is paid off, as between his heir and personal 38; Gawler v. Wade, 1 P. Wms. 99; Warren representative, in a court of equity, the land v. Stawell, 2 Atk. 125; Galton v. Hancock, Id. itself is the primary fund for the payment of 438; Pom. Spec. Perf. § 488. said lien, and the promise of the decedent to pay the lien is a mere collateral security.

Cumberland v. Codrington, 3 Johns. Ch. 252; Mc Learn v. Wallace, 35 U. S. 10 Pet. 625 (9 L. ed. 558); 1 Story, Eq. Jur., § 574-576; 2 Story, Eq. Jur. § 1248 and note, SS 1248a, 12486, 1248c, 1248d, 1248e; Duke of Ancaster v. Mayer, 1 Lead. Cas. in Eq. 922, note; 2 Sharsw. Bl. 512, note 27; Snyder v. Summers, 1 Lea, 541. As between the heir and personal representative in a court of equity all purchase-money liens resting on the ancestor's lands at the time of his death are a primary charge on such lands, and not on his personal estate, because the liens were created for the benefit of the real and not the personal estate.

McLearn v. Wallace, 35 U. S. 10 Pet. 644 (9 L. ed. 566), and cases cited; Waring v. Ward, 7 Ves. Jr. 334; 2 Washb. Real Prop. 4th ed. 566, top p. 197; 1 Sharsw. Bl. bk. II, 512, 157; Masson v. Swan, 6 Heisk. 457; Franklin v. Armfield, 2 Sneed, 356.

Lurton, J., delivered the opinion of the court:

Thomas O'Conner died in 1882, intestate, and without issue, leaving a large real and personal estate. Under the Statute of Descents and Distributions, his widow, who is likewise his administratrix, is his sole distributee, and entitled, after payment of his debts, to his entire personal estate. The heirs at law, to whom the real estate descends, are the brothers and sisters of the intestate, and the representatives of such as are dead. Thus the heirs and distributees are not the same persons, and the fact has given rise to a controversy as to whether the personal estate is, in equity, the primary fund for the discharge of certain incumbrances upon lands of the intestate. The parties in interest have submitted to the chancery court an agreed case, as provided by the Statute, and from the decree of the chancellor the administratrix has appealed.

Mr. R. N. Hood, for appellees: The agreed case shows, first, that at the time That the personal estate is liable to exoner-intestate acquired one of the tracts of land ate the real estate from payment of sums as- which he owned at his death it was subject to sumed by decedent as part of the purchase a vendor's lien to secure certain purchase-money price, is established by the fact that in suits to notes made by the immediate vendor of Mr. enforce the vendor's lien, etc., the personal O'Conner; that Mr. O'Conner, as a part of the representative is a proper party. consideration for the purchase, expressly assumed and agreed to pay off the incumbrance, and to pay to his immediate vendor an additional sum of $3,000. This agreement was contained in the deed to O'Conner; and, to se

Townsend v. Champernowne, 9 Price, 130; Story, Eq. Pl. §§ 160, 174-177; Knight v. Knight, 3 P. Wms. 333; Smith v. Hibbard, 2 Dick. 730; Mitf. Eq. Pl. 176; Cooper, Eq. Pl.

grantee the sole debtor. Brown v. Kirk, 3 West. brance, binds him as effectually as though the deed Rep. 762, 20 Mo. App. 524.

A mortgagee has a right to proceed in equity against one who has assumed and agreed to pay his mortgage. Burr v. Beers, 24 N. Y. 178. See Garnsey v. Rogers, 47 N. Y. 236; Trotter v. Hughes, 12 N. Y. 74; Russell v. Pistor, 7 N. Y. 171; Cornell v. Prescott, 2 Barb. 16; Marsh v. Pike, 10 Paige, 597; King v. Whitely, 10 Paige, 465; Halsey v. Reed, 9 Paige, 446; Curtis v. Tyler, 9 Paige, 432. See also note to Gifford v. Corrigan, 6 L. R. A. 610.

