
    Harlin v. Stevenson.
    1. Administrator ¡ settlement : collatebal attack. The correctness and effect of a settlement by an administrator with a probate judge cannot be assailed in a collateral action; especially where there is no basis therefor laid in the pleadings.
    2. -piling op claims : judgment. That a judgment, obtained in the district court against the administrator of an estate, was not filed as a claim against the estate, cannot be urged by a fraudulent vendee of land in aproceeding to subject it to the payment of such judgment.
    3.-bights OP judgment CEEDITOB. That the judgment creditor in such case would have an action against the administrator for his failure to have the fraudulent conveyance, knowing it to be such, set aside, and the property subjected to the payment of the debts, would not preclude him from proceeding himself directly against the land to subject it to the payment of his judgment.
    4. -parties. The heirs of the decedent, being concluded by the fraudulent conveyance of their ancestor in such case, are neither necessary nor proper parties defendant to such proceeding.
    5. Statute of limitations: in cases op pbaud : onus : pleading. The defense of the statute of limitations is an affirmative one, and the party pleading it must show the facts constituting the bar.
    6.-It is accordingly held, in a proceeding to set aside a conveyance of land as fraudulent, where more than five years had elapsed since the cause of action accrued, that it was incumbent on the defendant, in order to avail himself of the plea of the statute, to show that plaintiff had knowledge of the fraud more than five years before the action was commenced — our statute (Bev. § 2741) providing that the action shall not be deemed to have accrued until the discovery of the fraud.
    7. -Nor would the rule be varied by the fact that the plaintiff negatived such knowledge in his pleading. The averment being unnecessary would not have to be proved.
    8. Administrator: jurisdiction op probate and district courts. The statute conferring jurisdiction on the probate court in respect to claims against estates does not defeat or oust the general equity jurisdiction of the district court.
    
      Appeal from Washington, District Court.
    
    Thursday, December 22.
    Action in equity to subject tbe north half of the northwest quarter of section ten, and ten acres off the north end of the west half of section thirty-three, township seventy-five, range nine, to the payment of a judgment in favor of plaintiff for $510 and costs, with ten per cent interest from December 15, 1859, against D. N. Henderson, as executor of the estate of William Stevenson, deceased.
    The petition of plaintiff alleged that William Stevenson was indebted to plaintiff, on March 9, 1857, $100, and on that day executed his note therefor, payable in thirty days, with ten per cent interest; that suit was brought .on the note after maturity, and pending the same, and, on the 19th day of December, 1857, said Stevenson died; that his death was suggested of record, his administrator, Henderson, was substituted, and judgment rendered as above stated, and was still unpaid; that, at the time said note was executed, Stevenson owned certain lands (describing them); that before his death he conveyed the same to one George Tenant, for the purpose of defrauding his creditors, and with the understanding that said Tenant should convey the same to Isabella Stevenson, the defendant herein, who was the wife of said "William Stevenson, and the sister of said Tenant; that after said Stevenson’s decease, Tenant did convey said lands to Isabella, pursuant, to said understanding; that afterward Isabella sold said lands to innocent purchasers, and, with the identical money received therefor, bought the lands sought to be subjected to the payment of this judgment above described; that all the real and personal estate of said William Stevenson, deceased, except the lands fraudulently conveyed as above, had been exhausted in the payment of his debts; that plaintiff had no knowledge of these fraudulent conveyances till September 1, 1868. The administrator was made defendant, and answered, admitting the allegations of the petition. The defendant Isabella answered, denying that the personal and real estate of Stevenson had been exhausted as stated; that the sale from Stevenson to Tenant and from Tenant to her was fraudulent, and admitting that the circumstances were as stated; that she purchased the land in controversy with the proceeds of the sale of those conveyed to her by Tenant, and that Henderson was administrator as stated; and that “ as she has not information to form a belief, she cannot admit or deny ” the execution of the note, the suit upon it, the recovery of the judgment, the ownership by William Stevenson of the lands described, nor any other allegation not by her answer expressly admitted or denied; and stated affirmatively that plaintiff’s cause of action did not accrue within five years.
    The proof showed the note, the suit on it, the death of Stevenson, the revivor against Henderson as his administrator, the judgment, the fraudulent intent and purpose of the conveyances, the sale of the lands so conveyed, the purchase of the lands in controversy with the proceeds, and the exhausting of the real and personal property of William Stevenson, deceased, in the payment of his debts, and the leaving of other debts still unpaid. The court, upon the trial,'rendered judgment in favor of the plaintiff, subjecting so mucb of the land to sale as should be necessary to pay plaintiff’s judgment, interest and costs. The defendant, Isabella Stevenson, alone appeals.
    
