The. premises which the plaintiff seeks to recover in this cause, are three undivided ninth parts of a farm of about eighty acres of land, in the county of Middlesex, of which John O. Jaques was seized and possessed at the time of his decease intestate in the year 1816.
John O. Jaques, at his death, was indebted upon a bond to Joseph Shotwell. Judgment was obtained in an action on this bond, in February term 1821, by the executors of Joseph Shot-well, against John D. Jaques and Randolph Jaques, administrators of John O. Jaques. On this judgment an execution was issued, and return was made to the term of May 1821, that the administrators had no goods and chatties of the deceased in their hands, to be administered. An action was afterwards commenced in this court, by the executors of Joseph Shotwell, against John D. Jaques, Samuel Jaques, and others, heirs at law of John O. Jaques, by process of summons returned to May term 1823, and judgment was obtained in November term following, for the debt and costs “ to be levied of the lands and tenements, which were of the said John O. Jaques, deceased, in fee simple at the time of his death, which came to, and now is in the hands of the defendants by hereditary descent from the said John O. Jaques, deceased.” An execution was issued, commanding the sheriff to *263?vike the debí. asid costs of the lands aud tenement!) whereof the said John O. Jaques died screed in fee simple its the hands of 88 the defendants, or in die hands of any or either of them.” This execution was returned to February term 1824, “ levied on all tile lands and tenements whereof John O,, Jaques dim! seized, to wit, a farm situate fyo. containing eighty acres moro or less,” &te. which is the farm already mentioned, and of which the premises in question are part. In May term 1824, two other judgments ware obtained against the heirs, one at the suit of UkiiI O. Marsh, and the oilier ira favor of the lessor of the plaintiff in this cause. Under these three executions, the farm was sold on the 8th of November 1824, and a deed of conveyance way made on the l.ltli of the samo month, to the lessor of the plain - tiff.
15} virtue of this deed he seeks to recover, the three ninth paría of the farm, the premises in controversy.
The evidence exhibited on the part of the plaintiff shews, pilma facie a title to the premises, and right 10 recover 111 this action. Thus far indeed no difficulty or dispute exists. The questions raised in the cause, and argued by the counsel grow out of the matter» relied on in defence 5 which wc are therefore aow to proceed to examine.
The defendant alleges that the plaintiff ought mat to recover because at the tíme oí the sale by the st-u.and of the judgments which are supposed to have authorised it, the till»» to die three undivided pans was iucontrovertibly vested in him 5 pad in the following manner : On the 8th of September 18)8, 'after Iby the decease of John O. Jaques, intestate, the inheritance descended to his heirs at law, one of them, Thotnaa f\ R. Juques, in consideration of $825, conveyed one uiuth part, being his share ío John D. Jaques. On die 8th of May 1820, Samuel Jaques, another of the heirs, in consideration of $800 conveyed another ninth part to the said John D. Jaques. On the 9th of July 1821, the said John D. Jaques moitgaged, the ninth part Vvhich came to him by descent, and the two ninth party which ho held by purchase to the defendant to secure the payment of a bond for $1000. In November term 1822, Judgment in this court was obtained by tho executors of Joseph fcíhotwelí against tiro said John D. Jaques, surviving administrator of John Q. Jafuies, on a devastavit founded Ofi the above mentioned judgment *264of February term 1821. Execution oí fieri facias Ae bonis et terris was issued, was levied on three undivided ninth pacts of the above mentioned farm described as “ late the property of John O. Jaques, deceased,” and was returned to February term 1823. On the 9th of June 1823 a sale was made, and on the 27th of July 1824 a deed was executed by the sheriff to the defendant for the three ninth parts among other lands.
And thus, as the defendant insists, a title is shewn in him, paramount to the title of the plaintiff.
The first question which presents itself is, were the premises in controversy liable to the judgments and executionsagainsttlie heirs under which the sale was made or either of them.
