By the Court, Johnson, J.
The grounds upon which the plaintiffs rely to maintain this action are that Joseph Wilson, the testator, in the honest belief that he was the owner of the real estate as the heir at law of, his son Francis, paid off debts against the estate which were a lien and charge upon the land. And that the defendant Anna F. Wilson, the real heir at law of Francis, and the true owner of the inheritance, having taken the inheritance from the possession of the lessee, Joseph Wilson thus relieved and disencumbered of this charge, is liable in equity to account and pay to the personal representatives of Joseph, the testator, the amount of such indebtedness. If that were the true state of the case, I am clearly of the opinion that an action to obtain equitable relief of this character might be sustained, at least in favor of the heirs. The principle of subrogation would apply in such a case with peculiar force. The [263]*263court would substitute the bona fide occupant who had paid off the lien or incumbrance in good faith, supposing himself the owner, in the place of the creditor, and give him the benefit of the lien as against the real owners taking the estate thus disencumbered even after a recovery at law. (Bright v. Boyd, 1 Story, 478. S. C. Id. 605.) This court decided the same principle, in this district, in the case of Cornell v. Verscelins and others. In the latter case the plaintiff Cornell had purchased the land of the executors of Starkey under a supposed power in the will. While in possession he furnished money to pay off a mortgage, under which the premises had been sold, while the act authorizing a redemption from such sales was in force. Afterwards the heirs of Starkey repudiated this contract of the executors, and brought ejectment against Cornell and recovered possession. On a bill filed by Cornell against the heirs, this court subrogated him to the rights of the purchaser under the mortgage sale, and decreed that the amount so paid should be a lien upon the land, in the hands of the heirs. In Bright v. Boyd, it will be seen that the debts of the testator had been made a charge upon the land, and the land sold by the administrator under the authority of law, for their payment. The authority was nob regularly executed, and the title of the purchaser in consequence failed. But the debts were paid and the land relieved from the charge, and the bona fide purchaser was therefore properly substituted in the place of the creditors and the lands charged in his favor. That case also goes farther, and holds that the bona fide purchaser and possessor may also sustain a bill and recover for permanent meliorations and improvements made by him after the true owner has recovered possession at law. So far the case is opposed to the authority of Putnam v. Ritchie, (6 Paige, 390.) But that question is not raised in this case.
Here however, neither the demands of the testator against the estate of his son, nor those paid off by him to other creditors of the estate, were ever any lien or charge upon the land in question. The lands were purchased by the son, of Stull. A portion of the purchase money was paid, and the balance secured [264]*264by the note of Francis signed by his father Joseph as surety, which was given directly to Leconte, a creditor of Stull, and Stull conveyed absolutely. It is clear, therefore, that there was no lien, even in equity, upon the land, for the purchase money. Stull had none, nor had Leconte. And the mere circumstance of the father’s signing the note as surety would give him none where none was retained by the -vendor. Had he loaned the son all the money to make the purchase, it would have given him no lien upon the land when purchased. (Collinson v. Owen, 6 Gill & John. 4.)
So far therefore as the testator had loaned money to the intestate, or paid demands for which he was surety, he was a mere creditor of the estate. And allowing him to be subrogated to the rights of the other creditors whose debts he paid—which is the most these plaintiffs can claim—he could be regarded as nothing more. As I understand the case, this was his own view of the matter; for he presented his claims to the administrators and had them allowed. Thus he was in a situation to have made his demands a charge upon the land, by instituting proper proceedings. But this he did not do. All his claims, therefore, remained mere debts against the personal representatives of the intestate, or against the heirs in respect to the land descended, after the personal estate was exhausted. The heir took an absolute title, to the land, subject only to be defeated or charged with the debts of the intestate either by the representatives or the creditors taking the steps authorized by statute. (Pierce v. Alsop, 3 Barb. Ch. Rep. 186, 187, 195. Covell v. Weston, 20 John. 414.) It may perhaps be said, in a loose general sense, that unpaid debts are a charge upon the land in the hands of the heir after the personal estate is exhausted, because they may be made a charge. But they are no lien for any substantial purpose, either in law or equity, until made so by proper proceedings.
Conceding, therefore, that the testator, in the bona fide belief that he was owner as heir, paid off some of the debts of intestate to prevent their being charged upon the land, and neglected to take any steps to make his own demands a lien, what follows? [265]*265The debts never having become a lien or charge, his mistake as to his rights could not make them so.
It is not pretended that any permanent improvements have been made upon the land, and it has never been charged with any debts; and it is not perceived how the fact of the owner having taken rightful possession of it raises any equity in favor of the plaintiffs, to sustain this action. She has not taken the land relieved from any burthen, for none was ever imposed upon it. The demands still remain as they were originally, demands against the administrators or against her personally in respect to the lands descended, unless the statute, of limitations has run against them. It is only on the ground of some equitable interest in the land that a suit of this kind can be sustained.
