On Rehearing.
(196 Pac. 830.)
In Banc.
On rehearing.
Former Opinion Sustained.
For appellants there was a brief over the names of Mr. E. K. Oppenheimer, Mr. Frank J. Lonergan and Messrs. Davis & Farrell, with an oral argument by Mr. Oppenheimer.
For respondents there was a brief over the names of Mr. Johnston Wilson and Messrs. Clark, Middleton & Clark, with oral arguments by Mr. M. H. Clark and Mr. Wilson.
McBRIDE, J.In an able and carefully prepared brief counsel challenge the correctness of our conclusion in this cause, and were there any difference of opinion among the members of this court in that respect, some other member of the court would have written the opinion on the present petition.
3, 4. There are certain propositions which are well established by the previous decisions of this court and which may therefore be conceded at the outset. They are these: (1) That by the covenant of deceased to pay the mortgage then existing upon the lands purchased by him he became, as between himself, the mortgagors and the mortgagees, personally liable to pay the mortgage; (2) that his liability as between the parties above named was as great as and no greater than that of the original mortgagor; (3) that since the mortgage was a purchase-money obligation, the mortgagees had an election of remedies (a) to sue *259upon the mortgage and foreclose the same, or (b) to bring an action at law to recover the amount due; and (4) that by bringing suit or action their election was complete and they were thereafter precluded from pursuing the remedy not chosen. .
As to the first proposition, it is only necessary to cite Miles v. Miles, 6 Or. 266 (25 Am. Rep. 522); The Home v. Selling, 91 Or. 428 (179 Pac. 261), and other Oregon eases following these.
As to the second proposition, see Smith v. Kibbe, 104 Kan. 158 (178 Pac. 427, 5 A. L. R. 483), and O’Connor v. O’Connor, 88 Tenn. 76 (12 S. W. 447, 7 L. R. A. 33). The conclusion reached in Smith v. Kibbe would seem naturally to follow in any state which adopts the reasoning in Miles v. Miles, 6 Or. 266 (25 Am. Rep. 522), but, as we shall presently show, has no application to the case at bar. The case of Smith v. Kibbe was not cited in the brief of counsel at the previous hearing but was referred to in the argument and was unfortunately overlooked in our previous opinion. The case of O’Connor v. O’Connor, 88 Tenn. 76 (12 S. W. 447, 7 L. R. A. 33), lays down no doctrine essentially different from that enunciated by Chancellor Kent in Cumberland v. Codrington, 3 Johns. Ch. (N. Y.) 229 (8 Am. Dec. 492), so far as applied to the facts here, as will hereafter be shown.
Concerning the third proposition, that the plaintiffs had an election of remedies either to sue to foreclose the mortgage or to bring an action to recover upon the note, or rather the covenant to pay the debt, and that the choice of one remedy precluded them from pursuing the other, see Wright v. Wimberly, 94 Or. 1 (184 Pac. 740).
With reference to the fourth proposition, see cases cited by Mr. Justice Harris in Oregon Mill & Grain *260Co. v. Hyde, 87 Or. 168 (169 Pac. 791). In 20 C. J. page 29, Section 20, the text announces the same rule and in copious notes indicates that the overwhelming weight of authority sustains that view.
5. Let us now consider the case in the light of these authorities. When deceased accepted the conveyance and obligated himself by implication to the mortgagees, to pay the mortgage, they thus had two remedies, one to foreclose it and take their chances of getting the remainder of the purchase money out of the land, and the other to bring a personal action against deceased. They could do either; they could not do both. If they brought a personal action to recover the amount due, they released the land from the encumbrance. If they brought a suit to foreclose the mortgage, they released deceased from any personal liability by reason of his covenant.
The mortgagees brought a suit to foreclose the mortgage, and served the testator with summons some time before his death. The very moment they did that, deceased was discharged of all personal liability for the debt and he stood in the same position as he would had he merely purchased the land with the encumbrance upon it without any reference having been made in the deed in respect thereto. This was his legal situation at the time of his death. He owed no personal debt to the mortgagees which they could satisfy out of his personalty or which after they had commenced the suit they could enforce as a personal claim against his estate. They simply had in effect a purchase-money mortgage against the land, nothing more. In this situation the rule announced in Cumberland v. Codrington, 3 Johns. (N. Y.) 229 (8 Am. Dec. 492), applies in full force. The mortgage was no longer incidental security for a personal debt of *261the testator, but the land secured hy it was the only thing out of which the mortgagees could collect the amount of then’ debt.
