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fect, was that tne vendee should pay the ven- sumption of the debt, in the manner heretofore dor the sum of $3,000, and, in addition, should shown, this promise and liability is only collalassume and pay off his lien upon the land. eral. That, the debt being one not originally The price the vendee was to pay for the land contracted by him, bis liability, growing out of was the sum of $3,000, plus the lien debt. the promise to pay it, only makes it bis debt That this was the plain intent and meaning is with respect to the land, which continued to be most manifest from the fact that the covenant charged with the lien, and which was there. in the deed is not merely that he took the land fore the primary fund for its payment; and subject to the incumbrance, or that the vendor that the rule in equity in respect to incumbranwas to be indemnified against personal liability ces upon lands described is that, if the incumo account thereof; but that be expressly brance was not created by the ancestor, the agrees to assume and pay off the outstanding heir takes the land cum onere, and cannot call dotes for purchase money due from his grantor upon the personal estate to exonerate it; and to the vendor of the latter; and these notes, and that the rule is not affected by tbe fact that the their dates, and amounts, and payer, are pre- ancestor bas made himself personally liable, cisely described. To secure the grantor against unless there be something, in addition, indicatdefault either in the payment of the lien debt ing a clear intention that the personal estate thus assumed, or in the payments directly made shall be the primary fund for the payment of to him, an express lien is retained on the face the debt. of the deed accepted by the purchaser. This This presents a question concerning the marwas therefore not a promise to pay the debt sbaling of assets, wbich is altogether res integra of another, or to be answerable for the debt, in this State. It is a general rule at common default or miscarriage of another; but was a law, and in equity, that debts shall be primaripromise, rather, to pay his own debt 10 a third ly payable out of the personal estate, and that person designated by his creditor. That the the land sball only be subjected as auxiliary to intestate, by the acceptance of the deed con- the personalty. In this Siate, by statute, both taining this assumption of the lien debt, made the personalty and the lands of an intestate are bimself personally responsible to the creditor assets for payment of debts; but the latter canholding the lien, will not at this day admit of not be subjected until the former is exhausted. doubt. Cpon this subject, Mr. Pomeroy says: These principles are fundamental, and need po "The mortgagor may not only convey the elaboration. When, therefore, a creditor, premises 'subject to' ihe mortgage. He may whose debt is secured upon the land, elects to also convey them in such a manner that the go upon the latter, as he may, the heir will be grantee assumes the payment of the mortgage reimbursed out of the personalty. This is the debt, and thus renders bimself personally liable undisputed rule where the debt was the pertherefor. The element which lies at the bot- sonal debt of the intestate, and one originally tom of such assumption, and wbich alone gives created by him. In every such case the elecit efficacy, according to the theory held by some tion of the creditor to enforce his mortgage is courts, is the fact that the mortgage debt is in- not suffered to disappoint the heir; for, the cluded in the purchase price, as a constituent personalty being the primary fund for paypart thereof, and the grantee actually pays or ment of such debts, it must reimburse the heir secures to his grantor only the balance of the for the loss of the land, the latter being entigross price, after deducting such debt. Notled to exoneration. Therefore there is no room particular form of words is necessary to create for controversy. Neither can it be seriously a binding assumption. It is sufficient that the denied that in the case under consideration the language shows unequivocally an intent on the creditor could, at bis election, have recovered part of the grantee to assume the liability of the debt secured by him from the personal reppaying the mortgage debt; but this intent must resentative. But it is insisted that, if such a clearly appear. When the deed executed by creditor should, at his election, rely upon his the grantor contains a clause sufficiently show right to satisfaction out of the personalty, ing such an intent, the acceptance thereof by rather than pursue his remedy liy enforcement the grantee consummates the assumption, and of his lien, in that event the personal represencreates a personal liability on his part which tative could call upon the beir for reimburse. idures to the benefit of the morigagee, as ment, upon the ground that, as to the debt though he had himself executed the deed.” 3 thus paid, the land, as between the personal Pom. Eq. Jur. $ 1206.
representative and the heir, was the primary The person who thus assumes a mortgage on fund, and the personalty the auxiliary; in other lis debt becomes, as to the mortgagor or lienor, words, that the land must ease the nersonalty, the principal debtor, and the mortgagor a sure in case of debts of this character. The rule ty. Upon such a promise, the original vendor heretofore stated as to the primary liability of could have maintained an action at law. Moore the personalty to the payment of the debts of 1. Stovall, 2 Lea, 543.