According to the common law, if lands descended to an heir, were bona fide aliened by him before the commencement of an action against hitn for a debt of his ancestor, the lands were not liable to be taken in execution. Nor was the debt then recoverable at law against the heir himself. By such alienation both the heir and the lands were placed at law out of the reach of the creditor. If however the alienation was not bona fide, or was made after the commencement of the suit, or after the original' purchase, as the older books express it, the lands were chargeable and might be taken in execution under the judgment against the heir. Co. Lit. 102. a. 3 Bac. Abr. tit. Heir & Ancestor 26. This hardship on the creditor of the ancestor was remedied in England by the statute of 3d. & 4th. Wm. &c Mary, C. 14. The heir was made liable, to the value of the lands descended, if he aliened them, even in good faith, before the commencement of the suit. The lands, as before, remained liable if aliened mala fide or after the writ was sued out against the heir. In the revision of our laws, by Judge Patterson, this statute of Wm. & Mary was adopted in very nearly the words of the original. The second section, Patt. 243, Rev. Laws 291, directs that “ execution shall be taken out upon any judgment so obtained against such heir or heirs to the value of the said lands., tenements, or hereditaments as if the same were his, her, or their own proper debt; but the lands, tenements, and hereditaments which were bom fide aliened, before the action brought; shallnot be liable to such execution.”
From a view of this statute it is seen, then, that the question proposed will depend on the solution of another. Were the prem*265Ises in question bona fide aliened by the heirs to whom they descended, before the action by the executors of Shotwell was brought against them ?
And here the topics of inquiry being now distinctly disclosed, it is proper to remark that the point decided by Chancellor Williamson, in the case of Parret v. Van Winkle, which was read on the argument by the defendant’s counsel, is different from the matter in question before us. There the strife was between a mortgage by the heir, and a sale by the administrator, under an order of the Orphans’ Court subsequently obtained ; and the Chancellor decided that a purchaser at such a sale could not wrest the land from the holder of a bona fide mortgage made pri- or to the order. In the present case the preference is to be settled between a mortgage by the heir and a judgment and execution against him in his individual character on the one hand, and an action, judgment, and execution against him as heir on the other.
From the view of the facts which I have presented, it will be noticed that at the commencement of the suit against John D» Jaques and others, as heirs, be held the three shares now in question, subject to the mortgage he had made to the defendant, one by descent from his father, the others by purchase from his eo-lieirs. For the sake of clearness and order, it will be proper to keep distinct the shares he held by purchase from that he took by descent.
And first, of the two shares he purchased from his brothers s It has been shewn that lands aliened bona fide, prior to the commencement of a suit, are not liable to the execution which may be obtained in such suit against the heirs. Now it is a point of no difference to whom the alienation, if bona fide, is made, whether to a stranger or to one of the heirs. The pivot is alienation in good faith. These two shares, subject to the mortgage made to the defendant, were, at the commencement of the suit, held by John D. Jaques, not by descent or as heir of bis father, but as alienee of his co-heirs. Was the alienation to him in good faith ? I find, in the state of the case, no evidence to the contrary. The facts relied on are, that the property had belonged to the deceased, and that the alienee was one of the administrators. These facts are, however, equivocal, Both are consistent, and may well stand with fairness apd ip*266tegrity in the alienation. The alienation of these two shares ' was made before the commencement of the action against the administrators. The personal estate was the primary fund for the payment of debts. It may have been in the present case apparently sufficient to discharge them. Subsequent to the alienation, by unforeseen losses or other adventitious circumstances, the face of things may have greatly changed. I speak of these as matters which may have existed, without saying that they- did exist; for the party whose interest it was to furnish evidence of bad faith, if it existed, which we are not allowed to presume, but the contrary, has given us no light on these topics. And if John D. Jaques paid upwards of $1500 to his brothers for these shares, as the deeds avow, and which has not by proof been gainsaid, then a somewhat strong inference seems fairly to result, that he did not anticipate any jeopardy to these shares from the debts of the decedent. It is to be farther remarked, that as the matter appears on the documents before us, the alienation was not in satisfaction of an antecedent debt due from the alienor to the alienee, but an actual sale for a consideration in money paid. In Parret v. Van Winkle, Chancellor Williamson did not consider the fact that the land had belonged to the decedent as in itself evidence of bad faith in the mortgage. In Mead v. Orrery, 3 Atk. 235, and in Nugent v. Gifford, 1 Atk. 463, knowledge that the property assigned was assets, and the purchaser’s knowledge of debts in general, were not of themselves, in the opinion of Chancellor Hardwicks, sufficient to affect the validity of assignments made .for a valuable consideration, and when no collusion existed. Without going beyond the matters presented by the state of the case, I do not find in the- alieuatioiis by Thomas and Samuel Jaques, badges of fraud or any facts on which a charge of bad faith can be sustained. It follows then, that these two shares or ninths of the premises in question, were bona fide aliened by the heirs to whom they descended before the action by the executors of Shotwell, was bi-ought against them; and, consequently, they were beyond the reach of the execution issued on the judgment in that action.
