Atkinson v. Atkinson

92 A. 795, 84 N.J. Eq. 104, 1914 N.J. Ch. LEXIS 14

• Court: New Jersey Court of Chancery
• Decided: December 9, 1914
• Status: Published

Opinion

Backes, V. C.

This bill is filed by an heir-at-law to compel the administrator of bis- ancestor to exonerate descended lands from the lien of a mortgage made by the ancestor to secure her bond. The next of kin demur.

Under the common law, the. personal estate was the primary fund for the payment of debts, including those secured by mortgage, and the right of the heir-at-law to have his land discharged of a mortgage lien out of the personal assets was well settled. But the legislature, in 1881' enacted:

“That in all cases where a bond and mortgage has or may hereafter be given for the same debt, all proceedings to collect said debt shall be first to foreclose the mortgage;”

and further provided that any deficiency may be recovered by an action on the bond. Comp. Stat. p. 3421,

This court, in the case of Smith v. Wilson, 79 N. J. Eq. 310, held that this legislation malíes the mortgaged property the primary fund out pf which the debt secured is to be paid, and abolishes the right of heirs to be exonerated from a mortgaged debt created and owed by the ancestor out of the personal estate of such ancestor.

The demurrer will be sustained, and the bill dismissed, with costs.