I think that the conclusion of law, found by the referee'in this case, was erroneous, and that the judgment entered upon his report should be reversed, and that there should be a new trial with costs to abide the event.
It is true, that as between the personal representatives and the heirs of Joseph Gr. Carpenter, the deceased surviving obligor, the mortgaged premises were primarily liable for the mortgage debt. (Halsey v. Reed, 9 Paige, 453-55. Johnson v. Corbett, 11 id. 270;) but this is an action by the assignee of the obligees of the bond, against the heirs of the surviving obligor, and all the questions arise between those parties. The cases in 9th and 11th Paige have no application.
The provision of the revised statutes, (vol. 1, p. 749, § 4,) altering the common law, is a regulation as between the heirs and the personal representatives; and in my opinion it in no way affects or qualifies the direct liability of the heirs by the provision, 2 R. S. 452, § 32, to the creditor. The bond represents the debt, the principal; the mortgage is but collateral.
The right of the obligee or holder of the bond to sue the *430obligor, in his lifetime, is no more complete or perfect than his right to sue the heirs of the obligor, after his death, in a case in which the heirs are liable by the statute. The mortgage creditor can, in the lifetime of the mortgagor and obligor, at his option, either sue the bond or foreclose the mortgage. I do not see why he has not the right, after the death of the mortgagor and obligor, at his option, either to sue the heirs when liable for the debt, or to foreclose the mortgage.
In this case it appears that not only the mortgaged premises, but other real estate described in the complaint, exceeding in value the plaintiff’s demand, descended to the heirs. Their liability by the statute, is to the extent of the estate, interest, and right in all of the real estate which shall have descended to them; not merely to the extent of their estate and interest in the mortgaged premises. The mortgaged premises were liable to the mortgage creditor for the debt, by the contract—the mortgage—and all the real estate of the intestate, which descended to the heirs, including the mortgaged premises, or their proceeds if aliened by them before action, (2 R. S. 454, §§ 47, 48, 49,) were also liable to the mortgage creditor, both at law and in equity, (Laws of 1837, ch. 460, § 73,) by the statute.
I find neither reason nor authority for holding that the mortgage creditor is confined in the first instance to his remedy given by the mortgage against the mortgaged premises; and that he cannot pursue the remedy which the statute gives him against the heirs and all the real estate which they take by descent on the bond, until he has first exhausted his remedy under the mortgage.
I' do not see why the equities between the heirs and personal representatives of the intestate should limit the creditor’s right of action against the heirs ; and I find .nothing in the statute confining him to the mortgage, in the first instance.
For these reasons alone—and this is putting the case upop strictly legal principles—I think the report of the referee was *431erroneous, and that the judgment entered on it should be set aside.
But admitting that this suit was brought for the benefit of Johnston, the grantee of the heirs of the mortgaged premises, it appears to me that all the equities of the case are in favor of the plaintiff. The deed of the heirs did in fact, of course only convey the equity of redemption; .but the premises were not conveyed by them, subject to the mortgage; and the plaintiff offered to prove that it was represented to Johnston by Thomas B. Allen, the agent of John T. Carpenter, the heir and grantor of full age, and of May Carpenter, the guardian of the infant heirs, the other grantor, at and prior to his purchase, that the premises were only subject to a mortgage to the Merchants’ Insurance Co. for $2000, and to no other; which was deducted from the consideration money, $4000, to be paid by Johnston for the premises; the balance paid by him; and that $4000 was the price and value of the premises; and that Johnston understood that there was no other mortgage on the premises. It was not necessary, probably, for the plaintiff to make this offer, or to give the evidence involved in it; but it appears extraordinary that the referee should have excluded the evidence; with the admission before him that the action was prosecuted on the retainer and at the expense of Johnston; and should then have dismissed the plaintiff’s complaint, on the ground that he had no remedy against the heirs until he had exhausted his remedy under the mortgage.
As between Johnston and the heirs, assuming this offer to have been made in good faith, the equities were all on the side of Johnston. He offered to prove, in effect, that he had paid the money to the heirs to pay the mortgage. Why should they not pay it ? Ought they to keep the money, and compel him to pay it again ? It appears to me, had the evidence been received, it would have been an answer (if any was necessary) to the equitable position insisted on by the defendants and held by the referee, that the plaintiff must *432first resort to the mortgage. The matters offered to be proved, would not have contradicted the deed, but were collateral to, and consistent with it.
[New Yoke Genebai. Teem, November 4, 1858.Davies, Clerke and Sutherland, Justices.]
Judgment reversed, and new trial granted.