      McJv/nkñ/n c& Henderson for the appellant.
    
      Geo. W. Woodin for the appellee.
   Cole, Ch. J.

The appellant’s counsel make, in this court, substantially the following points: — First: It appears from the evidence that there is sufficient in the hands of the administrator, not properly ac conn^e¿ forj pay 0ff all the indebtedness of the estate. This point is grounded upon the testimony of the administrator that he paid two debts secured by mortgage on certain real estate, which was sold under order of the probate court, upon the oral advice of the judge.” It is claimed now, that the amounts thus paid could only be legally paid “ with the approbation of the court,” and it not appearing they were so paid, the amounts should be treated as still in the hands of the administrator. It is a sufficient answer to this point, to say that the record shows a settlement by the administrator with the county court in which these amounts were allowed him as properly paid, and that settlement cannot be thus collaterally assailed ; and especially without any pleading assailing it on that or any other ground. As two or three other points are made, upon the theory that the evidence shows assets still in the administrator’s hands, we remark here, that in our judgment the evidence shows the assets fully administered and only thirty-three per cent paid on the unsecured claims.

Second: It is urged that plaintiff’s judgment was not recovered on á debt of Stevenson’s, nor against his administrator,' but against Henderson personally. This is a mistake of fact, or a too strict construction of the record of the case in which the judgment was recovered.

Third: Another point made is, that the claim or judgment was never filed with the claims against the estate. This might be an objection if the defendant Isabella was being sued as administratrix, or the proceeding was an ordinary one for the establishing or enforcement of the claim; but it cannot avail a fraudulent vendee in this kind of proceeding.

Fourth: It is further urged that since the administrator knew of these fraudulent conveyances, and that debts remained unpaid, it was his duty to have the conveyances set aside and the property subjected to the payment of the debts. If this be conceded, it would not defeat the plaintiff’s right to maintain this action. He is entitled to. this remedy, even though he has another against the administrator for neglect of duty, or for the debt itself.

Fifth: A further claim is made that the heirs at law of William Stevenson, deceased, are not made parties, and hence no judgment could properly be rendered in the case. They aré neither necessary nor proper parties. The conveyance by their ancestor, although made to defraud his creditors, concludes them, and effectually cuts off all their interest in the property.

Sixth: It is further claimed that more than five years elapsed after the fraudulent conveyance, and after *be judgment was recovered, before this action was brought, and since there is no proof that plaintiff did not have notice of the fraud at time’it was perpetrated, the cause of action is barred, under Revision, section 2740, subdivision 3, and section 2741. The claim is not barred. The defense of the statute of limitations is an afiirmative one, and the party pleading it must show the facts constituting a bar by it. To do that, it was necessary to. show that plaintiff had knowledge of the fraud more than five years before action was brought, even if the case would then have been within the statute. Baldwin v. Tuttle, 23 Iowa, 66. The fact that the plaintiff in his petition negatived his knowledge of the fraud, since it was unnecessary to do so in order to protect his petition from attack by demurrer, does not change the burden of proof as to the fact of knowledge. The statute' would not begin to run until the discovery of the fraud, and, in the absence of any averment as to when it was discovered, a demurrer would not lie.

Seventh: Finally, it is claimed that the district court has no jurisdiction of this case, since the probate court is given jurisdiction over it by the statute. We hold, in accord with all the authorities, that the statute does not defeat or oust the general equity jurisdiction of the district court. The plaintiff has folly maintained his case by the testimony, and the judgment of the district court is

Affirmed.  