
    Isaac Holloway v. Roxana Stuart, Administratrix of Alvah Stuart, deceased, and others.
    The administration, act of 1840, and the amendatory act of April 12, 1858 (S.' & C. 622), give a full adversary character to the petition of an ad ministrator for authority to sell lands for the payment of debts. There fore the lien of a mortgagee who is not made a party to such petition remains unaffected by the order of sale and the proceedings thereunder.
    Appeal. Reserved in the district court of Lake county.
    In August, 1866, the plaintiff, Holloway, filed his petition in the court of common pleas of Lake county, against Roxana Stuart, administratrix of the estate of Alvah Stuart, deceased, and Lyman Durand and wife, stating in substance: That on the 21st of October, 1854, Roxana Stuart and her husband Alvah Stuart, executed to the plaintiff a mortgage on a house and lot described, situate in Lake county, to secure the payment of Alvah Stuart’s bond for two hundred dollars, payable in the year 1855; that the mortgage was duly recorded in the office of the county recorder in November, 1854; that said Alvah Stuart died on the 26th of June, 1865, after the maturity of the bond, leaving due upon it and the mortgage one hundred and seven dollars and .accrued interest; that Roxana Stuart, as the administratrix of said Alvah, on the 1st of August, 1865, filed her petition in the court of common pleas of Lake county, stating that the personal estate was insufficient to pay the debts of her testator, and asking an order to sell the above-mentioned mortgaged premises, and that the order was granted, and the premises were sold in September, 1865, to Lyman Durand, for one thousand and one dollars, and that the sale was confirmed, purchase-money-paid, and deed executed in October, 1865 ; that the plaintiff, Holloway, was not made a party to the petition for the sale of the land, and had no notice of its pendency; that his mortgage was the first lien on the premises; that the sale was made and the money disposed of before he had any knowledge of the proceedings; that nc part of the purchase-money for the premises had been paid to him, but that the amount and interest mentioned remained unpaid; and that said Eoxana Stuart had become a resident of Michigan. The plaintiff thereupon prayed for a foreclosure, and for a sale of the mortgaged premises for the satisfaction of the mortgage debt.
    ■ To this petition Eoxana Stuart failed to plead, answer, or demur; but the defendants Durand and wife demurred generally, on the ground that the facts stated in the petition do not entitle the plaintiff to relief as against them.
    The common pleas sustained this demurrer and dismissed the petition, and the plaintiff appealed to the district court; and that court reserved the case to this court for a decision of the question raised by the demurrer to the petition.
    
      W. W. Hevison, for plaintiff,
    argued that the sale of the land under the order of the probate court did not divest the lien of the plaintiff’s mortgage, he not having been made a party to that proceeding, and having had no notice or information of the same until after the purchase-money had been disposed of and placed beyond the reach of court; and cited: 2 Kent’s Com. (9th ed.) pp. 416, 417; Adams v. Jeffries, 12 Ohio, 273; Slocum v. Wheeler, 1 Conn. 429; Mills v. Martin, 19 Johns. 33; Hyde v. Stone, 9 Cowen, 230; More v. Stark, 1 Ohio St. 369, 373; Miller’s Ex’r v. Greenham’s Adm'x, 11 Ohio St. 486; Administration Act of 1840, secs. 122, 124, 126, 128; Act of 1858, 55 O. L. 157; Benson v. Cilley, 8 Ohio St. 618; Corwin v. Benham, 2 Ohio St. 37; Creps v. Baird, 3 Ohio St. 277; Byers v. Wackman, 16 Ohio St. 441; Walton v. Reager, 20 Texas, 103; Bingham v. Maxcy, 15 Ill. 295; Dunlap v. Robinson, 12 Ohio St. 533.
    
      B. Bissel, for defendants,
    argued that the plaintiff’s remedy is against the administratrix of Stuart, and not against the purchaser of the land; that his mortgage has, by the sale, been converted into money, which is in the hands of the administratrix, and her bond is the security; that the fact that the plaintiff had no notice of the proceeding for the sale of the land did not prejudice him, for if he had appeared, he could not have defeated the order and sale, or taken it out of the hands of the administratrix, and substituted himself or the sheriff in her stead; that a purchaser at administrator’s sale is not bound to look to the application of the purchase-money (9 Ohio, 15), and he is discharged of the liens against the land. 8 Ohio, 217.
   Scott, J,

The sale of the mortgaged premises by the administratrix, for the payment of debts, and the order of the probate court authorizing the same, were made in 1865. The plaintiff was not made a party to the petition and proceedings in the probate court, and had no knowledge of their pendency or existence till the sale had been fully made^and the purchase-money applied to purposes other than .the payment of the mortgage debt. The question raised by the demurrer to his petition is, whether, under these circumstances, . the purchaser at the administrator’s sale took the land discharged of the lien of the plaintiff’s mortgage.

Prior to 1858, the statutes of this State did not require mortgagees or other lien holders to be made parties to the petition of an administrator for the sale of lands for the payment of debts. And as the law then stood, it was repeatedly held, that the purchaser at such sales, where the proceedings were in other respects regular, would hold the premises discharged of all liens, whether arising under mortgages or judgments, 'though the lien-holders were not made parties to the proceeding. It was held that the priorities arising from such liens were, by the statute, transferred to the fund arising from the sale of the land; and that the purchaser was not responsible for the proper application of this fund by the administrator. Bank of Muskingum v. Carpenter's Adm'rs et al., 7 Ohio, 21; Defrees v. Greenham et al., 11 Ohio St. 486. The administration act of 1840 required that the widow and heirs, or persons having the next estate of inheritance, should be made parties defendant to the administrator’s petition; that notice in writing of the petition and place and time of hearing, or subpoenas in chancery, should be served on the defendants whose places of residences are known, and who reside in the State; and that if the names or residences of any defendants are unknown, or they reside out of the State, they shall be notified by publication. The statute further provides, that “If the court are satisfied that the defendants have been duly notified, . . . as above prescribed,” etc., “ they shall order the sale,” etc. (S. & C. 590, 591, secs. 124, 126, 128, and 130.) By the amendatory act of April 12, 1858 (S. & C. 622), it is expressly required, that in addition tp the persons named in section 124 of the original act, all mortgagees and other lien holders, by judgment or otherwise, shall be made parties defendant to such petition, in the same manner as is provided by the act of 1840 for making parties defendant thereto. We think the effect of this legislation was to give to the petition and proceedings by the administrator for the sale of lands in order to the payment of debts, a full adversary character, so far as respects the persons required to be made defendants.

It follows that the plaintiff not having been made a party to the petition of the administratrix, his rights as a mortgagee were unaffected by the order of sale, and the proceedings had thereunder. The defendant Durand purchased the premises with constructive notice of the plaintiff’s lien, and the maxim of ea/veat emptor applies to the case.

The demurrer to the plaintiff’s petition will be overruled, and cause remanded to the district court.

Beinkebhoee, C.J., and Welch, White, and Day, JJ., concurred.  