Wright v. Holbrook

By the Court,

The plaintiff in his complaint demands judgment against the defendants as the legal representatives of Darius B. Holbrook, deceased, upon a promissory note for the sum of $8000 with interest at the rate of six per cent, alleging the note to he due and unpaid, and that the defendants having in their hands or under their control moneys and property of the deceased more than sufficient to pay the amount of said note and interest, and averring demand of payment. The defendants admit in their answer the allegations of the complaint; except that in relation to the sufficiency of assets. And further allege by way of defense: (1.) That the note was given for the price of certain lands in the state of Massachusetts. (2.) That by a certain agreement for the 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 the 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 *522agreement and the proceeds applied upon the note. That certain stock mentioned in the agreement was taken and held by the plaintiff as collateral to said note, and the plaintiff should account for the proceeds thereof and deduct the same from the amount of said note. Upon the trial of this action' the plaintiff made his case by putting in evidence the note, with a computation of interest, and rested his cause. The defendants’ counsel offered in evidence the agreement and other matters set up in the answer, tó 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, and the defendants appealed.

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 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 B. B. 749, § 4, as upholding this position and conclusively barring the plaintiff’s right of recovery. This statute provides that whenever any real estate subject to a mortgage given by any ancestor or testator shall 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 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 v. 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 *523not 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 discharge the mortgage out of his own property, unless there be an express direction in the will that it be otherwise paid. There is nothing in the statute to prevent the mortgage creditor proceeding by action upon his bond or foreclosing his mortgage as he shall see fit. It is sufficient to say that this is not the case of a mortgage, and the statute does not bar a recovery upon the note in question. If I am correct, the evidence offered by the defendants was properly excluded, and the judgment should be affirmed, with costs.