
    Joseph H. Defrees, Executor of Judson D. Miller, deceased, v. Maria Greenham, Administratrix of Nicholas Greenham, deceased, and others.
    As the law stood in 1844, a mortgagee was not a necessary party to the petition of an administrator for the sale of lands for' the payment of debts.
    Where the proceedings oh such petition are in conformity with the requirements of the statute, the purchaser takes the land discharged of all creditors liens, whether arising from mortgage or judgment. The priorities, given by such liens, are transferred by the statute, to the fund arising from the sale of the land ; and for the proper application of this fund by the administrator, the purchaser is not responsible.
    Reserved in the District court of Miami county.
    ,The plaintiff brought suit in the court of common pleas' of Miami county, for the collection of a balance claimed to be due from the- estate of Nicholas Greenham deceased, upon a promissory note, secured by mortgage upon certain real estate.
    The material facts stated in the petition, are, that the note in suit was executed by said Greenham in April 1841, for the sum of $427.87, payable six months after date, and delivered to the defendants, Dickerson and Churchill; and that the mortgage, the lien of which the plaintiff seeks to enforce, was executed in January, 1843, by said Greenham, to secure the payment of this, and two other promissory notes, described in the mortgage, to said Dickerson and Churchill. That said Nicholas Greenham died in June 1843, and that administration on his estate was regularly granted to said Maria Green-ham, and one Carson, who has since died. That said administrators filed- their petition in the proper court of Miami County, in January 1844, asking for the sale of the real estate of said Nicholas Greenham for the payment of debts, hut that said mortgagees, Dickerson and Churchill, were not made parties defendant thereto ; that such proceedings were had thereon that said mortgaged premises were sold, by order of said court, in September 1844, for the sum of $583; and that the defendant George W. Johnston now holds and claims to own the premises in fee simple. That the said Nicholas Greenham did not pay said note when it fell due, but that his administrator, Carson, made sundry payments thereon; to wit: $56.85, on the 19th October, 1846; $50, July 29th, 1849; $80, April 2, 1850; and $75, November 3, 1851; and that no other, or further payments, have at any time been made thereon. That the balance of said note remaining unpaid, was transferred, by Dickerson and Churchill, to the plaintiff’s testator, on the 6th of February, 1852 ; and the plaintiff thereupon asks to enforce the lien of said mortgage, by the sale of the mortgaged premises, for the satisfaction of the balance remaining unpaid on said promissory note.
    To this petition, the administratrix, Maria Greenham, demurred, as not stating facts sufficient to constitute a cause of action; and the court of common pleas sustained the demurrer, and rendered judgment for the defendants; and, upon appeal to the district court, the cause was reserved for the decision of this court.
    
      Seth H. Wood, for plaintiff.
    
      Stephen Johnston, for defendants.
   Scott, C. J.

The petition in this case shows that the lands which the plaintiff seeks to subject, under the mortgage, to the satisfaction of his debt, have been heretofore sold, under the order of the proper court, upon the petition of the administrators of the estate of the deceased mortgagor, for the payment of the debts of the estate. - The validity of this sale, and the consequent title of the purchaser under whom the defendant, Johnston, now holds the premises, is not drawn in question, otherwise than by an averment that the mortgagees were not made parties to the petition for the sale of the land by the administrators. Hence, the demurrer to the petition presents the question, whether, under the statutes in force in 1844, the purchaser of lands at administrator’s sale, could take the lands dischai'ged of specific liens held by a creditor who was not made a party to the petition and proceedings for sale.

The act of March 23,1840, as amended by the act of April, 12, 1858, expressly requires the administrator, in applying for authority to sell real estate for the payment of debts, to make all mortgagees and other lien holders parties defendant to his petition. But prior to this amendment there was no such requirement. As the act stood in 1844, the only parties required to be made defendants, were the “ widow and the heirs, or persons having the next estate of inheritance from the deceased.” 1 Swan & Critchfield’s St. 590, sec. 122.

As soon as the personal estate in the hands of the administrator was found insufficient for the payment of debts, the same statute not only authorized, but required him to apply to the court of common pleas for authority to sell the real estate. Sec. 117. And in sec. 148, it directed the application of the money arising from the sale, First: To discharge the costs and expenses of the sale, and the per centum and charges of the executor or administrator thereon for the administration of the same. Secondly: To the payment of mortgages and judgments against the deceased, according to their respective priorities of lien, so far as the same operate as a lien on the estate of the deceased, at the time of his death; which shall be apportioned and determined by the court, on reference to a master, or otherwise,” etc.

The statute requires an administrator, before entering on the duties of his trust, to give bond for their faithful discharge. Upon this bond, he is responsible to the heirs, creditors, and all parties for whom he acts, or who have an interest in the estate, for any unfaithfulness to his trust. Upon their motion, he may, for good cause, be removed, or required to give additional bond. In the discharge of the duties of his trust, his acts, done in good faith, and within the sphere of his statutory powers, must necessarily bind all persons interested. When it becomes necessary to .sell lands of his intestate, for the payment of debts, and he does so by proceedings in conformity with the statute, the creditors for whose benefit the sale is ordered can not treat it as a nullity. -The priority which one creditor may have acquired over others, by virtue of a mortgage or other specific lien upon the land sold, the statute transfers to the fund arising from the sale; and to this fund he must look instead of the land. As between the creditors, such mortgage is but a security giving priority to the mortgagee, in the payment of debts, so far as relates to the proceeds of the mortgaged premises. But the purchaser at such sale takes the lands discharged of all liens of the creditors, and is not responsible for the proper application of the purchase money. He deals with a trustee created by the law, and its policy protects him when the proceedings are regular. In declaring this to be the law, we but reaffirm the decision of the same question in the case of The Bank of Muskingum v. Carpenter’s adm’rs, 7 Ohio Rep. (pt. 1), 21.

In the case before us, no misapplication of the funds arising from the administrator’s sale, is alleged in the plaintiff’s petition. A copy of the mortgage, which is made part thereof, shows that it was given to secure the payment of two other promissory notes in addition to the one described in the petition. The aggregate amount of those notes, together with the payments acknowledged to have been made, by the administrators, upon the note now sought to be collected, exceeds the sum for which the mortgaged premises were sold. It can not, therefore, be inferred from the petition that the whole proceeds of the sale of the mortgaged premises were not paid to the mortgagees. There may also have been prior liens which it was the duty of the administrators first to satisfy. But, at all events, the purchaser is not bound to see to the proper application of the purchase money after full payment made by him to the administrators; and the plaintiff can not enforce the lien of his mortgage by a resale of the premises.

Judgment must be rendered for the defendants upon the demurrer.

Sutliee, Peck, Gholson and Brinkerhoee, JJ., concurred,  