
    HENRY BYRNE v. MARY CONDON.
    Argued June 4, 1902
    Decided November 10, 1902.
    When lands devised are subject to a mortgage given by testator, and the mortgage, after his death, is foreclosed, and the premises sold to devisee for a sum not exceeding the mortgage debt, he holds his title under the judicial sale and not as devisee, and is not liable for the debt of the testator.
    On motion for judgment on postea.
    
    Before Gummere, Ci-iiee Justice, and Justices Van Syckel, Eort and Garretson.
    Eor the plaintiff, John J. Mulvaney.
    
    Eor the defendant, Corbin & Corbin.
    
   The opinion of the court was delivered 'by

Van Syckel, J.

This is an action against heir and devisee under our statute for debt of ancéstor. The motion is for judgment on the postea, which shows that the lands were mortgaged by ancestor, and on the foreclosure of the mortgage were sold to defendant.

It must be presumed that the amount realized on tbe foreclosure sale is tbe full value of the land; there is no proof to the contrary. The sum produced by such sale has been devoted to the payment of testator’s debts.

The defendant derives her title under the judicial sale, and now holds under that title, and not as devisee. Under the facts returned in the postea the defendant is entitled to judgment. The postea recites that, upon the trial of the issues, the jury found that the defendant did not have any lands by devise from the testator at the commencement of this suit, nor at any time since, and that all the lands devised were subject to mortgages and other liens, and that said lands were sold on foreclosure prior to the commencement of this suit for the amount of the mortgages, and no more.

There must be judgment on the postea for the defendant.  