Mollan v. Griffith

3 Paige Ch. 402 | New York Court of Chancery | 1831

The Chancellor.

The mortgage upon the Oliver street lot was to secure the payment of a debt contracted by the testator himself, and for which he gave his bond. The mortgage was therefore merely a collateral security "for the personal contract. And, as between the owners of the real and personal estate, as the law stood at the death of the testator, the personal property was the primary fund for the payment of this debt. (King v. King Ennis, 3 P. Wms. Rep. 358. Lanoy v. The Duke of Athol, 2 Atk. Rep. 444.) The revised statutes have changed this rule of equity; but that cannot affect these parties, whose rights accrued previous to January, 1830. (1 R. S. 749, § 4.) But as between a legatee, either pecuniary or specific, and the heir at law, if a debt chargeable both on the real and personal estate is paid by the executor out of the personal property, in the first instance, the legatee will be permitted to stand in the place of the original creditor, pro tanto, and may recover the amount of his legacy, or to the extent of the personal estate so appropriated, out of the real estate descended to the heir. (Culpepper v. Aston, 2 Cas. in Ch, 117. Tipping v. Tipping, 1 Peer Wins. 730. Lutkins v. Leigh, Ca. Temp. Talbot, 53.) And if the debt is a specific lien upon the land, as in the case of a mortgage, the legatee may, in some cases, stand in the place of the mortgagee who has exhausted the personal estate, even as against the devisee. (Lowndes on Leg. 393.) The will in this case directs the debts to be paid in the first place, and makes a specific provision for the abatement of the three first legacies, rateably, if there should be any deficiency in the funds upon which all the bequests in the will were cc predicated.” As the house and lot in Oliver street do not appear to have been any part of the fund upon which the legacies were predicated, or out of which the testator intended his debts and legacies should be paid, it is at least doubtful whether the principle of marshalling assets in favor of legatees can be applied to this case. It is not necessary, however, that I should express any definitive opinion on that question here, as I am satisfied this complainant is not the proper person to call upon the heirs at law. As the mortgage debt was, at law, chargeable on the personal estate in the hands of the executor, it was properly discharged by the executor out of that fund. And if the children of Mrs. Shaw • e have any claim to stand in the place of the mortgagee, on account, of the deficiency of the fund to pay their legacy, they are the proper persons to bring a suit for that purpose. As the case now stands, if the executor should succeed in recovering the amount from the heirs at law, and should neglect to pay it over to those legatees, it would not discharge the equitable lien upon the land, in their favor, if any such equitable lien exists.

There con be no set off in this case, of the rents and profits of the real estate, against the amount which may have been overpaid on account of the legacies to the defendants; because the demands are not due in the same right, and there is no pretence of insolvency on the part of the husbands of the legatees or their sureties. The amount due to Griffith and wife, for the rents and profits of her real estate, is a demand due in right of the wife; and if the husband should die before it was actually reduced to possession, it would belong to her by survivorship. The money paid for the legacy, on the contrary, was paid to the husband alone, and he and his sureties only are liable to refund in case of deficiency. The complainant should therefore have been left to his remedy on his bond, if the personal estate was insufficient to pay all the debts and.legacies.

The fact, that the defendants refuse to allow him for the taxes and repairs upon the real estate, forms no ground for withdrawing the suit, for the mesne profits, from the jurisdiction of a court of law. If the complainant has any equitable claim of that kind, it will be a matter of course to allow such claim in that suit, to the same extent that it would be allowed in this court. In Murray v. Governeur and others, (2 John. Cas. 342,) Kent, chief justice, says: “ The action for mesne profits is a liberal and equitable action, and will allow of every kind of equitable defence.” It is not stated in the bill what is the form of the action brought against the complainant in the superior court. But if the plaintiffs in that suit have affirmed the acts of the complainant, by bringing an action of assumpsit for the rents and profits actually received, that is also an equitable action, in which he will be allowed every charge which is proper, either by way of deduction from, oifoff set against, the monies received to the use of the infant heirs. The answer of the defendants explicitly and fully denies the allegation in the bill, that the complainant -expended any thing for the support or maintenance of the infants, over and above the interest on their legacy.

It is unnecessary for me to express an opinion whether this bill could be sustained, for any purpose, if all the proper parties were before the court. I am satisfied the complainant has no equity appearing upon the bill and answer to entitle him to restrain the defendants, Griffith and wife, from proceeding in their suit at law to recover the rents and profits of the house and lot. The decision of the vice chancellor must therefore be reversed, with the costs of this appeal. The injunction must be dissolved; and the costs of the defendants upon the original application to the vice chancellor are to abide the event of the suit.