tanto of the claim of another to the same | tinguish them from the general mass, unproperty.

of the common law is in some states embodied in the statutes governing warehouse receipts, but a special exception is in some states made for the case of grain stored in bulk." Section 317. See, also, Ferguson v. Bank, 14 Bush,555; Benj. Sales, (1st Amer. Ed.) 214. It is therefore clear here that the storage company could not issue warehouse receipts, because (1) it did not have the possession of the property; and (2) no property was so set apart and distin

less the receipt provides the means of makWe shall therefore endeavor to ascertaining such separation. This general doctrine what are the rights of the National Storage Company and its receipt holders to the wool that went into the hands of the assignee, simply as against the rights of the general creditors of T. W. Hall & Co. There is no mode, under our law, by which the owner of personal property, retaining its possession, can give another a lien upon it that can be enforced, as against creditors and subsequent purchasers, but by a chattel mortgage. Thornton v. Davenport, 1 Scam. 296; Kitchell v. Bratton, Id.guished from other property that any one 300. An owner may, by placing his property in the possession of another, under certain circumstances, give that person a lien upon it; but, in all instances, to retain the lien, the possession must be retained, either actually or symbolically. Our constitution provides in section 1, art. 13, that "all elevators or store-houses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are to be declared to be public warehouses. And section 6 of the same article makes it the duty of the general assembly "to pass all necessary laws to prevent the issue of false and fraudulent warehouse receipts." Pursuant to this section, the general assembly has enacted that public warehouses shall be divided into three classes, designated "A,' "B," and "C." Classes A and B relate wholly to grain stored in bulk, and need not, therefore, be here noticed. Class C embraces all other warehouses or places where property of any kind is stored for a consideration; and the twenty-fourth section of the act requires that "all warehouse receipts for property stored in public warehouses of class C shall distinctly state on their face the brand or distinguishing marks upon such property." Rev. St. 1874, pp. 820-827. Section 25 of the same act provides that" any warehouseman of any public warehouse, who shall be guilty of issuing any warehouse receipt for any property not actually in store at the time of issuing such receipt, shall, when convicted thereof, be deemed guilty of a crime, and shall suffer, in addition to any other penalties prescribed by this act, imprisonment in the penitentiary for not less than one, nor more than ten, years." 2 Starr & C. St. 1975. Section 170 of the Criminal Code provides that "whoever fraudulently makes or utters any receipt or other written evidence of the delivery or deposit of any grain, flour, pork, wool, salt, or other goods, wares, or merchandise, in any warehouse,

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when the quantity specified therein has not, in fact, been delivered or deposited, as stated in such receipt or other evidence of the delivery or deposit thereof, and is not, at the time of issuing the same, still in store, and the property of the person to whom, or to whose agent, the receipt is issued, shall be imprisoned," etc. 1 Starr & C. St. 789. It is said in Jones on Pledges, and the correctness of it is, in our opinion, beyond question, that "a warehouse receipt for a part of certain goods stored in bulk passes no title until such goods are separated, set apart, or marked, so as to dis

could have found and identified it by the receipt. The receipts are, it is true, negotiable; but that is only so far as to transfer whatever right they confer upon the party to whom they are issued. Burton v. Curyea, 40 Ill. 320; Bank v. McCrea, 106 Ill. 281. That fact does not preclude inquiry as to the authority to issue them in the first instance, nor make definite and certain that which is, in itself, indefinite and uncertain. Take the receipt copied, supra,-who could find the 26,000 pounds of wool there called for? There was no 26,000 pounds of wool set apart to which it applied. What should be the quality and grade of the wool? Should it be of the quality and grade worth 5 cents per pound, or of that worth 10, 15, or 20 cents per pound? What part of the wareroom should it be selected from? No one can say. The case is totally unlike those wherein a mass of property in a warehouse is mingled together in an indistinguishable mass, of which one part is precisely like every other part, and the warehouseman has possession of the whole, for several reasons: In the first place, the warehouseman here did not, at any time, have the actual possession of the whole property, nor of any part of it. In the second place, by the terms of the lease of T. W. Hall & Co. to the storage company, it is agreed that Hall & Co. may have the use of such portion of the premises as shall not be occupied by the storage company; and the only evidence of any pretense of storing wool by Hall & Co. with the storage company is found in the applications of Hall & Co. for warehouse receipts, which are only for the amounts for which the respective receipts are to be issued. And, since the precise amount was never ascertained and set apart, the storage company at the time of issuing any particular receipt was not contemplated to have had, and could not have had, the possession of any wool beyond that intended to be covered by that receipt, or by that receipt and receipts issued prior thereto; and so, in no instance, was the receipt professedly issued as covering a part of an indistinguishable mass or quantity of wool of a single quality, grade, and value, in the possession of the storage company at and prior to that time. And, in the third place, the evidence shows beyond doubt that the wool in the warehouse of Hall & Co. at the time the receipts were issued was of many different qualities, grades, and values; and this equally so in each of the rooms designated as "A, ""B," "C," and "D."

