3 Paige Ch. 513 | New York Court of Chancery | 1831
The complainant not having taken any mortgage or other collateral security for the payment of the balance.of the purchase money which was not paid down, he is entitled to an equitable lien upon the land, in the hands of the heirs of the vendee, for the payment of such balance. (3 Russ. Rep. 488. 1 Tamlyn. Rep. 21. 1 John. Ch. R. 308. 1 Paige's Rep. 20.) As the improvements on the land were made by the purchaser in his life time, his heirs at law have no equitable claim'to have the value of these improvements discharged from the lien of the complainant. Even if the principle contended for in behalf of the infant defendants was correct, it could not benefit them in this case. - For if they take any part of the estate by descent, discharged of this equitable lien, they will be liable to the complainant as a general
As infants are concerned in this case, and no decree can be made until their rights as well as those of other creditors of the intestate not now before the court as parties are ascertained and settled, it will be necessary to bring the cause again before the court for further directions, after the necessary inquiries have been made by a reference to a master, and when all the creditors of the estate shall have had an opportunity to come in and show the nature and amount of their claims.
The bill appears to have been improperly filed against the defendant Doty, who had acquired a valid title to the land,
There must be a reference to a master residing in the county of Montgomery, to inquire and report as to the rights of the infant defendants, and whether the allegations in the bill, so far as concerns their rights, are true. The master must also compute and ascertain the amount which is due to the complainant for principal and interest on his bond, and must also inquire and report as to the amount of assets in the hands of the administratrix unadministered ; taking the balance as settled by the decree of the surrogate to be correct, if the account before him was taken after due notice to all parties interested so as to make that accounting final according to the statute. The master must also be directed to take an account of the debts due from the intestate and the nature of such debts, whether due by judgment or decree, or by specialty, or otherwise, and to give due notice to the creditors to come in and prove their demands, according to the provisions of the statute; (2 R. S. 183, § 106 ;) to the end, that, on the coming in and confirmation of the master’s report, such decree may be made in the premises as shall be just. And all further questions and directions are to be reserved until the coming in of that report.