Burton, J.
Thomas O’Conner died in 1882 intestate and without issue, leaving a large real and personal estate. Under the statute of descent and distribution his widow, who is likewise his admin-istratrix, is his sole distributee, and entitled, after payment of his debts, to his entire personal estate. The heirs at law to whom his real estate descends are the brothers and sisters of the intestate and the representatives of such as were dead. Thus the heirs and distributees are not the same persons, and this fact has given rise to a controversy as to whether the personal estate is in equity the primary fund for the discharge of certain incum-brances upon lands -of the intestate. The parties in interest have submitted to the Chancery Court an agreed case as provided by the statute, and from the decree of the Chancellor the administra-trix has appealed. The agreed case shows:
That, at the time intestate acquired one of the tracts of land which he owned at his death, it was subject to a vendor’s lien to secure certain purchase-money notes made by the immediate vendor of Mr. O’Conner; that Mr. O’Conner, as a part of the consideration for the purchase, expressly - assumed and agreed to pay off this incumbrance, and to pay to his immediate [78]*78vendor an additional sum of three thousand dollars. This agreement was contained in the deed to O’Conner, and to secure the payment of both sums a lien was retained on the face thereof. Notes were executed and delivered for the sum to be paid his immediate vendor, but there' was no substitution of intestate’s notes for those of the seller, and no communication whatever between Mr. O’Conner and the creditor.
At Mr. O’Conner’s death no part of the purchase-money due on this tract of land had been paid, neither that which was due directly to his immediate vendor, nor that which he had assumed and engaged to pay for his vendor. The lien of the original purchase-money, as well as that due immediately from intestate to his vendor, was subsequently enforced in a suit against the heirs to whom the incumbered land had descended, and to which the administratrix of O’Conner was not a party; and these incumbrances have been paid by a sale of the land. The heirs now ask to have the sums thus enforced against their lauds re-im-bursed out of the personal estate of the intestate, which it is admitted is sufficient for this purpose.
A second tract which descended to the heirs was incumbered with a lien to secure purchase-money notes made by the intestate. This lien has been likewise enforced under a bill against the heirs and the land sold for its satisfaction, and for this sum they likewise seek re-imbursement out of the personalty.
[79]*79Two questions arise upon these facts:
First, is the personal estate the primary fund, as between the distributee and the heir, for the satisfaction of a lien or charge upon lands at the time they were acquired by the intestate, the lien not being to secure a debt originally created by the intestate, but one assumed by him as a part of the consideration to be paid for the land where there has been no communication between the intestate and original vendor to whom the debt thus assumed was due?
The second question is whether a debt created by the intestate for the purchase of land is, as between the distributee and heir, a primary charge on the personal estate; or does the heir take the land cam onere ?
It may be at the outset admitted that where lands descend subject to a charge, or mortgage, or lien not created by the intestate, and which was never his personal debt, or one for which he could have been held personally liable by the creditor, that the heir in such case would take the land subject to the incumbrance, and could not call upon the personal estate to have his lands exonerated from the burden. This would follow for the obvious reason that the incumbrance was never the debt of the intestate, and his administrator could not therefore be called upon to discharge it. The first matter to be determined before we can reach a solution of the first question is to decide whether the intestate had made himself personally [80]*80responsible for the incumbrance. Tbe agreed case states that in the deed accepted by the intestate there was a clause .whereby the vendee assumed the unpaid purchase-money and undertook and agreed to pay the same. It is true this promise or assumption is not made directly to the creditor, but only to the vendor, who was the debtor. The payment of this incumbrance was, however’, a part of the consideration for the land. The undertaking, in effect, was that the vendee should pay to the vendor the sum of three thousand dollars, and in addition should assume and pay off this lien upon the land. The price the vendee was to pay' for the land was the sum of three thousand dollars plus the lien debt. That this was the plain intent and meaning is most manifest from the fact that the covenant in the deed is not merely that he took the land subject to the incumbrance, or that the vendor was to be indemnified against personal liability on account thereof, but that he expressly agrees to assume and pay off the outstanding notes for purchase-money due from his grantor to the vendor of the latter, and these notes, and their dates and amounts and payee, are precisely described. To secure the grantor against default, either in the payment of the lien debt thus assumed or in the payments to be directly made to him, an express lien is retained on the face of the deed accepted by the purchaser. This was therefore not a promise to pay the debt of another, or to be answerable for the debt, default, [81]*81or miscarriage of another; but was a promise rather to pay his own debt to a third person designated by his creditor.
