text:
    John Smith, Jr. v. Robert Hamilton.

      Bjectment. Pawl agreement to settle a loundary. A parol agreement, long acquiesced In, to settle a boundary between adjoining proprietors, being tbe result of an bonest attempt to fix the trne boundary, and according to which they have actually occupied, will be held good in an action at law, although the time has not been sufficient to establish an adverse possession.

      Heard May 12.

      Decided May 13.

      Case made from Macomb Circuit.
    Ejectment: Eor a strip of land lying along the east and west quarter line on section ten, in town five north, of ranee twelve east. The title to the east half of the north west quarter was vested in the plaintiff, Smith; and to the east half of the south west quarter in the defendant, Hamilton; the question in controversy being the true location of the boundary line between the parties.
    The cause was tried by the Circuit Judge, whose finding of facts and conclusions of law are set forth in the record as follows:—
    “ Before proceeding .to the evidence it was admitted that the plaintiff was the owner of the east half of the north west quarter of section ten; and that defendant was the owner of the east half of the south west quarter of the same section, and that the only question at issue was, as to where the east and west quarter section line of said section ten was located and established, as between the lands of the parties to this suit. To prove the quarter post between sections nine and ten as located by the government surveyor, a number of witnesses were sworn, and as to whether said post, or its proper location, as fixed by the original survey had ever been found, the testimony was very conflicting and uncertain; but the Court finds that the original quarter post as. located by the Government survey is as claimed by the plaintiff, and that by such survey the title of the land in question is in the plaintiff. The Court further finds that said quarter post so set by said Joel W. Manly was one chain and forty-five links south of the center of said sec-, tion, north and south, and one rod east of the section line between sections nine and ten. The Court further finds that in the month of March, in 1845, all the parties interested in said quarter line and owning and occupying land in part bounded by the same, among whom were the grantors of the said plaintiff, not being satisfied with the said Manly post, as being the original quarter post, applied to one Chas. F. Mallary, then county surveyor, to run and establish said quarter line. That on the twentieth day of March, A. D. 1845, the said Mallary in the presence of and with the consent and under the direction of all the parties in interest moved the post forty-five links, and made a record thereof in the book of records of surveys kept for said county, of which the following is a copy.
    “N. B. — The corner I (I, designating the said Manly quarter post) was found to be too far to the south, and by consent of Russel Myers, Jonathan Myers, William Allen and H. McCafferty, and all the rest concerned, was moved one chain and forty-five links to the north. Clement Chapel and Miles Beagle chainbearers, Charles Goodwin, flagman, were sworn.” (Signed,) C. F. Mallary, County Surveyor.
    “ The Court further finds that immediately after the location of said post and line, by the said Mallary as aforesaid, the owners and occupants of land north and south thereof erected fences on said line, as line fences between them claimed to said line on each side thereof, and the said line has been acquiesced in by all parties interested in the same, until the commencement of this suit, (May 19th, 1864,) and now continues to be the boundary line. The Court further finds, that the plaintiff in this suit derives title through parties who directed and consented to the said quarter line designated by Mallary; and that it was designed and intended by the parties interested in said line at the time the same was designated and established by said Mallary, that the same should be and remain the true and permanent quarter section line running east and west through said section ten.
    “ From the foregoing facts the Court deduces the following conclusions of law:
    “ 1st. It being a question of doubt and uncertainty as to where the original government quarter post had been established by the original government survey, it was competent and lawful, for the parties in interest, to locate the same at the center of the section north and south, and having so located said post and line, and acquiesced therein for more than nineteen years, the same will be binding upon them and their grantees.
    “ 2d. The parties interested having on the said twentieth day of March, 1845, by mutual agreement, established and agreed upon the line in question, so established by said Mallary as the boundary line between them, and acquiesced in the same from that day to the 19th day of May, 1864, the time of the commencement of this suit, occupying and improving their lands with reference to said line, are estopped from denying said line being the true boundary. And that the said plaintiff is not entitled to recover said lands in his declaration described, and that defendant have judgment for his costs to be taxed.

      “ Wherefore judgment was duly entered in said cause for the said defendant.”
    The judgment is now brought into this Court for review upon a case made.

