Pulver v. Skinner

Learned, P. J.:

The first point is, that the first action is by Wait, Pulver & Rockwell, while the creditors named in the bond were Wait & Pulver. But evidence was given tending to show that the claim in question was contracted in dealings under the name of Wait & Pulver. The amount of the claim is that stated in the bond, and the claim itself is traced from its origin in an indebtedness of William and Benjamin Van Vranken. The obligation assumed by defendant was not that of a mere guarantor. He was to pay the debts, and as between him and the estate of Robert Clements he became principal debtor. It was enough to show that this was one of the claims he became liable to pay.

Some stress was laid by the defendant on the fact that the conveyance was executed to him as executor. But that is immaterial. He chose to take the conveyance in that form. Even if it had been made, at his request, to a third party, still the consideration for his bond would have been sufficient. Nor is it material that the minor heir did not convey at the time when the bond was given. The defendant accepted the covenant of the other heirs, and that covenant has been performed.

The next; and the principal point, is whether this is a case in which these creditors can sue upon an agreement to which they are not actual parties.

We do not think it necessary to go over all the cases bearing on this point and to show the distinctions which run through them. It is enough to call attention to the position of the parties. The *325widow and heirs of Robert Clement held this property. Robert Clement, in his life-time, was personally bound to pay these Yan Yranken debts, and the property was probably liable therefor also in equity. At any rate, on his death this property became liable to pay his debts. It is not necessary to say that the debts were strictly a lien, but they could through proper proceedings be enforced out of the property. At the same time the widow and heirs were not personally liable for the debts.

Under this condition of affairs they transfer this property to the defendant, on his express agreement, not merely to appropriate the same to these debts, but himself to pay the debts and to save the estate harmless. For this he has received and retains an ample consideration. If the obligee had been liable for the debts the case would have been plainly within Barlow v. Myers (64 N. Y., 41). But it is urged that, as the widow and heirs were not personally liable, Skinner is not by the bond liable to the creditors, under the rule laid down in Vrooman v. Turner (69 N. Y., 280). In the opinion given in that case, the right of the third party to have an action upon the promise is said to depend first, on the intent of the promisee to secure some benefit to the third party, and second, on some privity b%tween the two, the promisee and the third party, and some obligation or duty owing from the former to the latter.

There can be no question, in this case, of the intent of the promisee to secure a benefit to these creditors. The last clause of the bond is an express agreement of the defendant, “ to and with the owners of these claims, to pay all that is justly due them.” The bond was not one of mere indemnity to the obligee. It was for actual payment to the creditors.

We must then inquire whether there was a privity between them, and an obligation or duty owing from the promisee to the creditors.

As administrator and as widow and heirs of Robert Clement, the parties named in the bond were in privity with the creditors of Robert Clements. There was not, it is true, a personal obligation on them to pay the debt. But we think that there was some obligation or duty resting on the administrator and on the heirs in respect to the creditors. It was the duty of the administrator, in default of sufficient personal property, to cause the real estate to be applied to the debts. And the heirs themselves might be sued *326by the creditors in respect to any land of the deceased in their possession, and might be made personally accountable for any which they had sold. (Code, sec. 1848, et seq.)

Thus, heirs do not stand in a position simply like that of the owner of an ecpiity of redemption who is not liable for the mortgage debt. He clearly has no duty towards the mortgagee. If he sells the property, he does not become liable for the debt. The lien is fixed, and he cannot disturb it. Rut the heir who sells may, in some eases, become personally liable. It may then be justly said that the heir is under some obligation or duty to the creditor of the deceased, within the principle applicable to these cases.

When, therefore, in performance of that obligation, the heirs have.thus provided for the payment of these debts, it is equitable that the creditors should be allowed to have the benefit of that arrangement, although not actually parties to the instrument.

Here the heirs have made a specific appropriation of this land as a consideration for the payment of these debts. And the principle that a third party may have an action on a contract made for his benefit could seldom have a more beneficial application.

The judgment should be affirmed, with costs.

Bocees and Landon, JJ.

In each case judgment affirmed, with costs.