an intestate is likewise the general rule as to This is upon the ground that the original the payment of legacies and of the debts of a vendor, in adopting the act of the vendee for testator. But this is a mere rule for the deterhis benefit, is brought into privity with the mination as between those to whom the land promisor, and may enforce the promise as if it may be devised and those to whom the person. were made directly to him. Lawrence v. For, alty may be bequeathed, when the testator has BO N. Y. 268; Burr v. Beers, 24 N. Y. 178; made no other direction as to which shall be Thompson v. Bertram, 14 Iowa, 476; Thompson the fund primarily liable. The testator may, 1. Thompson, 4 Ohio St. 333.
undoubtedly, entirely or partially change the But it is insisted that if it be admitted that natural order of liability, either by express the intestate had made himself personally liable words or by a plain indication of such intenn the owner of the incumbrance for the as. tion,
It bas been lamented by a long line of judges | decisions makes it exceedingly difficult to erthat the rule governing the construction of tract any distinct rule by which it may be de wills had not been that nothing but “express termined when a purchaser has so manifested words” would be held suíficient to alter the bis intention to adopt the debt as to take a par course and order of the law concerning the ticular case out of the general rule, whick. primary liability of the personalty to pay both makes the realty the primary fund for the praydebts and legacies. Duke of Ancister v. Mayer, ment of an incumbrance existing upon lands 1 Lead. Cas. Eq. 4th Am. ed. 892.
purchased by a decedent. By all the cases it The question here presented is not arising is held that a mere dry covenant, by wbich the under a will claimed to alter the natural order purchaser agrees to indemnify his vendor of liability, for there is no will. But it is, against an incumbrance, is insufficient. Cuirnevertheless, an analogous question, the alter- verland v. Codrington, 3 Johns. Ch. 229. ation of the usual order of liability arising, it This case presented no other question, the is claimed, from acts in pais of the testator, learned judge distinctly stating that in the deed whereby the land, and not the personalty, is conveying the incumbered estate there was the privary fund for the payment of this debt. only a naked and dry covenant of indemnity. It may be here premised that the doctrine here Id. 251. invoked arises only where the testator or intes- All that is said in the case as to the rule un tate has acquired, by purchase or otherwise, der any other circumstances is nothing but dicta. lands which at the time were subject to mort. So there are cases holding that when lunds are gage or other incumbrance. The incumbrance purchased subject to a mortgage, and the ven being for a debt not originally created by the dor enters into boud at the time, or subsequent purchaser, be is generally presumed not to in- ly, to pay off the incumbrance, this alone, with tend to subject his personal estate as the out other circumstances, will not be regarded primary fund for its payment, but, rather, to as a sufficient demonstration of his intention to intend that the land sball discharge the bur- make it his personal debt, with respect to the den.
fund primarily liable for its payment. But This doctrine, as stated by Chancellor Kent, linghurst v. Walker, 2 Bro. Cb. 604; Evelyn v. is this: “When a man,” says he, “gives a bond Erelyn, 2 P. Wms. 664, and a number of viber and mortgage for a debt of his own contract- cases cited in the very full note of Mr. Cox to ing, the mortgage is understood to be merely a the case last cited. collateral security for the personal obligation. These cases proceed upon the notion that the But when a map purchases, or bas devised to assumption of the incumbrance was only by bim, land with an incumbrance on it, he be- way of collateral security, the land remaining comes a debtor only in respect to the land; the principal debtor and primary fund for its but, if he promises to pay it, it is a promise, payment. Very slight circumstances low. rather, on account of the land, which contin ever, will, it seems, suflice to take a case ot the ues, notwithstanding, in many cases, to be the latter class out of the rule; as, for instanca, in primary fund. The same equity which in the case of Earl of Oxford v. Lady Rodney. 14 other cases makes the personal estate contrib. Ves. Jr. 418, where the purchaser of the equity ute to ease the land, as between the real and of redemption at the same time covenanted personal representatives, will here make the with the mortgagor to pay his debt, and agreed land relieve the personal estates. There is,” upon new terms and conditions of payment. says be, “ good sense and justice in the princi. This was held to distinguish the case from ple; and I feel the force of the doctrine ibat it Troeddell v. Tveddell, 2 Bro. Ch. 101, and to requires very strong and decided proof of in. make the personal estate primarily liable. tention before the court can undertake to shift Waring v. Ward, opinion by Lord Eldon, the natural course and order of obligation be- presents another case where slight circumtween the two estates." Cumberland v. Cod- stances, in addition to a covenant to pay, were rington, 3 Jobns. Ch. 257.