      F. F. Mead and A. B. Maynard, for plaintiff.
    The Court below finds as a conclusion of law, that the plaintiff is equitably estopped from denying that the division line agreed upon in 1845, is not the true line as between the parties to this suit; that the facts establish a case of equitable estoppel, or estoppel in pais. To constitute an equitable estoppel, there must have been an act done or statement made by a party which cannot be contravened or contradicted, without fraud on his part and injury to others, whose conduct has been influenced by the act or omission. See 2 Smith’s Lead. Gas. 6J$. The primary ground of the doctrine is that it would be a fraud in a party to assert what his previous conduct had denied, when, on the faith of that denial, others have acted. 31 Penn. Stat. SSI; 5 Met., 478 ; 18 FT. T., 892. There must have been a wrong done on one side, and an injury, which is the direct effect of that wrong, suffered on the other side. And this injury must affirmatively appear. 1 Gill., 439 ; 10 N. Y., 519; 10 ib. 402 ; 1 Selden, 894 J 8 Min., 811; 2 Smith, L. G. 645. It will be observed that in the finding of facts by the Court below, it is nowhere found that any improvements have been made by defendant upon the property in dispute.
    A division line mistakenly located and agreed upon by adjoining proprietors, will not be binding and conclusive on them, if no injury would be done in disregarding it. 27 Mis., (6 Jones), 198 j 9 Wend., 65. It does not appear from the finding that there has been or will be any injury here. In absence of such fraud and injury, as will work an estoppel in pais, parties are not bound by consent to boundaries which have been fixed in error, until the statute term of prescription has run. 12 La. An., 780 ; 7 hid., 458 ; 7 Allen, lfi4; 16 Texas, 74 ; 29 Conn., 891; 86 Mo., 507; 5 Met., 478-

    The New York cases hold uniformly that no possession short of the period prescribed by the statute of limitations, is sufficient to transfer the “ title from one person to another, or estop the owner from claiming his own.” Indeed, all the eases holding acquiescence conclusive, in cases of practical location on erroneous boundary lines, were so decided on the ground that the possession had continued for a period far in excess of the statutory period, and as stated by Judge Selden in the case of Baldwin v. Brown, 16 New York (2 Smith,) 361, ranged from thirty-six to forty-one years. Terry v. Chandler, 16 New York, 354; Baldwin v. Brown, ib. 361; Adams v. Rockwell, 16 Wendell, 285 ; Clark v. Wethey, 19 ib. 320; Clark v. Baird, 5 Selden, 183; Raynor v. Timmerson, 51 Barbour, 517; Jackson v. Van Colver, 11 John, 128; Jackson v. McConnell, 12 Wend., 421; Vosburg v. Trenton, 32 N. Y., 561; Hazey v. Delewater, 35 Pa. St., 409 ; Orr v. Hadley, 36 N. H.. 575 ; Kellogg v. Smith, 7 Cush., 375.

      Giles Hubbard and Ashley Pond, for defendant.
   Campbell, Oh. J.

The action of ejectment in this case was brought to recover a small portion of land lying between the true government survey boundary of plaintiff’s lands, and a line settled by agreement a little less than twenty years before the suit was begun. It appears from the finding that in 1845, the adjoining proprietors, being satisfied that the corner post fixed by a previous survey was not correctly placed, employed a surveyor who ran the line for them so as to change the location of one end about six rods; and the parties on both sides immediately set their fences in accordance with the new line, and have, as their grantees also have, ever since acquiesced in that location. The Court below found as matter of law that they were bound by that acquiescence.

We think the ruling was correct. It has been held very generally, that when there has been an honest difficulty in determining the lines between two neighboring proprietors, and they have actually agreed by parol upon a certain boundary as the true one, and have occupied accordingly with visible monuments or divisions, the agreement long acquiesced in shall not be disturbed, although the time has not been sufficient to establish an adverse possession. Where the transaction has not been such as to amount merely to an honest attempt to determine a doubtful line, the authorities have not permitted an agreement to stand which would operate as a violation of the statute of frauds. But where the parties have only tried to find the true boundary, it has been held that the statute was not infringed, and the line was fixed by acquiescence. The case of Terry v. Chandler, 16 N. Y., 354, points out the distinction, and the previous cases of Jackson v. Van Corlaer, 11 J. R., 123, and Jackson v. Ogden, 7 J. R., 238, covered the same ground which is insisted on in the present case. The principle has been recognized in many other cases, and, confined within these limits is, we think, the law of New York. In Massachusetts the same rule was adopted in Kellogg v. Smith, 7 Cush., 375.

