120 N.Y.S. 583 | N.Y. App. Div. | 1909
■ The cause of action created by section 1843 of the Code of Civil Procedure against the heirs or devisees to recover an indebtedness, existing against the person from whom they acquired the propérty can only be maintained against the direct heirs and devisees, and cannot be maintained against the heirs or devisees of such heirs or devisees. (Rogers v. Patterson, 79 Hun, 483; affd., 150 N. Y. 560.) The complaint, therefore, does not state .a cause of action -against the heirs bf Elizabeth Lathrop, nor against any of the defendants on account of their inheritance from Eobert Dunlop, the uncle.
The complaint has attempted to unite a cause of action under the statute against all the defendants with a cause of action against the estate of Elizabeth Lathrop and her heirs arising from a separate, independent agreement. Such joinder is not permitted by section 484 of the Code of Civil Procedure. That section, by its terms, relates-to the joinder of “two dr more causes of action, whether
We may consider the first cause of action as purely statutory and as of an equitable nature, the effect of which is really to charge the land of the debtor for the proceeds thereof. (Mortimer v. Chambers, 63 Hun, 335.) But the second cause of action is simply an' action on contract in which money damages only can be awarded. Ho equitable relief is necessary or proper. In the first or equitable action no liability is shown against the executrix. There is no reason, equitable or otherwise, why the action against the executrix for money only should be joined with the action against the heirs at law for special relief. The rule stands that in order to justify a joinder of causes of action it must appear that they affect all the parties to the action. Section 454 of the Code of Civil Procedure provides that two or more persons severally liable -upon the same written instrument may all or any of them be included as defendants in the same action. A lessee and the guarantor on his lease cannot be joined in the same action, for the reason that each is liable on a several contract and the cause of action against him does not affect the other. (Roehr v. Liebmann, 9 App. Div. 247.) The maker :and guarantor of a note cannot be joined in the same action for the'
The statutory liability is by its terms limited to the extent of the estate, interest or right in the real property which descended to the party sought to be charged.
We are assuming that the estate of Elizabeth Lathrop is a party here solely for the purpose of charging it with liability under the partition judgment. We have not considered the question whether the personal representatives of an heir can be made liable under this section for the indebtedness, for the reason that neither the record nor the briefs put that question squarely before us. It appears that all the property set apart to Elizabeth was lost to her and her grantee by l'eason of the mortgage which was charged upon it when it came to her. The foreclosure judgment, April 28,1896, showed $13,429.75 due on the mortgage. We must assume the property was sold in the inverse order of alienation. The O’Leary place brought upon the foreclosure $5,000, all of which apparently was required by the judgment. The partition judgment was entered June 5, 1875, and Jessie Dunlop. Empson died October 29, 18.74. The amount, principal and interest, of the $8,000 mortgage was charged by the partition judgment upon the homestead. We do .not know whether any interest had been paid upon it between the death of the decedent and the judgment; therefore, we cannot say what the charge upon the land was at the time it came to Elizabeth Lathrop. ' If the judgment in foreclosure required the $5,000 from the O’Leary place, it is apparent that the homestead brought but a trifle over $8,000 if the foreclosure judgment was paid in full. We are not informed whether Elizabeth Lathrop guaranteed the title in' her deed to Holden, or what consideration she received therefor. It inay be that the consideration received was nominal, for the reason that in fact the property conveyed had no substantial value above the mortgage, or if she guaranteed her title, that the entire amount of the purchase price is a charge against her estate.
The allegation in the complaint that the real estate of Jessie Dun-lop Empson was worth $50,000 gives us but very little assistance. It appears there was no personal estate at least applicable to paying debts of the class with this mortgage, and it appears that the
The interlocutory judgment is, therefore, reversed, with costs, and'tlie demurrers sustained, with costs,, with leave to the plaintiff, after payment of such costs, to make such application, within twenty days, at Special Term, as she may be advised.
All concurred, except -Chestbb, J., dissenting.
Interlocutory judgment reversed, with costs, and the demurrers ■ sustained, with costs, with leave to plaintiff to make such proper application -to the Special Term as she may be advised. _