Faran, Adm'r, v. Robinson et al. 4. The claim was barred, by the lapse of four years before its presentation, as in section 101, which gave the heirs the right to convey their lands discharged of all lien for this debt, and said lands are now held so discharged by defendants. 5. Chatfield must resort to this judgment against the sureties; and they pursue the heirs, under part 9 of the administration law. 6. If the court find the lands still liable, Robinson's title being the dower interest of two widows, and both living, should be protected, not being liable for any debts of the estate of Ewing. The cause should be sent back, to have the lands of the estate brought in, and contribution made between the several tenants. 7. The interest of estates and the protection of the rights of purchasers require this court to enforce the rule of limitation laid down in the statutes; and this is a fit case to justify a strict decision to that effect. See S. & C. Stat. 585, 587, secs. 101-108, 112; Ib. 610, sec. 227; Ib. 614, sec. 248; Code, sec. 17; Ang. on Lim. 61, sec. 54; 2 Ohio St. 156; Brown v. Anderson, 13 Mass. 202: 8 Pick. 108; Fisher v. Mossman, 11 Ohio St. 43; 4 Ohio, 147; 12 Mass. 199; 11 Conn. 160; 16 Mass. 179, 428; Mattoon v. Clapp's Heirs, 8 Ohio, 250. G. B. Hollister, for defendant Bell: 1. Upon the facts, no debts existed at the time of the plaintiff's petition herein: (1.) Because a debt against an estate is barred in four years from the date of notice of the appointment of the administrator. Code, sec. 17; S. & C. 585, 586, secs. 101, 108; 13 Mass. 202; 8 Pick. 108; 16 Mass. 429. (2.) Plaintiff had in his hands assets sufficient to pay the claim of Chatfield, administrator de bonis non of Clark, as appears by his accounts as administrator of Ewing, filed in the probate court. (3) By the negligence of Faran, he permitted the balance *of the proceeds of the sale of the lot to Robinson, to be paid [250 over to Mrs. McBride, one of the heirs of Ewing, at the very time when his petition was pending in the Superior Court, the prayer of which was, that McBride and wife and their mortgagees be restrained from selling until Chatfield's judgment should be paid, or if the sale should take place, that a sufficient sum should be reserved out of the proceeds to pay Chatfield's claim. By the negli gence of Faran, and by that alone, the money was allowed to be Faran, Adm'r, v. Robinson et al. paid over to Mrs. McBride, by Gibbons, her attorney. Having neglected his duty, he must pay the claim out of his own pocket, unless he can find assets. (4) The judgment in favor of Chatfield can not be made the foundation of a suit against the lands of Bell and Robinson. Chatfield having brought suit on the bond of Ewing as administrator of Clark, the matter is ended as far as the lands of Ewing, now disposed of by the heirs, are concerned. Chatfield may collect the judgment on the bond if he desires to. 2 Ohio St. 156; 16 Mass. 179; 12 Mass. 199; 11 Conn. 160. The statute commenced to run upon the death of Ewing and notice of the appointment of an administrator; the claim existed. then (if at all), and was in full force. 2. Bell purchased from one of the heirs, September 25, 1857, for the consideration of $4,000. Robinson purchased from Mrs. McBride, April 1, 1859, the lot set off to her in the partition, for the sum of $5,000. The last property sold must be the first subjected. Piatt v. St. Clair, 6 Ohio, 227, 248. The matter of the dowers, sales, and mortgages does not affect the question. Robinson purchased the last piece of property of Ewing's estate which was then held by any of the heirs. This property must first be exhausted, and, before the lot of Bell can be reached, Robinson must be held to account for the balance of the purchase money paid by him, which he permitted to go into the hands of Mrs. McBride, pending the suit by Faran to subject that sum to pay Chatfield's claim. That suit was commenced long after the sale to Bell, and he can not be charged with notice. Therefore, as between Robinson and Bell, Robinson must pay. [251 *BRINKERHOFF, J. If, from the mass of minute details contained in the agreed statement of facts on which this case is submitted, we eliminate the few prominent facts which establish the relations of the parties, the questions which arise out of those relations are found to be both few and simple. The plaintiff, Faran, as administrator of Ewing, administered the estate of his intestate. In the payment of the debts due from the estate, and of the statutory allowance to the widow of the intestate, not only all the personal assets, but a considerable sum derived from rents of real estate accruing after the death of the Faran, Adm'r, v. Robinson et al. intestate, were exhausted. All debts due from the estate, so far as known and recognized by the administrator, being thus paid, a settlement of the estate, then supposed to be final, was made; and a small balance remaining in his hands-though much less than the sum derived by him from the rents of real estate before men. tioned-was distributed among the heirs of the intestate. The heirs thereupon made partition of the real estate among themselves; and subsequently they individually made a variety of sales and conveyances of, and out of, their respective shares to other parties. Pausing here, and bearing in mind the facts thus far outlined, we will go back again. Ewing, the plaintiff's intestate, was, at the time of his death, administrator of the estate of one Clark, having been duly appointed and having given bond, with sureties, as such, and died without having made settlement of his accounts as administrator, and leaving an apparent balance of considerable amount in his bands, in favor of the estate he represented, unaccounted for. And between two and three years after the filing by the plaintiff, Faran, of his supposed final