16 Barb. 193 | N.Y. Sup. Ct. | 1853
Simple contract debts, by the common law, are not recoverable in any shape out of the land of a deceased debtor; but the laws of this state make the real estate of the debtor a fund for the payment of debts, on a deficiency of personal assets.. Upon application to the surrogate, at any time within three years, and showing that the personal estate is insufficient to pay the debts of the decedent, that officer is authorized to direct a sale of real estate, and that the avails be applied in satisfaction of debts. Such an order may be made, whether the land is in the hands of the heir, or devisee, or a purchaser from such heir or devisee. Whoever takes the land, within the period limited by statute, takes it subject to this contingency. “ This liability,” says Mr. Justice Barculo, in Hyde v. Tanner, (1 Barb. S. C. Rep. 75,) “ is a kind of statutory lien running with the land, during the three yeará# After the expiration of that period, the heirs or devisees may sell, and a bona fide purchaser will take the estate free and discharged from the debts. (See also Matthews v. Matthews, 1 Edw. Ch. 571.)
The mere existence of a debt, creates no lien upon land while the debtor lives; but, upon his death, the character of the debt, by the operation of the statute, is changed. It, at once, becomes a lien upon the real estate of which he died seised, so that it descends to the heir, or passes to the devisee, chargeable with the payment of the debts of the ancestor. “ The heir,” says McLean J. in Watkins v. Holman, (16 Peters, 63,) “cannot-
It seems to be well settled that upon the foreclosure of amortgage, the purchaser, who, of course, takes such title as the mortgagor had when he executed the mortgage, is entitled to the growing crops or emblements. And that too as against a lessee of the mortgagor or any other person holding under him. This was held upon full consideration in Lane v. King, (8 Wend. 584,) and the decision was relied upon as authority by the chan-. cellor, in Aldrich v. Reynolds, (1 Barb. Ch. Rep. 613.) “ It appears to be in accordance,” says, the chancellor, “ with the principle that where the determination of the estate depends upon the voluntary act of the owner, or where the estate is defeasible by a right paramount, or by a forfeiture, or a breach of condition depending on his own act or omission, he who has the paramount right, or who enters for the forfeiture or breach of condition, is entitled to the emblements.” In Shepard v. Philbrick, (2 Denio, 174,) it was held that a purchaser, upon the foreclosure of a mortgage, was entitled to a crop growing upon the land at the time of the sale, and which having been sown by the mortgagor, had been sold upon an execution against him. (See also Gillett v. Balcom, 6 Barb. 370.) “ There ig a distinction,” says Powell, “ between tenants who have particular estates that are uncertain, defeasible by the act of the parties, or the act of God, and those who have particular estates uncertain, defeasible by right paramount, for, in the latter case, he that hath the right paramount shall have the emblements. As against the mortgagor and his grantees or tenants; the mortgagee undoubtedly has the paramount right.” (See Powell on Mortgages, cited in Lane v. King, supra.) In respect to a sale upon execution, the question-as .to the.right of the purchaser
If, then, a tenant who sows a crop upon land encumbered by mortgage or judgment, takes the risk of losing it, in case of a sale under the incumbrance, before he can remove his crop, I cannot see why a tenant, occupying land under an heir or devisee, does not take the same hazard in respect to the statutory lien of the ancestor’s debts. The order of the surrogate, and the sale by virtue of that order, are but the execution of the lien j the foreclosure of the mortgage. If the testator had, on the day he died, executed a mortgage upon his -farm to secure his creditors, and then died, devising the farm to his son, subject to the mortgage; it cannot be denied that, upon the foreclosure of such a mortgage, the purchaser would have taken the crop in question, even as against the defendant. I cannot distinguish, in principle, the sale under the surrogate’s order, from the foreclosure of such a mortgage. In either case, the lien existed when the tenant entered. Then, as now, he would have known the condition of the property, and would have. acted with His eyes'.open.' He would be'presumed to have been willing to take
Watson, Parker and Harris, Justices.]
Upon the facts found by the referee I think the plaintiff was entitled to recover. The judgment should, therefore, be reversed, and a new trial awarded.