The question in this case is, whether the plaintiff was bound to sell the land according to the provisions of the contract, and apply the proceeds upon the note, before he could maintain an action upon it. No such sale and application have been made. It is insisted that the plaintiff's rights under the contract were those only of an equitable mortgagee; that the whole equitable and beneficial title of the lands was in the testator, and has descended to his heirs; and that, by statute, the heirs are bound to discharge such mortgage out of their own property, the effect of which is to throw the payment of the mortgage in the first instance on the land as the primary fund or security, so that the holder of the mortgage must exhaust his remedy upon the land before resorting to the personal estate.
The statute relied upon (1 R.S., 749, § 4) is as follows: "Whenever any real estate, subject to a mortgage executed by an ancestor or testator, shall descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property, without resorting to the executor or administrator, unless there be an express direction in the will of such testator that such mortgage be otherwise paid."
The sole object of the statute was to change the rule of the common law, under which the heir or devisee had the right to call upon the representative of the decedent to pay off the mortgage. It is not perceived how it can be construed to prevent an action upon the note in this suit. It does not, by its terms, purport to affect the rights of creditors, but simply to establish a rule of liability as between devisees or heirs *Page 590 and the personal representatives. Where there is, as in this case, a personal liability by contract, to which the mortgage is a collateral security, it was not the design of the statute to deprive the party of his right to enforce that liability; nor was it intended to compel a resort to any mode of marshaling assets for the purpose of adjusting the equities as between the representatives and third parties.
Assuming, therefore, that the contract between plaintiff and the testator created the relation of mortgagor and mortgagee within the meaning of the statute, and that the lands mentioned in the contract have descended to heirs, still the statute is not applicable to control the right of plaintiff to enforce the note on which this suit is brought, whatever equities may spring up hereafter between the defendants and such heirs.
But it seems to me to be pretty distinctly settled that the statute does not apply to an equitable lien growing out of a contract of this nature. The note in suit was for purchase-money remaining unpaid for lands purchased by the testator and held by him at the time of his death. The equitable mortgage grows out of the fact that such purchase-money remains unpaid, and not by reason of any particular virtue in the clause of the contract providing for a sale. That was merely a speedy and easy mode, by stipulation of parties, of cutting off all equities of the purchaser in case of his default. It has often been held, both before and since the statute, that in case of such unpaid purchase-money the heir or devisee is entitled to have the same paid out of the personal property. (Dart on Vend. and Purch., 125; Broome v. Monck, 10 Ves., 596; Livingston v.Newkirk, 3 Johns. Ch., 312; Cogswell v. Cogswell, 2 id., 231; Johnson v. Corbett, 11 Paige, 265; Lamport v.Beeman, 34 Barb., 239.)
These views render it unnecessary to consider the question whether we could compel the plaintiff to resort to his equitable lien upon lands descended under the laws of Massachusetts, and not subject to be affected by any statute of our State.
I think the judgment should be affirmed.
Judgment affirmed. *Page 591