Opinion
11-15-1886
HUBBARD'S ADM'R v. CLARK, ASSIGNEE, ETC.
Mr. Rosenkrans, for complainant. Mr. Magee, for defendants.
Facts appear in the opinion.
Mr. Rosenkrans, for complainant. Mr. Magee, for defendants.
BIRD, V. C. The bill in this cause was filed in August, 1884, to recover $2,033.33, a balance of purchase money on the sale of a farm by H., the intestate, to S. T. S., in April, 1865, under an agreement made in May, 1864. The consideration was $8,000, of which $2,000 was paid at the execution of the agreement, and a mortgage was to have been given to secure the balance, with interest, payable in installments of $2,000 each, on April 1, 1865, 1866, and 1867. But no mortgage was given. S. T. S. went into possession as owner, and made an agreement with H., his vendor, that he should continue to occupy the farm for a fixed money rent. S. T. S. did not pay the installment of $2,000 April 1, 1865; nor did he make any payment until May, 1866, when he paid $134. In June, 1866, he paid $1,000. H. died July 6, 1867, and July 16th letters of administration were issued to the complainant. H. was in possession at the time of his death. He left a widow and six children, who continued in possession. With these S. T. S. made an agreement by which they were to pay a certain rent, but which rent was to be applied in payment to them of the purchase money still due. With this the administrator had nothing to do. The widow and children continued in such possession, making appropriation of the rent as indicated, until fifth of September, 1878, when Selden T. Scranton & Co. made an assignment, under the act for the benefit of creditors, to B. G. Clark, one of the defendants. On tenth of same month, S. T. S. made an assignment of his own personal assets for the benefit of his creditors. The farm conveyed by H. to S. T. S. is named in both assignments among the list of assets. It is admitted that while said farm was purchased by S. T. S., and the deed taken in his own name, he, in fact, purchased it for the firm, and the payments made were made with the firm's money. After these assignments, the widow and one or more of the children of H. continued in possession until August, 1884, when the assignee had advertised the farm for sale. He advertised both as assignee of S. T. S. & Co., and as assignee of S. T. S. The complainant, as administrator of H., filed his bill to restrain this sale, and, as stated, to have the amount still due declared to be lien, and to compel its payment. The claims proved against S. T. S. & Co. were over $400,000, and antedated the assignment, and there is not sufficient assets to pay them. The claims proved against S. T. S. personally will more than swallow up all his personal assets.
1. It is said that the bill is defective because the children of H., as heirs at law, are not parties. This view is pressed on the ground that the administrator did not claim the consideration money as personal estate, but allowed the children to treat with the vendee in reference thereto directly. This view cannot be sustained. The land was not only agreed to be conveyed, whichof itself works a conversion, but was actually conveyed, so that at law, an action could have been maintained for the consideration. The fact that a mortgage was to have been given to secure the balance cannot work a reconversion. Had such mortgage been executed and delivered, it would have been a personal asset, and gone to administrator.
2. It is urged that, the widow of H. having died before the filing of the bill, and having been entitled to one-third of the amount of the purchase money still unpaid at the time of her husband's death, and which, at her death, was still unpaid, the amount so due to her devolves upon her next of kin, whom the complainant has brought no one in to represent. This is true as to her rights and death, but not as to legal consequences. The death of Mrs. H. worked no change as to the method of devolution. After her death, as well as before, the administrator was entitled to all the personal estate of the decedent. When he brings his suit to recover a demand, whatever its character, he never makes any of the next of kin parties. The death of one who survives the first decedent does not confer any greater right on his or her next of kin; so that, if a child of B. dies leaving children, such children would not be made a party by the administrator of B. in a suit to foreclose a mortgage, or to recover on a bond or note or book-account. I believe this is without exception. This being so, had the widow of H. been living at the time of filing the bill, she would not have been either a necessary or a proper party; and, as a consequence, neither her representative nor her next of kin need be brought in.
3. It is urged that the claim of the next of kin of H. and of his widow, since deceased, is barred by the statute of limitations. This cannot be, since S. T. S. treated with the next of kin and widow respecting this unpaid purchase money until the year 1878, when the assignments were made, and from time to time made payments to said next of kin as they came of age. The assignments were made in September, 1878, and the bill was filed in August, 1884. Independently of the vendor's lien, therefore, the statute had not begun to run. The bill was filed within 20 years from the time of the execution and delivery of the deed.
4. The claim that the complainant has an adequate remedy at law is quite untenable. The object of this suit is to preserve and establish the vendor's lien for unpaid purchase money. I believe that this is always done in equity, and this seems to be the spirit of the cases. Payne v. Wilson, 74 N. Y. 348; In re Howe, 1 Paige, 125; Jones, Mortg. § 163.
