
    Clarissa Weatherwax Conkling, Respondent, v. John T. Weatherwax and Others, Defendants, Impleaded with Hannah M. Hidley, Appellant, and Emily A. Tompkins, Respondent.
    
      Legacy, charged on real property — in an action to enforce the lien the non-payment of the legacy must he proved — declarations of the devisee do not hind his mortgagee —proof of demand of payment does not establish non-payment — an allegation of non-payment is necessary, although payment is an affirmative defense — when proof of non-payment is essential.
    
    A legatee whose legacy is, by the terms of the will, made a lien upon real property devised thereunder, must, in an action brought against the devisee’s successors in title and the holder of a mortgage1 executed by the devisee, in order to establish the lien of the legacy and to have the land sold in satisfaction thereof, prove as a part of her substantive case that the legacy is a subsisting lien and remains unpaid.
    This is so, whether the action is brought under section 1819 of the Code of Civil Procedure or is the ordinary one in equity.
    Declarations of the devisee, to the effect that the legacy had not been paid, are competent against the devisee himself and his representatives, but are not competent as against the devisee’s mortgagee.
    Mere proof of demand of payment is not proof of actual non-payment.
    In ordinary actions at law for money, while a breach must be alleged, payment is an affirmative defense which must be pleaded and proved. This rule, however, does not relieve the plaintiff from proof of non-payment, where the failure to pay is an essential element of the right of recovery.
    Smith, J., dissented.
    Appeal by the defendant, Hannah M. Hidley, from a judgment of the Supreme Court in favor of the plaintiff, and the defendant Emily A. Tompkins, entered in the office of the clerk of the county of Rensselaer on the 28th day of April, 1903, upon the decision of the court, rendered after a trial at the Rensselaer Special Term, adjudging the lien of certain legacies of the respondents to be superior to the liens of the other parties to the action upon real property devised by the will of Henry Weatherwax, deceased.
    
      Robert E. Whalen, for the appellant.
    
      Henry D. Merchant, for the respondent Conkling.
    
      Abel Merchant, Jr., for the respondent Tompkins.
   Houghton, J.:

The Court of Appeals in its decision of this case (173 N. Y. 43) has eliminated all questions arising therein except the one growing out of the second trial, as to whether it was necessary for the plaintiff to prove that her legacy remained unpaid, and if that burden was upon her whether she proved that fact by competent evidence.

By the will of Henry Weatherwax, deceased, the legacies to plaintiff and to her sister, Emily A. Tompkins, respondent herein? were made a lien upon the farm devised to Charles Weatherwax, who is now deceased. During his lifetime he mortgaged the premises to appellant Hidley. The lien of this mortgage is subordinate to that of the legacies, the payment of which is sought to be enforced. The action is in equity to. establish the lien of the legacies and to obtain a decree of sale of the land for their satisfaction.

We think it was incumbent on the plaintiff to prove as a part of her substantive cause of action that her legacy was a subsisting lien and remained unpaid. If the action be deemed one under section 1819 of the Code of Civil Procedure, this is clearly so, for that section provides the action can be maintained only after demand and refusal of payment. If the action be considered an ordinary one in equity, the rule is the same. The plaintiff’s position is not different in principle from that of a creditor seeking to charge heirs and devisees to the extent of the property received by them with the debts of their ancestor or testator. In such a case the plaintiff must aver and prove all the facts which make them liable under the statute, including lapse of time, non-payment and lack of assets, as well as receipt of property. (Selover v. Coe, 63 N. Y 438; Brater v. Hopper, 77 Hun, 244.) In ordinary actions at law for money, while breach must be alleged, payment is an affirmative defense" which must be pleaded and proved; but this rule does not relieve the plaintiff from proof of non-payment where failure to pay is an essential element to the right of recovery. (Lent v. New York & Mass. R. Co., 130 N. Y. 504.) In an action against the guarantor of a mortgage it is incumbent on the plaintiff not only to aver but to prove that the mortgage guaranteed has not been paid.

(Schlesinger v. Hexter, 2 J. & S. 499.) The distinction in the rule as to proof of non-payment in equitable actions to enforce a lien and in ordinary actions for recovery of money, is shown by the fact that in an action for the foreclosure of a mortgage given as collateral to a bond, non-payment upon the bond must be proved, while in an action on the bond alone this is unnecessary. (Coulter v. Bower, 11 Daly, 203; Davies v. New York Concert Co., 41 Hun, 492.)

In the present case the plaintiff seeks to enforce a collateral which the testator provided for the payment of her claim. The right to resort to the collateral depends upon whether there remains anything due her on her legacy. She is not suing the devisee because he became liable to pay her legacy by accepting the devise, nor is she seeking to enforce payment from his representative, for his representative, as such, is not a party to the action.

Although the plaintiff now asserts that she was not obliged to prove non-payment, yet on the trial she evidently recognized that-this burden was upon her, for she sought to prove the fact by declarations of the devisee to the effect that the legacies had not been paid. While such declarations would have been competent against the devisee himself and would be competent against his representatives, were they made parties to the action, they were mere hearsay as against the devisee’s mortgagee, this appellant, and were improperly received as against her. , The declarations of an assignor of a mortgage made while he was the owner are inadmissible against his assignee to defeat his title or establish equities in favor of the mortgagor. (Merkle v. Beidleman, 165 N. Y. 21.) Such declarations must be equally inadmissible to establish the existence of a lien prior to that of his mortgagee or to enlarge its amount.

If the plaintiff has a lien existing and,prior to that of the mortgage of the- appellant, she must establish it by common-law evidence aside from such declarations. The non-payment of the legacy being a fact incumbent upon the plaintiff to prove, evidence upon that subject was material, and appellant’s objection to such declarations as against herself was well taken. Mere proof of demand of payment was no proof of actual non-payment. There being no other evidence of non-payment in the case other than these inadmissible declarations, it follows that the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

The judgment being reversed, the order appealed from becomes • inoperative, and the appeal therein should be dismissed, without costs.

All concurred, except Smith, J., dissenting, and Chester, J., not voting.

Judgment reversed and new trial granted, with costs to appellant to abide event.  