Claim of Wilbur v. Estate of Warren

• Decision Date: 18 January 1887
• Citation: 10 N.E. 263,104 N.Y. 192
• Parties: In re CLAIM OF WILBUR v. ESTATE OF WARREN, Deceased.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 192

10 N.E. 263

In re CLAIM OF WILBUR

v.ESTATE OF WARREN, Deceased.¹

Court of Appeals of New York.

January 18, 1887.

Appeal from judgment of supreme court, Fifth department.

Frank W. Stevens, for appellant.

A. Hazeltine, for respondent.

ANDREWS, J.

The general term sustained the decree of the surrogate, allowing the claim of Betsy B. Wilbur against the estate of her father, Enos Warren, for the amount of interest paid by her on the mortgage executed by her husband, Riley Wilbur, to Mary D. Miller, on the land subsequently conveyed by the mortgagor to Enos Warren, and by him to his daughter, on the ground that it was paid on his debt to protect her title to the land.

The facts may be briefly stated. In 1866 the land now owned by the claimant, being a farm of about 90 acres, was purchased by and conveyed to Riley Wilbur. On the second of May, 1876, Riley Wilbur and his wife executed to Mary D. Miller a mortgage thereon for $2,400, to secure the bond of Riley Wilbur, executed concurrently therewith. On the fifth of June, 1879, Wilbur and his wife conveyed to Enos Warren 70 acres of the land subject to the mortgage, ‘which mortgage, with the bond accompanying it,’ the grantee in and by the deed agreed to pay as a part consideration for the conveyance. On the same day, Warren acquired title to the other 20 acres from one Blauvelt, to whom Wilbur had previously conveyed it. On the second of December, 1880, Enos Warren, then of the age of 79 years, conveyed the 90 acres to his daughter Betsy B. Wilbur, by deed expressing the consideration of $500, with full covenants, and containing no reference to the mortgage. After Enos Warren acquired title, and before his conveyance to his daughter, he paid $1,400 on the mortgage, and at the time of his death in October, 1881, there was $1,000 of principal unpaid. The interest paid by Mrs. Wilbur for which she claims reimbursement accrued after the death of the intestate. He left surviving him the claimant, a son, and the children of a deceased daugter, his only next of kin and heirs at law. In fact there was no pecuniary consideration for the conveyance to Mrs. Wilbur, the only consideration being natural love and affection. Upon these facts the question arises whether there is any ground, legal or equitable, for charging the estate of Enos Warren on account of the interest paid by Mrs. Wilbur on the Miller mortgage.

It is conceded by the general term that the claimant has no remedy upon the covenants in her deed. It seems to be the general doctrine that an executory agreement, supported only by a meritorious, as distinguished from a valuable or pecuniary, consideration, cannot be enforced either at law or in equity, and an executory covenant falls within the operation of the rule. The leading cases on this subject are cited in Whitaker v. Whitaker, 52 N. Y. 368. The claim of Mrs. Wilbur to be indemnified out of the estate of her father for payments made by her on the mortgage cannot, therefore, be supported upon the basis of any contract between herself and him by which he obligated himself to pay the mortgage. It is clear that, if she had brought an action upon the covenants in her deed against the personal representatives of her father to recover the money paid by her, she must have failed. It would have been a conclusive answer to the suit that the covenant was without adequate consideration, and imposed no legal obligation on the covenantor to discharge the mortgage.

It remains, therefore, to consider whether, independently of any contract between the parties, the intestate nevertheless, by reason of the facts and circumstances disclosed, made the mortgage debt his own, so as to render his personal estate primarily chargeable with its payment in exoneration of the land. If this was the effect of the transactions, and the land in the hands of the claimant stood, as between her and her father, as security merely for his debt, then it may properly be conceded that she would be entitled to be reimbursed out of the intestate's estate for any payments on the mortgage made to protect her title. If, on the other hand, as between her and her father, the land was the primary fund for the payment of the mortgage, then it would seem to follow that no recourse could be had to his estate for payments made by the daughter thereon. The payments in that case would be payments made for her own benefit upon a debt against the land; the liability of the grantor on his covenants in his deed from the mortgagor being secondary only.

It is the settled doctrine in equity that one who purchases land subject to a mortgage makes the land thereby the primary fund for the payment of the mortgage debt. It is otherwise, as between mortgagor and mortgagee, when the bond of the mortgagor accompanies the mortgage, in the absence of any statute regulation. In that case the bond is the principal thing, and the mortgage is the incident. The debt is represented by the bond, and the mortgage is collateral security for the personal obligation. But on a conveyance by the mortgagor, subject to the mortgage, the plain meaning of the transaction between the parties is that the land shall pay the mortgage debt in exoneration of the personal liability of the mortgagor on his bond, and, in equity, in such a conveyance, the land is treated as the principal debtor, and the mortgagor as surety for the mortgage debt. If the deed, in...