
    Wagner, Admr., v. Blanchard et al.
    (Decided October 22, 1931.)
    
      Mr. N. A. Sponseller, for plaintiff in error.
    
      Mr. U. A. Wernet, for defendants in error.
   Lemert, J.

This case comes into this court upon appeal from the common pleas court of Stark county, Ohio. One Lewis D. Blanchard died intestate on April 28, 1928, a resident of Stark county, Ohio, leaving Florence L. Blanchard and Leland D. Blanchard, adults, daughter and son, his only heirs at law. On May 8, 1928, W. Paul Wagner was duly qualified and appointed administrator of his estate.

The administrator brought an action to sell decedent’s real estate to pay debts, making as defendants the heirs at law of said decedent and the First Trust & Savings Bank of Canton and other parties, all duly and legally served with summons. On March 11, 1929, the answer of the First Trust & Savings Bank of Canton was filed.

At the time Lewis D. Blanchard died he was the owner of part of lot No. 1737 in the City of Canton, Ohio, upon which is located an apartment house, and since his death W. Paul Wagner has collected rents from said real estate in the sum aggregatingabout $700.

On July 25, 1923, Lewis D. Blanchard executed and delivered to the First Trust & Savings Bank of Canton, as trustee, a mortgage in the sum of $8,500 on said premises, which mortgage is recorded in the Stark county mortgage records and was and is the first lien on said premises. The granting clause in said mortgage covers the real estate and also has a recital as to remainders, rents, issues, and profits. The court, having the mortgage before it, is fully advised as to the language of such provisions.

The claim is now made that upon the death of Lewis D. Blanchard, intestate, the title to his real estate descended to Florence L. Blanchard and Leland D. Blanchard, subject to the payment of the debts of Lewis D. Blanchard, that the rents, issues and profits were payable to them, and that they had the right to convert the same to their own use.

In the case of Campbell, Admx., v. McCormick, Admr., 1 C. D., 281, 1 C. C., 504, it is held:

“Rents received by an administrator from the real estate of his intestate under certain circumstances, may properly be charged to him, on his account filed for the settlement of the estate.”

In the case of Conger, Admr., v. Atwood, 28 Ohio St., 134, 22 Am. Rep., 462, the court holds:

“An administrator who, without authority, collects rents of his intestate’s real estate, and uses them as assets in paying the debts of the estate, is liable to the party entitled to such rents, and he may recover the amount thereof of the administrator in his representative character.”

We believe and hold that the heirs at law of Lewis D. Blanchard, or the administrator of the estate of Lewis D. Blanchard, can have no greater estate or interest in the premises than Lewis D. Blanchard had during his lifetime, and that he had pledged by way of contract or mortgage not only the real estate, but also the rents, issues, and profits, and, having so bound himself, his heirs, executors and assigns, the lien is impressed upon the fund, and cannot, by the act of the heirs or the administrator, be changed in its status as long as it so remains. As to whether this fund is in the hands of an assignee, an heir, an administrator, an executor, or trustee, is not material, and therefore it is our belief that the case parallels cases wherein an assignee is a party.

A very helpful case and a case parallel to the instant one is Hutchinson, Assignee, v. Straub, 9 C. D., 171, 16 C. C., 452. In that case the record shows that the mortgage upon which the litigation ensued conveyed the real estate, and all estate, right, title and interest, either in law or in equity, of, in and to the said premises, together with “all of the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof.■”

So, in the instant case, we believe the right of the mortgagee is to have the funds arising out of the real estate described in the contract or mortgage, whether from the rents or the sale, or both, applied, and the fund now being in the custody of the court, namely, in the hands of the administrator, its distribution should be upon equitable principles. If the administrator does not have the right to apply this money to the payment of the general debts, upon what principle of justice or equity are the heirs at law of Lewis D. Blanchard entitled to such rents, issues, and profits? Not only Lewis D. Blanchard, himself, but his heirs, are bound to the proposition that this land, and the rents, income and profits thereof, should be applied to the extinction of his indebtedness, secured by the mortgage.

Therefore, entertaining the foregoing view upon the instant case, it follows that the same judgment will be entered in this court as was entered in the court below.

Judgment affirmed.

Sherick, P. J., and Montgomery, J., concur.  