
    Charles Hauselt, Resp’t, v. Elizabeth Patterson et al., App’lts.
    
      (Supreme Court, General Term, First Department
    
    
      Filed July 18, 1890.)
    
    1. Legatees, heirs, etc. — Liability eor mortgage.
    An action may be maintained by a mortgagee against the heirs-at-law or devisees of the mortgagor to enforce their personal obligation to pay the amount of the mortgage.
    2. Same — Limitation.
    The statute of limitations is no bar to such an action as long as it has not run against the mortgagor or his personal representatives.
    3. Same — Representative op heir.
    Such liability may be enforced against the personal representative of an heir who has since died.
    
      {Hauselt v. Patterson, 51 Hun, 321; 21 H. Y. State Rep., 408, followed.)
    Appeal by Elizabeth Patterson, Catharine Bonner and Preston Stevenson from a money judgment rendered at special term against, said defendants.
    
      Preston Stevenson, for app’lts; Leivis Sanders, for resp’t.
   Bartlett, J.

That this action is maintainable by the plaintiff to enforce the personal obligation of the heirs-at-law or devisees of the mortgagor to pay the amount of the mortgage has already been decided by this court. Hauselt v. Patterson, 51 Hun, 321; 21 N. Y. State Rep., 408. The judge before whom the second trial was had, which this appeal now brings up for review, was quite right in holding as a necessary result of that decision that the present appellants are liable to the plaintiff in this action.

Although nothing was said in the opinion then delivered as to the affirmative defenses set up in the answer, they were not overlooked at that time. As to the statute of limitations, it was thought that it did not constitute a bar to a suit against the heirs ■or devisees so long as 'it had not run against the original mortgagor or his representatives. As to the plea of a former adjudication, it was considered that the cause of action in the suit in the court of common pleas was different from that in the case at bar, and, furthermore, that the judgment therein was not rendered "upon the merits. Code Civ. Pro., § 1209. And as to the objection that there could be no judgment against the defendant Stevenson to charge him as the personal representative of one of the heirs of the mortgagor, the view on the former appeal was that under the findings made upon the first trial (which constitute a part of the agreed statement of facts put in upon the second trial) it sufficiently appeared that the defendant Stevenson represented the deceased heir as a trustee under her will in such a sense as to make the obligation to pay the mortgage enforcible against him.

The judgment should be affirmed, with costs.

"Van Brunt, P. J., concurs.

Barrett, J.

If I had taken part in the decision of the original appeal in this case, Hauselt v. Patterson, 51 Hun, 321; 21 N. Y. State Rep., 408, I should have felt constrained to dissent from the conclusions there arrived at.

And if this were now an original question, I should express my views against the right of the plaintiff to enforce the personal obligation of the heirs-at-law or devisees of the mortgagor to pay the amount of the mortgage. But, as the trial judge was bound to follow that decision, I concur in the affirmance of his judgment.  