The word "assumes" imposes a liability on the grantee. Schley v. Fryer, 1 Cent. Rep. 5, 6, 100 N. Y. 71; Braman v. Dowse, 12 Cush. 227; Drury v. Tremont Imp. Co. 13 Allen, 168; Locke v. Homer, 131 Mass. 93; Stout v. Folger, 34 Iowa, 71; Sparkman v. Gove, 44 N. J. L. 252.

The element which lies at the bottom of such assumption is the fact that the mortgage debt is included in the purchase price, as a constituent part thereof, and the grantee actually pays or secures to his grantor only the balance of the gross price after deducting such debt. It is sufficient that the language shows unequivocally an intent on the part of the grantee to assume the liability of paying the mortgage debt, which intent must clearly appear. Strong v. Converse, 8 Allen, 557; Drury v. Tremont Improvement Co. 13 Allen, 168, 171; Weed Sewing Machine Co. v. Emerson, 115 Mass. 554; Trotter v. Hughes, 12 N. Y. 74; Belmont v. Coman, 22 N. Y. 438; Binsse v. Paige, 1 Abb. App. Dec. 138; Collins v. Rowe, 1 Abb. N. C. 97; Stebbins v. Hall, 29 Barb. 524; Miller v. Thompson, 34 Mich. 10; Fowler v. Fay, 62 Ill. 375; Dunn v. Rodgers, 43 Ill. 260; Comstock v. Hitt, 37 Ill. 542, 546; Hull v. Alexander, 26 Iowa, 569; Johnson v. Monell, 13 Iowa, 300; Bumgardner v. Allen, 6 Munf. 439; 3 Pom. Eq. Jur. 191.

had been inter partes, and had been executed by both grantor and grantee. Curtis v. Tyler, 9 Paige, 432; Halsey v. Reed, 9 Paige, 446; King v. Whitely, 10 Paige, 465; Thompson v. Bertram, 14 Towa, 476; Corbett v. Waterman, 11 Iowa, 86; Miller v. Thompson, 34 Mich. 10; Crawford v. Edwards, 33 Mich. 354; Huyler v. Atwood, 26 N. J. Eq. 504; Trotter v. Hughes, 12 N. Y. 74; Burr v. Beers, 24 N. Y. 178; Spaulding v. Hallenbeck, 35 N. Y. 204; Ricard v. Sanderson, 41 N. Y. 179; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; Lennig's Estate, 52 Pa. 135; Hoff's App. 24 Pa. 200; Converse v. Cook, 8 Vt. 164; Bishop v. Douglass, 25 Wis. 696.

A purchaser of premises, agreeing to pay an outstanding purchase-money mortgage, is estopped to deny its validity, and cannot, while in possession, defend against the mortgage because of failure of title. McConihe v. Fales, 10 Cent. Rep. 232, 107 N. Y. 404.

Where a purchaser of an equity of redemption takes it subject to the mortgage, which he agrees to pay as part of the consideration of his purchase, he will be held personally liable to the mortgagee, and will be regarded as the principal debtor, the mortgagor standing as his surety. Flagg v. Munger, 9 N. Y. 499; Blyer v. Monholland, 2 Sandf. Ch. 480; Marsh v. Pike, 10 Paige, 595; Ferris v. Crawford, 2 Denio, 595; Cornell v. Prescott, 2 Barb. 16.

The mortgagee is entitled to the benefit of the agreement made by such purchaser. Higman v. Stewart, 38 Mich. 523.

As between the original parties, the promise by the grantee to the grantor is not collateral, but primary, and, in equity, the grantee is held to be the principal debtor, and the grantor the surety. Huyler v. Atwood, 26 N. J. Eq. 506; Klapworth v. The acceptance of a conveyance, containing a Dressler, 13 N. J. Eq. 63; Jarman v. Wiswall, 24 N. statement that the grantee is to pay off an incum-J. Eq. 269; note to Boone v. Clark, 5 L. R. A. 276.