That the intestate, by the acceptance of the deed containing this assumption of the lien debt, made himself personally responsible to the creditor holding the lien, will not, at this day, admit of doubt.
Upon this subject Mr. Pomeroy says: “The mortgageor may not only convey the premises subject to’ the mortgage; he may also convey them in such a manner that the grantee assumes the payment of the mortgage debt, and thus render himself personally liable therefor. The element which lies at the bottom of such assumption, and which alone gives it efficacy according to the theory held by • some Courts, is the fact that the mortgage debt is included in the purchase-price, as a constituent part thereof, and the grantee .actually secures or pays to his grantor only the balance of the gross price after deducting such debt. TTo particular form of words is necessary to create a binding assumption. It is sufficient that the language shows unequivocally an intent on the part of the grantee to assume the liability of paying the mortgage debt; but this intent must clearly appear. When the deed executed by the grantor contains a clause sufficiently showing such an intent, the acceptance thereof by the grantee consummates the assumption, and creates a personal liability on his part which inures to the benefit [82]*82of the mortgagee, as though he had himself executed the deed.” 3 Pom. Equity Jurisprudence, Sec. 1206.
The person who thus assumes a mortgage or lien debt becomes, as to the mortgageor or lienor, the principal debtor and the mortgaged’ a surety. Upon such a promise the original vendor could have maintained an action at law'. Moore & Miller v. Stovall, 2 Lea, 543.
This is upon the ground that the original vendor, in adopting the act of the vendee for his benefit, is brought into privity with the promisor, and may enforce the promise as if it were made directly to him. Lawrence v. Fox, 20 N. Y., 268; Burr v. Beers, 24 N. Y., 178; Thompson v. Bertram, 14 Iowa, 476; Thompson v. Thompson, 4 Ohio State, 333.
Put it is insisted that if it be admitted that the intestate had made himself personally liable to the incumbrancer by the assumption of the debt in the manner heretofore shown, that this promise and liability is only collateral; that the debt being one not originally contracted by him (his liability growing out of his promise to pay it), only makes it his debt with respect to the land, which continued to be charged with the lien, and which was therefore the primary fund for its payment; and that the rule in equity, in respect to incumbrances upon lands descended is, that if the incumbrance was not created by the ancestor, and the debt was not originally the debt of the an[83]*83cestor, that the heir takes the land cum onere and cannot call upon the personal estate to exonerate it; and that this rule is not affected by the fact that the aueestor has made himself personally liable, unless there be something in addition indicating a clear intention that the personal estate shall be the primary fund for the payment of the debt. This presents a question concerning the marshaling of assets which is altogether res integra in this State.
