18 Abb. Pr. 202 | The Superior Court of New York City | 1864
The plaintiffs, in their complaint, demand judgment against the defendants as the legal representatives of Davis B. Holbrook, deceased, upon a promissory note for the sum of 8,000 dollars, with interest at the rate of six per cent., alleging the note to be-due and unpaid; and that the defendants have in their respective hands, or under their control, moneys and property of the estate of the deceased more than sufficient to pay the amount of said note and interest and aver demand of payment.
The defendants admit, in their answer, the allegations of the complaint, except that relative to the sufficiency of assets; and further allege, by way of defence—
1st. That the note was given for the price of certain lands in the State of Massachusetts.
2d. That by a certain agreement for sale of said lands, the plaintiff has a right to sell said lands at public auction three months after said note should fall due, and apply the proceeds of such sale towards the payment of said note. And the defendants claim that no cause of action exists against them as such executors until the plaintiff’s remedy is exhausted against the said lands, and the said lands shall have been sold under the provisions of the said agreement, and the proceeds applied
The defendants’ counsel, offered in evidence the agreement and other matters set up in the answer, to which the plaintiff objected, which objection the court sustained. The plaintiff had a verdict under the direction of the court for the sum of $10,322.63, to which decision and direction the defendants duly excepted. Judgment was entered upon the verdict, with costs.
It is insisted, and this is the only point of importance in the case, that the plaintiff is bound to sell the land and apply the proceeds of the sale towards the payment of the note, before -he can maintain an action upon it against the defendants. If this position can be maintained, the plaintiff cannot recover, it being conceded that no such sale and application has been made. We are referred to 1 Rev. Stat., 749, §4, as upholding this position, and conclusively barring the plaintiffs’ right of recovery. This statute provides that whenever any real estate subject to a mortgage given by any ancestor or testator descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge said mortgage out of his own property—thus changing the common-law rule only as to a mortgage; but it does not refer to any other charge, incumbrance, or lien upon the land, legal or equitable. Even if this contract is to be regarded in the light of a lien upon the land, which could be enforced in equity, it does not bring this case within the statute. (Lamport a. Beeman, 34 Barb., 239.)
This statute does not in terms confine the mortgagor, for a recovery of his debt, to his remedy upon the mortgaged premises in the first instance; it only fixes the liability to pay the incumbrance, upon the heir or devisee, out of his own property, without resorting to the executor or administrator of his ancestor. It does not bar an action upon the bond until the mortgage has been foreclosed. As between the heir or devisee and the executor or administrator, the former must satisfy and dis
If I am correct, the evidence offered by the defendant was properly excluded, and the judgment should be affirmed, with costs.