O'CONNER V. O CONNER.

35

or lien, not created by the intestate, which was lands descend subject to a charge, or mortgage, It may be, at the outset, admitted that where never his personal debt, or one for which he could have been held personally liable by the creator, the heir, in such case, would take the land subject to the incumbrance, and could not call upon the personal estate to have his lands exonerated from the burden. This would follow for the obvious reason that the incumbrance was never the debt of the intestate, and his administrator could not therefore be called upon to discharge it.

cure the payment of both sums, a lien was re- | but one assumed by him as a part of the contained on the face thereof. Notes were execut-sideration to be paid for the land, when there ed and delivered for the sum to be paid his has been no communication between the intesimmediate vendor; but there was no substitu- tate and original vendor, to whom the debt tion of intestate's notes for those of the seller, thus assumed was due? The second question and no communication whatever between Mr. is whether a debt created by the intestate for O'Conner and the creditor. At Mr. O'Conner's the purchase of land is, as between the disdeath no part of the purchase money due on tributee and heirs, a primary charge on the this tract of land had been paid,-neither that personal estate, or do the heirs take the land which was due directly to his immediate vend- cum onere? or, nor that which he had assumed and engaged to pay for his vendor. original purchase money, as well as that due The lien of the immediately from intestate to his vendor, was subsequently enforced in a suit against the heirs to whom the incumbered land had descended, to which the administratrix of O'Conner was not a party, and these incumbrances have been paid by a sale of the land. The heirs now ask to have the sums thus enforced against the lands reimbursed out of the person al estate of the intestate, which, it is admitted, is sufficient for this purpose. A second tract which descended to the heirs was incumbered with a lien to secure purchase-money can reach a solution of the first question, is to The first matter to be determined, before we notes made by the intestate. This lien has decide whether the intestate bad made himself been likewise enforced under a bill against the personally responsible for the incumbrance. heirs, and the land sold for its satisfaction; and The agreed case states that in the deed acceptfor this sum they likewise seek reimbursement ed by the intestate there was a clause whereby out of the personalty. from these facts: First. Is the personal estate money, and agreed to pay the same. Two questions arise the vendee assumed the unpaid purchase the primary fund, as between the distributees true, this promise or assumption is not made and the heirs, for the satisfaction of a lien, or directly to the creditor, but only to the vendor, It is charges upon the lands, at the time they were who was the debtor. The payment of this inacquired by the intestate; the lien not being to cumbrance was, however, a part of the considsecure a debt originally created by the intestate,eration for the land. The undertaking, in ef

If a grantee in purchasing part of the mortgaged | Head, 128; Sitz v. Deihl, 55 Mo. 17; Seitz v. Union premises assumes payment of part of the mortgage he becomes personally and primarily liable only for such part. Snyder v. Robinson, 35 Ind. 311; 3 Pom. Eq. Jur. 194.

Where an owner conveys a part to one who assumes a mortgage on the whole tract, and subsequently said owner conveys the remainder thereof to a third party, and the mortgage is foreclosed and the said remainder of the tract is sold in the foreclosure action, the grantee of such remainder can recover damages from the grantee who assumed the mortgage. Wilcox v. Campbell, 8 Cent. Rep. 687, 106 N. Y. 325.

Purchaser of mortgaged land liable for mortgage debt. See note to Boone v. Clark, 5 L. R. A. 276. Remedies of mortgagee. & St. L. R. Co. 1 L. R. A. 366, 121 Pa. 467. Knoll v. N. Y. Chicago Remedies after default. Gifford v.Corrigan, (N.Y.) 6 L. R. A. 610.

Vendor's lien, enforcement of.