It is a general rule at common law and in .equity that debts shall be primarily payable out of the personal estate, and that the land shall only be subjected as auxiliary to the personalty. In this State, by statute, both the personalty and the lands of an intestate are assets for payment of debts, but the latter cannot be subjected until the former is exhausted. These principles are fundamental, and need no elaboration. When, therefore', a creditor whose debt is secured upon the land elects to go upon the latter, as he may, the heir will be re-imbursed out of the personalty. This is the undisputed rule where the debt was the personal debt of the intestate and one originally created by him. In every such case the election of the creditor to enforce his mortgage is not suffered to disappoint the heir; for the personalty, being the primary fund for payment of such debts, it must re-imburse the heir for the loss of the land, the latter being entitled to exoneration. Thus far there is no room for controversy. Neither can [84]*84it be seriously denied that in the case under consideration the creditor . could, at his election, have recovered the debt' secured by lien from the personal representative. But it is insisted that if such a creditor should, at his election, rely upon his right to satisfaction out of the personalty rather than pursue his remedy by enforcement of his lieu, in that event the personal representative could call upon the heir for re-imbursement, upon the ground that, as to the debt thus paid, the land (as between the personal representatives and the heir), was the primary fund and the personalty the auxiliary. In other words, that the land must ease the personalty in case of debts of this character. The rule heretofore stated as to the primary liability of the personalty to the payment of the debts of an intestate is likewise the general rule as to the payment of legacies and of the debts of a testator. But this is a mere rule for the determination, as between those to whom the land may be devised and those to whom the personalty may be bequeathed, where the testator has made uo other direction as to which shall be the fund primarily liable. The testator may, undoubtedly, entirely or partially change the natural order of liability, either by express words or by a plain indication of such intention. It has been lamented by a long line of Judges that the rule governing the construction of wills had not been that nothing but “express words” would be held sufficient to alter the course and order of the law [85]*85concerning the primary liability of the personalty to pay both debts and legacies. Lead. Cases Eq., Vol. I., Part II., 892 (4th Ed.).
The question here presented is not one arising under a will claimed to alter the natural order of liability, for there is no will. But it is nevertheless an analogous question, the alteration of the usual order of liability, 'arising, it is claimed, from acts in pais of the testator, whereby the land, and not the personalty, is the primary fund for the payment of this debt. It may be here premised that the doctrine here invoked arises only where the testator or intestate has acquired by purchase or otherwise lauds which at the time were subject to mortgage or other incumbrance. The incum-brance being for a debt not originally created by the purchaser, he is generally presumed not to intend to subject his personal estate as the primary fund for its payment, but rather to intend that the land shall discharge the burden. This doctrine, as stated ly Chancellor Kent, is this: “ When a man,” says he, “ gives a bond and mortgage for a debt of his own contracting, the mortgage is understood to be merely a collateral security for the personal obligation. But when a man purchases, or has devised to him, land with an incumbrance on it, he becomes a debtor only in respect to the land; and if he promises to pay it, it is a promise rather on account of the land, which continues, notwithstanding, in many cases, to be the primary fund. The same equity which in other cases makes [86]*86the personal estate contribute to ease the land, as between the real and personal representatives, will liere make the land relieve the personal estates. There is,” says he, “good sense and justice in the principle; and I feel the force of the doctrine that it requires very strong and decided proof of intention before the Court can undertake to shift the natural course and order of obligation between the two estates.” Cumberland v. Codrington, 3 Johns. Ch. Rep., 257.
The doctrine just quoted is the deduction of the learned Chancellor after reviewing the English equity cases, though in other parts of his opinion he recognizes certain important distinctions and qualifications, which will hereafter be noticed. See also Story’s Eq. Jur., 571-577, and 1248 et seq.
The American editors of White & Tudor’s Leading Cases in Equity thus sum up the doctrine : “ The weight of authority would therefore unquestionably seem to be that the personal estate will not be primarily liable, unless the testator has not merely made himself answerable for the payment of the mortgage, but has made the debt directly and absolutely his own, or has in some other way manifested an intention to throw the burden on the personalty in ease of the land.” Part I., page 926 (4th Ed.).
The question in all the cases has been whether or not the facts and circumstances showed such an adoption of the debt as to make the personalty the primary fund for its payment. A careful ex-[87]*87aminatiou of the reported English decisions makes it exceedingly difficult to extract any distinct rule by which it may be determined when a purchaser has so manifested his intention to adopt the debt as to take a particular cash out of the general rule which makes the realty the primary fund for the payment of an incumbrance existing upon lands purchased by a decedent. By all the eases it is held that a mere dry covenant, by which the purchaser agrees to indemnify his vendor against an incumbrance, is insufficient.
Cumberland v. Codrington, 3 Johns. Ch., 229. This case presented no other question, the learned Judge distinctly stating that in the deed conveying the incumbered estate there was “ only a naked and dry covenant of indemnity.” 1 bid., 254. All that is said in the case as to the rule under any other circumstances is nothing but dicta.
