51 N.J. Eq. 400 | New York Court of Chancery | 1893
The bill in this case was filed to foreclose, by sale, the equity of redemption in the land covered by a mortgage made by Carrie E. Vandegrift to the complainant on the 3d day of June, 1890. The mortgagor died intestate on the 7th day of January, 1893.
In Vreeland v. Loubat, 1 Gr. Ch. 104, and in Chester v. King, 1 Gr. Ch. 405, Governor Pennington held that while a mortgagor, who had conveyed his equity of redemption in the mortgaged premises, was not a necessary party to a suit to foreclose the mortgage on the land, he was nevertheless a proper party. And in Andrews v. Steele, 7 C. E. Gr. 478, it was held by the court of errors and appeals, speaking by Mr. Justice Van Syckel, that while a mortgagor, whose equity of redemption had been sold away from him, was not a necessary party to a suit to foreclose the mortgage on the land, yet if the complainant made him a party, and he claimed that the mortgage was usurious, to avail himself of that defence he must- make it in the foreclosure suit, otherwise he would be concluded by the decree made in that suit, and if a suit should subsequently be brought on his bond, he would be held to be estopped by the decree in the foreclosure suit from sotting up that defence. In Savings Association v. Vandervere, 3 Stock. 382, 383, Chancellor Williamson intimated, quite plainly, that he thought to a suit to foreclose a mortgage against the heir of the deceased mortgagor, the personal representative of the deceased mortgagor was a necessary party, because he is interested in taking an account of what is due on his intestate’s bond; and it is quite apparent that the chancellor would have so declared if the question had been a new one and not settled, in principle at least., by the decision in Vreeland v. Loubat. But no doubt can be entertained that the interest which such personal representative has in being present when the account is taken of the amount remaining due on his intestate’s bond, in order that he may see that all proper credits are given and the sum remaining due is fairly and correctly ascertained, is quite sufficient to make him a proper party. And there is this
The administrator has demurred on the ground that the complainant’s suit, as to him, was prematurely brought. The foundation of his demurrer is the fifty-seventh section of the Orphans Court act, which, in substance, declares: To enable an administrator to examine into the condition of his intestate’s estate and ascertain the amount and value thereof, and the debts to be paid out of the same, no action, either at law or in equity, except for funeral expenses, shall be brought or maintained against him within six months after letters of administration shall have been granted to him, unless upon the suggestion of fraud. Rev. p. 763. The complainant by its bill seeks no relief whatever against the administrator. It asks for no personal decree against him, nor for an account of the personal estate of his intestate, nor for any relief against such estate. Its suit, so far as he is concerned, is a pure proceeding in rern — against the mortgaged premises alone — and is, in no substantial respect, a suit against him or the estate which he represents.
A grant of administration simply makes the administrator the representative of the intestate in respect to his personal estate. By force of the grant the administrator becomes vested with the title to his intestate’s personal estate, but such grant gives him no right whatever to his intestate’s land, nor any power or authority over it, except so far as may be necessary to enable him to reap and carry away its annual crops, raised by labor and cultivation, for these by the common law, as between him and the heir, constitute a part of his intestate’s personal estate. It may be correctly stated, as an elementary proposition, that a
The demurrer must be overruled.