The lien of the vendor is only another mode of expressing his equitable interest; and so far as it has any distinctive signification, it simply means his right of enforcing his claim for the purchase money against or out of the vendee's equitable estate, by means of a suit in equity. Lewis v. Hawkins, 90 U. S. 23 Wall. 119 (23 L. ed. 113); Lingan v. Henderson, 1 Bland, Ch. 236; Tuck v. Calvert, 33 Md. 209; Richards v. Fisher, 8 W. Va. 55; Hadley v. Nash, 69 N. C. 162; Harvill v. Lowe, 47 Ga. 214: Scroggins v. Hoadley, 56 Ga. 165; Relfe v. Relfe, 34 Ala. 500, 504; Shinn v. Taylor, 28 Ark. 523; Lewis v. Boskins, 27 Ark. 61; Holman v. Patterson, 29 Ark. 857; Cochran v. Wimberly, 44 Miss. 503; Money v. Dorsey, 7 Smedes & M. 15, 22; Taylor v. Eckford, 11 Smedes & M. 21; Roberts v. Francis, 2 Heisk. 127; Carter v. Sims, 2 Heisk. 166; Cleveland v. Martin, 2 7 L. R. A.

Pac. R. Co. 16 Kan. 133; Smith v. Moore, 26 Ill. 392;
Greene v. Cook, 29 Ill. 190, 58 Ill. 338; Grove v. Miles,
71 Ill. 376; Button v. Schroyer, 5 Wis. 598; Merritt v.
Eq. Jur. 272.
Judd, 14 Cal. 59; Purdy v. Bullard, 41 Cal. 444; 3 Pom.

grantor upon an actual conveyance of the land
It is an equitable lien arising in favor of the
where the purchase price in whole or in part is left
unpaid. Bizzell v. Nix, 60 Ala. 281; Neel v. Clay, 48
Ala. 252; Johnson v. Nunnerly, 30 Ark. 153; Hill v.
Grigsby, 32 Cal. 55; Armory v. Reilly, 9 Ind. 490;
Stevens v. Chadwick, 10 Kan. 406; Smith v. Row-
wout v. Murphy, 22 N. J. Eq. 531; Servis v. Beatty,
land, 13 Kan. 245; Hall v. Jones, 21 Md. 439; Haugh-
Yancey v. Mauck, 15 Gratt. 300; English v. Russell,
32 Miss. 52; Whitehurst v. Yandall, 7 Baxt. 228;
1 Hempst. 35; Smith v. Evans, 28 Beav. 59.

It is not even, in strictness, an equitable lien
until declared and established by judicial decree.
Gilman v. Brown, 1 Mason, 191: Hutton v. Moore,
Moore v. Anders, 14 Ark. 6:28, 634.
26 Ark. 382; Campbell v. Rankin, 28 Ark. 401, 400,

sort to equity in the first instance to enforce it,
The lien of the vendor is in rem, and he may re-
without first resorting to a suit at law to recover
the amount due. Vail v. Drexel, 9 Ill. App. 439;
Ark. 628, 634; Hutton v. Moore, 26 Ark. 382; Pitts v.
McCaslin v. State, 44 Ind. 151; Moore v. Anders, 14.
Parker, 44 Miss. 247; Wells v. Smith, Id. 296; Driver
Hines v. Perkins, 2 Heisk. 395; Sparks v. Hess, 15
v. Hudspeth, 16 Ala. 348; Reese v. Burts, 39 Ga. 565;
Cal. 186, 194; Church v. Smith, 39 Wis. 492, 496.

signed, the assignee may not only enforce the lien
Where a note for purchase money has been as-
against the vendee, but may have appropriate re-
lief against the vendor-assignor. Church v. Smith,
39 Wis. 492.

sumption of the debt, in the manner heretofore shown, this promise and liability is only collateral. That, the debt being one not originally contracted by him, his liability, growing out of the promise to pay it, only makes it his debt with respect to the land, which continued to be charged with the lien, and which was therefore the primary fund for its payment; and that the rule in equity in respect to incumbrances upon lands described is that, if the incumbrance was not created by the ancestor, the heir takes the land cum onere, and cannot call upon the personal estate to exonerate it; and that the rule is not affected by the fact that the ancestor has made himself personally liable, unless there be something, in addition, indicating a clear intention that the personal estate shall be the primary fund for the payment of the debt.