There is no doubt some conflict elsewhere, and there are some difficulties attending those cases which involve additional elements. It has been said in some cases, that the rule was one of equity rather than of law. But estoppels in pais are not unknown to the common law. And where in addition to a mere estoppel there have been such acts as would induce a court of equity to grant specific performance of a parol contract, we are quite willing to adopt those precedents which have transferred cognizance of such complete rights into courts of law. There is no good reason for refusing to recognize them in an action of ejectment.

We think the judgment should be affirmed with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Cooley, J.

license: Public Domain

text:
    Jasper K. Gooding v. James Hingston.

      Pleading a/nd evidence: Common counts: Foreign judgment: Account stated. The record of a foreign judgment is not admissible in evidence to prove a cause of action alleged in the common counts in assumpsit.

    The count upon an account stated, may be supported by evidence of an accounting between the parties and a balance struck; and it seems that any admission or acknowledgment of a sum due, or an award upon a parol submission, is also admissible under this count.

      Heard May 12.

      Decided May 26.

    Error to Saginaw Circuit.
    This was an action of assumpsit brought by James Hingston, in the Circuit Court, for the County of Saginaw against Jasper K. Gooding. The plaintiff declared upon the common counts in asstimpsit, including »the count upon an account stated: and on the trial offered in evidence an exemplification of a judgment rendered in the Court of Queen’s Bench, Toronto, Upper Canada, against the defendant, and in favor of the plaintiff and one William McBain. This was objected to by the defendant, as inadmissible under the declaration; the Court overruled the objection, and admitted the evidence. A judgment being rendered for the plaintiff below, the cause now comes into the Court by writ of error, to review the ruling of the Circuit Judge, upon the admission of the evidence.

      Hoyt & PerMns, for plaintiff in error.

      W. M. Miller, for defendant in error.
   Cooley, J.

It appears from this record that Hingston sued Gooding in assumpsit, the declaration containing only the common counts for goods sold and delivered, work, labor and materials, money paid, money had and received, and an account stated. On the trial, he offered in evidence, as the sole cause of action, a judgment recovered in the Court of Queen’s Bench of Upper Canada, in favor of one McBain, against Gooding, and of which he claimed to be the assignee. The admission of this judgment in evidence was objected to by the defendant, because not specially counted upon, but the Judge admitted it, and the plaintiff had judgment. Error is now brought, and the only question is whether the declaration was sufficient to warrant the recovery had.

Our statute,— Comp. L. § 1)550, — allows assumpsit to be brought upon judgments in all cases, but it does not in express terms make any change in the rules of pleading applicable to suits upon such demands. Assumpsit might be brought upon a foreign judgment at the common law, but the declaration was special, and the substantial averments were the same as in an action of debt. In counting upon a judgment, it was not only necessary to declare specially, but it was important to describe the judgment with accuracy, as a slight variance was generally fatal. — Bissell v. Kip, 5 Johns., 89; Bibbins v. Noxon, 4 Wend., 207. — We discover no reason for supposing that the declaration was to be simplified by the statute referred to, nor was any suggested by counsel.

The defendant in error insists that the judgment is evidence of an account stated between the parties. A declaration upon an account stated may be supported whenever, as the result of an accounting between the parties in respect to debts or accounts, a balance has been struck; and it seems that any admission by one of a balance, or an acknowledgment that a sum of money is due to the other, is sufficient prima facie to support a declaration upon an account stated. — Trueman v. Hurst, 1 T. R., 42; Dawson v. Remnant, 6 Esp., 24; Fitch v. Leitch, 11 Leigh, 471.— But we are not aware that this action has ever been extended to the case of such compulsory adjustments of demands, as the law may make against the will of the party, nor are we referred to any case which seems to us to warrant such an extension.

The cases nearest analogous are those in which it has been held that under a count upon an account stated, the plaintiff may be allowed' to recover upon an award made under a parol submission of disputed demands arising upon contract. — Keen v. Batshore, 1 Esp., 194; Bates v. Curtis, 21 Pick., 247. — But in these cases where third persons are voluntarily chosen by the parties to adjust their demands, the conclusion arrived at may well be treated, for the purpose, of further proceedings, as that of the parties themselves; and considering the award as an account stated, does no-violence to the evident purpose of the proceeding. The precedents do not appear to us to go far enough to warrant a recovery upon a judgment under a similar declaration; and-we find ourselves unable to concur in the conclusion which-was reached by the Circuit Judge. The judgment of the Circuit Court must therefore be reversed with costs, and a new trial ordered.