So there are eases holding that when lands are purchased subject to a mortgage and the vendee enter into bond at the time, or subsequently, to pay off the incumbrance, that this alone, without other circumstances, will not be regarded as a sufficient demonstration of his intention to make it his personal debt with respect to the fund primarily liable for its payment. Billinghurst v. Walker, 2 Brown’s C. C., 604; Evelyn v. Evelyn, 2 P. Wms., 664, and a number of other cases cited in the very full note of Mr. Cox to the case last cited. These cases proceed upon the notion that the assumption of the incumbrance [88]*88was only by way of collateral security, tlie land remaining the principal debtor and the primary fund for its payment. Very slight circumstances, however, will, it seems, suffice to take a case of the latter class out of the rule. As, for instance, in the case of the Earl of Oxford v. Lady Rodney, where the purchaser of the equity*' of redemption at the -same time covenanted with the mortgagee to pay his debt, and agreed upon new terms and conditions of payment. This was held to distinguish the case from Tweddel v. Tweddel, and to make the personal estate primarily liable. 14 Vesey, 418.
Waring v. Ward, opinion by Lord Eldon, presents another case where slight circumstances, in addition to a covenant to pay, were held enough to make the debt the personal debt of the vendee. 7 Vesey, 336. See also Woods v. Huntingford, 3 Vesey, 128.
Another rule may be deduced from the decided cases with a good deal of certainty, which is this: That.'‘where the incumbrance is assumed as a -part of the purchase-price, and the vendee makes himself in any way directly liable to the creditor for the amount of the incumbrance, that, in such case, the personal estate is the primary fund for the payment of the incumbrance.
To satisfactorily show the ground upon which this conclusion is reached, it becomes necessary to briefly -consider some of the adjudged cases.
Tweddel v. Tweddel, 2 Brown’s C. C., 101, is [89]*89termed a leading ease, and is certainly tlie most extreme of the many cases touching upon this doctrine. That case was this: An estate was purchased subject to a mortgage; the purchaser covenanted to discharge the. mortgage debt and to indemnify the vendor, and to pay the agreed purchase-price, less amount of the mortgage, to the vendor. Lord Thurlow held the land the primary fund, and refused to exonerate it, on bill of the heir, out of the personal estate. Row, that case, in all of its pai’ticulars, is like the one under consideration, and it might be well assumed to be a very commanding authority. But the reasoning of the learned Judge, whén examined, shows most conclusively that it is not — in view of our own decisions as to the effect of a covenant to pay the incumbrance as a part of the purchase-price— of any weight Avhatever. ' lie put his decision distinctly upon the ground that the personal estate is not chargeable in equity when it is not at law, saying: “The land was the original debtor, and the mortgagee could not bring his action against the executor, or any other party, but merely against the original debtor.” He proceeds: “ When it is a debt payable by executors at law, this Court will relieve the heir by turning the charge upon the executor, provided it does not interfere with other debts and legacies, or any more substantial claims.” 2 Brown’s Ch. Rep., 101.
Hpon the reasons of the Chancellor, the decree should have been the other way, for the creditor [90]*90clearly could have maintained a direct action at law against tlie vendee. Chancellor Kent himself questioned this case, suggesting that the rule was not applicable in that case, saying: “ "When the indenture between the mortgaged* and purchaser recited an agreement by which A had agreed to pay out of the purchase, to the son and heir of the mortgagee, the principal and interest due on the mortgage, being £2,155, and the residue of the purchase-money, being £1,345, to the mortgaged*, it might be a question whether the son and heir could not have sued at law for that money as so much received for his use. It has been held that if one person makes a promise ■ to another for the benefit of a third person, that third person may maintain an action at law on that promise.” 3 Johns. Ch. Rep., 254.
That an action at law would lie on such a promise has been expressly decided in this State. Moore v. Stoval, 2 Lea, 545.
