In February, 1874, Alexander Stevenson made his note to Rogers, bearing interest at the rate of two per cent, a month, from date until paid, and secured the same by a deed of trust upon real estate. Stevenson died in 1875, and his executor paid the debt out of the general assets of the estate, the payment having been completed in 1880. The claim had never been presented to, or allowed by the probate court; but the creditor bad made affidavit to its justice and non-payment; and this, it was supposed, authorized the executor to pay, as the estate was known to be solvent. When the executor in his final account claimed credit for these payments, exceptions were sustained to the payment of more than ten per cent, interest after April 27,1876, the time -when, in the opinion of the court, said claim should have been presented to the probate court for allowance and classification. Thereupon Rogers refunded to the executor the amount of the supposed over-payment — §441—and filed his bill, alleging that this amount remained due and unpaid by the terms of the note, and praying foreclosure of the deed of trust. The defendants — the widow and heirs of Stevenson — pleaded payment and collusion between the plaintiff' and the executor, they being brothers, whereby the debt was purposely not reduced to judgment, with a view to continue the exorbitant interest. At the hearing the bill was dismissed.
There being no proof of collusion, it only remains to consider whether anything has occurred, which in legal contemplation reduced the high rate of interest stipulated for in the contract, and which it was then lawful to take.
If the creditor had chosen to prove his debt against the estate, he -would have recovered judgment for the principal and interest according to the tenor and effect of the instrument, computed down to the day of rendition. But such judgment would thereafter have carried only ten per cent. per annum. Badgett v. Jordan, 32 Ark., 154; Miller v. Kempner, Ib., 573; Harbison v. Vaughan, ante, 539.
Whether in that case the creditor could have been compelled to accept payment of his judgment in full satisfaction of his mortgage, it is useless to speculate. For Rogers being under no necessity to resort to the probate court for satisfaction of his demand, never did submit his rights to that tribunal. He relied upon his mortgage security.
The claim never having been proved against the estate, the executor properly had nothing to do with it. The probate court might, indeed, upon the application of any person interested in the estate, have ordered him to relieve the property from the incumbrauee, if funds were in his hands available for that purpose. Gantt’s Digest, sec. 183.
And it might well have sanctioned the payments made by him as beneficial to the estate, and not injurious to the creditors. But it refused to allow credit for the full sum that was required to redeem, and to that extent repudiated the act of the executor. This leaves the mortgagee free to foreclose for any balance that may be legally, due.
The decree of the White Circuit Court is reversed, and a decree of foreclosure will be entered here for $441, with interest. at two per cent, a month from the twelfth day of November, 1880, until the date of the rendition hereof, and henceforward until paid at ten per cent, per annum. And the cause is remanded for execution.