The other Justices concurred.


author: Graves, J.

text:
    In the matter of the appeal of Angeolina Wisner, Executrix of Moses Wisner, deceased.
    Mortgage; Primary fund : Conveyance and devise of the same premises. A grant, reserving a life estate in the grantor, having been made by deed and accepted by the grantee, — the same premises being devised to the grantee by will bearing date the day after the deed, and the deed and will delivered to the grantee at the same time, — on the death of the grantor the estate granted by the deed will be immediately reduced into possession and leave nothing for the will to operate upon. And the grant being made expressly subject to a mortgage on the premises, the entire estate is charged with the mortgage debt, for the discharge of which, the premises are the primary fund. The position of the grantee in the deed is that of a purchaser, who, taking subject to the mortgage, would have no right, on the payment of the mortgage debt, to call upon the grantor for reimbursement: such payments, when made, are in exoneration of the property from a burden to which the title was expressly subject, and therefore no claim can be maintained on them against the estate of the deceased grantor.

      Heard May 12.

      Decided May 26.

    Case made from Oakland Circuit.
    Mrs. Angeolina Wisner, executrix of Moses Wisner deceased, presented to the Probate Court of Oakland County for allowance a claim for the payment of the sum of $3151, 73, to discharge a mortgage made by the deceased and resting on his homestead at the time of his death. The allowance of the claim was opposed on the ground that the deceased had conveyed the homestead to Mrs. Wisner, reserving a life estate in himself, expressly subject to the mortgage for the payment of which she seeks to be reimbursed. It also appeared that on the day after the date of the deed, and before its delivery, the deceased executed a will devising the same property to Mrs. Wisner; and that the deed and the will were delivered together to Mrs. Wisner by tbe deceased, just before leaving home with the regiment of which he was in command to join the army in Kentucky, where he died. On the day after he left home, Mrs. Wisner caused the deed to be recorded. ■ ■
    The Probate Court disallowed the claim, and Mrs. Wisner appealed to the Circuit Court for the County of Oakland; where, after a trial before the Circuit Judge, without a jury, the judgment of the Probate Court was affirmed; and the cause now comes before this Court by case made.

      Orofoot & Brewer, for Executrix.
    I. The only point relied on in opposing this allowance is that Gov. Wisner, on the 25th day of August 1862, made a deed to his wife of the mortgaged premises subject to the mortgage, which deed was delivered to her as early, at least» as the 5th day of September of the same year, and that thereby the title to this homestead farm became vested in her, and that at the date of his death, 5th of January 1863, there was no title in the testator in this specific bequest; and, that therefore, the will could not operate upon it: and it is claimed — 1st. That as the deed was made subject to the mortgage, the debt became thereby primitively the debt of Mrs. Wisner, which she was obliged to pay and discharge upon her own account; and — 2. That in any event the mortgaged premises became the primary fund for the payment of the mortgage debt: and therefore, as Mrs. Wisner held the title to this mortgage property, she could not in the course of administration, until this primary fund was exhausted in paying the mortgage debt, pay any part of it and charge it to the estate.
    As to the first point, we say that the debt did not by the language used in the deed,. become a debt against Mrs. Wisner the grantee; and the most that can be claimed from the terms' used in the deed is that she was but the grantee of the equity of redemption. She did not by accepting such a deed become personally liable to the mortgagee or to her grantor. We do not think this position will be seriously controverted, but we cite, — Belmont v. Coman, 22 N. Y., 438; Pike v. Brown, 7 Cush., 133; Braman v. Dowse, 12 Cush., 227; Stebbins v. Hall, 29 Barb., 524.

    As to the second point, we are willing to admit in this pase, that as between vendor and vendee in a case of bargain and sale, if the vendee accepts a conveyance, subject to .the payment by himself of an encumbrance upon the land conveyed, the land becomes the primary fund for the payment of the encumbrance; but this is not the rule in regard to descended or devised estates. The rule in regard to the funds liable for the payment of the debts of the testator is stated in the authorities placing the funds liable therefore in the following order: 1, The general personal estate. 2, Estates specifically and expressly devised for the payment of debts, and for that purpose only. 3, Estates descended. 4, Estates specifically devised, though charged generally with the payment of debts. — Donn v. Lewis, 2 Br. Chy. C. 257; Milnes v. Slater, 8 Vesey, 295; Livingstone v. New Kirk, 3 Johns. Ch. R., 312, 328; Manning v. Spooner, 3 Vesey, 114; 2 Red. on Wills p. 864 Chap., XVIII. § 74. p. 868. § 18. p. 869, and Notes.

