10 N.H. 215 | Superior Court of New Hampshire | 1839
The statute of July 2, 1822, empowering the several judges of probate to grant license to executors and administrators to sell real estate, enacts, that the heirs and devisees, or their guardians, shall be notified of the application ; and if they will give bond, Avith sufficient sureties, for the payment of the demands, and -to save harmless the executor or administrator therefrom, no license shall be granted. N. H. Laws 366.
On the application of Lois Leavitt, the administratrix of the estate of Stephen Leavitt, deceased, for license to sell real estate,.for the payment of the debts, the respondents, Robinson, Avhose wife Avas a daughter of the deceased, and Stephen Leavitt, a son, appeared before the judge, gave bond Avith sureties1, and the application was dismissed.
It has been held that this operated to discharge a mortgage which Robinson and the sureties at that time held against the estate, so that they could not, after the giving of the bond, proceed to foreclose for the debt on which the mortgage was predicated. The reasons for this opinion are fully set forth, 7 N. H. Rep. 73, Robinson vs. Leavitt.
The petitioner, Abigail T. Jenness, a grand-daughter of the deceased, and one of the heirs of his estate, was no party to the bond, and did not thereby take upon herself any portion of the burden of paying the debts. This, however, we think, furnishes no sufficient objection to the validity of the proceedings in the probate court. The provision of the statute is, that If they,” (the heirs, devisees or guardians) “ Avill give bond, Avith sufficient sureties but it was probably not intended that it should be necessary for all to exe
The question now is, whether the respondents, Robinson and Leavitt, who have discharged the mortgage debt, are not entitled to be substituted in the place of the mortgagees, and to hold the land against others interested in the redemption, until they contribute their rateable shares of the amount. This question was adverted to in the former case, but was not then settled, 7 N. H. Rep. 103.
We are all of opinion that they are thus entitled to hold against these petitioners. The principals in that bond have, so far as this case is concerned, complied with the condition of their obligation. They have paid the debts of the intestate. Among those debts was one secured by a mortgage. It is immaterial now to whom that debt was due. It has been discharged, and the estate redeemed from the incum-brance. But this was an incumbrance which affected the interest of all concerned in the estate. If it had not been removed, a foreclosure must have taken the whole land. If it had been discharged by the administratrix, it must have been by a sale of a portion at least of the land.
When the respondents, Robinson and S. Leavitt, discharged the debt, and redeemed, for the protection of their interest, as they acted without the request of the petitioners, no right of action accrued against the petitioners for contribution. The respondents had the right so to act, for the protection of their own interests ; but the petitioners are not entitled to avail themselves of the redemption, and removal of the incumbrance, without paying a share of the amount. Theymre not required to become parties to the redemption ;
The petitioners have of course received, or may receive, their share of the personal estate, without being subjected to the payment of a share of the debts. This advantage, which the larv gives them from the transaction, furnishes no reason why they should ask for more.
It has been argued, that this petition is evidence of an election of the petitioners to claim the benefit of the redemption, and that their share may be set off, and the respondents left to an action to enforce the contribution. But this would not be just, nor in accordance with the principle. 'The respondents being substituted in the place of the mortgagees, for this purpose, are entitled to hold as if they were mortgagees in possession, until the amount charged on the share of these petitioners in the land is paid or tendered • and as this has not been done the petition must be
Dismissed,
