This application embraces lands owned by intestate at her death, other than those affected by the judgment against contestant. In respecta to such other lands, though of small value, the contestant has the same rights as if the judgment against him had not been rendered. He is therefore, permitted to raise any objections to the proceeding, which the heir is allowed to make in any case.
I think furthermore, that the only effect of the judgment against him, is to remove the obstruction to this proceeding caused by the fraudulent conveyance to him by the intestate in his life-time, so "as to leave to the creditor the same remedy as if the conveyance had not been made. I can perceive no reason why the remedy thus afforded should not be subject to all the incidents which.would otherwise attend it, and the defences which the statute allows to the heir. The judgment *98seems to be cautiously framed to have that effect. It is conclusive only on him and the plaintiff therein. This application is made by the administrators, who are no parties to that judgment; though it furnishes them the authority to proceed against the land effected by it. By the adoption of the view here taken, full effect will be given to the provisions of the statute allowing the heir to contest the debts of his ancestor in this proceeding, and no injustice will be done to the creditor.
I am of the opinion also that the judgment against the contestant fails to be conclusive on him for another reason. It was recorded against him, in his individual capacity, in a different character from that in which he appeared here. This proceeding is against him in the representative character of heir. “ A judgment against a party, sued as an individual, is not an estoppel in a subsequent action in which he sues or is sued in another capacity, or character. In the latter case, he is in contemplation of law a distinct person and.a stranger to the prior proceedings and judgment.” (Rathbone v. Hooney, 58 N. Y. 463, 467. See also Lee v. Hill, 39 Barb. 516; Havens v. Sherman, 42 Barb., 636.)
The point made on the part of the administrators is a novel one, at least in its application, and is not without argument to support it; but to sustain it, seems to me will present difficulties which cannot be reconciled with the rules of law. The contestant must be permitted to give evidence to reduce or invalidate the debt for which judgment was recovered against the administrators.
In the further progress of the hearing, the contestant insisted that the debt in question had become barred by the statute of limitations, although not till after the *99commencement of the action in which the judgment was recovered against the administrators.
The Surrogate.This position cannot be sustained. The creditor, before the debt had become barred, instituted his only remedy for its recovery, by first bringing his action against the administrators, and then his further action against the contestant, to remove the obstacle which prevented him from instituting this proceeding, both of which it seems he has prosecuted with diligence and success. A suspension of the running of the statute of limitations is not confined to the cases specified in the statute, but many occur in other cases, of the disability of the creditor to prosecute. (Hemger v. Abbott, 6 Wallace, 532.) The disability of the creditor to institute and prosecute this proceeding, under the circumstances of the case was as complete as if it had been created by the statute, and no loches, or fraud can be iuiputed to him. He could not allege that the intestate died seized of the real estate which is the chief subject of this controversy. There was nothing to give this tribunal jurisdiction over it, till the conveyance by the intestate to the contestant was set aside. The contestant cannot be allowed to take advantage of a delay which he has himself occasioned, and by that means take the advantage of his own wrong. (Broom’s Legal Maxims, 212; Haad v. Seely, 47 Barb., 428, 434 ; Newton v. Porter, 5 Lans. 416, 423.)
The debt of William B. Jennings was allowed at the amount for which his judgment was recovered against the administrators, with interest, exclusive of costs; and a sale was ordered.