A will takes effect from the date of the death of the testator, not from its execution, and at the death of the testator he owed no personal debt, “just” or otherwise, to the mortgagees. He owed no legal duty to his legatees to warrant their title to the land bequeathed. The general rule is that in a bequest of land covered by a mortgage or other lien not created by the testator, the devisee takes it awn onere, unless there is an express direction in the will that the lien be extinguished out of the proceeds of personalty. On this point see cases cited in the original opinion.
The case of Smith v. Kibbe, 104 Kan. 159 (178 Pac. 427, 5 A. L. R. 483), cited by counsel, is not in point here by reason of the fact that there the testator at his death was still personally liable to the mortgagees for the payment of the mortgage debt: In the case at bar, as heretofore shown, the testator before the time of his death had by the election of the mortgagees been legally released from such liability. In the Kansas case, Haney sold to Bussart and Collier a farm upon which there was a mortgage for $3,000, which mortgage Bussart and Collier assumed in writing to pay. Bussart and Collier sold the land to Smith, the testator, and he expressly assumed and promised to pay the mortgage. Smith died, leaving the land so encumbered to his son, the plaintiff, and the residue of his estate to his widow. In this state of the case it was held in effect that the mortgage debt was personally owing from the testator to the mortgagee at the date of his death, and that since this was the situation the clause of his will directing the payment of his just debts embraced the mortgage *262debt and placed upon the executors the duty of extinguishing it out of the personalty of the estate. Note here, however, that it was a personal debt upon which the testator could have been sued at law up to the very moment of his death, which is the very reverse of the circumstances in the case at bar, where there was a claim against the res but not against the man.
O’Conner v. O’Conner, 88 Tenn. 76 (12 S. W. 447, 7 L. R. A. 33), when considered in its entirety, supports the contention of respondents in this case. Thomas O’Conner died intestate, leaving a widow as the sole heir and distributee of his personal estate, and administratrix of the estate as well. Before his death he had bought certain parcels of land upon which there were vendor’s liens, and had expressly agreed to pay off these liens as part of the purchase price. He died leaving the liens unpaid and the same were foreclosed and the property was sold to satisfy them. His brothers and sisters, who were heirs to his real property, brought a proceeding in the chancery court to compel the administratrix to reimburse them out of the personalty for the amount realized from the sale of the encumbered realty. The majority of the court in an opinion rendered by Mr. Justice Lurton took the same view expressed by this court in Miles v. Miles, 6 Or. 266 (25 Am. Rep. 522), and held that the agreement by O’Conner, the deceased, with his vendor to pay the liens existing at the time of the purchase created the relation of debtor and creditor between the original holders of the vendor’s liens and O’Conner, and that therefore they were a personal charge against him, saying:
“That the intestate by the acceptance of a deed containing this assumption of the lien debt, made him*263self personally responsible to the creditors holding the lien, will not, at this day, admit of doubt.”
So holding and upon the sole ground that deceased hacl made the liens his personal debt, the court sustained the claim of plaintiffs and decreed that the widow should reimburse the heirs, evidently to her own impoverishment, as appears from the dissenting opinion. But while laying down and enforcing the rule in all its harshness, Mr. Justice Ltjrton is careful to make an exception, which is as follows:
“It may be, at the outset, admitted that where lands descend subject to a charge, or mortgage, or lien, not created by the intestate, which was never his personal debt, or one for which he could have been personally liable by the creator, the heir, in such case, would take the land subject to the encumbrance, and could not call upon the personal estate to have his lands exonerated from the burden. This would follow for the obvious reason that the encumbrance was never the debt of the intestate, and his administrator could not therefore be called upon to discharge it.”
The principle enunciated in this excerpt is substantially that which we hold to be applicable here.
Granted for the sake of argument that deceased had made himself primarily liable to the mortgagees when he took the deed from the mortgagors, this liability, whether primary or contingent, it matters not which, had ceased before his death. On and for some time before that event, nothing but the land was liable. It alone stood for the debt, and this being the case the devisees took it cum onere. The fact that they were not made parties to the litigation after the death of the testatrix can avail nothing here. The land passed to them immediately upon the death of the testator, subject to certain rights of the executor. If they have any defense or any rights of any kind *264which, they were entitled to assert in the premises, they can hardly he said to have been foreclosed of them by a suit to which they were not parties; bnt we do not attempt to pass upon that phase of the controversy. We hold only that they are not entitled to be reimbursed out of the testator’s personal estate, for the amount collected by sale of the mortgaged premises.
We adhere to our former opinion.
Affirmed. Opinion Sustained on Rehearing.