Opinion
09-11-1890
MANNING'S EX'R v. BROWN et al.
Alward & Parrot, for petitioner. Hayes & Lambert, for defendants.
Alward & Parrot, for petitioner. Hayes & Lambert, for defendants.
BIRD, V. C. In December, 1880, John Manning recovered a judgment in the circuit court against Baldwin C. Brown for $489.72. In January, 1881, the said Baldwin C. Brown and his father, Clark Brown, confessed a judgment to one Burnett for $1,746.80 debt, and $5.40 costs, the real debt being $873.40. This was not the debt of Clark Brown, the father, but Baldwin C. Brown, the son, the father being surety only on a promissory note upon which the judgment Was entered. Afterwards the father gave his own bond, together with a mortgage upon his real estate, to secure the amount due upon said judgment. He died in 1885. Burnett assigned the mortgage, and his assignee foreclosed the same, and, upon the sale of the premises after the payment of the amount due upon the mortgage, there was a surplus of $1,070. The heirs at law of Clark Brown filed their petition asking for the payment of this surplus to them, and that the equities between the other heirs and the said Baldwin C. Brown may be adjusted. The claim is that as between them and the said Baldwin C. Brown and the said judgment creditor who obtained the judgment in December, 1880, prior to the judgment given to the said Burnett, the interest of the said Baldwin C. Brown in the gross proceeds of sale should be first charged with the whole amount due on the said mortgage. In this I think they are right. Baldwin C. Brown was principal debtor; and although Clark, the father, who was only surety, had conveyed his lands by way of mortgage for the payment of the debt, yet when the lien given by such mortgage came to be enforced the mortgagor had died, and his son, Baldwin C. Brown, the real debtor, had become part owner of the land. In such case, notwithstanding the entire premises so mortgaged is liable, it is highly equitable that the interest of the real debtor should first be charged with the liability so created.
It appears by the same petition that the said Baldwin C. Brown was also largely indebted to his father on other accounts, and had been so for years. A similar claim to that above adverted to is made by his co-tenants with respect to this personal indebtedness. For this I cannot find any authority either in favor of the other heirs at law nor of the administrator of Clark Brown, deceased. I think there are cases holding that as between the administrator, having in his hands the personal assets of the intestate, and the distributee of the estate, such administrator may retain so much of the distributee's share as will satisfy the indebtedness of a distributee to the intestate. But this is not such a case. The administrator is not in possession of these funds for distribution. Although the case of LaFoy v. La Foy, 43 N. J. Eq. 207, 10 Atl. Rep. 266, determined the right of an executor to retain the debt of a devisee of land only, the principle there laid down ought to control this case. The debt of the heir at law to the intestate did not become a charge upon the land. Immediately upon the death of the intestate the judgment in favor of Manning against Baldwin C. Brown became a lien upon his interest in the land; and, if any of the surplus remains after the charge above stated is first satisfied, it will be subject to the payment of the judgment of the said Manning. The petitioners are entitled to their costs.