But can the doctrine of estoppel be in

voked to aid the right of the receipt holders, even as against the assignee? Suppose that, instead of the warehouse receipt, Hall & Co. had gone to these receipt holders, and, representing to them that they had a large quantity of wool on hand, had induced them to buy amounts corresponding with the amounts expressed in these receipts, and had given them bills of sale accordingly, could it be pretended that this would have been anything more than an executory contract of sale? Surely not; for certainly no sheriff could have gone with a writ of replevin to the warehouse, and found the amount of any one of the sales, so that he could have distinguished it from all other amounts. It may be that every time an individual makes a contract he is estopped to deny the legal effect of the terms of his contract, but it cannot be that such an estoppel goes any further. If the Halls had pointed out specific quantities of wool to those to whom they sold receipts, and represented those specific quantities as covered by the receipts they were selling, and thereby induced them to purchase, they would undoubtedly be thereafter estopped to deny that the wool pointed out was covered by the receipt by which they said it was covered. But there is no pretense that T. W. Hall & Co. ever designated any particular lot of wool as covered by a designated receipt to any one. Concede that T. W. Hall & Co. are estopped to deny what the receipts say, and what they themselves said to the holders of the receipt to induce them to buy, still the specific wool covered by each or any receipt is not thereby so distinguished and set apart from all other wool that the receipt holder can go and lay his hand upon it, and know that it is not wool covered by some other and different receipt or claim.

FISCUS V. MOORE.

(121 Ind. 547)

(Supreme Court of Indiana. Jan. 29, 1890.) ADMINISTRATORS-SET-OFF OF HEIR'S SHARE AGAINST DEBT DUE ESTATE.

A debt due the estate of an intestate from one of the heirs may be retained out of his distributive share of the surplus proceeds of real estate which has been sold to pay debts, as against one who took a mortgage on the undivided interest of the heir in the land sold, the mortgage having been taken pending the settlement of the estate, with knowledge of the indebtedness of the heir. 22 N. E. Rep. 741, reversed. OLDS and BERKSHIRE, JJ., dissenting.

On rehearing. For former opinion, see 22 N. E. Rep. 741.

J. S. Scobey, for appellant. Wm. A. Moore, for appellee.

MITCHELL, C. J. William Fiscus, late of Decatur county, died intestate in February, 1885, leaving a widow and seven children, to whom his real estate descended, as tenants in common. After the death of the intestate, Marion Fiscus, one of the heirs, who was indebted to the estate in a large amount, executed a mortgage on his undivided interest in certain real estate which he inherited from his father, to secure an individual debt due from him to William A. Moore; the latter having at the time full and complete notice of the debt due from the mortgagor to his father's estate. Subsequently the administrator, by due proceedings for that purpose, obtained an order of the probate court, and sold all the real estate for the purpose of making assets for the payment of debts owing by the intestate. After paying the debts, there remained $2,500 of the proceeds of the sale of real estate in the administrator's hands for distribution; but the distributive share of Marion Fiscus was much less than the amount of his debt due the estate. Moore, as mortgagee, applied to the court for an order upon the administrator, requiring him to pay the amount of the mortgage debt out of the proceeds of the sale of the land upon which he had taken a mortgage from Marion Fiscus. The order was made accordingly.