      ■ And in regard to encumbered real estate, devised or descended, the rule at the common law was, that if the encumbrance was one created by the testator as for his personal debt, the personal estate was chargeable with the payment of the debt. If the encumbrance was created before the purchase by the testator, and he had not himself become liable for the debt, then the encumbered property was the primary fund for the payment of the debt, and the heir or devisee must take it subject to the charge therefor. This rule is elaborately discussed by Chancellor Kent in the case of the Duke of Cumberland v. Coddington, et al. — 3 Johns. Ch. 229, 272. — 'This rule in regard to encumbered property was changed in England and N. Y., by statute. — 1 N. Y. R. S., 749, S. 4; Jumel v. Jumel, 7 Paige, 591, 593; Halsey

      v. Reed, 9 Paige, 454; House v. House, 10 Paige, 158; 2 Red. on Wills, p. 876, Chap. XVIII. 29.

    II. The case relied upon to sustain the objections to ■the allowance of this account is — Jumel v. Jumel, 7 Paige, 591. — In that case Jumel died intestate — his wife administered on his estate. In this Jumel case however, the Chancellor found as matter of fact.that the conveyance to Mary Jumel Bownes was a bona fide sale, and the decision proceeded upon that theory.
    We shall not contend in this ease, but that if Mrs. Wisner the grantee in the deed, had purchased the premises under an agreement that she took the premises subject to the payment of the mortgage, and after accepting a deed thus expressing the terms of the contract, her husband had died intestate, she would be equitably estopped from claiming from the estate reimbursement of these payments, until the mortgaged premises had been exhausted.
    III. We claim in this case that the will must control this question; and in that event the appellant is clearly entitled to have this claim allowed. Can it be doubted from the language of the will that the testator, standing with this deed in his hand yet undelivered and uncertain whether it would be upheld as a grant, intended in this testamentary disposition of his estate, to give this property to his wife free of incumbrance and debts ? The will in this respect speaks from its date. — l Red. on Wills, p. 495 Note; 1 Red. on Wills, p. 880. Chap. IX. 8. — 'And the will in respect to specific legacies always speaks from its date.
    The intention of the testator in regard to these specific legacies, and the payment of debts as affecting them, must be considered from the date of the will. — -1 Red. on Wills, p. 432, 488. — 'And in the cases it is said that the Court should stand in place of the testator, and from the language of of the will and the surrounding circumstances, give effect to the intention of the testator. — ■1 Red. on Wills, p. 436. Chap. IX. 24; Malcolm v. Malcolm, 3 Cush., 472; Osborn v.

      Shrien, 3 Mason, 391; Sisson v. Seabury, 1 Sum., 235; Andrews v. Bishop, 5 Allen, 490.

    It is claimed that by the acceptance of the deed by Mrs. Wisner, after the will was made, this property, “the homestead and farm,” passed to her as grantee; and therefore, at the time of the testator’s death, the title stood in Mrs. Wisner and not in him, that there was then left in the testator nothing upon which the will could operate, in respect to this specific devise. Even if this be true, it cannot change the right of Mrs. Wisner to have this claim allowed to her in her administration account. She paid the same out of her own means, when payment was demanded by foreclosure, because she did not have money in her hands belonging to the estate, out of which to make payment. If it was then properly paid by her as a legal debt against the estat e she is entitled te> reimbursement. — # Red. on Wills, p. 870, Chap. XVIII. 19.

    To hold this land, charged by the testator as the primary fund, with the payment of this mortgage would, as we claim, do violence to every rule of construction, and would utterly pervert and defeat the real intent of the testator. The early cases require great strictness and explicit words to exonerate the personal estate from the primary liability of payment of debts, to the prejudice of devised or descended encumbered real estate. — Fereyes v. Robertson. Bunb. 301; Duke of Ancaster v. Mayer, 1 Br. C. C. 454; 2 Red. on Wills, p. 855, chap. XVIII, 9 and notes ; p. 875, 26 and notes; p. 877, 80 and notes; Hoff's Appeal, 24 Penn. St. R. 200; Mitchell v. Mitchell, 3 Md. Chy., Decisions 71; Thompson v. Thompson, 4 Ohio, N. S. 333.

