Parsons v. Bowne , 1838 N.Y. LEXIS 240 ( 1838 )

The Chancellor.

The demurrers in this case being general, both as to discovery and relief, they must be overruled if the complainant is entitled to any discovery or relief which is asked for in his bill, or to any relief which may be granted him under the general prayer. The objection that the complainant cannot come into this court, for the purpose of obtaining satisfaction of his debt out of the real estate of his deceased debtor in the hands of the heirs at law, until he has obtained a judgment for his debt and had an execution thereon returned unsatisfied, is wholly unfounded. Neither is there any ground for the objection, that the equity of redemption in the New-York property was a legal estate which the complainant could have reached by execution at law. Both objections proceed upon the assumption that the complainant could have sued the defendants in an action at law for the recovery of the debt due from their ancestor. But by the express provision of the forty-second section of the article of the revised statutes relative to suits against heirs, devisees, &c. (2 R. S. 454,) which was in force from the first of January, 1830, until after the filing of this bill, the heirs at law must be prosecuted jointly in a court of equity, for the debt of their ancestor, and were not liable to any suit in a court of law. The ancestor in this case died before the adoption of the revised statutes, and therefore the rights of his creditors, so far as those rights had become vested under the laws which were previously in force, could not be divested by a change of the law. But the remedy of the creditors must be had according to the provisions of the laws which are applicable to the case when that remedy is sought to be enforced. The jurisdiction of courts of law in suits against heirs and devisees,except in proceedings by scire facias, or in suits previously commenced, was therefore entirely suspended, by the section of the revised statutes above referred to, until the first of July, 1837, when that section was repealed. (See Laws of 1837, p. 537, § 73, 74, 78.) The only remedy, therefore, of a creditor at large of the decedent, to collect his debt out of the legal or equitable estate which had descended to the heirs at law, was by a bill filed, as this is, under the provisions of the revised statutes.

The complainant does not allege in his bill that the equity of redemption in the lands mortgaged to Edgar has been purchased, by Jones & White, under an execution upon a valid and subsisting judgment, against the decedent or his heirs; but merely alleges that they claim an interest in that property, either under a sale upon some of the judgments mentioned in the bill, or in some other way unknown to the complainant. It is not necessary therefore to decide, in this stage of the suit, whether all the interest of the defendants in that equity of redemption could be divested, by a sale thereof on execution, while the mortgagee or his representative was in possession of the premises under his mortgage. Neither was it necessary or proper for the complainant to make Jones & White parties to this suit; as he had no right to call them into this court to settle the question whether they had a legal title to the equity of redemption in the whole or any part of the New-York property. The objection that Jones & White are not parties to this suit is therefore overruled.

Neither was it necessary to make Cook & Starkweather» or any other persons claiming to be creditors, or to have liens upon the real estate descended to his heirs, parties to the suit. The statute contemplates a proceeding by each creditor for himself. And where the heirs have not aliened the land previous to the commencement of the suit they are not personally liable for the debt, but their respective interests in the land descended are to be sold on execution against the land itself. The purchaser will therefore take it, as in ordinary cases of sales upon execution, subject to all existing liens thereon, the validity of which liens he must afterwards contest with those who claim to have them, if necessary. Where a judgment, or other incumbrance upon the property, which has actually been paid is fraudulently kept on foot by a third person for the purpose of depriving the complainant of his remedy by a sale of the property of the decedent for its full value, or to diminish the amount which he would otherwise recover on account of the lands descended, I do not intend to decide against the complainant’s right to make such third person a party to a suit against the heirs or devisees. But such incumbrancer is not a necessary party; and the defendants therefore cannot demur to the bill if the complainant does not think proper to bring the incumbrancer before the court.

The complainant is required to specify in his bill, with convenient certainty, the real estate descended to the heirs or devisees. (2 R. S. 454, § 44.) This he has done in relation to the New-York lands. And as to other lands descended he says he is unable to do so; and he prays for a discovery from the defendants of the lands descended to them and of the incumbrances thereon. This discovery he is entitled to, for the purpose of enabling him, by an amendment of his bill, or otherwise, to reach other lands descended to the- defendants as heirs, if there be any other lands.

Several other causes of demurrer are specified, but as they merely go to a part of the discovery sought by the bill it is not necessary to consider them at this time; though I do not at present see any valid objection to any part of the discovery asked for by the complainant.

The demurrers must therefore be overruled with costs; and the defendants arc to have sixty days to pay those costs and to answer the bill.