Armstrong v. Wing ( 1877 )

Boardman, J.:

The plaintiffs and the father of the defendant united, in 1859, in a deed of lands, with a joint covenant of warranty. The mother of defendant did not join in such deed. Upon the death of defendant’s father, her mother brought an action and recovered her dower in the premises conveyed. An action was thereafter brought by the grantees in said deed against the plaintiffs in this action and they recovered of them, as survivors, the damages arising from such breach of the covenant of warranty. The defendant had notice of each of said actions and was requested to protect the interests of the defendant therein. The plaintiffs herein, after payment of the recovery against them, and after the death of defendant’s mother, bring this action to recover of the defendant the amount paid and expended by them, in defending such action for breach of covenant for damages and costs. The theory of the complaint is, that the neglect of defendant’s mother to sign'the deed-created an obligation or liability on the part of defendant’s father to make good any defect of title caused thereby, and to indemnify his co-covenanters against the consequences thereof; that the defendant, as heir at law of her father, had received from him an amount of assets, real and personal, more than sufficient to satisfy plaintiff’s claim, and thereby became respon- , sible to the plaintiffs for the amount of their claim. These facts have been found in the decision of the case, but it was held that upon the facts found the defendant was not liable. The review of the judgment is solely upon the facts as found at the Special Term.

In the view taken of the case at Special Term, in which I concur, it is unnecessary to consider whether the claim of the plaintiffs is a debt of defendant’s' father, for which she can be made liable under the provisions of the Revised Statutes. It will be enough to determine that she is not liable if we concede such to be the nature of the obligation.

The opinion of the learned judge at Special Term very clearly demonstrates, that the plaintiffs ought not to recover upon the facts found. I can add very little to the citation of authorities sustaining his conclusion. The Revised Statutes declare that the heir shall not be liable, unless the deceased left no personal property or such personal property was insufficient to pay the debt, or that, after proper proceedings in the Surrogate’s Court, the debt could not be collected. (2 R. S. [Edm. ed.], 472; Bingham on Descents, 286, 290, 291; Mersereau v. Ryerss, 3 N. Y., 261; Stuart v. Kissam, 11 Barb., 271; Roe v. Swezey, 10 id., 247; Butts v. Genung, 5 Paige, 254; Wambaugh v. Gates, 11 id., 505.) These authorities seem quite conclusive against plaintiffs in a claim against an heir for a debt of an ancestor. Such is the nature of this action. The complaint concedes the existence of personal property. Administration was granted. How much there was or what became of it does not appear. The lapse of time since administration granted cannot create any presumption. The conditions upon which an heir can be held liable are fixed by statute. Except by virtue of such statute the heir is not liable. It must therefore be strictly construed. (See the cases cited.) Nor does it make any difference that the heir in this case is the next of kin also, and was entitled to both the real and personal estate of her ancestor. (Stuart v. Kissam, ante) The personal estate must be exhausted by proceedings against the administrator before the heir can be attacked. (11 Paige, 515; Gere v. Clark, 6 Hill, 350.)

The other reasons assigned by plaintiffs for a recovery are properly considered and disposed of by the opinion of the learned judge at the Special Term.

The defendant is not called upon in this action to contribute her just proportion of the recovery had against the plaintiffs who were co-obligors with her father. Several objections, not here considered, might in such an action arise. Did her father, in fact, ever deliver the deed? Was it left with the justice to be delivered after it should have been duly signed and acknowledged by the parties named as grantors therein ? In that case could the plaintiffs, by a subsequent execution and delivery of the deed without the signature of the defendant’s mother, bind the father of the defendant, or herself through him? And finally, can plaintiffs, upon a recovery against them as the survivors upon a joint covenant, bring an action in equity against the heir at law of the deceased co-obligor for contribution? Some of these questions may prove to be of importance in possible future contingencies, but are not necessary to be determined in the case now presented for our decision.

I think the judgment of the Special Term was correct and should be affirmed, with costs.

Present' — Learned, P. J., Bookes and Boardman, JJ.

Judgment affirmed, with costs.