held enough to make the debt the personal The doctrine just quoted is the deduction of debt of the vendee. 7 Ves. Jr. 336. See also the learned chancellor after reviewing the Eng. Woods v. Huntingford, 3 Ves. Jr. 128. lish equity cases, though in other points of Another rule may be deduced from the de his opinion he recognizes certain important cided cases with a good deal of certainty, which distinctions and qualitications, which will here is this: That when the incumbrance is assumed after be noticed. See also Story, Eq. Jur. 571- as a part of the purchase price, and the vevdee 577, 1248 et seq.
makes himself, in any way, directly liable to The American editors of White & Tudor's the creditor for the amount of the incumLeading Cases in Equity thus sum up the doc. brance, in such case the personal estate is the trine: "The weight of authority would there primary fund for the payment of the incum. fore seem to be that the personal estate is not brance. To satisfactorily show the ground primarily liable, unless the testator has not upon which this conclusion is reached, it bemerely made bimself answerable for the pay comes necessary to briefly consider some of the ment of the mortgage, but has made the debt adjudged cases. directly and absolutely his own; or has in Tweddell v. Tveddell is termed a leading case, some other way manifested an intention to and is certainly the most extreme of the many throw the burden on the personalty in case of cases touching upon the doctrine. That case the land." Volume 1, pt. 2, p. 926 (4th ed.). was this: An estate was purchased subject to a
The question in all the cases has been wheth. mortgage. The purchaser covenanted to diser or not the facts and circumstances showed charge the mortgage debt, and to indemnify such an adoption of the debt as to make the the vendor, and to pay the agreed purchase personally the primary fund for its payment. price, less amount of the mortgage, to the vendA careful examination of the reported English or. Lord Thurlow beld the land the primary
fund, and refused to exonerate it, on bill of the against the mortgage. The briefs of counsel beir, out of the personal estate. Now, that admit that the vendee had not made himself case, in all of its particulars, is like the one personally liable to the mortgagee by a mere under consideration, and it might be well as covenant of indemnity, and tbe decisiou was sumed to be a very commanding authority. put upon the ground that he had not made But the reasoning of the learned judge, when himself personally liable. 5 Ves. Jr. 534. examined, shows most conclusively it is not, The case of Billinghurst v. Walker, 2 Bro. in view of our own decisions as to the effect of Ch. 604, was this: A rectory, subject to a a covenant to pay the incumbrance as a part charge, was devised. The devisee subsequently of ibe purchase price, of any weight whatever. assigned the devised estate, and executed bis He put bis decision distinctly upon the grounds bond to the person in whose favor the charge that the personal estate is not chargeable in was, to pay interest during his life, and that equity when it is not at law, saying: “The his executor and beirs should pay off the prinland was the original debtor, and the mortcipal within three months after his death. The gagee could not bring his action against the bearing this case has upon the one at bar is not executor of any other party, but njerely against on account of its facts, or of the decision, but the original debtor." He proceeds: “Where for the reasoning of Lord Thurlow as to what it is a debt payable by executors at law, this facts and circumstances would show such an court will relieve the heir by turning the charge adoption of an assumed debt as to make the upon the executors, provided it does not inter- personalty the primary fund for its discharge. fere with other debts and legacies, or any more Lord Thurlow said: “I agree that, if the testasubstantial claims." 2 Bro. Ch. 101,
tor bas shown an intent to take the debt upon Upon the reasons of the chancellor, the de himself, it will become his debt; but here the crec sbould have been the other way, for the old security remained, and he merely gave a creditor clearly could bave maintained a direct collateral security. If there was anything in action at law agaiust the vendee. Chancellor the marriage contract which bound him to Kent bimself questioned this case, suggesting exonerate this estate from the debt, it would that the rule was not applicable in that case, become his personal debt; but there is nothing saying: “When the indentures between the in the contract like that. Where a man trans. mortgagor and purchaser recited an agreement fers a mortgage, which is not his own debt, his by which A bad agreed to pay out of the pur- executing a bond as a collateral security does chase money, to the son and beir of the mort- pot vary the nature of the charge. It is only a gagee, the principal and interest due on the necessary act in the transfer. I do not mean mortgage, being 2,155 pounds, and the residue that it does not make him liable personally to of the purchase money, being 1,315 pounds, the creditor, but it does not throw the charge to the mortgagor, it might be a question wheth- on his personal estate. Nothing passed here er the son and heir could not bave sued at law to vary the charge. All the cases of sale have for that money, as so much received for his turned upon this,—whether the charge was
It has been held that if one person makes considered as part of the price. The mere pura promise to another, for the benefit of a third chase of an estate, subject to charges, as an person, that third person may maintain an ac-equity of redemption, does not make the pertion at law on that promise.” 3 Johns. Ch. sonal estate of the purchaser liable to the 254.
