Dodge v. Manning , 11 Paige Ch. 334 ( 1844 )

The Chancellor.

There is nothing in the testimony, in relation to what took place at the master’s sale, to make the complainant’s legacy a charge upon the several parcels of the premises in the hands of the purchasers; except as a mere notice to them, that such a claim was made. And if the mortgagor has suffered the mortgaged premises to be sacrificed, by deterring purchasers from bidding, it is the result of his own folly,' and not the fault of the appellants; who will in any event suffer enough in having purchased a lawsuit. All the evidence, therefore, in reference to the value of the several parcels of the premises sold, was irrelevant and improper, and should have been suppressed. The appellants took the property, subject only to such equitable claims as would have existed against it, if the mortgagee himself had become the purchaser; without any other notice of the claims of the legatees than he had at the time of the execution of the mortgage. The defendants, however, have not in their answer, set up as a defence, that Maxwell was a bona fide mortgagee, without notice of the equitable claims of the legatees ; if the legatees had any such' claims.

The case of Harris v. Fly, (7 Paige's Rep. 421,) and the decisions there referred to, settle the principle, that the legacy in this case was an equitable lien upon the real estate devised to J. B. Borst. But the real estate was not the primary fund for the payment of such legacy. The real and the personal were both given to him, in the same manner; and he is directed to pay the complainant’s legacy out of the testator’s estate. The personal estate bequeathed to J. B. Borst, therefore, was the primary fund for the payment of this legacy. And as it appears from the inventory produced in evidence, that the testator left personal estate sufficient to pay the legacy, the complainant was bound to show that this personal estate was exhausted, in the payment of debts of the testator, or that those who were accountable for it, were irresponsible, before she could resort to the real estate, in the hands of those claiming under the mortgage executed by the devisee.

Again; the devisee, who has accepted of the estate devised and bequeathed to him, is personally liable. And as the part of the real estate bid in by him, upon the master’s sale, is revested in him, in the same manner as if it had never been included in the mortgage, I am inclined to think the appellant’s counsel are right in supposing that this part of the devised premises now remaining in his hands, is, as between him and the complainant, primarily chargeable with the payment of this legacy; in exoneration of those portions of the premises which have been sold to other persons under the decree of foreclosure. Such would undoubtedly have been the case if he had mortgaged only the other three pieces, and had retained the absolute ownership of the parcel which was bid in by himself. And I can see no reason why his suffering that parcel to be sold, and bidding it in himself, should change the equitable rights of the parties. The conclusion at which I have arrived upon the question of payment, renders it unnecessary however that I should further consider this point.

Upon the question of payment, it is proper to take into consideration the fact that this legacy became due and payable about thirteen years before the sale under the decree, in the summer of 1834. And there was nothing to prevent the complainant herself, if she was then single, or her husband, to whom the legacy belonged by virtue of his marital rights, if she was then married, from instituting a'suit to charge the estate devised and bequeathed to J. B. Borst, with the payment of the legacy, at the end of one year after he arrived at the age of twenty-one. It is true, the mother’s life estate in the property had not then terminated. That, however, was no obstacle to the institution of the suit; as the interest in the estate devised to J. B. Borst might have been sold, under a decree of this court, for the payment of the legacy, ¡subject to the life estate of the .widow therein. Again, the giving of the mortgage upon the real estate, in 1826, was an acceptance of the devise by J. B. Borst. And the testimony shows that the husband of the complainant was in need of the money, if it was still due on this legacy. He had also a right to receive payment of the legacy, by virtue of his marital rights. It is very improbable, therefore, that he should have suffered it to remain unpaid for such a length of time. But what is perfectly satisfactory to my mind that this legacy was paid to the husband of the complainant, in his lifetime, is his admission to H. Manning, the witness, that such was the fact. He had the right to'receive the legacy and apply it to his own use. And his receipt for the amount of the legacy would certainly be evidence of the payment, as against the complainant, who survived him; though the legacy would belong to her, as such survivor, provided he had not reduced the same to possession in his lifetime. And there is nothing which renders a written admission of the payment by the husband necessary to establish the fact of payment, as against the surviving wife. His verbal admission of such payment, while he had the right to receive the legacy, and when there was no reason to induce him to make a false statement, is as good as his written receipt for the money; provided there is no doubt of the fact that such admission was made. The witness says that, two or three years before the death of the complainant’s husband, he had a conversation with him in relation to a lot of land in which Dodge claimed an interest in right of his wife, and in which land J. B. Borst had bought out the rest of the heirs. Probably it was the same twelve acres which the testator devised to his daughter Caty, the mother of the complainant and of J. B. Borst, by his will. Dodge wanted to sell his interest in that lot to the witness, who advised him to sell it to J. B. Borst. But Dodge told the witness that he did not wish any thing to do with Borst; that he had settled off with him. Something was said by the witness as to the demand due from Borst to him, to which Dodge replied that he had settled all his demands with him, and did not want any thing to do with him. And the witness in his cross-examination, says he understood Dodge, in this conversation, as referring to the legacy to his wife; for he and Dodge had previously been speaking about that legacy, and witness knew of no other demand. Considering the staleness of this demand, the circumstances under which it was brought forward at the time of the master’s sale, and in connection with a similar demand in behalf of another of the legatees, who had previously admitted that his legacy had been fully paid, I am satisfied I shall do no injustice in this case in dismissing the complainant’s bill, upon the ground that there is nothing due to her on account of the legacy claimed.

The decree of the vice chancellor must, therefore, be reversed with costs. And the bill must be dismissed, with costs, as to the appellants. But as the defendant J. B. Borst admits her claim to the legacy, and that he purchased his parcel of the premises, at the master’s sale, subject to such legacy, she is entitled, as against him, to a decree for the payment thereof, together with her costs in this suit, if she thinks proper to take such a decree; and also to a decree for a sale of the part of the premises which he purchased at the master’s sale, to satisfy such legacy and costs.