Speer v. Speer.

ancestor to avoid injustice and effect an equality as between the co-heirs. Advancement is a question of intent, and may be shown by the declarations of the parent or the admissions of the child. 16 Conn. 383; 6 Wharton 373; 1 Watts & Serg. 393.

If there be no direct evidence of intent, it may be inferred from the amount and character of the gift. 1 Mad. Chan. 512; 6 Wharton 373.

So

Under the statute of distributions, such evidence is constantly, and it would seem must necessarily be received. A charge of the money or chattel advanced by the father to the son, or a memorandum of the fact that the sum advanced was intended as a gift, is received as evidence of the fact. Sometimes a bond or note is taken; but that converts the intended advancement into a debt from the son, unless a memorandum is elsewhere made of its real character. far as this case is concerned, the decision of the question is of no moment. It is shown that the father was intemperate. His declarations are proved to have been to some extent contradictory, and while I regard the declarations clearly indicative of an intent to make an advancement or gift to his son, I should not have been willing, upon the strength of those declarations alone, to have sustained the bill. If the declarations of the grantor are struck out of the case, I deem the evidence sufficient to overcome the allegations of the answer and to sustain the bill. The intent of the provision of the statute of distributions respecting advancements is to equalize, as near as may be, the shares of all the children of the intestate. The design of the act is to do what a good and just parent ought to do for all his children. The same beneficent design which could have no place in the English law of primogeniture is introduced into our statute directing the descents of real estate. Nix. Dig. 195, § 1.

The express design of the act is to equalize, as far as may be, the shares of the heirs. It designates no mode in which the advancement shall be made. It prescribes no evidence as essential to establish it. It simply declares that if the

Speer v. Speer.

ancestor in his lifetime has given and advanced any part of his lands to any of his issue, such issue shall not be entitled to any part of his real estate descending to his heirs, or no more than sufficient to make his share equal to the shares of the other issue in equal degree. The statute does not interfere with the declared will or manifest purpose of the an cestor. It takes nothing away from the child that has been advanced, however superior his share may be to that of the other children.

Evidence was offered by the defendant to show that one of the daughters had treated her father unkindly, and that the husband of the other had given him just cause of provocation. This may have been a very natural and strong inducement for the father to advance the son by the gift of a larger portion than can be received by either of his daughters; but it can afford no pretext on the part of the defendant for depriving his sisters of their just share of the inheritance, much less for the court to permit such manifest injustice. The beneficent design of the statute, in securing to all the children an equal portion of the inheritance, is in accordance with the spirit and genius of our institutions. Equality is equity, and it is the duty of this court especially to see that its purpose shall not be frustrated, except upon the most satisfactory grounds and upon the clearest evidence.

Where the deed upon its face is expressed to be for natural love and affection, the presumption is that it was designed as an advancement. Where it is made for an alleged valuable consideration, that presumption must be overcome. But where the defendant's answer admits that the consideration was not what it purports to be, and sets up another and a different consideration, it becomes him to prove by satisfactory evidence the case upon which he relies.

The fact alleged by the defendant, in his answer, that the personal estate of John R. Speer (the intestate from whom the land descended) is insufficient to pay his debts, does not make the administrators of the estate necessary or proper parties to the bill for partition. The intestate died over

Speer v. Speer.

three years before the filing of the bill. The real estate of a person dying seized thereof remains liable for the payment of his debts for one year after his death. After that period the land may be aliened without the encumbrance of the debt. Nix. Dig. 766, § 26.

Neither the administrators nor the creditors of the intestate have any such interest in the land as renders them necessary parties. The defendant, who raises the objection, is himself one of the administrators. He admits that the estate is still unsettled. If there was a deficiency of assets, it was his duty long since to have applied to the Orphans Court for the sale of a part of the land sufficient to pay the debts. No such application appears to have been made. He ought not to be permitted to make his own neglect of duty an obstacle in the way of a partition.

But the decisive answer to the objection is, that a partition will not affect any rights, legal or equitable, which the creditor may have. If the land is liable for debts before the partition, it will remain so afterwards. Mortgagees are not necessary parties to a bill for partition, nor are their rights affected by it. Wotten v. Copeland, 7 Johns. Ch. R. 140.

