
    Stone v. Strong.
    
      Reid : 1. In proceedings by an executor or administrator for the sale of real estate to pay debts, where the same is encumbered by mortgages or other liens, the court is to settle the priorities among lien-holders and order a sale free from such liens.'
    2. When such proceedings are in the probate court, it is not authorized to make an order to sell the same subject to the mortgage or other liens. • •
    3. Where proceedings for such sale are properly instituted, the executor or administrator, under section 6165 Revised Statutes, is entitled to compensation and charges for making the sale, to be first paid, before applying the proceeds to mortgage or other liens.
    4. Such compensation is to be computed by the per centum authorized by section 6188, on the money arising from such sale to be administered.
    5. If a mortgagee, whose lien is fixed by the court, becomes the purchaser at such sale, the executor or administrator is not entitled to a per centum compensation on that part of the purchase money applicable to the satisfaction of his mortgage.
    6. Sections 6165 and 6188 should be construed together in determining the per centum compensation for the sale of real estate, and it is to be computed on the aggregate amount arising from both real and personal estate, as graduated by section 6188, and not each separately. Herice it is error where there are personal assets collected, to graduate the .compensation on the proceeds of the real estate without regard to the amount of personal estate.
    7. In graduating the per centum compensation the higher rate prescribed by section 6188 should be first applied to the personal estate.
    EekoR to tbe District Court of-Hardin county,
    Strong, as administrator of John D. King, upon a petition in the probate court, and upon a showing that it was necessary, obtained an order for the sale of decedent’s real estate to pay debts. It was alleged that the debts were about $6,000, that the costs and expenses of administration would be about $350, and that the personal assets would not exceed $4,000. The land was encumbered by mortgage and judgment liens, the holders of which were defendants, in the following order: 1st. a mortgage past due to plaintiff in error; 2d. A judgment lien to Mrs. King, and 3d. A second mortgage, also past dno, to plaintiff in error ; in all, the liens amounted to $4,400. Upon this order of sale, the land was sold for $4,125, which was not sufficient to pay liens thereon, aside from the cost of sale and any compensation to the administrator.
    The sale was made to the plaintiff in error, the holder of the 1st and 3d liens, and the controversy arises upon the order of distribution, which is as follows :
    1st. To payment of cost.• . $28.54
    .2d. To the administrator his commissions . on the amount for which the land sold, $4,125, computed at 6 per cent, on first $l,Q00and 4 per cent, on the residue . . . 185.00
    3d. To apply on the first mortgage to the plaintiff in error ..... 2,609.95
    ■ 4th. To payment of judgments to Sarah E. King, 2d lien .... . . . 1,059.95 Less her proportionate share of the above commission. 53.38 — 1,006.57
    5th. To apply on 2d mortgage to plaintiff in error, being 3d lien. 294.94
    $4,125.00
    This left a balance due plaintiff in error on her second mortgage of $429.17 unsatisfied.
    On the hearing of the case, it appeared that the personal assets would not exceed $1,700, and that the estate was insolvent, and if the real estate had sold at its appraisement, the liens would have been paid in full, and there would have been a surplus to be used in payment of debts.
    The plaintiff in error excepted to the order of distribution :
    1st. Because the administrator could not sell the fee, but must resort to the equity of redemption to pay debts, and therefore could only charge commissions on the surplus arising from the sale, after payment of prior liens.
    2d. That by proceedings to sell, the administrator could not acquire a lien for commissions and expenses for making the sale to the prejudice of existing liens.
    
      3d. That as plaintiff in error was the purchaser, the amount coming to her on her mortgages, was not “ money arising on the sale,” to be administered, and therefore did not come within the statute allowing a per centum compensation.
    4th. The court erred in allowing commissions on the purchase money at the highest rate fixed by statnte, disregarding the amount of personal estate in graduating the amount., -
    
      Stillings <& Allen, for plaintiff in error.
    
      Strong & Strong, for defendant in error.
   J OHNSON, C. J.

1. As to the right of the administrator to sell the mortgaged premises in fee in order to reach the value of the equity of redemption, when the same is needed to pay debts.

The statute expressly authorizes such a sale, and provides for adjusting prior liens, whether by mortgage or otherwise. The residue, after satisfying such liens, becomes assets in the administrator’s hands. The power not only is conferred, but a duty is imposed, to reach the interest of the decedent in lands, whether that interest be of a legal or equitable nature. The administrator is the trustee in that behalf for the unsecured creditors, and if he neglects to perform his duty, a court of equity will intervene, at the instance of creditors, for- the purpose of reaching such assets. McDonald v. Aten, 1 Ohio St. 293.

The statute does. not confer upon the probate court the power to sell the land subject to existing liens.

The provisions of this statute, as to the estate subject to sale (Rev. Stats. § 6139), who are the proper parties to the proceeding, including heirs, mortgagees and other lien-holders (Rev. Stats. § 6142),’ making it the duty of the court to determine priorities (Rev. Stats. §§ 6145 to 6148), requiring an appraisement of the land at its true value in money. (Rev. Stats, § 6155), requiring a sale at not less than two-thirds of such appraisement, if improved, or one-half if unimproved (Rev. Stats. § 6160), providing for a deed .to the purchaser which will vest the title in him in like manner as if conveyed by deceased in bis lifetime (Rev. Stats. § 6163), and inquiring the payment of all mortgage, or other liens, according to their priorities, as well as costs, expenses and compensation for making the sale (Rev. Stat. § 6165), preclude the idea of' a sale of a mere equity of redemption.