fect, was that tne vendee should pay the vendor the sum of $3,000, and, in addition, should assume and pay off his lien upon the land. The price the vendee was to pay for the land was the sum of $3,000, plus the lien debt. That this was the plain intent and meaning is most manifest from the fact that the covenant in the deed is not merely that he took the land subject to the incumbrance, or that the vendor was to be indemnified against personal liability 00 account thereof; but that he expressly agrees to assume and pay off the outstanding notes for purchase money due from his grantor to the vendor of the latter; and these notes, and their dates, and amounts, and payer, are precisely described. To secure the grantor against default either in the payment of the lien debt thus assumed, or in the payments directly made to him, an express lien is retained on the face of the deed accepted by the purchaser. This This presents a question concerning the marwas therefore not a promise to pay the debt shaling of assets, which 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 to a third ly payable out of the personal estate, and that person designated by his creditor. That the the land shall only be subjected as auxiliary to intestate, by the acceptance of the deed con- the personalty. In this State, 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. Upon this subject, Mr. Pomeroy says: These principles are fundamental, and need no "The mortgagor may not only convey the elaboration. When, therefore, a creditor, premises 'subject to' the 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 himself 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 which 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 pagpart 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. No tled 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 his 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 the grantee consummates the assumption, and creates a personal liability on his part which inures to the benefit of the mortgagee, as though he had himself executed the deed." 3 Pom. Eq. Jur. § 1206.

The person who thus assumes a mortgage on his debt becomes, as to the mortgagor or lienor, the principal debtor, and the mortgagor a surety. Upon such a promise, the original vendor could have maintained an action at law. Moore 7. Stovall, 2 Lea, 543.

This is upon the ground that the original vendor, in adopting the act of the vendee for his benefit, is brought into privity with the promisor, and may enforce the promise as if it were made directly to him. Lawrence v. Fox, 80 N. Y. 268; Burr v. Bcers, 24 N. Y. 178; Thompson v. Bertram, 14 Iowa, 476; Thompson . Thompson, 4 Ohio St. 333.

But it is insisted that if it be admitted that the intestate had made himself personally liable the owner of the incumbrance for the as

rather than pursue his remedy by enforcement of his lien, in that event the personal representative could call upon the heir for reimbursement, upon the ground that, as to the debt thus paid, the land, as between the personal representative and the heir, was the primary fund, and the personalty the auxiliary; in other words, that the land must ease the personalty, in case of debts of this character. The rule heretofore stated as to the primary liability of the personalty to the payment of the debts of an intestate is likewise the general rule as to the payment of legacies and of the debts of a testator. But this is a mere rule for the determination as between those to whom the land may be devised and those to whom the personalty may be bequeathed, when the testator has made no other direction as to which shall be the fund primarily liable. The testator may, undoubtedly, entirely or partially change the natural order of liability, either by express words or by a plain indication of such intention.

It has been lamented by a long line of judges | decisions makes it exceedingly difficult to exthat 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 sufficient to alter the his intention to adopt the debt as to take a parcourse and order of the law concerning the ticular case out of the general rule, which primary liability of the personalty to pay both makes the realty the primary fund for the paydebts and legacies. Duke of Ancaster 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 is held that a mere dry covenant, by which the purchaser agrees to indemnity his vendor against an incumbrance, is insufficient. Cum

This case presented no other question, the learned judge distinctly stating that in the deed conveying the incumbered estate there was only a naked and dry covenant of indemnity. Id. 254.