Should the lands be found incapable of partition, and a decree for sale become necessary, it may then become a question how the rights of creditors should be protected. In Matthews v. Matthews, 1 Edwards 565, where the bill for partition was filed about twenty days after the death of the intestate, the court, under the provisions of the New York statute, regarding the sale as premature while the personal estate appeared to be insufficient for the payment of debts, declined to make an order for sale.

In Latimer v. Hanson, 1 Bland 51, after a decree for sale, and an actual sale made under a bill for partition, a creditor was permitted to come in by petition, and to have her debt paid out of the proceeds of the sale in the hands of the trustee. The court are inclined, on bills for partition, to protect the interest of all parties having legal or equitable elaims upon the lands; but in whatever mode such object

Dudley v. Dickson and Matlack.

may be accomplished, it is certainly not proper in a case like the present that it should be done by making the administrators parties. It will involve, indirectly, the investigation and settlement of the administrator's accounts, and tend to delay and embarrassment in the conduct of the suit, besides withdrawing the settlement of the accounts from the appropriate tribunal.

THOMAS H. DUDLEY vs. DICKSON and MATLACK.

The well settled rule of equity, that the vendor of real estate has a lien upon the land sold for the purchase money, is recognized and adopted in this state. The taking of the note or bond of the purchaser for the unpaid purchase money will not impair the lien.

But the taking of distinct security, either in the shape of real or personal property, from the vendee, or taking the responsibility of a third person, is an implied waiver of the lien.

Any act which indicates that it was not the intention of the parties that the purchase money should continue a lien upon the land conveyed is a waiver of the lien.

Where the grantor took a note of a third person (who although jointly interested in the purchase, was not a party to the deed,) for a part of the purchase money, and afterwards accepted from the grantee a declaration of trust, whereby it was declared that she held one-third of the land conveyed, as a guaranty for the payment of said note, it was heldThat the grantor was not entitled to an equitable lien on the whole premises conveyed, but must be restricted to the security afforded by the declaration of trust.

Carpenter, for complainant, ex parte.

THE CHANCELLOR. The complainant, by deed bearing date on the fifteenth day of December, 1860, for the consideration of $6800, conveyed to Sarah W. Dickson, one of the defendants, a tract of land in the county of Atlantic. Matlack, the other defendant, was jointly interested in the purchase, and the conveyance was made to Dickson at his request. On the day of the delivery of the deed, the pur

Dudley v. Dickson and Matlack.

chase money for the premises had all been paid except $1131.20, for which Matlack gave his note to the vendor at thirty days. The note was subsequently renewed for ten days, by a note drawn to Matlack's own order, and placed in the hands of P. J. Gray, the agent of the complainant, and by him endorsed. On the thirtieth of April, 1861, Dickson, the grantee, made and executed, under her hand and seal, a declaration of trust, wherein, after reciting the foregoing facts, it was declared that she held "one third of the said tract of land, or the proceeds of the sale thereof, for the sole use and benefit of P. J. Gray, as a guarantee for the payment of said note, and whenever said note shall be paid to said Thomas H. Dudley, then this obligation to cease and become null and void."

The complainant seeks, by his bill, to enforce the equitable lien of the unpaid purchase money against the whole of the land conveyed, or against so much and such part thereof as the lien may be deemed to attach to.

The well settled rule of equity, that the vendor of real estate has a lien upon the land sold for the purchase money, is recognized and adopted in this state. The taking of the note or bond of the purchaser for the unpaid purchase money will not impair the lien. Van Doren v. Todd, 2 Green's Ch. R. 397; Brinkerhoof v. Vansciven, 3 Ibid. 251; Garson v. Green, 1 Johns. Ch. R. 308; 4 Kent's Com. 152.

But the taking of distinct security, either in the shape of real or personal property, from the vendee, or taking the responsibility of a third person, is an implied waiver of the lien. Gilman v. Brown, 1 Mason 191; S. C. on Appeal, 4 Wheat. 255; Nairn v. Prowse, 6 Vesey 752.

Any act which indicates that it was not the intention of the parties that the purchase money should continue a lien upon the land conveyed, is a waiver of such lien. Notes to Macreth v. Symmons, 1 White & Tudor's L. C. in Eq. 256.

As where the vendor took a mortgage for part of the purchase money, and a note for the remainder. Bond v. Kent, 2 Vern. 281.