit case to justify a strict decision to that effect..
    See S. & C. Stat. 585, 587, secs. 101-108, 112; Ib. 610, sec. 227; Ib. 614, sec. 248; Code, sec. 17; Ang. on Lim. 61, sec. 54; 2 Ohio St. 156; Brown v. Anderson, 13 Mass. 202: 8 Pick. 108; Fisher v. Mossman, 11 Ohio St. 43; 4 Ohio, 147; 12 Mass. 199; 11 Conn. 160; 16 Mass. 179, 428; Mattoon v. Clapp’s Heirs, 8 Ohio, 250.
    <?. B. Hollister, for defendant Bell:
    1. Upon the facts, no debts existed at the time of the plaintiff’s petition herein:
    (1.) Because a debt against an estate is barred in four years from the date of notice of the appointment of the administrator. Code, sec. 17; S. & C. 585, 586, secs. 101, 108; 13 Mass. 202; 8 Pick. 108; 16 Mass. 429.
    (2.) Plaintiff had in his hands assets sufficient to pay the claim of Chatfield, administrator de bonis non of Clark, as appears by his accounts as administrator of Ewing, filed in the probate court.
    (3.) By the negligence of Faran, he permitted the balance *of the proceeds of the sale of the lot to Eobinson, to be paid over to Mrs. McBride, one of the heirs of Ewing, at the very time when his petition was pending in the Superior Court, the prayer of which was, that McBride and wife and their mortgagees be restrained from selling until Chatfield’s judgment should be paid, or if the sale should take place, that a sufficient sum should be reserved out of the proceeds to pay Chatfield’s claim. By the negligence of Faran, and by that alone, the money was allowed to be paid over to Mrs. McBride, by Gibbons, her attorney. Having neglected his duty, ho must pay the claim out of his own pocket, unless he can find assets.
    (4) The judgment in favor of Chatfield can not be made the foundation of a' suit against the lands of Bell and Robinson.
    Chatfield having brought suit on the bond of Ewing as administrator of Clark, the matter is ended as far as the lands of Ewing, now disposed of by the heirs, are concerned. Chatfield may collect the judgment on the bond if he desires to. 2 Ohio St. 156 ; 16 Mass. 179; 12 Mass. 199; 11 Conn. 160.
    The statute commenced to run upon the death of Ewing and notice of the appointment of an administrator; the claim existed the'n (if at all), and was in full force.
    2. Bell purchased from one of the heirs, September 25, 1857, for the consideration of $4,000. Robinson purchased from Mrs. McBride, April 1, 1859, the lot set off to her in the partition, for the sum of $6,000. The last property sold must be the first subjected. Piatt v. St. Clair, 6 Ohio, 227, 248.
    The matter of the dowers, sales, and mortgages does not affect the question.
    Robinson purchased the last piece of property of Ewing’s estate which was then held by any of the heirs. This property must ■first be exhausted, and, before the lot of Bell can be reached, Robinson must be held to account for the balance of the purchase money paid by him, which he permitted to go into the hands of Mrs. McBride, pending the suit by Faran to subject that sum to pay Chatfield’s claim. That suit was commenced long after the sale to Bell, and he can not be charged with notice.
    Therefore, as bfetween Robinson and Bell, Robinson must pay.
   *Brinkerhoff, J.

If, from the mass of minute details •contained in the agreed statement of facts on which this case is ■submitted, we eliminate the few prominent facts which establish the relations of the parties, the questions which arise out of those relations are found to be both few and simple.

The plaintiff, Faran, as administrator of Ewing, administered the estate of his intestate. In the payment of the debts due from the estate, and of the statutory allowance to the widow of the intestate, not only all the personal assets, but a considerable sum ■derived from rents of real estate accruing after the death of the intestate, were exhausted. All debts due from the estate, so far as known and recognized by the administrator, being thus paid, a settlement of the estate, then supposed to be final, was made; and a small balance remaining in his hands — though much less than the sum derived by him from the rents of real estate before mentioned — was distributed amoDg the heirs of the intestate. The heirs thereupon made partition of the real estate among themselves ; and subsequently they individually made a variety of sales and conveyances of, and out of, their respective shares to other parties.

Pausing here, and bearing in mind the facts thus far outlined, we will go back again.

Ewing, the plaintiff’s intestate, was, at the time of his death, administrator of the estate of one Clark, having been duly appointed and having given bond, with sureties, as such, and died without having made settlement of his accounts as administrator, and leaving an apparent balance of considerable amount in his hands, in favor of the estate he represented, unaccounted for. And between two and three years after the filing by the plaintiff, Faran, of his supposed final account, an administrator de bonis non of Clark’s estate presented to him for allowance a claim for the before-mentioned balance apparently remaining in the hands of Ewing, in favor of that estate, at the time of his death. The plaintiff rejected this claim; and thereupon the administrator de bonis non of Clark brought suit on the bond of Ewing, as administrator of Clark, against the plaintiff as administrator *of Ewing, and Cary and Spader, sureties of Ewing in his bond. The plaintiff Faran, so far as appears, without collusion, in good faith, and with due diligence, attempted to defend the suit; but in this he failed, and judgment was rendered against him as administrator, together with the sureties in the bond, in December, 1859, for $885 •and costs. This judgment remains in full force, unsatisfied and unreversed; and it is to pay this judgment and costs, that he now asks an order to sell so much of the real estate of which his intestate died seized, as may be necessary for that purpose.

Is he entitled to such order ? We think he is. He is entitled to it under the distinct provisions of section 130 of the act “ for the settlement of the estates of deceased persons.” 1 Curwen’s Stafc. 734. Whether error did or did not intervene in the rendition of that judgment, is not a question of which, in this proceeding, we can take cognizance. In- this collateral proceeding, it is conclusive evidence of the indebtedness adjudged by it, unless impeached for fraud or mistake in obtaining it; or, perhaps, the-culpable negligence of the plaintiff in the defense of the action in which it was obtained. O’Connor v. State, 18 Ohio, 225. And no fraud or mistake recognized in law as such, is here claimed to* have existed in the obtaining of the judgment against the plaintiff in this case, nor is there any allegation of such negligence.

It is said, in argument, that the judgment may be enforced against, and its amount collected from, the plaintiff’s co-defendants-in the judgment — the sureties in the bond of the plaintiff’s intestate. So, perhaps, it might. But this would bo inequitable. The-estate of the plaintiff’s intestate is primarily liable for it, and ought to pay it; and if the sureties were compelled to pay it in the first instance, the ultimate result would be the same; for they would be subrogated to the rights of the judgment creditor, and entitled to-enforce the judgment against the estate represented by the plaintiff here, for their indemnity.

The fact that the real estate of the plaintiff’s intestate has been-partitioned among his heirs, and by them conveyed, with or without notice, to third persons now claiming title in or through them, makes no difference. Under our laws, *the real estate of a deceased person,- subject to the widow’s right of dower, is, in the last resort, as much and as truly assets in the hands of his personal representatives for the payment of debts, as his personal property is. His debts are a lien on his real estate; his heirs to-whom it descends take it cum onere; and whoever buys it from them, does so subject to the application of the rule of caveat emptor. Stiver v. Stiver, 8 Ohio, 221. For their indemnity, if any, in ease their lands are sold out from under them, they must look to such guaranties or warranties as they may have had the precaution to insist on, or to such right as they may have to compensation or redistribution from their co-partitioners.

Decree for plaintiff.

Hat, C. J., and White, Welch, and Scott, JJ., concurred..  