On the 9th day of July 1821, John D. Jaques, as is seJ forth in the state of the case, mortgaged to the defendant Moses Jaques, to secure the payment of a bond of $1000 from the *267.former to the fatter, ail hia interest in the farm being the ivt'O ninths he held by parchase already considered, and the one .ainth he held by descent. The latter remains to be examined.
In the term of November, 1822, judgment was obtained In ibis court by the executors of Shotwe.il against John D. Jaques. On the 9th of June, 1823, a sain was made by the sheriff under an execution issued on that judgment; and on the 27th July, 1824, a deed was executed by the sheriff to the present, defendant. By this sals and conveyance, the equity of redemption of John D. Jaques in the three ninth parts, became vested in the defendant, subject, however, to such right, if any, as the commencement previous to the sale of the action against the heirs, might have created in the one ninth part which John J>„ Jaques then held by descent 5 for in the language of Chancellor Williamson, the lien of the creditors attached upon the lands descended by the institution of the action against the heirs.
But as the mortgage from John D. Jaques to the defendant, was ¡nade long prior to tlm commencement of the action against the heirs, if that was an alienation in good faith, within the meaning of the set of the Legislature heretofore mentioned, It will afford a legal protection to the defendant, from any recovery in the present action. First thee, to examine the question of .good faith. The bond from John D. Jaques to the defendant,, exhibiting a debt due from the farmer to the latter, is a part of the state of the ease, and the existence and fairness of the debt have not been in any wise impeached. It may well be supposed that the defendant knew when he took the mortgage that the land had belonged to John O. Jaques, deceased, and the manner by which it came to John D, Jaques. But these matters have been Hewn already to be insufficient to give the taint of bad faith to the transaction. And there is nothing in the case from which an inference can be drawn, that the defendant when he received the mortgage, knew there was any debt of John O. Jaques outstanding and unpaid j especially as the date at which the defendant became equitably entitled to the benefit of the claim of the executors of Shotwell against the administrators of Jaques, which in the state of the case, as originally prepared, wan left somewhat vague and indefinite, has been since fixed by documents furnished to the court by the attorneys of .the parties, and now to he taken as part of the"state of the ease, to have been the *2689th of June 1823, a day long subsequent to the date of the mortgage. It was however insisted by the plaintiff’s counsel, that a mortgage is not an alienation within the meaning of the Legislature. For this doctrine I can find no support. A. mortgagee is every where recognized as a purchaser pro tanto. Cowp. 278. 6 John. Ch. Rep. 433.
By means of the sheriff’s deed, so far forth as it may extend, and by means of the mortgage, the defendant has shewn a valid, legal, and effectual defence against the present action.
But it is farther insisted, that as the defendant in June 1823, pending the action against the heirs became by purchase the real owner of the demand against them, and afterwards judgment being obtained, caused, for his benefit, the sale to be made, under which the lessor of the plaintiff claims, he cannot be permitted to say that by the sale no title was obtained to the three ninth parts which are in controversy. It is not however proved, nor even alleged, that the defendant used any fraudulent suppression or concealment, or made any false suggestions. The levy and sale were made and conducted in the ordinary manner, and of consequence, subject to the mortgage, if the mortgage was, as I have sought to shew, a subsisting bona fide alienation. If a creditor haviDg two claims, one secured by mortgage, should under a judgment on the other, sell the mortgaged premises, it would be in vain to say he had thereby defeated his mortgage. Moreover in the present case, six ninth parts of the farm of the deceased John O. Jaques did, as no one in this cause has disputed, pass to the lessor of the plaintiff by the sheriff’s sale and conveyance.
