
    Elizabeth Green, as Administratrix, etc., of Peter O’Leary, Deceased, Respondent, v. Robert Dunlop and Others, Appellants.
    Third Department,
    December 30, 1909.
    Decedent’s estate — liability of heirs for debts — heirs of heirs not liable—joinder of action against heirs with action against one of them on independent contract — demurrer for misjoinder.
    The cause of action created by section-' 1843 of the Code of Civil Procedure against heirs or devisees to recover a debt due from the person from whom they acquired the property can only be maintained against direct heirs and devisees, not against the heirs or. devisees of heirs or devisees.
    Where portions of mortgaged premises are successively conveyed the mortgage is a charge against the parcels in the inverse order of alienation.
    
      Il seems,, that where mortgaged premises are partitioned among heirs a person receiving an allotment cannot be forced to imperil her other property by assuming a personal liability for á deficiency.
    Section 484 of the Code of Civil Procedure governing the joinder of actions does not permit an action against heirs brought under section 1843 of the Code of Civil Procedure to charge them with the debts of their ancestor, to be united with an action against the heirs of an heir who by judgment of partition of mortgaged premises assumed a personal liability on the mortgage on receiving.an allotment. This, because to justify the joinder of actions they must both . affect all parties.
    Thé blending of two or more actions in a single count does not prejudice the right of the defendant to demur. ■
    
      A joinder of two causes of action which, is not permitted cannot be justified on the theory that the action is for equitable relief, for the Code provision governing the joinder of actions applies to legal and equitable actions alike.
    Chesteb, J., dissented.
    Appeal by the .defendants, Robert Dunlop and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 21st day of May, 1909, upon the decision of the court, rendered after a trial at the Albany Special Term, overruling the defendants’ demurrers to the complaint, alleging : (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that causes of action are improperly joined therein.
    The farm which plaintiff’s intestate held under warranty deed from Jessie Dunlop Empson was lost to her intestate by the foreclosure of a mortgage which existed thereon at the time the deed was given. Jessie Dunlop Empson died intestate, and her real estate of the value of $50,000 went to her heirs, one-third to her uncle Robert Dunlop, now deceased, one-third to her aunt Elizabeth Lathrop, now deceased, and the other third to Robert Dunlop, Helen Dunlop, Margaret Dunlop and Susan Dunlop Brown, her cousins. The personal property had been wholly applied to the payment of the expenses of administration and debts of a prior class, and no assets of said ■' estate remained to the husband and next of kin. Helen Dunlop brought an action to partition the real estate among said heirs, in which action the judgment' divided and partitioned it among the parties so that Elizabeth Lathrop was allotted the homestead “ subject to the lien of a certain mortgage upon the above-described premises and other' premises, given to secure the payment of $8,000 and interest thereon, and executed by Robert Dunlop, now deceased, to Sylvanus P. Jermain, and now owned and held by James B. Jermain, and duly recorded in the office of the clerk of Albany County. And the above-described premises are hereby allotted subject, to the said mortgage and to the payment of the entire amount of the principal and interest thereof by the said Elizabeth Lathrop, her heirs and assigns, as and for equality of partition.” There was also allotted to her two small strips of land subject to a right of way thereon for Robert Dunlop, his heirs and assigns, to use the same as a public highway. The judgment- describes the other allotments to the other heirs. This $8,000 mortgage upon the homestead property was the same mortgage which covered the O’Leary farm, the foreclosure of which lost the property to O’Leary, and resulted in his eviction, which constitutes the breach of covenant for. which' recovery is sought. Thereafter the- uncle, Eobert Dunlop, died, not having disposed by will of the property -so inherited by him,' and it descended to his heirs, Elizabeth Lathrop and the defendants Eobert Dunlop, Helen Dunlop, Margaret Dunlop and Susan Dunlop Brown. Thereafter Elizabeth Lathrop deeded the premises set - off to her by the partition judgment to one Holden for the consideration mentioned in said deed. The terms, conditions and considerations of the deed do not otherwise appear. Thereafter Elizabeth Lathrop died, and the interest which she inherited in the real estate of Eobert Dunlop, the uncle, descended to her heirs, the defendants Alexander D. Lathrop, Helen L. Stotts and Janet A." Lathrop. The defendant Janet A. Lathrop is the executrix of her will.. Plaintiff seeks to recover: (1) Under section 1843 of the Code of Civil Procedure, against the-immediate heirs of Jessie Dunlop. Empson and against the heirs of Eobert Dunlop, the uncle, and the heirs of Elizabeth Lathrop. (2) .Under the partition-, judgment against the heirs and the executrix of Elizabeth Lathrop.
    
