Eddy v. Traver

Citations

• 6 Paige Ch. 521
• 1837 N.Y. LEXIS 253
• 1837 N.Y. Misc. LEXIS 35

Syllabus

<p>Where real estate descended to an heir at law charged with the payment of debts due from the decedent, and such heir afterwards sold a part of the estate to another person with warranty, which part was subsequently sold under an order of the surrogate for the payment of such debts; Held, that the purchaser from the heir had an equitable lien upon the residue of the estate remaining in the hands of such heir to the extent of such purchaser’s share of the proceeds of the land sold under the order of the surrogate.</p> <p>A surety, or a party who stands in the situation of a surety, is entitled to be subrogated to all the rights and remedies of the creditor whose debt he is compelled to pay, as to any fund, lien or equity which the creditor had against any other person or property on account of such debt. And his equitable right of substitution is not lost, except as against bona fide purchasers and mortgagees, by the extinguishment of the lien of the creditor, at law, by the payment of the debt by the surety or out of his property.</p> <p>Whore a creditor has two funds to which he may resort for the satisfaction of his debt, the one of which is primarily and the other only secondarily liable for the payment thereof, the owner of the latter fund stands in the situation of a surety for the owner of the primary fund, in the application of the equitable principle of substitution in behalf of sureties.</p> <p>Where an heir has conveyed a part of the real estate descended to him leaving the debts of the decedent unpaid, it seems the surrogate may direct the lands still belonging to the heir to be first sold for the payment of such debts ; so as to protect the equitable rights of the purchaser from such heir.</p>