There can be no pretense of fraud in the case. It cannot with any show of reason be alledged that the defendant stood by and permitted the testator to make these payments and take possession, without giving notice of her title. She was then a mere infant, and incapable of comprehending, much less protecting, her rights. Neither her acts nor her silence, under such circumstances, prejudice her rights. (Putnam v. Ritchie, 6 Paige, 402.) I confess I do not see what is to prevent the statute running against these demands. If the testator in paying off the creditors of the estate of the intestate, so far as he did pay them, acted in the belief that they were or might be chargeable upon him in respect to the lands descended, that was clearly a mistake of law for which he alone was responsible, and would not I apprehend prevent the statute operating upon them-It is perfectly certain that he knew all the facts necessary to a correct understanding of his rights. He knew of the birth of the defendant, immediately after it happened, and there is not a particle of evidence to show that he acted under erroneous advice as to his legal rights. He represented to his counsel, at the time of making the bargain with the widow, that his son had died without issue.
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By the Court, Johnson, J.
The grounds upon which the plaintiffs rely to maintain this action are that Joseph Wilson, the testator, in the honest belief that he was the owner of the real estate as the heir at law of, his son Francis, paid off debts against the estate which were a lien and charge upon the land. And that the defendant Anna F. Wilson, the real heir at law of Francis, and the true owner of the inheritance, having taken the inheritance from the possession of the lessee, Joseph Wilson thus relieved and disencumbered of this charge, is liable in equity to account and pay to the personal representatives of Joseph, the testator, the amount of such indebtedness. If that were the true state of the case, I am clearly of the opinion that an action to obtain equitable relief of this character might be sustained, at least in favor of the heirs. The principle of subrogation would apply in such a case with peculiar force. The [263]*263court would substitute the bona fide occupant who had paid off the lien or incumbrance in good faith, supposing himself the owner, in the place of the creditor, and give him the benefit of the lien as against the real owners taking the estate thus disencumbered even after a recovery at law. (Bright v. Boyd, 1 Story, 478. S. C. Id. 605.) This court decided the same principle, in this district, in the case of Cornell v. Verscelins and others. In the latter case the plaintiff Cornell had purchased the land of the executors of Starkey under a supposed power in the will. While in possession he furnished money to pay off a mortgage, under which the premises had been sold, while the act authorizing a redemption from such sales was in force. Afterwards the heirs of Starkey repudiated this contract of the executors, and brought ejectment against Cornell and recovered possession. On a bill filed by Cornell against the heirs, this court subrogated him to the rights of the purchaser under the mortgage sale, and decreed that the amount so paid should be a lien upon the land, in the hands of the heirs. In Bright v. Boyd, it will be seen that the debts of the testator had been made a charge upon the land, and the land sold by the administrator under the authority of law, for their payment. The authority was nob regularly executed, and the title of the purchaser in consequence failed. But the debts were paid and the land relieved from the charge, and the bona fide purchaser was therefore properly substituted in the place of the creditors and the lands charged in his favor. That case also goes farther, and holds that the bona fide purchaser and possessor may also sustain a bill and recover for permanent meliorations and improvements made by him after the true owner has recovered possession at law. So far the case is opposed to the authority of Putnam v. Ritchie, (6 Paige, 390.) But that question is not raised in this case.
Here however, neither the demands of the testator against the estate of his son, nor those paid off by him to other creditors of the estate, were ever any lien or charge upon the land in question. The lands were purchased by the son, of Stull. A portion of the purchase money was paid, and the balance secured [264]*264by the note of Francis signed by his father Joseph as surety, which was given directly to Leconte, a creditor of Stull, and Stull conveyed absolutely. It is clear, therefore, that there was no lien, even in equity, upon the land, for the purchase money. Stull had none, nor had Leconte. And the mere circumstance of the father’s signing the note as surety would give him none where none was retained by the -vendor. Had he loaned the son all the money to make the purchase, it would have given him no lien upon the land when purchased. (Collinson v. Owen, 6 Gill & John. 4.)
So far therefore as the testator had loaned money to the intestate, or paid demands for which he was surety, he was a mere creditor of the estate. And allowing him to be subrogated to the rights of the other creditors whose debts he paid—which is the most these plaintiffs can claim—he could be regarded as nothing more. As I understand the case, this was his own view of the matter; for he presented his claims to the administrators and had them allowed. Thus he was in a situation to have made his demands a charge upon the land, by instituting proper proceedings. But this he did not do. All his claims, therefore, remained mere debts against the personal representatives of the intestate, or against the heirs in respect to the land descended, after the personal estate was exhausted. The heir took an absolute title, to the land, subject only to be defeated or charged with the debts of the intestate either by the representatives or the creditors taking the steps authorized by statute. (Pierce v. Alsop, 3 Barb. Ch. Rep. 186, 187, 195. Covell v. Weston, 20 John. 414.) It may perhaps be said, in a loose general sense, that unpaid debts are a charge upon the land in the hands of the heir after the personal estate is exhausted, because they may be made a charge. But they are no lien for any substantial purpose, either in law or equity, until made so by proper proceedings.