charge; but, if the charge is part of the price, That an action at law would lie on such a then the personal estate is liable.” This clear promise bas been expressly decided in this announcement, that “if the charge is part of State. Moore v. Stovall, 2 Lea, 545.
the price” the personal estate is liable, is but an This case, in the subsequent case of Woods announcement of the rule as stated by the EngV. Huntingford, 3 Ves. Jr. 128, was commented lish editors of Leading Cases in Equity, vol. 1, on by Lord Alvanley as follows: "Treddell v. pl. 2, p. 904, citing Cope v. Cope, 2 Salk. 449, Troeddell amounts only to this: That where a and Belridere v. Rochfort, decided by House of man buys subject to a mortgage, and bas no Lords, Wallis, 45–52, 5 Bro. P. C. 209. connection, or contract, or communication with The case of Cope v. Cope is not accessible. the mortgagee, and does no ober act to show But the case of Belridere v. Roch fort, having an intention to transfer that debt from the es- been decided by the bighest English court, and tate to himself, as between his beir and execu- before the independence of these United States, tor, but merely that which he must do if he is one of very high authority. Tbe case is one pays a less price in consequence of that mort- of a sale of premises subject to a mortgage, the gage,—that is, indemnifies the vendor against deed stating that the mortgage debt and interit, -he does not by that act take the debi upon est were to be paid and discharged by the pur. himself personally." Again, he says: “There chaser out of the consideration agreed to be was no communication with the mortgagee, paid. On the back of the deed was indorsed a but upon the sale there was a mere covenant receipt for the £800 paid as a consideration, in of indemnity against the mortgage by the ven this manner, viz.: "450 pounds on the perfecdee.” This case, thus limited, and the facts tion of the deed, and 450 pounds allowed on changed from those stated in the report of the account of the mortgage. The purchaser, case, becomes a sound opinion, but is no au- Lord Rochfort, died, never having paid the thority for the contention of the administratrix; mortgage debt. By his will, he devised the and its reasoning is altogether against the rule mortgaged estate. The devisee, upon bill filed, involved.
obtained a decree that the mortgage should be The case of Butler v. Butler was decided in paid by the personal representative. This de 1800. It was a case of a purchase of a mort. cree was atlirmed by the House of Lords. Angaged estate, the vendee merely covenanting other case directly in point, and of the same with his vendor that he would indemnify him high authority, because decided long before
our independence, is that of Parsons v. Free price would be just as decidedly the personal
by which an incumbrance is held to be prima-
So, under the English Act of 1854, declaring paid all the debts, except about $10,000 and mortgaged land in all cases the primary fund some interest; and the balance of the personal for the discharge of such mortgages, unless the estate is merely dominal, having no market decedent, by will, expressly declared other-value. The defendants have realized over wise, it was held not to make a vendor's lien a $200,000 in cash from the real estate, and will primary charge upon the land. Hood v. Hood, realize $50,000 more. At the time of said 26 L. J. N. S. Cb. 616; Barnwell v. Iremanger, O'Conner's death three parcels of his real estate 1 Drew. & S. 255. The Act was subsequently were incumbered with purchase-money liens, amended so as to include such liens.
as follows: first, Sanborn lot, about $1,100; A debt created for purchase money of land second, the Moffatt farm, about $5,000; third, pot, therefore, being within the rule contended the one-half interest in the Williams McKinney for, it would seem to follow, without discussion, place, about $13,000. About $10,000 of the that a debt assumed as a part of the purchase lien upon the third purchase was resting upon
it at the time O'Conner purchased it, and was the purchaser's liability merely secondary, and for purchase money due from O'Conner's vend the real estate—the burden bearer—primarily ors to Samuel McKinney, from whom said liable for the discharge of the incumbrance. vendors bad purchased it. The $3,000 was We refer to the able and exbaustive opinion of the amount which said O'Conner owed his Chancellor Kent in Cumberland v. Codrington, vendors upon this purchase, who conveyed the 3 Johns. Ch. 252 et seq., in which be collects interest held to O'Conner, retaining in the deed and reviews the English adjudged cases bear. a lien for the payment of the $3,000, also a re ing on this question during a period of more citation that said O'Conner assumed and agreed than a century. to pay the $10,000 incumbered on the land to The most distinguished law-writers in EngMcKinney. O'Conner accepted the deed, and land coneur with Chancellor Kent in the result went into possession. The other liens were for reached by him in his review of the cases. Mr. purchase money due direct by said O'Conner Spence says: “The rule” (the one making perto his vendors, and said liens were retained in sonalty the primary fund) “only applies to