It is, however, contended that the possession taken by Stephens and his helper on the 20th of July, 1888, was a reducing to possession of property previously pledged, and that the storage company and receipt holders are entitled to hold by virtue of that possession. This assumes that the storage company is entitled to the possession of all the wool in the store-house by virtue of its contract with T. W. Hall & Co. But we have seen this is not the effect of their contract; that they are only entitled to the possession of the warehouse, by the terms of their contract, to the extent that they issued receipts from time to time; that no specific wool having been ever set apart, as covered by a specific receipt issued by them, they never became entitled, as against T. W. Hall & Co., to any specific part of the warehouse; and therefore, never having become entitled to any of the specific parts, it is impossible that they can be entitled to the possession of the whole,-the aggregate of the specific parts. The judgment of the appellate court and of the county court will be reversed, in the respects herein indicated, and the cause will be remanded to the county court for further proceedings in conform-edness due from a distributee is usually ity with this opinion. The clerk will tax one-third of the costs to the Union Trust Company, and the remainder of the costs to the National Storage Company. Affirmed in part, reversed in part, and remanded.

The question for decision is whether a debt due from an heir can be retained out of his distributive share of the surplus pro ceeds of real estate, which has been regularly sold in order to make assets to pay debts, as against one who took a mortgage on the undivided interest of the heir in the land sold; the mortgage having been taken pending the settlement of the estate, with knowledge of the indebtedness of the heir. That the indebtedness of an heir or distributee constitutes part of the assets of the estate, which it is the duty of the administrator to collect for the benefit of the creditors and other distributees, and that such indebtedness may be deducted from the distributive share of the debtor, are well-settled propositions. The right of the administrator to deduct the indebt

denominated a "right of set-off," but, as Lord COTTENHAM remarked in Cherry v. Boultbee, 4 Mylne & C. 442: "The term 'setoff' is very inaccurately used in cases of this kind. In its proper use it is applicable only to mutual demands, debts, and cred

tee to compel the administrator to pay money which he holds in the capacity of administrator is quite another, in case the heir has already received all he is entitled to out of the estate. The distinction is clearly drawn in La Foy v. La Foy, supra. In that case a bill was filed for partition of real estate among certain devisees. An attempt was made to charge the share of one of the devisees with the amount of a debt due from him to the estate of the testator. In an opinion holding that this could not be done, the court say: "The devisee of lands occupies no such relation to the executor as that which exists between legatee and executor. No act is necessary on the part of the executor to put the devisee in full enjoyment of the estate devised. The opportunity, therefore, could not arise for the executor to retain the debt of the devisee to the testator out of any demand which the devisee might seek to enforce against the executor. It was very properly held that, inasmuch as the executor could only acquire a lien upon the land devised by becoming an actor, and instituting proceedings appropriate to that end, the debt could not be so charged in a partition proceeding. Campbell v. Martin, 87 Ind. 577, is distinguished from the present case upon the same principle. In Smith v. Kearney, 2 Barb. Ch. 533, it was held that the fund which the executor sought to retain did not come to his hands in the character of executor, but merely as an accident, and that the right of set-off did not obtain, for that reason. There is nothing in that case opposed to our conclusion in the present case. Any reasoning which fails to appreciate the distinction between an attempt to enforce a lien or charge upon the real estate which has descended to an heir by an independent proceeding, and an attempt by an heir who is indebted to the estate, or by his assignee or mortgagee, to compel the payment to him of a distributive share which has come into the hands of the administrator by operation of law, must necessarily lead to a conclusion that is wide of the mark.