      11. 8. MeCall [Peter A.. Delaney of counsel], for the appellants.
    
      James dr. Madigan [Andrew J. Ifellis and Isaiah, Fellows of counsel], for the respondent.
   Kellogg, J.:

■ The cause of action created by section 1843 of the Code of Civil Procedure against the heirs or devisees to recover an indebtedness, existing against the person from whom they acquired the propérty can only be maintained against the direct heirs and devisees, and cannot be maintained against the heirs or devisees of such heirs or devisees. (Rogers v. Patterson, 79 Hun, 483; affd., 150 N. Y. 560.) The complaint, therefore, does not state .a cause of action -against the heirs bf Elizabeth Lathrop, nor against any of the defendants on account of their inheritance from Eobert Dunlop, the uncle.

With reference to the second alleged cause of action, it is not clear that Elizabeth Latlirop was charged with personal liability for the' payment of the mortgage existing upon the homestead and the O’Leary farm. It is clear that she took the homestead subject to the mortgage, and that the homestead was the fund first available for the payment of that mortgage. This would be so without reference to the partition deed. The mortgage covering both properties would be charged against them in the inverse order of alienation, so that after the conveyance to O’Leary the homestead remaining to the grantor must first. be sold to pay the mortgage debt before the O’Leary place.- The provision in the judgment was necessary, however, to show that the amount of the mortgage had been carved out of the homestead before its • allotment. Elizabeth Latlirop, when made a party to the partition action, was bound by the judgment so far that she could receive .none of the real estate except such as was allotted to her -by the judgment. ' She was not called upoti to renounce her inheritance, nor could she unwillingly be forced to imperil her other property as a condition of receiving the inheritance. It is at-least doubtful whether the partition judgment could -charge upon her personally a liability after the mortgaged premises were applied to pay the debt. The allegation in the complaint that it was mutually stipulated in the judgment, for the benefit of O’Leary, that Elizabeth Latlirop was to pay the mortgage, we treat as a conclusion of the pleader merely, and not as enlarging the terms or conditions of the allotment as recited. If, however, we assume that the partition judgment charged upon her a personal liability for the payment of the mortgage debt, it is not clear within the case of Vrooman v. Turner (69 N. Y. 280) that the plaintiff may bring an action in her own name to recover thereon'. But if we assume otherwise, the action on said judgment would be against the estate only, and no cause of action is stated against her heirs thereon.

The complaint has attempted to unite a cause of action under the statute against all the defendants with a cause of action against the estate of Elizabeth Lathrop and her heirs arising from a separate, independent agreement. Such joinder is not permitted by section 484 of the Code of Civil Procedure. That section, by its terms, relates-to the joinder of “two dr more causes of action, whether they are such as were formerly denominated legal or equitable, or both,” and to justify such joinder it must appear from the complaint, except as otherwise prescribed by law, that they affect all the parties to the action.” The exception referred to relates mainly to mortgage foreclosures. (Nichols v. Drew, 94 N. Y. 22, 26.) It is clear that the first cause of action mentioned does not affect the heirs . of Elizabeth Lathrop, and the second alleged cause of action affects her executrix only. Blending two or more causes of action together in a single count does not prejudice the rights of the defendant to this demurrer. (O’Connor v. Virginia Passenger & Power Co., 184 N. Y. 46.) A joinder of two causes of action which- is not permitted cannot be justified by contending that the action is for equitable relief, for the reason that this Code provision applies to legal and equitable actions alike. (O’Connor Case, supra ; People v. Equitable Life Assurance Society, 124 App. Div. 714, 728, 729 ; Case v. New York Mutual Savings & Loan Assn., 88 id. 538.) If two'or more causes of action are fairly foreshadowed, it is no answer to this demurrer that a valid cause of action is not alleged. (O’Connor Case, supra.)