In Baird v. Kirtland, 8 Ohio, 21, and Seymour v. King, 11 Ohio, 342, and other cases, it was settled that this could not be done on execution, because the law required an ap-praisement of the fee at its value in money, and a sale of that at two-thirds of the appraisement.

Por like reason, if for no other, the same is true here. But it is obvious there is, if anything, a stronger reason, and that is, that a sale of the fee is of more advantage' to the estate, while at the same time it fully protects the lienholders.

2. Can the executor or administrator acquire a lien on the purchase money prior to that of a mortgagee ?

Revised Statutes section 6165 provides for the application of the money arising from the sale of real estate to pay debts of decedent, as follows:

First. To discharge the costs and expenses of the sale, and the per centum and charges of the executor or administrator thereon for his administration of the same.” If therefore a case is made which authorizes such sale, the statute controls the matter, and gives such priority. We must not be understood as holding that sucha proceeding can be prosecuted by the personal representative, for the mere purpose of earning commissions, when the probability is that the land will not pay the liens. In the case at bar the property was appraised at $6,000. Had it sold for that amount, it would have realized about $1,500 to the estate, after satisfying all prior liens. Apparently,.therefore, it was for the interest of the estate, with no detriment to the lienholders, to have it sold ; and we do not hesitate to say that the administrator would have failed in his duty had he neglected to reach this interest, when there was an admitted necessity for so doing. If he acted in good faith, and it is not pretended but he did, there is no good reason why he should not be compensated as the statute directs.

But it is claimed, that this compensation should fall on the personal estate, where the liens are not satisfied. We do not assent to this view. Every lienholder, holds the same, subject to the costs and expenses of enforcing the same. When the property is insufficient to pay in full, the mortgagee’s share is so much the less. These costs and expenses are to be first paid. If there is not sufficient to pay them, and his lien in full, his unsatisfied claim remains as a debt of the mortgagor or judgment debtor. He acquired his lien subject to the provisions of the statute, authorizing such a sale. The same result would follow if the mortgagee had been foreclosing his own mortgage, the costs and expenses of making the sale must first be paid, including poundage, if he is not the purchaser, although the residue is insufficient to pay his lien. Indeed, this is but the application of a familiaj- rule in equity, that a trust fund is chargeable with all necessary expenses of administering it.

3. Can he charge a per centum on thq amount of the purchase money going to a lienholder who is the purchaser ?

We think not. Ilis per centum is to be computed on, “ the money arising from the sale,” for, “ his administration of the same.”

Where no money arises, to be administered, there is nothing on which to compute commissions. This percentage was intended to compensate for the trouble and responsibility of collecting and paying out the money. Longworth v. Piatt, 27 Ohio St. 183. Here the mortgagee is the purchaser, and so far as the purchase money was applicable to her liens, it operated as a satisfaction of her mortgages. As there was a judgment prior to her second mortgage, it, as well as the costs, expenses and compensation should be first paid, and the balance should be applied on the second mortgage of the plaintiff in error.

Whatever deficiency there is must fall on the junior lien-holder. The court therefore erred, in taxing Mrs. Xing with a jpro rata share of the commissions. It also erred in computing a per centum commission on the amount of the purchase money to be applied on the mortgages to plaintiff in error.

4 Again, we think the court erred in computing commissions on the amount for which the land sold, to wit, six per centum on the first thousand dollars, and four per centum on the balance, as graduated by Rev. Stat. § 6188, without any regard to the amount of the personal estate collected and accounted for.

Section 6165, does not specify the amount of commissions, nor the rate for fixing them. This is prescribed by section 6188, which governs as to both real and personal estate, taken together.

This latter section provides as full compensation for ordinary services, by commissions on “ the amount of the personal estate collected and accounted for, and on the proceeds of real estate sold, as follows : ■ For the first thousand dollars, at the rate of six per centum; for all above that sum, and not exceeding five thousand dollars, at the rate of four per centum ; and, for all above five thousand dollars, at the rate of two per centum.” It further provides for a just and reasonable allowances for actual and necessary expenses and for extraordinary services.

These sections should be construed together. The aggregate amounts from personal and real estate, should form the basis of the graduated rate per centum of commission. They do not warrant a graduation on each separately, and giving the highest rates on each.

Neither do they authorize the higher rates against the real estate incumbered by liens, at the expense of such liens when there are personal assets. The personal assets are liable for the payment of costs, expenses and compensation for administering the same, and this burden cannot be shifted to the real estate. It is the primary fund for the payment of these charges, as well as of debts.

Assuming as the record shows, that there was about $1,100 of personal assets, they are properly chargeable with the higher rate. And the amount necessary to be paid, by the purchaser who owned the prior mortgage, to pay the costs and Mrs. King’s judgment, is the money realized on the sale, to be administered, and this, being less than $5,000 in the aggregate, should have been charged at four per cent.

5. The record shows that no money was actually paid on the King judgment, but she accepted in lieu of money the purchaser’s note and mortgage on the land. This was a side arrangement by which her debt against the estate was thus paid with the assent of the administrator. It was equivalent to his receiving the amount, paying it to her in satisfaction of the judgment, and a loan by Mrs. King to the purchaser. It was in lien of the distribution made by the court to pay this judgment, and was, we think, part of the proceeds of the sale administered upon by the administrator.

Judgment reversed, and cause remanded.  