its. The right of an executor of a creditor to retain a sufficient part of a legacy given by the creditor to the debtor to pay a debt due from him to the creditor's estate is rather a right to pay out of a fund in hand than a right of set-off. Such a right of payment, therefore, can only arise where there is a right to receive the debt so to be paid; and the legacy or fund so to be applied in payment of the debt must be payable by the person entitled to receive the debt." La Foy v La Foy, 43 N. J. Eq. 206, 10 Atl. Rep. 266. The ground upon which an administrator is entitled to retain so much of the distributive share of a distributee as will satisfy a debt due from the latter to the estate is that the heir or distributee makes a demand upon the administrator in respect to assets in his hands as administrator; and the just and equitable answer in such a case is that the person making the demand has already in his hands assets belonging to the estate in excess of the amount of the distributive share which he is demanding. Jeffs v. Wood, 2 P. Wms. 128; Courtenay v. Williams, 3 Hare, 539-552; Ramsour v. Thompson, 65 N.C.628; 2 Woerner, Adm'n, §564. Thus, in Wat. Set-off, § 210, it is said: "The right of the executor or administrator to retain in such cases depends upon the principle that the legatee or distributee is not entitled to his legacy or distributive share while he retains in his own hands a part of the fund out of which that and other legacies or distributive shares ought to be paid. And in Ranking v. Barnard, 5 Madd. 32, the court said, in substance, that it was clear that the executor had the right to satisfy the legacy by applying the funds in his hands, and that this right existed against an assignee of the legatee as well as against the legatee himself. is contended, however, that the right to retain the amount of a debt due from a distributee to the estate out of his distributive share only obtains in case the fund to be distributed arises out of the personal estate, and that it does not apply when real estate has been sold, and the fund for distribution is derived from that Bource. We can perceive no reason for such a distinction. Of course, where the administrator of an estate holds a claim, as such, against one of the heirs or distributees, he is entitled to avail himself of all the rights and remedies ordinarily available to any other person under like circumstances; no greater, and no less. If the administrator is driven to pursue the ordinary remedy to collect a debt due the estate from an heir, he stands like any other creditor, and is put to a race of diligence with others; but if, in the proper course of administration, funds which constitute assets of the estate come into his hands by operation of law, which he holds as administrator, in the distribution of which an heir or legatee asserts a right to participate, it is al-his lien upon or interest in the land? In ways a sufficient answer that the claimant has already in his hands more than his share of the assets of the estate. A proceeding by an administrator to acquire priority in respect to real estate which has descended to the heir, so as to charge upon it a debt due the estate, is one thing; while a proceeding by an heir or his gran

It

As has been seen, the present is a case where real estate has been sold, in the regular process of administration, for the purpose of making assets with which to pay claims against the estate. Now, if the heir or his assignee, or a purchaser from him, were here claiming a distributive share of the personal assets of an estate, and at the same time retaining, by an indebtedness, a much larger part of the assets than the amount of his claim, there could be no question of the administrator's right to withhold the distributive share, and apply it on the debt due the estate. Can it make any difference that the assets arose from the sale of real estate, especially in a case where it appears that the assignee or mortgagee knew of the indebtedness when he acquired

the recent case of Koons v. Mellett, ante, 95, (present term,) it was held, after full and careful consideration, that one who had obtained a judgment against a devisee of real estate, which was afterwards sold, in pursuance of the terms of the will, acquired no better right to participate in the proceeds than the devisee himself had, and

that the administrator with the will annexed had the same right to set off a debt due from the devisee to the estate as if the latter himself were claiming to participate in the fund. Manifold's Estate, 5 Watts & S. 340; Springer's Appeal, 29 Pa. St. 208; Strong v. Bass, 35 Pa. St. 333; Nickerson v. Chase, 122 Mass. 296; Askew v. Douglass, 3 Atl. Rep. 263; Snyder v. Warbasse, 11 N. J. Eq. 463; Smith v. Smith, 13 N. J. Eq. 164. The principle which ruled the case cited is decisive of our judgment in the present case.