    And to show how strictly the Courts adhere to the rule of following the intention of the testator in cases like this, we cite — Hewes v. Dehon, 3 Gray, 205; Andrews v. Bishop, 5 Alien, 490.

      0. F. Wisner, in person.
    The deed from Moses Wisner to the appellant vested in her the grantor’s interest in the mortgage premises, the equity of redemption. — Burdeno v. Amperse, 14 Mich., 91.— The execution and delivery of the deed amounts to a revocation of the will so far as the devise of the land to appellant is concerned. — Red. on Wills, pt. 1st, 889, and cases cited. — By accepting the deed appellant assented to its terms ; and as between her and her grantor, or his estate, she became bound to pay the mortgage out of her own funds.— Newell v. Hall, 2 Metc., 180 ; Pike v. Brown, 7 Cush., 133; Braman v. Dowes, 12 Cush., 228.

    The principal question in this case is: Can one who purchases an estate expressly subject to what remains unpaid upon a mortgage thereon, and who subsequently pays the mortgage, call upon the grantor, or his estate, to refund the amount paid upon such mortgage? Many cases maybe found where the question as to the personal liability of such purchaser to the mortgagee for the mortgage debt has arisen. The courts holding as a rule that such liability exists where the purchaser agrees to pay the debt. — Hartly v. Harrison, 24 N. Y., 170; Burr v. Beers, 24 N. Y., 178; Russel v. Pistor, 3 Seld., 173; Lewis v. Covillaud, 21 Cal., 178, — are in favor of such rule, Against such personal liability, — see Mellen v. Whipple, 1 Gray, 317.

    As to the right of such purchaser to recover from the grantor the moneys paid to discharge the mortgage, we submit there is no such right. — Baker v. Terrell, et al., 8 Minn., 195. — Paying the mortgage is nothing more than the law would require of suoh purchaser in order that he might derive any benefit from his purchase of the mortgagor’s equity of redemption. — Mellen v. Whipple, 1 Gray, 317; Lewis v. Covillaud, 21 Cal., 178; Klapworth v. Dresler, 2 Beasley, 62; Buttrick v. Wentworth, 6 Allen, 79;

      Kinnear v. Lowell, 34 Me., 299; Cheny v. Monroe, 2 Barb. Ch., 618.

    In the case of Jumel, Administratrix, &c. v. Jumel & Lagardere, in New York, precisely the same questions arose as in the case at bar.
   Graves, J.

Upon the final settlement before the Judge of Probate of the account of Mrs. Wisner as the executrix of her husband, the late Governor Wisner, certain items in her account amounting in the aggregate to $3151.78 paid by her in satisfaction of a mortgage upon the homestead place, formerly belonging to the testator, were disallowed and she appealed to the Circuit Court, where the disallowance by the Judge of the Probate was affirmed.

It appears by the record that in 1857 Mr. Wisner gave his note to Catharine H. Wisner for $3000, and to secure the payment of the same, executed his mortgage on his homestead to said Catharine H. Wisner. That in the summer of 1862, while in command of a regiment of volunteers then organized at Pontiac, in this State, where he resided, he was ordered to the field with the regiment, and¡in August of that year made preparations to repair to one of the Southern States in compliance with the order. That under these circumstances and on the 25th of August 1862, he executed to his wife, the said Angeolina Wisner, a deed purporting to convey to her the remainder in fee in the homestead, upon which he resided, and to become an estate in possession on the termination of an estate for his own life, which he saved to himself. The consideration stated in the deed was $10,000 together with other good and valuable considerations, and it was expressly declared in the instrument, that the conveyance was subject to what remained unpaid on the mortgage to Catharine H. Wisner, and the covenant against incumbrances in the deed also expressly excepted this mortgage. The deed was acknowledged, on the day of its date.