5. While it is admitted that, as between the assignee of S. T. S. and the next of kin, the lien may be good unless barred by laches, it is insisted that it is different as between the assignee of S. T. S. & Co. and the next of kin. It is said that, as such assignee, he represents judgment creditors, and that they are entitled to priority. But it will be noticed that in this case they are judgment creditors of the company, and that the title to the land was in S. T. S. Another consideration of great weight is that the assignee, and all who claim under him, had ample notice; for all the facts necessary to perfect such notice was set forth in the deeds of assignment. Besides, the counsel of the respective parties seem to have had full information on the subject. I think the vendor's lien, or lien by way of equitable mortgage because of the agreement to give one, is still entitled to its superiority. See the cases above cited and Jones, Mortg. § 202.
6. I can find no fact or circumstance in the case to justify the defendants in pressing the doctrine of laches. Time was given for the benefit of the vendee alone; and for the court to charge the other party with laches would indeed be uprooting everything.
7. Learned counsel pressed with apparent confidence, as good law, the assertion that the lien died with the vendor. It extends to his personal representative. Story, Eq. § 1227,
I think these considerations show that the bill is well filed; that the proper parties are before the court; and that the balance due is a lien on the land.
I believe there is no dispute as to the amount. I will advise a decree to the effect that if the amount due and the taxed costs be not paid within 30 days after a service of a copy of the decree, that in that case an execution shall issue.
NOTE.
STATUTE OF LIMITATIONS—PART PAYMENT. Part payment of an account voluntarily made is an acknowledgment of liability on the whole demand, from which a new promise to pay the residue is implied. In Indiana, Willey v. State, 5 N. E. Rep. 884; in Kansas, Letson v. Kenyon, 1 Pac. Rep. 562; in Nebraska, Rolfe v. Pillond, 19 N. W. Rep. 970: Sornberger v. Lee, 15 N. W. Rep. 345; in New York, In re Gardner, 9 N. E. Rep. —; in Oregon, Allen v. O'Donald, 28 Fed. Rep. 17; S. C. Id. 346; in Vermont, Green v. Morris, 4 Atl. Rep. 561; Benton v. Holland, 3 Atl. Eep. 322; Corliss v. Grow,
2 Atl. Rep. 389; in Washington Territory, Yesler v. De Koslowski. 8 Pac. Pep. 493; in Wisconsin, Engmann v. Immel's Estate, 18 N. W. Rep. 182; National Bank of Delavan v. Cotton, 9 N. W. Rep. 926; in Michigan, Miner v. Lorman, 22 N. W. Rep. 265; unless the circumstances repel the presumption of such a promise, Parsons v. Clark, 26 N. W. Rep. 656.
In Minnesota it must appear affirmatively that the debtor intended to recognize the obligation of the entire debt. Willoughby v. Irish, 27 N. W. Rep. 379; Chadwick v. Cornish, 1 N. W. Rep. 55. In Georgia a payment on account of a debt on written instrument, if entered thereon by the debtor, or by some one authorized for him, is equivalent to a new promise. Where the entry is made by the creditor or holder, the authority must be in writing. Stone v. Parmalee, 18 Fed. Rep. 280. In Iowa such indorsement will not toll the statute; only a new promise or an admission, such promise or admission being in writing. Hale v. Wilson, 30 N. W. Rep.——.
A payment enforced by a mere proceeding in rem does not have the effect of preventing the 'running of the statute, Thomas v. Brewer, (Iowa,) 7 N. W. Rep. 571; but the application to a note of the proceeds of securities left as collateral to it will, Sornberger v. Lee, (Neb.) 15 N. W. Rep. 345.
A payment made by an assignee in insolvency under order of the court will not affect the running of the statute. Hanks v. Holland, (Vt.) 3 Atl. Rep. 322; Clark v. Chambers, (Neb.) 22 N. W. Rep. 229; Parsons v. Clark, (Mich.) 26 N. W. Rep. 656. But see Letson v. Kenyon, (Kan.) 1 Pac. Rep. 562. Nor will a payment by one jointly liable with others affect the running of the statute in favor of his co-debtors, Shutts v. Fingar, (N. Y.) 3 N. E. Rep. 588; Cronkhite v. Herrin, 15 Fed. Rep. 888; Probate Judge v. Stevenson, (Mich.) 21 N. W. Rep. 348; National Bank of Delavan v. Cotton, (Wis.) 9 N. W. Rep. 926; Mainzinger v. Mohr, (Mich.) 3 N. W. Rep. 183; unless such payment is made by the authority of the co-debtor, or with his participation, Green v. Morris, (Vt.)3 Atl. Rep. 561; National Bank of Delavan v. Cotton, (Wis.) 9 N. W. Rep. 926; Mainzinger v. Mohr, (Wis.) 3 N. W. Rep. 183.