account, an administrator de bonis non of Clark's estate presented to him for allowance a claim for the before-mentioned balance apparently remaining in the hands of Ewing, in favor of that estate, at the time of his death. The plaintiff rejected this claim; and thereupon the administrator de bonis non of Clark brought suit on the bond of Ewing, as administrator of Clark, against the plaintiff as administrator of Ewing, and [252 Cary and Spader, suretics of Ewing in his bond. The plaintiff Faran, so far as appears, without collusion, in good faith, and with due diligence, attempted to defend the suit; but in this he failed, and judgment was rendered against him as administrator, together with the sureties in the bond, in December, 1859, for $885 and costs. This judgment remains in full force, unsatisfied and unreversed; and it is to pay this judgment and costs, that he now asks an order to sell so much of the real estate of which his intestate died seized, as may be necessary for that purpose. Is he entitled to such order? We think he is. He is entitled to it under the distinct provisions of section 130 of the act for the settlement of the estates of deceased persons." 1 Curwen's Stat. 734. Whether error did or did not intervene in the rendition of that judgment, is not a question of which, in this proceeding, we Faran, Adm'r, v. Robinson et al. can take cognizance. In this collateral proceeding, it is conclusive evidence of the indebtedness adjudged by it, unless impeached for fraud or mistake in obtaining it; or, perhaps, the culpable negligence of the plaintiff in the defense of the action in which it was obtained. O'Connor v. State, 18 Ohio, 225. And no fraud or mistake recognized in law as such, is here claimed to have existed in the obtaining of the judgment against the plaintiff in this case, nor is there any allegation of such negligence. It is said, in argument, that the judgment may be enforced against, and its amount collected from, the plaintiff's co-defendants in the judgment-the sureties in the bond of the plaintiff's intestate. So, perhaps, it might. But this would be inequitable. The estate of the plaintiff's intestate is primarily liable for it, and ought to pay it; and if the sureties were compelled to pay it in the first instance, the ultimate result would be the same; for they would be subrogated to the rights of the judgment creditor, and entitled to enforce the judgment against the estate represented by the plaintiff here, for their indemnity. The fact that the real estate of the plaintiff's intestate has been partitioned among his heirs, and by them conveyed, with or without notice, to third persons now claiming title in or through them, 253] makes no difference. Under our laws, the real estate of a deceased person, subject to the widow's right of dower, is, in the last resort, as much and as truly assets in the hands of his personal representatives for the payment of debts, as his personal property is. His debts are a lien on his real estate; his heirs to whom it descends take it cum onere; and whoever buys it from them, does so subject to the application of the rule of caveat emptor. Stiver v. Stiver, 8 Ohio, 221. For their indemnity, if any, in case their lands are sold out from under them, they must look to such guaranties or warranties as they may have had the precaution to insist on, or to such right as they may have to compensation or redistribution from their co-partitioners. Decree for plaintiff. DAY, C. J., and WHITE, WELCH, and SCOTT, JJ., concurred. 234 Craig ". Chambers. JAMES W. CRAIG v. JAMES CHAMBERS AND WIFE. The implied liability of a surgeon, retained to treat a case professionally, ex tends no further, in the absence of a special agreement, than that he will indemnify his patient against any injurious consequences resulting from his want of the proper degree of skill, care, or diligence in the execution of his employment. And in an action against the surgeon for malpractice, the plaintiff, if he shows no injury resulting from negligence, or want of due skill in the defendant, will not be entitled to recover nominal damages. ERROR to the district court of Richland county. The original action was brought by James Chambers and Jane, his wife, against James W. Craig, the plaintiff in error, for malpractice as a surgeon in treating a dislocated shoulder and injured. arm of the plaintiff, Jane. On the trial a bill of exceptions was taken, from which it appears that evidence was given tending to show that about December 14, 1862, the plaintiff, Jane, accidentally dislocated her shoulder, and otherwise injured her arm; that the plaintiffs retained the defendant below, as a surgeon, to *manage, take care of, and treat [254 the injuries so received by the said Jane; that the defendant, in pursuance of his retainer, did professionally, as a surgeon, manage and treat said injuries, but, in so doing, did not exercise the ordinary care, skill, or diligence of surgeons in such cases; that ho managed and treated the injured shoulder and arm negligently and unskillfully, and failed to cure said injuries. The foregoing is all that is shown by the bill of exceptions in regard to the evidence offered on the trial. On the submission of the case to the jury, the plaintiffs' counsel moved the court to instruct the jury as follows: "That if they found that the plaintiffs retained the defendant, as a surgeon, to manage, take care of, and treat the injury to plaintiff's shoulder, described in the petition, in a skillful and proper manner, and that the defendant, being so retained, did professionally, as a surgeon, manage and treat said injured shoulder, and, in such management and treatment, did not exercise the ordinary care, skill, or diligence of surgeons in such cases, and failed to cure said injury, then, and in that case, the plaintiffs were entitled to recover in this |