
    Andrew J. Clark, Adm’r, etc., of Susan J. Clark, deceased, Resp’t, v. Henry L. Coe, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 18, 1889.)
    
    Executors and administrators—Chattel mortgage. Where an executor makes a personal mortgage on the property of his testatrix, to recover his individual debt, the mortgagee acquires no title.
    Appeal from a judgment of the circuit court of Kings county in favor of the plaintiff.
    
      Blair & Budd, for app’lt; John H. Atkinson, for resp’t.
   Barnard, P. J.

The goods in question belonged to Susan J. Clark, at the time of her death. Charles Z. Pond was her executor. After her death, Pond took possession of the property, which consisted of household furniture, and it was in use by the executor in his private residence. The defendant was the lessor of Pond, and the rent was in arrears. Pond, as an individual, executed a personal mortgage on the property to the defendant, to secure the payment of the executor’s own debt for rent. The question is whether the landlord could hold the title against the plaintiff who has been appointed administrator under the will annexed in the place of the executor Pond, who was removed from his trust. The cases are uniform that a purchaser for value and in good faith from an executor, will acquire a good title, even if the executor misapplies the proceeds. Leitch v. Wells, 48 N. Y., 585.

So also, one who loans money on the securities of the estate, is protected, McNeil v. Tenth National Bank, 46 N. Y., 325. This case does not fall within these cases. The executor only conveyed his own individual title, and had none. If the evidence is to be judged as if he conveyed as executor, the conveyance was in payment of his private debt, and is on this account an exception to the rule that purchasers for value are protected. In Field v. Schieffelin (7 Johns. Ch., 150), the chancellor states the rule in such cases as follows, in reference to purchasers, for an executor in payment of the present debt of the executor, “ the better doctrine is that in such a case he does buy at his peril.” The very fact that a purchaser extinguished this debt of the executor to him with the goods of the testator, carries its own consideration on the face of 0the transaction.

The judgment should be affirmed with costs.

All concur.  