those the deeds conveying bim said real estate. The debts wbich were properly the debts of the tesadministratris did not pay off said liens out of tator. In all other cases, where the real estate the personal estate, but the liepholders fore- was the original debtor, and came to the posclosed them by sale of the property, and the sessor as such, it must continue to bear the proceeds of the sales were applied in discharge burthen. Even though testator, when he purof said liens. The beirs demand that the ad- chased the estate, entered into a collateral con. ministratrix shall reimburse them to the extent tract or covenant, or gave a security for pay. that proceeds of said lands were applied to the ment of the debt, the estate burthened must discharge of said liens,” etc. The chancellor first be resorted to.” 2 Spence, Eq. Jur. 335. decreed that the administratrix was bound to Mr.Powell.on Mortgages, says: “A purchases reimburse said heirs this money out of the per- an estate subject to a mortgage, and covenants sonal estate, and rendered judgment against with the mortgagee to discharge the same. A's her for about $24,000, and all the costs of the personal estate is not liable to exonerate the several causes in which said liens were en- land purchased”. (this author, continuivg, in forced. The complainant has brought the the same connection adds), “the personal estate case bere, and has assigned three errors to the not having received any addition io its funds action of the court below. Complainant's sec- by reason of the mortgage.” ond assignment of error is: “The $10,000 pur. These citations from Powell and Spence are chase money due from O'Conner's vendors to approved by Sir William Grant in Hanox v. McKinney was a primary liability resting up Abbey, 11 Ves. Jr. 179. on the land; and that O'Conner's understanding It will be noted, these two eminent masters es to said incumbrance was merely secondary; of the law go further than the case in hand. and, as between the heirs and personal repre- It does not appear from the record that the insentatives, bis personal estate is not liable. testate gave any bond, covenant or other obli
This precise question has not beretofore been gation to the incumbrancer, McKinney, to disbefore this court, and is particularly an open charge bis debt. one in Tennessee. Our code system for ad- Williams, on Executors, says: “Again, if a ministering estates of decedents does not pro- man buys an estate subject to an existing mortvide for the state of facts presented by this as- gage, the lands remain the proper fund for its signed error. We have the opportunity of discharge, and the heir or devisee cannot throw determining this question under the light of the debt upon the personalty, as the primary ad judged cases in courts of last resort, and fund for its payment.” 2 Williams, Exrs. 1535, gaining from them whatever of wisdom they 1536; 2 Roper, Legacies, 957, 958; 3 Jarm. may afford. The Chancery Court of England, Wills, 477; Adams, Eq. 529. more than two centuries ago, held, where one 2 Redfield, on Wills (p. 878), after stating the acquired real estate already incumbered, if he rule making the realty, incumbered when acdid no more than assume or undertake to dis. quired, the primary fund for its payment, says: charge it, as between himself and his vendor, "In order to make the purchaser's personalty that the real estate so acquired contained the primarily liable, the purchaser must by conprimary fund for its payment, and the personal tract make himself personally liable, and directliability of the purchaser was auxiliary, merely. ly liable, to the owner of the incumbrance; and This proposition received the approval of its even a covenant or bond for the purpose will finest judicial minds, and was never questioned not be sufficient, unless accompanied with cirby them. Some uncertainty and collision in cumstances showing a decided intention to the adjudication of the English High Court of make it thereby personally his own. This rule Chancery came in when it was attempted to prevails in most of the States of this Union. determine what amount of contracting with Only three bave attempted to vindicate a difthe owner of incumbrance by the purchaser ferent rule, and in those three States there is no would make his (purchaser's) personal liability separate chancery court." Coudert v. Coudert, primary, and not secondary. Some of the decided in 1887, and reported in 43 N. J. Eq. judges held that the last purchaser or taker en- 407, 4 Cent. Rep. 132, is to the same effect. iered into a contract with the prior incum. See also Mount v. Van Ness, 33 N. J. Eq. 264; brancer, and bound himself to discharge it; or, Sutherland v. Harrison, 86 III. 366; Birst's if the incumbrance was deducted from the gross App. 92 Pa. 494; Bisph. Eq. $ 348; 3 Pom. Eq. price,-at which price be purchased,—then bis Jur. 1206; Story, Eq. Jur. $$ 574-576, 1248, liability was primary. But, though the last 1248e; 2 Lomax, Exrs. 413; 1 Lead. Cas, in Eq. proposition was supported by many fine law- pt. 2, p. 922. yers, the weight of the adjudged cases in Eng. In the case in hand, the intestate had no neland was against it. The better opinion beld I gotiations with the owner of the incumbrance