The question here presented is not arising under a will claimed to alter the natural order of liability, for there is no will. But it is, nevertheless, an analogous question, the alter-berland v. Codrington, 3 Johns. Ch. 229. ation of the usual order of liability arising, it is claimed, from acts in pais of the testator, whereby the land, and not the personalty, is the primary fund for the payment of this debt. It may be here premised that the doctrine here 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 lands 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, he is generally presumed not to in-ly, to pay off the incumbrance, this alone, withtend 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 shall discharge the bur- make it his personal debt, with respect to the den. fund primarily liable for its payment. Bil This doctrine, as stated by Chancellor Kent, linghurst v. Walker, 2 Bro. Ch. 604; Evelyn v. is this: "When a man," says he, "gives a bond Evelyn, 2 P. Wms. 664, and a number of other 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 collateral security for the personal obligation. But when a man purchases, or has devised to him, land with an incumbrance on it, he becomes a debtor only in respect to the land; but, if he promises to pay it, it is a promise, rather, on account of the land, which contin-ever, will, it seems, suffice to take a case of the ues, notwithstanding, in many cases, to be the primary fund. The same equity which in other cases makes the personal estate contribute to ease the land, as between the real and personal representatives, will here make the land relieve the personal estates. There is," says he, "good sense and justice in the principle; and I feel the force of the doctrine that it requires very strong and decided proof of intention before the court can undertake to shift the natural course and order of obligation between the two estates." Cumberland v. Codrington, 3 Johns. Ch. 257.

The doctrine just quoted is the deduction of the learned chancellor after reviewing the English equity cases, though in other points of his opinion he recognizes certain important distinctions and qualifications, which will hereafter be noticed. See also Story, Eq. Jur. 571577, 1248 et seq.

The American editors of White & Tudor's Leading Cases in Equity thus sum up the doctrine: "The weight of authority would therefore seem to be that the personal estate is not primarily liable, unless the testator has not merely made himself answerable for the payment of the mortgage, but has made the debt directly and absolutely his own; or has in some other way manifested an intention to throw the burden on the personalty in ease of the land." Volume 1, pt. 2, p. 926 (4th ed.).

The question in all the cases has been whether or not the facts and circumstances showed such an adoption of the debt as to make the personalty the primary fund for its payment. A careful examination of the reported English

the case last cited.

These cases proceed upon the notion that the assumption of the incumbrance was only by way of collateral security, the land remaining the principal debtor and primary fund for its payment. Very slight circumstances how

latter class out of the rule; as, for instance, in the case of Earl of Oxford v. Lady Rodney, 14 Ves. Jr. 418, where the purchaser of the equity of redemption at the same time covenanted with the mortgagor to pay his debt, and agreed upon new terms and conditions of payment. This was held to distinguish the case from Taceddell v. Treddell, 2 Bro. Ch. 101, and to make the personal estate primarily liable.

Waring v. Ward, opinion by Lord Eldon, presents another case where slight circumstances, in addition to a covenant to pay, were held enough to make the debt the personal debt of the vendee. 7 Ves. Jr. 336. See also Woods v. Huntingford, 3 Ves. Jr. 128.

Another rule may be deduced from the de cided cases with a good deal of certainty, which is this: That when the incumbrance is assumed as a part of the purchase price, and the vendee makes himself, in any way, directly liable to the creditor for the amount of the incumbrance, in such case the personal estate is the primary fund for the payment of the incumbrance. To satisfactorily show the ground upon which this conclusion is reached, it be comes necessary to briefly consider some of the adjudged cases.

Tweddell v. Treddell is termed a leading case, and is certainly the most extreme of the many cases touching upon the doctrine. That case was this: An estate was purchased subject to a mortgage. The purchaser covenanted to discharge the mortgage debt, and to indemnify the vendor, and to pay the agreed purchase price, less amount of the mortgage, to the vendor. Lord Thurlow held the land the primary

fund, and refused to exonerate it, on bill of the | against the mortgage. The briefs of counsel heir, 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 the decision 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 the purchase price, of any weight whatever. assigned the devised estate, and executed his He put his 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 heirs should pay off the prinland was the original debtor, and the mort- cipal 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 merely 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 substantial claims." 2 Bro. Ch. 101.