Harlem Co-operative Building & Loan Ass'n v. Freeburn

It is clear that the first two grounds of demurrer are not well taken. By carelessness, the draughtsman of the bill has used a printed blank, covering the prayers of the bill, which deals in the plural, with defendants to a bill, and has neglected to make the necessary alterations in it to make the prayers treat of a single defendant. It may be possible, for reasons hereafter appearing, that he considered Mrs. Freeburn a defendant in double capacity and therefore to be treated in the plural. However this may be, it is obvious, upon inspection of the bill, that the styling of defendants in the plural was a mistake which, including the single defendant, does not lead to any confusion. Within the plural defendants, the bill does pray a decree against the demurrant and that she may answer.

The third ground of demurrer, that Mrs. Freeburn should be made a party as executrix of her husband’s will, I also think is not well taken.

The personal representative of a deceased mortgagor, because *39by law the mortgage debt is primarily charged on the personal assets, need not be made a party to the foreclosure of the mortgage. If the heir desires the benefit of having the personal estate applied in exoneration of the real, he must enforce the right by filing a bill. Story Eq. Pl. §§ 175, 196; 1 Dan. Ch. Pr. 283; Duncombe v. Hansley,3 P. Wms. 333 n.; Bradshaw v. Outram, 13 Ves. 234. But the mortgagee need not look to the personal assets of the estate. He may proceed to foreclose the equity of'redemption in the mortgaged premises in which the heir alone is concerned. But it is urged that the executor, as the representative of the creditors of the mortgagor, should be made a party.

The argument is, that for a year after the death of the mortgagor his equity of redemption in the mortgaged premises is subject to the lien of his debts, in virtue of the statute (Den v. Hunt, 6 Halst. 1; Bockover v. Ayres, 7 C. E. Gr. 1; Haston v. Castner, 4 Stew. Eq. 697; Trimmer v. Todd, 7 Dick. Ch. Rep. 426), and, in this case, that the real estate is charged with the payment of debts by the will, because of its provision for their payment and the subsequent disposition of the residue of the estate as blended realty and personalty (Stevens v. Flower, 1 Dick. Ch. Rep. 340), and that this court will not proceed with the foreclosure suit until all existing encumbrancers, subsequent to the mortgage foreclosed, shall be made parties to the suit. Gould v. Wheeler, 1 Stew. Eq. 541; Vanderveer v. Holcomb, 2 C. E. Gr. 87.

The primary difficulty with this position, and a difficulty which precludes the necessity of discussing the propositions presented, is, that upon demurrer we are confined to the allegations of the bill which are to be taken as true, and that it does not appear among the allegations of the present bill that there will be a deficiency of personal assets to pay debts, or, in fact, that there are any debts to pay. It is true that the will contemplates debts, but it does not follow from that contemplation that there are, in fact, debts.

The complainant argues that the executrix is a party, because Emily F. Freeburn, against whom process is prayed, appears by *40the allegations of the bill to be both executrix and devisee, and, that appearing, she need not be styled in these several capacities in the. prayer for process; being brought into court in her proper name, she is there for all the purposes of the bill. It is true that she is in court for all the ends obviously sought by the bill. That is, she is in court as devisee, because, as such, she is the owner of the equity of redemption, but she is not there as executrix, because no allegation of the bill discloses a necessity for her being there in that character. As I have said, there is no charge of the existence of debts which the personalty will not satisfy, or of the existence of debts at all. The bill does not intimate a purpose to foreclose redemption by creditors, or by the executrix in their behalf.

Where the allegations of, and ends sought by, the bill show ground for a defendant, named asan individual in the prayer for process, being in court in a representative capacity, he or she will be regarded as being there in that capacity, but not otherwise. Evans v. Evans, 8 C. E. Gr. 71; Ransom v. Geer, 8 Stew. Eq. 249; Plaut v. Plaut, 17 Stew. Eq. 18; White v. Davis, 3 Dick. Ch. Rep. 22.

I will overrule the demurrer, with costs.