Appeal of Leibert

Citations

• 119 Pa. 525
• 13 A. 327

Syllabus

<p>Land of an intestate decedent, bound by a mortgage securing his own debt, was awarded in partition proceedings at its full value to an heir who, in addition to a recognizance filed, gave bonds to the other heirs for tlie amounts of their several interests. The personal estate, sufficient for the payment of the mortgage and of all other debts of the decedent, was misapplied.</p> <p>The recognizor paid the interest upon the mortgage for thirteen years, when judgment was obtained by scire facias thereon and the land sold at sheriff's sale. On petition to the Orphans’ Court the recognizor then prayed for a decree vacating the proceedings in partition, on the ground of an eviction, and to be restored to her original rights as an heir: Held,</p> <p>1. That, though the mortgage was a lien upon the land, the debt secured by it was payable like all other debts of the decedent out of his personal estate, exclusively, in the first instance.</p> <p>2. Yet, the recognizor, having neglected to require payment of the mortgage debt by the administrators, and, treating it for so long a time as practically her own' debt, suffered the land to be sold at judicial sale, she had now no equity to require either an abatement of the bonds or the vacation of the decree in partition.</p>