This case, in the subsequent case of Woods v. Huntingford, 3 Vesey, 128, was commented on by Lord Kenyon as follows: “ Tweddel v. Tweddel amounts only to this: that when a man buys subject to a mortgage, and has no contract or communication with the mortgagee, and does no other act to show an intention to transfer that debt from the estate to himself (as between the heir and executor), but merely that which he must do, if he pays a less price in consequence of that mortgage— that is, indemnifies the vendor against it — he does [91]*91not by that act take the debt upon himself personally.” * * * Again he says: “ There was no communication with the mortgagee, bat upon the sale there was a mere covenant of indemnity against the mortgage by the vendee.”
This case thus limited, and the fads changed from those stated in the report of the case, becomes a sound opinion, but is of no authority for the contention of the administratrix, and its reasoning is altogether against the rule invoked.
The case of Butler v. Butler was decided in 1800. It was a case of a purchase of a mortgaged estate, the vendee merely covenanting with his vendor that he would indemnify him against the mortgage. The briefs of counsel admit that the vendee had not made himself personally liable to the mortgagee by a mere covenant of indemnity, and. the decision was put upon the ground that he had not made himself personally liable. 5 Vesey, 534.
The case of Billinghurst v. Walker, 2 Brown’s C. C., 604, was this: A rectory subject to a charge was devised. The devisee subsequently assigned the devised estate and executed his bond to the person in whose favor the charge was, to pay interest during his life, and that his executors and heirs should pay off the principal within three months after his death. The bearing this case has upon the one at bar is not on account of its facts or' of the decision, but for the reasoning of Lord Thurlow as to what facts and circumstances would show such an adoption of an assumed debt [92]*92as to make the personalty the primary fund for its discharge. Lord Thurlow said: “ I agree that if the testator has shown an intent to take the debt upon himself it will become his debt; but here the old security remained, and he.merely gave a collateral security. If there was any thing in the marriage contract which bound him to exonerate this estate from the debt, it would become his personal debt, but there is nothing in the contract like that. When a man transfers a mortgage which is not his own debt, his executing a bond as a collateral security does not vary the nature of the charge; it is only a necessary act in the transfer. I do not mean that it does not make him personally liable to the creditor, but it does hot throw the charge upon his personal estate. Nothing passed here to vary the charge. All the cases of sale have turned upon this: whether the charge was considered a part of the price. The more purchase of air estate subject to charges — as, an equity of redemption — does not make the personal estate of the purchaser liable to the charge; hut if the charge is part of the price, then the personal estate is liable.”
This clear announcement that “ if the charge is part of the price” the personal estate is liable, is but an announcement of the rule as stated by the English editors of Leading Cases in Equity, citing Cope v. Cope, Salk., 449, and Belvidere v. Rochfort, decided by House of Lords (Wallis), Rep. by Lynn, 45: Smith’s Lead. Cas., Vol. I., Part II., 904. [93]*93The case of Cope v. Cope is not accessible, but. the case of Belvidere v. Rochfort, having been decided by the highest English Court, and before the independence of these United States, is of very high authority. The case was one of a sale of premises subject to a mortgage, the' deed stating that the mortgage debt and interest were to be paid and discharged by the purchaser out of the consideration agreed to be paid. On the back of the deed was indorsed a receipt for the £900 paid as a consideration, in this manner, viz.: “ £450 on the perfection of the deed, and £450 allowed on account of the mortgage.” The purchaser, Lord Rochfort, died, never having paid the mortgage debt. By his will he devised the mortgaged estate. The devisee, upon bill filed, obtained a decree that the mortgage should be paid by the personal representative. This decree was affirmed by the House of Lords.
Another case' directly in point, and of the same high authority, because decided long before our independence, is that of Parsons v. Truman, decided in 1751 by Lord Hardwicke. As the case is reported by Cox in his note to Evelyn v. Evelyn, 2 P. Wms., 664, it was this: A purchased an estate for £90, which was at that time mortgaged for £86, and he covenanted to pay £86 to the moi’tgagee and £4 to the vendor. The Lord Chancellor held that, although the covenant was with the vendor only, and that the vendee’s personal estate was not therefore liable in that respect to [94]*94the mortgagee (which would not be the law in this State), yet the words were sufficiently strong to show an intention in the vendee to make it his personal debt. It was accordingly held that the personal estate must exonerate the heir.