upon the death of his ancestor, to convey or incumber his interest in the real estate so that, after paying the debts of the ancestor, his grantee or mortgagee might participate in the surplus equally with other heirs who had received, or who owed the ancestor, nothing, the most manifest injustice and inequality would result. The law always presumes that an ancestor meant that his heirs should share equally in his estate. Ruch v. Biery, 110 Ind. 444449, 11 N. E. Rep. 312. As was pertinently said, in effect, in Weakley v. Conradt, 56 Ind. 430, a purchaser acquires precisely the right and interest which the heir has from whom he takes a conveyance; nothing more nor less. Duvall v. Speed, 1 Md. Ch. 229; Bak er v. Griffitt, 83 Ind. 411. Until the estate is finally settled, he is bound to know that the sale of real estate may become necessary in order to make assets for the payment of debts; and he is bound to know that when the land is converted into money, by operation of law it becomes money, -assets in the hands of the administrator, -and that it is subject to all the incidents of other assets, regardless of the source from which they arise. For certain purposes of administration and distribution, money thus acquired may be treated as having the qualities, and as the representative, of the real estate; but it is nevertheless money which has come into the hands of the administrator, by operation of law, in the course of administering the estate. Any procedure which the heir or his grantee or assignee may institute to get it out of the administrator's hands brings into

While it is quite true, as is contended, that upon the death of the ancestor the title to real estate descends to and vests in the heir, the fact must be kept in mind that, unlike the rule at common law, the heir, according to the terms and policy of the statutes in this state, does not take an absolute title. Pending the settlement of the estate of his ancestor, the descent is subject to be intercepted, and the title divested, whenever the personal representa- | tive makes it appear that the sale of the land is necessary to make assets for the payment of the ancestor's debts. The statute not only gives the administrator the right, but makes it his duty, when the personal property is not sufficient, to convert the real estate into assets for the payment of debts. Where this right is asserted, and the lands are sold and conveyed, the title to the land which descended to the heir is completely divested; and, although the heir may have sold and conveyed the land, the conveyance made by an administrator under the order of the court is not in any wise affected or impaired by the pre-operation, and makes available to the latvious incumbrance or conveyance by the heir. This conclusion logically results from the fact that under the statutes of our state the real and personal property of an intestate descends to the same persons, and in the same proportions, and both are equally chargeable with the payment of his debts, with the exception that the personal estate must be exhausted first. Nelson v. Murfee, 69 Ala. 598. At the common law, the title to real estate vested absolutely in the heir upon the death of the ancestor, and was not subject to be made assets for the payment of debts. Under the statute in force here, it is as completely subject to the debts of the intestate as is the personal estate; and, even though the administrator waste the personal estate, a purchaser of the real estate from an heir is not protected. Nettleton v. Dixon, 2 Ind. 446. It is not in the power of a third person to impair or embarrass the personal representative in the settlement of an estate by dealing with the heirs upon the supposition that their interest is of a certain or fixed character; nor can the other heirs be deprived of some portion of their estate by the intervention or intermeddling of a stranger, so as to destroy the equality of descent and distribution. The right of heirs to participate equally in the estate of their ancestor is superior to that of a lien-holder with notice. Foltz v. Wert, 103 Ind. 404411, 2 N. E. Rep. 950; McCandless' Appeal, 98 Pa. St. 489. It frequently happens that the assets of an estate consist largely of debts due from the heirs to the ancestor. If it were possible for an heir, immediately

ter, any right of set-off, or to retain it, as against any legitimate debt owing by the heir to the estate through whom he claims as assignee. Johnson v. Hoyle, 3 Head, 56. The claim of the assignee is not a claim to an interest in the land, but it is a claim to an interest in the assets of the estate. Whatever interest he has is an interest in the estate, and he takes that interest precisely as his assignor held it. The doctrine of Ball v. Green, 90 Ind. 75, is opposed in some respects to the conclusions reached in Koons v. Mellett, supra, and in the foregoing opinion, and to that extent must be deemed modified. The judgment is reversed, with costs, with directions to the court below to proceed in consonance with this opinion.

OLDS, J. (dissenting.) I cannot concur in the majority opinion of the court in this case. William Fiscus died intestate, owning real estate situate in the counties of Decatur and Ripley. Marion Fiscus, son of William, was indebted to his father at the time of his death in the sum of $1,610.17. The administrator of the father's estate brought suit, and recovered a judgment against the son, in the Decatur circuit court. Before the filing of a transcript in the clerk's office of Ripley county, and obtaining a lien on the real estate in that county, Marion Fiscus, the son, executed to the appellee, Moore, a mortgage on the real estate which descended to the son in Ripley county, to secure a valid debt to Moore for $75, and the mortgage lien attached to such real estate, and became a