Conceding, therefore, that the testator, in the bona fide belief that he was owner as heir, paid off some of the debts of intestate to prevent their being charged upon the land, and neglected to take any steps to make his own demands a lien, what follows? [265]*265The debts never having become a lien or charge, his mistake as to his rights could not make them so.
It is not pretended that any permanent improvements have been made upon the land, and it has never been charged with any debts; and it is not perceived how the fact of the owner having taken rightful possession of it raises any equity in favor of the plaintiffs, to sustain this action. She has not taken the land relieved from any burthen, for none was ever imposed upon it. The demands still remain as they were originally, demands against the administrators or against her personally in respect to the lands descended, unless the statute, of limitations has run against them. It is only on the ground of some equitable interest in the land that a suit of this kind can be sustained.
There can be no pretense of fraud in the case. It cannot with any show of reason be alledged that the defendant stood by and permitted the testator to make these payments and take possession, without giving notice of her title. She was then a mere infant, and incapable of comprehending, much less protecting, her rights. Neither her acts nor her silence, under such circumstances, prejudice her rights. (Putnam v. Ritchie, 6 Paige, 402.) I confess I do not see what is to prevent the statute running against these demands. If the testator in paying off the creditors of the estate of the intestate, so far as he did pay them, acted in the belief that they were or might be chargeable upon him in respect to the lands descended, that was clearly a mistake of law for which he alone was responsible, and would not I apprehend prevent the statute operating upon them-It is perfectly certain that he knew all the facts necessary to a correct understanding of his rights. He knew of the birth of the defendant, immediately after it happened, and there is not a particle of evidence to show that he acted under erroneous advice as to his legal rights. He represented to his counsel, at the time of making the bargain with the widow, that his son had died without issue. But this was several months before the birth of the defendant, when he might have supposed such to be the fact. It is not to be presumed that any one having any knowledge of the law could have advised him that he could [266]*266inherit the estate of his son, to the exclusion of the posthumous child, and it is not shown that he was so advised.
Indeed were the whole case to turn upon the question as to whether the testator really believed he was the true heir and owner, after the birth of the defendant, it is quite doubtful whether this action could be sustained. It is true there is some general evidence as to what he believed and supposed, and more of the same tenor offered. But looking at his acts, it seems to me they all tend to a different conclusion. To be sure he took possession of the land, and leased it to the plaintiff Andrew. But the complaint expressly alledges that it was leased until the defendant should arrive at the age of twenty-one years. But again; by his will he undertakes to dispose of all his estate real and personal which he had not before conveyed and disposed of, and does not undertake to devise this land. Still further, why bring in his account against the estate and have the administrators allow it 1 All these acts tend strongly to show that he was by no means ignorant of the defendants’ rights. But the nonsuit was not asked for on this ground, and I forbear to comment further upon it.
The question of the right of the widow’s dower interest rests upon different principles. I am inclined to the opinion that in equity, the purchase by Joseph Wilson of the dower right of the widow will be protected as against the claim of the heir, for rent, within the principles asserted in Putnam v. Ritchie. Although there was never any assignment of dower, and therefore no title which could be assigned or conveyed, yet equity will notice the interest and protect it, where it can do so, by way of compelling a party to do equity who comes into court asking for relief. The widow might have disaffirmed her bargain when she became of age, but she did not, and after this lapse of time must be taken to have sanctioned it after attaining her majority; at least as against the claims of the heir. But there was no necessity of bringing this suit to protect that interest, if indeed the executors, as such, had any thing to do with it. The plaintiff Andrew, the lessee as he claims to. be of Joseph Wilson, could have availed himself of that as a defense [267]*267to the suit against him for the use and occupation of the premises so far as to prevent a recovery of two-thirds. Equitable defenses are now allowed, so far as to prevent recoveries at law where they could not be had in equity. Or in other words equitable defenses to defeat inequitable recoveries on mere legal demands. He could certainly in that suit use the equitable rights with which his lessor was clothed, to protect himself against an unjust recovery. The right which his lessor had was not an interest in the land, but an interest in the rents and profits of the land, in equity. And as the rents and profits are the subject of that suit, I see no difficulty in adjusting it there. I am therefore of opinion that the nonsuit was properly granted, and that the judgment of the special term must be affirmed.
[Cayuga General Term,
June 7, 1852.
Selden, T. R. Strong and Johnson, Justices.]