These three earlier cases are not by any subsequent cases overruled. When we analyze the reason upon which they rest, it will be seen that the subsequent cases are not even in conflict. The ground upon which the laud in any case is held to be the primary fund is not that the contract is a contract concerning realty, or even for the benefit of realty. In some of the cases, the Coui’t, in endeavoring to get at the intention of the purchaser in order to determine whether the one fund or the other should be the primary fund, have, as a circumstance, referred to the fact that the engagement which ha'd been entered into was for the benefit of the incumbered land. The suggestion in argument that the intent is to be determined by an inquiry as to whether the debt assumed, or the promise to pay, or the covenant to discharge, was for the benefit of the vendee’s personalty or realty, is not supported by the cases. If it were so, then money borrowed to buy land or improve land, and secured by a mortgage on land, would be primarily a charge on the land'. So the notes of the vendee executed to his immediate vendor for the purchase-price would be a debt incurred for the benefit of the land, and hence primarily a charge on the land. This extreme has never, it [95]*95is believed, been held by any Court. On the contrary, the English notes to Leading Cases in Equity say:
“Again, if a person bought an estate and thereby contracted a debt with the vendor, and for the purpose of securing it gave a charge on the estate, and entered into a covenant to pay it, it would be the personal debt of the purchaser, and his personal estate would be liable to pay it. And it will make no difference whether the purchase-money was to be paid in a gross sum or from time to time, by way of annuity for life; it is equally a debt and charge upon the personal estate, and in either case the personal estate is the primary fund to pay it.” Vol. I., Part II., 904 (4th Ed.); Yonge v. Furse, 20 Beavan, 380-383.
So, under the English Act of 1854, declaring mortgaged lands in all cases the primary fund for the discharge of such mortgages, unless the decedent by will expressly declared otherwise, it was held vot to make a vendor’s lien a primary charge upon the land. Hood v. Hood, 5 W. R., 747; Barnwell v. Isemonger, 1 Drew & Sm., 255.
The Act was subsequently amended so as to include such liens.
Therefore, a debt created for purchase-money of land not being within the rule contended for, it would seem to follow, without discussion, that a debt assumed as fart of the purchase-price would be just as decidedly the personal debt of the vendee as that pai’t of the purchase-money covenanted to [96]*96be paid, directly to bis immediate vendor. There is no distinction between the two engagements; and the early English cases cited heretofore, holding that where the incumbrance is to be paid off as a part of the purchase-price the incumbrance becomes a charge primarily upon the personal estate, are unquestionably to be regarded as sound upon principle and commanding as authorities upon this Court.
We have not deemed it necessary in this opinion to consider how far we would be willing to be governed by the highly artificial rules by which an incumbi'ance is held to be primarily dis-chargeable out of one fund or the other. It would seem that where the vendee has assumed the debt, in such a way as to give to the creditor a right of action against him or his representatives, that this, of itself, would be a sufficient adoption and sufficient demonstration of his intention to put such a debt on the footing of a personal liability. But this is not now decided. Under the well-settled principles of equity as administered in courts of equity, where all these artificial distinctions as to the origin of the debt have been adopted, the debts which have been paid by a resort to the lien on the land of the heir were the personal debts of Mr. O’Conner, and the personal estate was the primary fund for their payment. The costs taxed to the heir in the foreclosure suits are properly payable by the administrator. It was the duty of the administrator [97]*97to have exonerated the heir’s land. These costs have been thrown upon the heir by reason of the failure of the administrator to relieve the heir before suit. The costs of this cause will be paid by the administratrix and' the decree of the Chancellor in all respects affirmed.
■ Hon. B. J. Tarver sat upon the hearing of this case in the room and stead of the Chief Justice, who was absent; and he, taking part in the decision of this cause, did not agree with the conclusions here reached, and has filed a dissenting opinion.