2 Paige Ch. 586 | New York Court of Chancery | 1831
The purchaser in this case bid off the premises in question, at the master’s sale, under the' understanding, expressed at the time of the sale, that he was to have a perfect title under this decree; and if the master’s deed will not give him such a title, he must be discharged from the obligation of his purchase ; unless the parties interested in the sale can procure a discharge of the outstanding claims and incumbrances.
It is not necessary that I should particularly notice the mortgage given by two of the devisees to their mother, to secure her annuity. As she is dead, the annuity is at an end ; and probably the arrears were paid up to the time of her death. If this was the only question in the cause, the master would be directed to inquire and ascertain whether any thing remained due on that mortgage; unless the parties elected to procure it to be cancelled on record.
The important question in this cause is as to the objection that there are outstanding judgments against each of the three devisees, and that the judgment creditors are not parties to this suit. The lot in question was not devised to the executors as such ; but it was devised to the widow during her life or widowhood, with remainder to the three sons of the testator in fee, subject to the payment of debts, and subject to the power of the executers to sell for that purpose. Although the three sons are named in the will as executors, yet they do not take the real estate as such executors but as devisees thereof, and as tenants in common under the will. The judgments, therefore, which were afterwards rendered against them individually, became general liens on their several interests in the estate ; and the question now presented is whether the purchaser under this decree will obtain a valid title, as against the lien of those judgments.
In the case under consideration, the debts due from the testator to these complainants and others, were equitable liens upon the estate devised to his sons, which liens are prior, in point of time, to the judgments recovered against the sons for their own private debts. If the judgment creditors had been made
What then will be the situation of the purchaser under this decree, as to the security of his title, either at law, or in equity 1 At law, the judgment creditors may sell the legal estate by execution on their judgments ; and the purchasers will acquire a legal title, which will overreach the sale under this decree. And the judgments being obtained before the creation of a lis pendens here, by the commencement of this suit; the court of chancery cannot protect the present purchaser, by any order or injunction made in this cause, to which the judgment creditors are not parties. He will therefore be compelled to file a bill, even to protect himself against this assertion of a legal right on the part of the judgment creditors. And upon that till, in order to protect his equitable
The revised statutes have prescribed a new mode of proceeding, by a suit in this court, against heirs and devisees, to obtain satisfaction of debts due from the decedent. And every final decree rendered in such suit, against the heir or devisee, has a preference, as a lien on the estate descended or devised, over any judgment or decree obtained against the heir or devisee, for his own personal debt. A sale upon an execution under such a decree, will, at law, not only overreach-such judgments, but will also overreach all mortgages and alienations of the estate, which are subsequent to the commencement of the suit in this court. (2 R. S. 454.) But the decretal order, under which the present sale took place, is not such a final decree as is contemplated in the statute. And probably to give the purchaser a perfect legal title, sufficient in a court of law to protect him against a sale under the previous judgment against the heir or devisee, it may be necessary to issue an execution on the decree, and to have the property sold b y the sheriff, in the usual manner. On this
The conclusion at which I have arrived in this case is that the purchaser cannot obtain a perfect legal title under the conveyance from the master, sufficient to protect him against these judgments, which at law form a previous lien on the premises. And as it is admitted to be impossible to obtain releases of all the judgments, within any reasonable time, the purchaser must be discharged of his purchase, and the deposit must be restored to him. He is also entitled to interest on that deposit, and to the costs to which he has been subjected. At present, there is no fund under the control of the court out of which the interests and costs can be paid ; and as all parties have acted in perfect good faith in relation to this sale, the expenses must be paid out of the fund hereafter to be raised, if a second sale takes place. If no sale of the property is had, and no other way is provided for the payment, the charge must fall on the complainants personally. The question, as to the final disposition of this claim for interest and costs, is for the presént reserved; with liberty for the purchaser to apply hereafter by petition, as he shall be advised.
If all the parties to this suit consent to a re-sale of the property under the present decretal order, the master is to proceed and sell, subject to the legal and equitable rights of all persons, other than the parties in the cause and those who are bound by the decree. But in that case, the master should inform the bidders at such re-sale of the nature of the objections which exist against the title under such sale. If a re-sale, at the risk of the purchaser, is not deemed advisable by the parties interested in this matter, the complainants are to be at liberty to file a supplemental bill, for the purpose of bringing the judgment creditors before the court; or to apply for a rehearing, and to vacate the decretal order of the seventh of January last, as they may be advised. If a receiver is necessary to preserve the property, and to secure the rents and profits in the meantime, one will be appointed, as a matter of course, upon a proper application, and on dne notice to such parties as have a right to be heard on that question.