Drake, J.The history of the claim of Moses Jaques, the defendant, is briefly this, that in 1820, about four years after the death of John O. Jaques, from whom the premises in question descended, John D. Jaqiies, one of the heirs at law, and then owner of three shares of these premises, executed to the said Moses Jaques a mortgage thereon, to secure the payment of one thousand dollars. After which, finding the executors of Shotwell prosecuting for a debt due to them by the deceased, he purchased that debt and pursued the legal remedies for the recovery of it; first stripping John D. Jaques of all his remaining interest in the Said land?, and then pursuing the residue of the estate in the *269¿lands of the heirs at law, until finally, at the sheriff's sale when the lessor of the plaintiff became the purchaser, he obtained his money.
There is no pretence that the mortgage was not for a full consideration, or that the claim of the executors of Shotwell was not just. And if they were not objectionable, I cannot discover any fraud in the conduct of Moses Jaques, or that he was so circumstanced as to be prevented from pursuing the legal remedies for the recovery of his claims. The mortgage and the judg - ment against John D. Jaques, and sale of his interest, were matters of public record. Zophar Hetfield purchased with full knowledge of all the circumstances, and when he bid, could not have calculated that he was obtaining any interest in the mortgaged premises; unless upon the ground, now urged by his counsel, that the debts of the ancestor, John O. Jaques, remained a lien upon his lands, and that they could not be aliened by his heirs free from the incumbrance of those debts until they should be paid.
Upon this question there has been much doubt, and it is singular that it has not before this been presented for the determination of this court, in as much as it is liable to arise upon almost every death of a person seized of real estate.
By the common law, if the heir aliened before action brought, the creditor had no remedy. This, however, was corrected by the statute 3d and 4th William, and Mary Ch. 14. In New-Jersey, says Chief Justice Kinsey, Cooce,s reports 133, “ it has long been settled that lands are assets, in the hands of an executor or administrator for the payment of debts, and that upon an action brought against either, the real estates of the testator osintestate are chattels, may be taken in execution, and sold for the payment of debts, and this without making the heir a party to the suit.” But although this'may have been the law in 1792, the legislature thought proper to alter it in 1797, and by the act, Rev. Laws, p. 291, authorized an action to be commenced against the heirs, or against the heirs and devisees where there was a will; and providing that if they had aliened or made over ihe lands descended, or devised, before action brought, such heir or devisee should be liable to the value of the lands ; and Shat execution should go against such heir or devisee accordingly „■ ” But the lands, tenements, and hereditaments which were bom, *270aliened before the action brought, shall not be liable to such execution.” And if not liable to such execution, in what manner s^ou^ ‘bey be made liable ? It is under such execution that the plaintiff in this case claims; and the statute expressly says, that if the lands were bona fide aliened before suit brought., they shall not be liable to if. The onlj question then is, were they bona fide aliened ? As I have said before, no fraud appears, and it is not to be presumed.
The plaintiff in this case can derive no benefit from the act of 1799, making lands liable to be sold for the payment of debts; Rev. laws, p. 430. He does not claim the benefit of any proceeding by the executor or administrator to sell the lands to pay debts after the personal assets proved deficient. There has been no application to the Orphans’ Court, or order for salel And if there had been, it has been decided by the chancellor in the case of Parret v. Van Winkle and Van Riper, that under that statute the lands are bound only from the time of obtaining the order for sale.
The legislature of New-Jersey have lately passed a law upon this subject. By the act of December 12th 1825, they have not merely limited the continuance of the lien upon lands for the debts of the ancestor, but they have expressly created that Jipn for the term of one year; thus giving a legislative exposition of the previous statutes. Upon the whole, I am of opinion that the plaintiff should not recover the mortgaged premises.
Let there be judgment for the defendant