It farther appears that on the succeeding day, Mr. Wisner made his will and appointed Augustus C. Baldwin executor and his wife, the said Angeolina, executrix thereof. That by the first clause of the will the testator declared that after all his lawful debts should be paid, he devised the homestead in question to his wife, the said Angeolina in fee, and by the second clause that he gave to his four children all the residue of his estate real and personal whether then possessed or subsequently acquired. That on the 3rd of September following, the testator made his general power of attorney to his said wife, by which he empowered her generally to transact business for him and especially to sell and convey his real estate, and that just before he left home for the South, which was on the 4th of September, he handed the deed and will to his wife and they were then placed by her in the safe. That on the day after, being the 5th of September 1862, she caused the deed to be placed on record; and before any further payments were made on the mortgage, and on the 5th of January 1863, the testator died in the state of Kentucky. It was also shown that when this deed was given, Mr. Wisner was possessed of personal property of the value of about 15,000, the whole of which he conveyed to his wife Angeolina, and it does not appear that he subsequently acquired any or that he was possessed of any at the time of his death. On the 4th of April 1863, the widow paid the first item of $100 on the mortgage, but in some little time thereafter Mrs. Catharine H. Wisner, the mortgagee, commenced a foreclosure of the mortgage making Mrs. Angeolina Wisner, the the widow and grantee, a party in her individual character only, and thereupon the latter paid the balance of the mortgage debt out of her own means.

Such are the main facts in the case, and the question is whether the mortgage to Catharine H. Wisner was, as between Mrs. Angeolina Wisner and tbe estate of her husband not devised to her, a debt which she could compel the latter to discharge.

It is very clear that Mrs. Angeolina Wisner accepted the grant from her husband upon the terms upon which it was made, and thereby became the owner of so much of the equity of redemption as the deed assumed to convey. While the husband retained a life estate, the wife obtained by the conveyance a vested remainder in fee, subject to the mortgage, and it is manifest that the same event which gave the will effect, terminated the precedent life estate, reduced the estate conveyed by the deed into possession, and left nothing in the homestead property for the will to operate upon.

There are some reasons for contending that during the existence of the precedent estate which the mortgagor retained, when he conveyed the remainder to his wife subject to the mortgage, the owner of the remainder could not compel the owner of the life estate to pay the mortgage debt or any part oí it, but a decision of this ease does not require us to determine that question.

The extinction of the life estate, which left the whole estate in the homestead in Mrs. Wisner under the grant from her husband, precluded the raising of any question between the two estates as to marshaling the mortgage debt. .Upon the termination of the precedent estate, the whole mortgage debt rested absolutely upon the entire estate in the homestead, as that estate was held by Mrs. Wisner as grantee expressly subject to that debt. Her position therefore on the death of her husband was that of purchaser of the entire homestead property subject to the mortgage, and all the payments made by her were subsequent to the extinction of the life estate, and were made in exoneration of the property from a burden to which the title she took, and as she accepted and held it; was expressly subject. When a mortgagor conveys the whole equity of redemption expressly subject to tbe mortgage, the mortgaged premises are the primary fund for the payment of the mortgage debt, as between mortgagor and vendee, and if the latter pay the mortgage he cannot call upon the former for reimbursement. — Mason v. Payne, Walker’s Ch. 459; Baker v. Terrel, 8 Minn. 195. — This principle applies forcibly to the present ease. The rights of Mrs. Wisner as against the estate of her husband are certainly no stronger than those of the vendee against the mortgagor.

There is another-circumstance not undeserving of notice, although we do not rest our judgment in any degree upon it.

In administration cases, the general principle of marshaling which saves the whole or a part of the realty from the burden of the testator’s debts is not founded in any preference of one portion of the real estate over another, but proceeds upon the idea that the personal estate is the primary fund for the payment of those debts for which the testator was personally liable unless, by express words, or otherwise, a different intent is plainly apparent. Now the record before us not only fails to disclose the existence of any personal estate which could be subjected to the payment of the debt in question, but contains facts having some tendency to show that there was none, while by the will it appears that aside from the homestead the testator devised all his real estate after payment of his debts to his children. If it be true that there was no personal estate, the burden of the mortgage debt could not be averted from the homestead without discriminating between the real estate conveyed to the wife, and that devised to the children, in order to impose a burden upon the latter which orignally devolved upon the former. It is quite certain that a course of that kind could not be based upon the general doctrine of marshaling aP between real and personal estate, and if allowable in any case it could be so only upon reasons which are totally wanting here.

The order of the Circuit Court must be affirmed with costs.

The other Justices concurred.