We may consider the first cause of action as purely statutory and as of an equitable nature, the effect of which is really to charge the land of the debtor for the proceeds thereof. (Mortimer v. Chambers, 63 Hun, 335.) But the second cause of action is simply an' action on contract in which money damages only can be awarded. Ho equitable relief is necessary or proper. In the first or equitable action no liability is shown against the executrix. There is no reason, equitable or otherwise, why the action against the executrix for money only should be joined with the action against the heirs at law for special relief. The rule stands that in order to justify a joinder of causes of action it must appear that they affect all the parties to the action. Section 454 of the Code of Civil Procedure provides that two or more persons severally liable -upon the same written instrument may all or any of them be included as defendants in the same action. A lessee and the guarantor on his lease cannot be joined in the same action, for the reason that each is liable on a several contract and the cause of action against him does not affect the other. (Roehr v. Liebmann, 9 App. Div. 247.) The maker :and guarantor of a note cannot be joined in the same action for the' reason that they are severally liable on separate contracts. (Barton v. Speis, 5 Hun, 60.)

The statutory liability is by its terms limited to the extent of the estate, interest or right in the real property which descended to the party sought to be charged.

We are assuming that the estate of Elizabeth Lathrop is a party here solely for the purpose of charging it with liability under the partition judgment. We have not considered the question whether the personal representatives of an heir can be made liable under this section for the indebtedness, for the reason that neither the record nor the briefs put that question squarely before us. It appears that all the property set apart to Elizabeth was lost to her and her grantee by l'eason of the mortgage which was charged upon it when it came to her. The foreclosure judgment, April 28,1896, showed $13,429.75 due on the mortgage. We must assume the property was sold in the inverse order of alienation. The O’Leary place brought upon the foreclosure $5,000, all of which apparently was required by the judgment. The partition judgment was entered June 5, 1875, and Jessie Dunlop. Empson died October 29, 18.74. The amount, principal and interest, of the $8,000 mortgage was charged by the partition judgment upon the homestead. We do .not know whether any interest had been paid upon it between the death of the decedent and the judgment; therefore, we cannot say what the charge upon the land was at the time it came to Elizabeth Lathrop. ' If the judgment in foreclosure required the $5,000 from the O’Leary place, it is apparent that the homestead brought but a trifle over $8,000 if the foreclosure judgment was paid in full. We are not informed whether Elizabeth Lathrop guaranteed the title in' her deed to Holden, or what consideration she received therefor. It inay be that the consideration received was nominal, for the reason that in fact the property conveyed had no substantial value above the mortgage, or if she guaranteed her title, that the entire amount of the purchase price is a charge against her estate.

The allegation in the complaint that the real estate of Jessie Dun-lop Empson was worth $50,000 gives us but very little assistance. It appears there was no personal estate at least applicable to paying debts of the class with this mortgage, and it appears that the $50,000 of real, estate was .at least charged with the mortgage debt. There is no intimation what other debts existed, and there is no allegation which shows that Elizabeth Lathrop acquired any substantial value by having this property set off to' her subject to the mortgage thereon.. Until the material facts more .fully appear it cannot be understood how the alleged inheritance of Elizabeth Lathrop of one-third of $50,000 of real estate was swallowed up by the foreclosure of a mortgage which took about $8,000 therefrom. The most natural assumption is that while the value of the land was $50,000, the debts properly chargeable against it reduced that value-to a very insignificant sum, or some other circumstance has intervened which has destroyed the value of the property set off to Elizabeth Lathrop. If the latter were the fact it should have been alleged. It does not appear whether any or all of the property set off to the other heirs was heavily incumbered, or what the terms .of partition were with reference to such incumbrances,.if any. From the complaint, therefore, it cannot be determined to what extent, if any, Elizabeth Lathrop acquired property from the deceased, and, therefore, to what extent she was liable. (Neil v. Rosenthal, 120 App. Div. 810; Storr v. Central Bedding Co., 55 Misc. Rep. 398.) At the best we áre left to conjecture as to whether there is any liability against the estate of'Elizabeth Lathrop outside of the partition judgment. If the plaintiff is to proceed' upon the theory of charging upon her estate a part of the indebtedness, without reference to the partition judgment, the facts may more fully appear hereafter, and the proper legal rule may then be applied.

The interlocutory judgment is, therefore, reversed, with costs, and'tlie demurrers sustained, with costs,, with leave to the plaintiff, after payment of such costs, to make such application, within twenty days, at Special Term, as she may be advised.

All concurred, except -Chestbb, J., dissenting.

Interlocutory judgment reversed, with costs, and the demurrers ■ sustained, with costs, with leave to plaintiff to make such proper application -to the Special Term as she may be advised. _  